Filed 9/7/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.H., a Person Coming Under the 

Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

SALLY H.,

Defendant and Appellant.

 D073635

 (Super. Ct. No. SJ13241)

APPEAL from a judgment of the Superior Court of San Diego County, 

Michael J. Popkins, Judge. Reversed and remanded with directions.

Dennis G. Temko, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
2

I

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 

 

1 Sally Y.H. told the Agency that "her paternal family did have Papago heritage." 

The Papago Tribe is now known as the Tohono O'odham Nation. In the interest of 

clarity, we refer to the tribe as the Tohono O'odham Nation throughout this opinion.
3

referred to as Bruno Y.2 in the ICWA 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 information 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 

 

2 Bruno Y.'s last name appears on the notice. We have omitted his last name, along 

with all last names in this opinion, in an effort to preserve the family's privacy interests.
4

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 filed 

a dependency petition alleging that the parents were unable to care for E.H. due to their 

 

3 Mother also contends that the notice that the Agency provided to the Tohono 

O'odham Nation was deficient for several additional reasons, including that the Agency 

erred in listing her current address as being "no information available," and in failing to 

update the notice when information about her residence became available. In light of our 

reversal, we need not consider these contentions, but we direct the juvenile court to 

ensure that the Agency provides Mother's correct current address at the time of noticing 

upon remand, if known.

In addition, Mother contends that the Agency provided the tribe an incorrect 

address for Sally Y.H. The Agency concedes that the address that it provided for Sally 

Y.H. contained typographical errors, including listing the city of her residence as 

" 'Alpaso' " rather than " 'El Paso,' " but argues that any errors were harmless. In support 

of its harmlessness argument, the Agency asks this court to take judicial notice of the fact 

that "El Paso is a city in the state of Texas and Alpaso is not." The juvenile court is 

directed to ensure that the Agency provides Sally Y.H.'s correct current address at the 

time of noticing upon remand, if known. We deny the Agency's request for judicial 

notice as moot.

Finally, Mother states that the Agency was required to list Mother's and Sally 

Y.H.'s telephone numbers on the notice that it provided to the Tohono O'odham Nation. 

On remand, the juvenile court shall direct the Agency to provide Mother's and Sally 

Y.H.'s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that 

notice sent to a tribe shall include "[a]ll names known of the Indian child's biological 

parents . . . and great-grandparents . . . as well as their current and former addresses, 

birthdates, places of birth and death, tribal enrollment numbers, and any other identifying 

information, if known"], italics added; unless otherwise specified, all subsequent statutory 

references are to the Welfare and Institutions Code.)

4 In light of the limited issue raised on appeal, we provide an abbreviated summary 

of the dependency proceedings. We discuss the relevant factual and procedural 

background related to Mother's ICWA claim in part III.A, post.
5

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 

 

5 Father is not a party to this appeal.
6

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 greatgreat-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 failed 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

 

6 While the form listed Sally Y.H. as E.H.'s "maternal grandmother," it is clear from 

the record that Sally Y.H. is E.H.'s maternal great-grandmother.
7

That 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:

"[Sally Y.H.] reported that her paternal family did have Papago 

heritage, which is now known as T[o]hono O'odham, but said that 

she was not a registered member of the tribe, nor did she believe that 

her father was, and neither she nor her family received any services 

from the tribe. She provided this worker with her identifying 

information required for further ICWA noticing."

Mother signed a "Parental Notification of Indian Status," form indicating that she 

might have American Indian ancestry, that same month. On a space next to the words, 

"Name of tribe(s):" Mother wrote, "Papago [Tohono O'odham Nation] on Maternal Side."

