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Name: In re E.H.,
Case #: D073635
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/07/2018

Reversal and remand of parental rights termination was required where Agency’s lack of notice to the Tohono O’odham Nation was not harmless error. Mother appealed a judgment terminating her parental rights, arguing that the court erred because it failed to ensure the Agency fully complied with the inquiry and notice requirements of ICWA. Mother contended that the Agency failed to inquire of the minor’s maternal great-grandmother Sally Y.H., in order to obtain information pertaining to Sally Y.H.’s father, and then failed to provide notice of such information to the Tohono O’odham Nation. Mother contended that the failure to provide notice to the tribe was prejudicial because Sally Y.H.’s father was likely the source of the minor’s possible Indian heritage. The Agency responded by contending it was unlikely that Sally Y.H. had failed to provide information about her father, and it was likely an individual referred to as Bruno Y., named in the ICWA notice, was in fact Sally Y.H.’s father. The Agency said its designation of Bruno Y. as the minor’s 3x maternal grandfather (rather than her great-great-grandfather) in the ICWA notice was a typographical error and would not have altered the tribe’s determination of the minor’s status. The appellate court agreed with mother and remanded the case. Considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and provide that information to the tribe. The Agency did not fulfill that duty by providing the tribe with information pertaining to Bruno Y. since it was not clear from the record that Bruno Y. was Sally Y.H.’s father. Even if Bruno Y. is Sally Y.H.’s father and the minor’s great-great-grandfather, the Agency failed to properly describe his relationship to the minor on the notice provided to the tribe. It cannot be concluded that the errors were harmless, and therefore remand was required for the limited purpose of providing the Tohono O’odham Nation with proper notice, including accurate information pertaining to all known direct lineal ancestors of the minor.