San Diego Cnty. Health & Human Servs. Agency v. Sally H. (In re E.H.)

238 Cal. Rptr. 3d 1, 26 Cal. App. 5th 1058
CourtCalifornia Court of Appeal, 5th District
DecidedSeptember 7, 2018
DocketD073635
StatusPublished
Cited by17 cases

This text of 238 Cal. Rptr. 3d 1 (San Diego Cnty. Health & Human Servs. Agency v. Sally H. (In re E.H.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Diego Cnty. Health & Human Servs. Agency v. Sally H. (In re E.H.), 238 Cal. Rptr. 3d 1, 26 Cal. App. 5th 1058 (Cal. Ct. App. 2018).

Opinion

AARON, Acting P. J.

*1062I

INTRODUCTION

Sally H. (Mother) appeals a judgment terminating her parental rights to her child, E.H. Mother's sole claim on appeal is that that the juvenile court erred in terminating her parental rights because the court failed to ensure that the San Diego County Health and Human Services Agency (Agency) fully complied with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et. seq. ) and related law.

Among other alleged errors, Mother contends that the Agency failed to fulfill its duty to inquire of E.H.'s maternal great-grandmother, Sally Y.H., in order to obtain identifying information pertaining to Sally Y.H.'s father, and failed to provide notice of such information to an Indian tribe named the Tohono O'odham Nation. Mother further contends that the failure to provide notice of Sally Y.H.'s father's identifying information to the Tohono O'odham Nation was prejudicial because he was likely the source of E.H.'s possible American Indian heritage. In support of this contention, Mother notes that the record indicates that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O'odham Nation.1

The Agency responds by contending that it is "unlikely" that Sally Y.H. failed to provide information about her father to the Agency, that it is "likely" that an individual referred to as Bruno Y.2 in the *3ICWA notice was in fact Sally Y.H.'s father, and that the Agency's designation of Bruno Y. as E.H.'s "3x great maternal grandfather" (rather than her great-great-grandfather) in the ICWA notice was a "typographical error." Finally, the Agency contends that, assuming that Bruno Y. is not Sally Y.H.'s father, it is "unlikely" that the Agency's providing Sally Y.H.'s father's identifying information would have altered the tribe's determination of E.H.'s Indian status.

We agree with Mother that, 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 *1063information and to provide notice of any such information obtained to the Tohono O'odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O'odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.'s father. Moreover, if Bruno Y. is Sally Y.H.'s father, and E.H.'s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O'odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O'odham Nation, we cannot conclude that the Agency's errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O'odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3

II

PROCEDURAL BACKGROUND4

In February 2016, when E.H. was approximately one month old, the Agency *4filed a dependency petition alleging that the parents were unable to *1064care for E.H. due to their substance abuse difficulties.5 At the detention hearing that same month, the juvenile court declared E.H. a dependent of the court and removed her from Mother's custody. The court ordered that Mother receive reunification services and liberal, supervised visitation with E.H.

In May 2016, after a contested adjudication and disposition hearing, the court found the allegation in the petition to be true.

In June 2017, after a contested 12-month review hearing, the juvenile court terminated Mother's reunification services and set the matter for a parental rights termination hearing pursuant to section 366.26. In February 2018, the court terminated Mother's and Father's parental rights to E.H. and established a permanent plan of adoption.

Mother appeals from the judgment terminating her parental rights.

III

DISCUSSION

The record does not demonstrate that the Agency fulfilled its duty to inquire of Sally Y.H. with respect to her father's identifying information and to provide notice of any such information to the Tohono O'odham Nation

Mother claims that the Agency had a duty to inquire of Sally Y.H. as to the identifying information of Sally Y.H.'s father and to provide that information to the Tohono O'odham Nation. In her opening brief, Mother claims that the Agency was required to attempt to ascertain such information because the Agency had "knowledge the maternal great-great[-]grandfather [i.e., Sally Y.H.'s father] was the ancestry source [of E.H.'s American Indian Heritage], [but] did not inquire of [Sally Y.H.] who he was."

The Agency claims that it is unlikely that Sally Y.H. failed to provide the Agency with information about her father. Rather, the Agency contends that the person listed on the Agency's ICWA notice as Bruno Y. is likely Sally Y.H.'s father (and E.H.'s great-great-grandfather), and that his designation as E.H.'s great-great-great-grandfather is a typographical error. Finally, Agency contends that any failure on its part to provide information pertaining to Sally Y.H.'s father was harmless.

In reply, Mother contends that, to the extent the Agency contends that it received information from Sally Y.H. about Sally Y.H.'s father, the Agency *1065failed to properly designate him as E.H.'s great-great-grandfather on the ICWA notice. Mother further argues, "Since Bruno Y. was the ancestral link, his designation as some other person torpedoed [the] tribe's review."

A. Factual and procedural background

A February 2016 Agency form entitled "Indian Child Inquiry Attachment" indicates that Mother "reported that she believes her maternal grandmother [i.e., Sally Y.H.] has [Tohono O'odham Nation] heritage, but had no further information." The form also indicates that Sally Y.H. "reported that her family has Papago/T[o]hono O'odham heritage but was not registered with any tribe."6

*5That same month, the Agency filed a detention report that indicated that it was unknown whether E.H. was an Indian child and that the ICWA may apply. The report also indicated that Sally Y.H. had informed the Agency that the family had American Indian heritage as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
238 Cal. Rptr. 3d 1, 26 Cal. App. 5th 1058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-diego-cnty-health-human-servs-agency-v-sally-h-in-re-eh-calctapp5d-2018.