On April 14, 2016, the Agency sent a "Notice of Child Custody Proceeding for 

Indian Child," form (ICWA Notice) to the Tohono O'odham Nation. The ICWA Notice

lists Sally Y.H. as E.H.'s maternal great-grandmother. The notice lists Sally Y.H.'s 

birthdate, and states that her birthplace was "Ysleta Alpaso Texas."7 In addition, in a box 

on the form marked, "Tribe or band, and location:" the ICWA Notice states, "Tohono 

O'odham Nation, AK Chin Indian Community Apache." The notice also indicates that 

Sally Y.H. was "[n]ot enrolled," in a tribe.

 

7 Mother argues on appeal that the ICWA Notice incorrectly lists Sally Y.H.'s 

address as being in "Alpaso," but Mother did not specifically note the additional apparent 

error on the ICWA Notice with respect to Sally Y.H.'s birthplace as being in "Alpaso," 

rather than El Paso. In providing the additional ICWA notice required by this court on 

remand, the juvenile court is directed to ensure that the Agency properly lists Sally Y.H.'s 

city of birth.
8

In a space on the ICWA Notice entitled, "Other relative information (e.g., aunts, 

uncles, siblings, first and second cousins, stepparents, etc.)," the form contains 

information about four people, including a person identified as Bruno Y. In a space 

labeled, "Name/relationship to child," the ICWA Notice states, "Bruno [Y.],[8] 3xgreat 

maternal grandfather." In the space marked, "Birth date and place," the notice states, 

". . . , El Paso Texas - Death Date: . . ."9 In a space marked, "Tribe, band, and location,"

the notice states, "Papago [Tohono O'odham Nation]."

In a space on the ICWA Notice pertaining to the Mother, under the listing of 

"Additional Information," the form states in relevant part:

"On 3/04/2016 this worker called the maternal great-grandmother 

[Sally Y.H.] and was provided with the mother's and maternal 

grandmother's information as noted on sections 5c. . . . The maternal 

great[-]grandmother did not have information relating to the 

maternal grandfather other than his name [M.R.]. The maternal 

great-grandmother provided her information as noted on section 5d 

and only had the maternal great-grandfather's name and place of 

birth [J.H.] born in San Mateo, CA. The maternal greatgrandmother answered questions 7a-c and provided this worker with 

the relative information for Bruno [Y., J.L. and A.Y.] and informed 

this worker that she would gather more information such as birth 

dates and place[s] and call me with the information. The maternal 

great[-]grandmother provided this worker with the [maternal]

grandmother's phone number.

[10] [Agency worker's name.]

 

8 As noted in footnote 2, ante, the ICWA Notice contains the full last name.

9 The birth date and date of death are listed on the form.

10 A telephone number is listed in the form.
9

"3/04/2016- This worker left a message for the mother at . . .[11]

asking for a returned call at the number left on this voice mail. -

[Agency worker's name.] [¶] . . . [¶]

"3/08/2016 This worker received a phone call from the maternal

great-grandmother and she provided this worker with birthdates,

death dates as stated on section 7c.[12] - [Agency worker's name.]"

The ICWA Notice did not indicate who Sally Y.H.'s father was, or designate any 

person as E.H.'s great-great-grandfather. 

In July 2016, the Agency received a letter from the Tohono O'odham Nation. The 

letter stated in relevant part:

"The [ICWA] requires that a child be either a member of an Indian

tribe or eligible for membership in an Indian tribe and the biological 

child of a member of an Indian tribe before an Indian child's tribe is 

allowed to intervene in the proceedings. According to the records of 

the Nation's Enrollment Office, the above referenced child [E.H.] is 

not a member of the Nation. The parents, identified respectively as 

[Mother] . . . (DOB . . .) and [E.V.]. . . (DOB: . . . ), are also not 

members of the Nation.

"Based on the information provided, the Nation is not the Indian 

child's tribe for purposes of these proceedings. However, if 

additional information is received regarding membership or 

eligibility for membership, the Nation will assess that information 

and seek intervention if appropriate."

