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Name: In re Antoinette S.
Case #: G030583
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/31/2002
Subsequent History: None

Prior to the 366.26 hearing in this case, father told the social worker that he believed he had Native American ancestry through his maternal grandparents. He did not know whether they were members of any tribe, and was not even sure of their names. The Department sent notice to the BIA and the Department of the Interior regarding the minor’s possible Indian heritage, with as much information noted as father could provide. At the 366.26 hearing, no one raised the issue of Indian ancestry and the court terminated parental rights. On appeal, father argued that the court erred by holding the termination hearing without waiting ten days after the receipt of the notice by the Secretary of the Interior, and that reversal was required because the error was jurisdictional. The appellate court here disagreed, finding that the error is not jurisdictional. The failure to ensure a 10-day window was harmless. Father’s suggestion that Antoinette “might” be an Indian child was enough to trigger application of the ICWA in this case, and father’s failure to raise the ICWA notice requirement at the 366.26 hearing did not waive the issue on appeal. However, the response from the BIA which was sent the day before the 366.26 hearing shows that Antoinette was not an Indian child, and father was unable to provide any further information.