In August 2016, the juvenile court found that the ICWA did not apply. The 

juvenile court also found that the ICWA did not apply in February 2018 at the hearing 

terminating Mother's parental rights.13

 

11 A telephone number is listed in the form.

12 It appears that the worker intended to refer to section 7d, since this is the place on 

the ICWA Notice pertaining to Bruno Y. and three other relatives listed. Section 7c 

contained no information.
10

B. Governing law

1. Overview of relevant law

"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's 

over the consequences to Indian children, Indian families, and Indian tribes of abusive 

child welfare practices that resulted in the separation of large numbers of Indian children 

from their families and tribes through adoption or foster care placement, usually in nonIndian homes.' " (In re Isaiah W. (2016) 1 Cal.5th 1, 7 (Isaiah W.).) In In re Abbigail A.

(2016) 1 Cal.5th 83 the California Supreme Court explained the manner by which ICWA 

addressed these concerns:

"ICWA addresses these concerns by establishing 'minimum Federal 

standards for the removal of Indian children from their families and 

the placement of such children in foster or adoptive homes which 

will reflect the unique values of Indian culture, and by providing for 

assistance to Indian tribes in the operation of child and family 

service programs.' " (Id. at p. 90.)

"After the enactment of ICWA, the BIA [Bureau of Indian Affairs] issued 

nonbinding guidelines in 1979 to assist state and tribal courts with the interpretation of 

the act. (See BIA Guidelines for State Courts; Indian Child Custody Proceedings (44 

Fed.Reg. 67584 et seq. (Nov. 26, 1979)).)" (In re A.F. (2017) 18 Cal.App.5th 833, 844, 

fn. 9 (A.F.).) The BIA also issued ICWA related regulations in 1994. (See ICWA, 59 

Fed.Reg. 2248 (Jan. 13, 1994) and additional regulations in 2016; ICWA 81 Fed.Reg. 

38778 (June 14, 2016).)

 

13 Specifically, the minute order for the hearing states, "Notice pursuant to the 

[ICWA] is not required because the court knows the child is not an Indian child. 

Reasonable inquiry has been made to determine whether the child is or may be an Indian 

child."
11

In addition to federal regulations, "[i]n 2006, our state Legislature 'incorporated 

ICWA's requirements into California statutory law.' [Citation.] 'ICWA's many 

procedural requirements for juvenile dependency and delinquency cases are found in

sections 224 through 224.6.' " (In re J.L. (2017) 10 Cal.App.5th 913, 918.)

2. Relevant ICWA related law governing the Agency's duty to inquire and duty to 

provide notice that proceedings may involve an Indian child

In Isaiah W., supra, 1 Cal.5th 1, the California Supreme Court explained that 

"ICWA's notice requirements serve two purposes. First, they facilitate a determination of 

whether the child is an Indian child under ICWA. . . . [¶] Second, ICWA notice ensures 

that an Indian tribe is aware of its right to intervene in or, where appropriate, exercise 

jurisdiction over a child custody proceeding involving an Indian child." (Id. at p. 8.)

"Notice to the . . . the Indian child's tribe is required by ICWA in state court 

proceedings seeking . . . termination of parental rights 'where the court knows or has 

reason to know that an Indian child is involved.' (25 U.S.C. § 1912(a).)" (In re Elizabeth 

M. (2018) 19 Cal.App.5th 768, 784.) "[A]lthough ICWA itself does not define 'reason to 

know,' California law, which incorporates and enhances ICWA's requirements, identifies 

the circumstances that may constitute reason to know the child is an Indian child as 

including, without limitation, when a person having an interest in the child, including a 

member of the child's extended family, 'provides information suggesting the child is a 

member of a tribe or eligible for membership in a tribe or one or more of the child's 
12

biological parents, grandparents or great-grandparents are or were a member of a 

tribe.' "14 (Ibid., fn. omitted.)

Where the Agency "knows or has reason to know that an Indian child is involved, 

the social worker . . . is required to make further inquiry regarding the possible Indian 

status of the child, and to do so as soon as practicable, by . . . contacting . . . any . . . 

person that reasonably can be expected to have information regarding the child's 

membership status or eligibility." (§ 224.3, subd. (c).)

3. Relevant law governing providing information related to a minor's greatgreat-grandparents in an ICWA notice

At the time the juvenile court first found that the ICWA did not apply in this case, 

the Code of Federal Regulations provided in relevant part, "In order to establish tribal 

identity, it is necessary to provide as much information as is known on the Indian child's 

direct lineal ancestors including, but not limited to, the information delineated in 

paragraph (d)(1) through (4) of this section.[15]" (25 C.F.R. former § 23.11(b) (2016), 

italics added.)

 

14 The Agency does not dispute that its duty to inquire was triggered in this case by 

Mother and Sally Y.H.'s statements that their family had American Indian heritage.

15 25 Code of Federal Regulations former section 23.11(d) (2016) provided in 

relevant part:

"(1) Name of the Indian child, the child's birthdate and birthplace.

"(2) Name of Indian tribe(s) in which the child is enrolled or may be 

eligible for enrollment.

"(3) All names known, and current and former addresses of the 

Indian child's biological mother, biological father, maternal and 

paternal grandparents and great grandparents or Indian custodians, 

including maiden, married and former names or aliases; birthdates; 
13

In December 2016, new regulations became effective that similarly provide that an 

ICWA notice shall include, "[i]f known, the names, birthdates, birthplaces, and Tribal 

enrollment information of other direct lineal ancestors of the child, such as 

grandparents . . . ." (25 C.F.R. § 23.111 (d)(3) (2018), italics added.)

California courts have held that a child welfare agency is required to provide 

information pertaining to a minor's great-great-grandparent in an ICWA notice if such 

information may be relevant in establishing the minor's American Indian heritage. (In re 

C.B. (2010) 190 Cal.App.4th 102, 147 (C.B.) ["[I]nformation concerning the children's 

great-great-grandfather George Senna was not previously included in the notices sent to 

the Seneca tribes. ' "[T]o establish tribal identity, it is necessary to provide as much 

information as is known on the Indian child's direct lineal ancestors." (Citations.)' "]; In 

re S.E. (2013) 217 Cal.App.4th 610, 615 (S.E.); but see In re J.M. (2012) 206 

Cal.App.4th 375, 380 (J.M.) ["federal regulations do not require the disclosure of 

information concerning ancestors more remote than great-grandparents"].) The S.E. court 

specifically rejected a child welfare agency's argument that it was not required to include 

information pertaining to a minor's great-great-grandparent:

"Mother contends that DCFS's [the Los Angeles Department of 

Child and Family Services] failure to state the name of S.E.'s greatgreat-grandfather rendered the notice given inadequate. DCFS 

responds on appeal that it has no obligation to include information 

about ancestors as remote as great-great-grandparents in ICWA 

notices, as evidenced by the fact that there is no designated space for 

 

places of birth and death; tribal enrollment numbers, and/or other 

identifying information.

"(4) A copy of the petition, complaint or other document by which 

the proceeding was initiated."
14

such ancestors on the ICWA notice forms promulgated by the

Judicial Council of California.[16] [¶] Although we are 

sympathetic to DCFS's contention that Mother's objection will result 

in regrettable delay in the proceedings, we cannot say that the failure 

to thoroughly investigate the child's Indian heritage constitutes 

harmless error. The information which was omitted here pertained 

directly to the ancestor Mother and the maternal grandmother 

affirmatively claimed was Indian. Under these circumstances we 

cannot say that the omission was harmless and that providing the 

ancestor's name might not have produced different results 

concerning the child's Indian heritage." (S.E., at p. 615.)

We are aware that in J.M., supra, 206 Cal.App.4th 375, the Court of Appeal 

concluded that federal law did not require the disclosure of information concerning 

ancestors more distant that great-grandparents. (Id. at p. 380.) After quoting 25 Code of 

Federal Regulations former section 23.11(d)(3) (2012)17 and 25 Code of Federal 

Regulations former section 23.11(b) (2012),18 the J.M. court interpreted the latter 

 

16 As was the case with the form used in S.E., the form adopted by the Judicial 

Council of California and used by the Agency in this case does not have a designated 

space for information pertaining to great-great-grandparents. While the form contains a 

section entitled "Other relative information (e.g., aunts, uncles, siblings, first and second 

cousins, stepparents, etc.)," we suggest that the Judicial Council update the form to make 

reference to "other direct lineal ancestors of the child," (25 C.F.R. § 23.111(d)(3) (2018)) 

since notice must be provided with respect to such individuals, if known, under "binding" 

federal regulations issued by the federal government in 2016. (A.F., supra, 18 

Cal.App.5th at p. 844, fn. 9 [noting "binding" nature of regulations issued in 2016].)

17 "Federal regulations require the notice to include '[a]ll names known . . . of the 

Indian child's biological mother, biological father, maternal and paternal grandparents 

and great[-]grandparents or Indian custodians, including maiden, married and former 

names or aliases; birth dates; places of birth and death; tribal enrollment numbers, and/or

other identifying information.' (25 C.F.R. [former] § 23.11(d)(3) (2012)[.])" (J.M., 

supra, 206 Cal.App.4th at p. 380.)

18 "Federal regulations, however, additionally provide that '[i]n order to establish 

tribal identity, it is necessary to provide as much information as is known on the Indian 

child's direct lineal ancestors including, but not limited to, the information delineated at 
15

regulation as follows: "We interpret this regulation to mean that notice must include, but 

is not limited to, the names, birth dates, places of birth and death, and tribal enrollment 

numbers of parents, grandparents and great-grandparents, and that additional identifying 

information about these ancestors must be given if known. We do not interpret this 

regulation to override the provision that notice is required to include information about 

ancestors no more remote than the dependent child's great-grandparents." (J.M., at 

p. 381, italics added.)19

We do not find the J.M. court's interpretation persuasive. In cannot be disputed 

that a child's great-great-grandparent is a direct lineal ancestor, and that 25 Code of 

Federal Regulations former section 23.11(b) (2012) required the provision of "as much 

information as is known on the Indian child's direct lineal ancestors . . . ."20 

 

paragraph (d)(1) through (4) of this section.' " (J.M., supra, 206 Cal.App.4th at p. 381, 

italics added in J.M.)

19 The text of the regulations discussed by the J.M. court, 25 Code of Federal 

Regulations former section 23.11(b) and (d)(3) (2012), is identical to 25 Code of Federal 

Regulations former section 23.11(b), (d)(3) (2016).

20 While not discussed by the J.M. court, 25 Code of Federal Regulations former 

section 23.11(b) (2012), which contains the "direct lineal ancestors" language, pertained 

to the notice required to be given to the BIA in cases in which a minor's potential tribe 

could not be determined. However, the court in In re C.B., supra, 190 Cal.App.4th at 

page 147, cited this regulation in concluding that a child welfare agency committed 

reversible error in failing to provide a minor's potential tribe with information pertaining 

to the minor's great-great-grandparent. 

Moreover, current federal regulations expressly mandate the provision of 

information pertaining to a child's direct lineal ancestors, whether the information is 

contained in a notice sent to a potential tribe or to the BIA. As noted in the text, 25 Code 

of Federal Regulations section 23.111(d)(3) (2018), which outlines the information 

required to be provided to a child's potential tribe, now provides, "[i]f known, the names, 
16

Further, we see no support in the text of 25 Code of Federal Regulations former 

section 23.11(b) (2012) for the J.M. court's conclusion that the regulation requires only 

that additional identifying information be provided concerning the ancestors listed in 25 

Code of Federal Regulations former section 23.11(d)(3) (2012). (See 25 C.F.R. former 

§ 23.11(b) (2012) [mandating the provision of information including, but not limited to, 

the "information delineated at paragraph (d)(1) through (4) of this section"].) That is 

because "paragraph (d)(1) through (4) of this section [(i.e., 25 C.F.R. [former] 

§ 23.11(d)(1)-(4) (2012)]," is far broader than the list of the ancestors contained in 

25 Code of Federal Regulations former section 23.11(d)(3) (2012). 

Finally, while 25 Code of Federal Regulations former section 23.11(d) (2012) 

contains a list of information that must be provided (if known), the regulation did not 

indicate that the list was intended to be exclusive. Thus, the requirement in 25 Code of 

Federal Regulations former section 23.11(b) (2012) that the notice include information 

pertaining to direct lineal ancestors " 'including, but not limited to, the information 

delineated at paragraph (d)(1) through (4) of this section,' " did not "override" (J.M., 

supra, 206 Cal.App.4th at p. 381) the list of information required by 25 Code of Federal 

Regulations former section 23.11(d) (2012). Rather, as the text of the 25 Code of Federal 

Regulations former section 23.11(b) (2012) suggests (See ibid. ["including, but not

limited to"]), 25 Code of Federal Regulations former section 23.11(b) (2012) merely 

 

birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors 

of the child, such as grandparents . . . . " (25 C.F.R. § 23.111(d)(3) (2018).) Similarly, 

25 Code of Federal Regulations section 23.111(e) (2018) also requires that notice 

provided to the BIA include "as much information as is known regarding the child's 

direct lineal ancestors."
17

supplemented the information required to be provided by 25 Code of Federal Regulations 

former section 23.11(d) (2012).

4. Standard of prejudice in reviewing ICWA related errors

In In re Breanna S. (2017) 8 Cal.App.5th 636 (Breanna S.), the Court of Appeal 

explained that, in determining whether ICWA related error is prejudicial, "[I]t is essential 

to distinguish between violation of notice requirements imposed by ICWA itself and the 

federal regulations implementing it, on the one hand, and violations of state standards for 

inquiry and notice that are higher than those mandated by ICWA, on the other hand." (Id.

at p. 653.) The Breanna S. court explained further:

"As to the former, 'ordinarily failure in the juvenile court to secure 

compliance with the Act's notice provisions is prejudicial error.'

[Citations.] Any failure to comply with a higher state standard, 

however, 'must be held harmless unless the appellant can show a 

reasonable probability that he or she would have enjoyed a more 

favorable result in the absence of the error. [Citations.]' [Citation.]" 

(Ibid.)

The Breanna S. court also explained one reason why courts require strict 

compliance with ICWA requirements: 

"[V]igilance in ensuring strict compliance with federal ICWA notice 

requirements is necessary because a violation renders the 

dependency proceedings, including an adoption following 

termination of parental rights, vulnerable to collateral attack if the 

dependent child is, in fact, an Indian child. (See 25 U.S.C. § 1914 

['[a]ny Indian child who is the subject of any action for foster care 

placement or termination of parental rights under State law, any 

parent or Indian custodian from whose custody such child was 

removed, and the Indian child's tribe may petition any court of 

competent jurisdiction to invalidate such action upon a showing that 

such action violated [specified provisions of ICWA, including the 

provisions requiring notice and mandating the content of the 

notice]'].) ' "To maintain stability in placements of children in 
18

juvenile proceedings, it is preferable to err on the side of giving 

notice and examining thoroughly whether the juvenile is an Indian 

child." ' [Citation.]" (Breanna S., supra, 8 Cal.App.5th at pp. 653-

654.)

C. Application

Mother contends that, in light of evidence that Sally Y.H. "reported [to the 

Agency] that her paternal family did have [Tohono O'odham Nation] heritage," the 

Agency had a duty to inquire of Sally Y.H. as to her father's personal identifying 

information. We agree. (§ 224.3, subd. (c) [specifying Agency's duty to inquire of any 

person "that reasonably can be expected to have information regarding the child's 

membership status or eligibility"].) Further, the Agency had a duty to provide the

Tohono O'odham Nation with notice of the information it obtained from Sally Y.H. as to 

her father's identifying information to assist the tribe in determining whether E.H. was an 

Indian child under the ICWA. (See C.B., supra, 190 Cal.App.4th at p. 147; S.E., supra, 

217 Cal.App.4th at p. 615; 25 C.F.R. former § 23.11(b) (2016); 25 C.F.R. § 23.111(d)(3)

(2018) [mandating the provision of information pertaining to a child's "direct lineal 

ancestors"].)21

 

21 It appears likely that the 25 Code of Federal Regulations section 23.111 (d)(3)

(2018), which became effective in December 2016, applied to the juvenile court's ICWA 

nonapplicability finding issued at the February 2018 parental rights termination hearing. 

(See 25 C.F.R. § 23.143 ["None of the provisions of this subpart affects a proceeding 

under State law for foster-care placement, termination of parental rights, preadoptive 

placement, or adoptive placement that was initiated prior to December 12, 2016, but the 

provisions of this subpart apply to any subsequent proceeding in the same matter or 

subsequent proceedings affecting the custody or placement of the same child"]; In re E.R.

(2017) 18 Cal.App.5th 891, 896 ["newly published ICWA Regulations are not binding as 

to any orders made prior to December 12, 2016"], italics added.) However, we need not 
19

While the Agency contends that "relatives further removed in consanguinity than a 

great-grandparent were not required to be included in the ICWA notices under the federal 

or state statutes," as discussed ante, federal regulations and California case law establish 

that the Agency is required to provide notice of the personal identifying information of all 

"direct lineal ancestors," (25 C.F.R. former § 23.11(b) (2016); 25 C.F.R. § 23.111 (d)(3)

(2018)) including "great-great[-]grandparents," (S.E., supra, 217 Cal.App.4th at p. 615) if 

such notice is potentially relevant in determining whether a child is an Indian child under 

the ICWA. In this case, given Sally Y.H.'s statement to the Agency that her paternal 

family had Tohono O'odham Nation heritage, the Agency had a duty to inquire of Sally 

Y.H. as to her father's personal identifying information and to provide that information to 

the tribe.

The Agency also contends that it is likely that it did inquire of Sally Y.H. as to her 

father's identifying information and that it did provide information with respect to his 

identity on the ICWA Notice. The Agency argues:

"[B]ased on Bruno Y.'s age and date of death in comparison to Sally 

Y-H.'s date of birth—and their last names—it is likely that Bruno Y. 

was, in fact, Sally Y-H.'s father, not her grandfather; and that the 

Agency's designation of him as a " '3x great maternal grandfather' "

on the [ICWA Notice] was a typographical error. [Citation.]

Further, it is unlikely that Sally Y-H. would provide such detailed 

information about her grandfather and her great-great[-]grandfather 

and other far-removed relatives, and omit her own father."

 

decide that issue in this appeal, since even under the prior federal regulation (25 C.F.R. 

former § 23.11(b) (2016)) and California case law discussed in the text, the Agency was 

required to provide information to the tribe with respect to E.H.'s direct lineal ancestors 

where such information was relevant in determining whether she is an Indian child under 

ICWA.
20

We are not persuaded. While it is certainly possible that Bruno Y. was Sally 

Y.H.'s father, there is nothing on the ICWA Notice indicating that this is the case. Thus, 

we disagree with the Agency's contention that it is "clear Sally Y.H. provided all of the 

information she had regarding any of her relatives." Despite Sally Y.H.'s statement to the 

Agency that her paternal family had Tohono O'odham Nation heritage, the ICWA Notice 

does not reflect that the Agency asked Sally Y.H. for identifying information about her 

father.22 Further, even assuming that Bruno Y. is Sally Y.H.'s father, the Agency 

acknowledges that it improperly designated his degree of ancestral relationship with E.H. 

by stating that he was her great-great-great-grandfather, rather than her great-greatgrandfather.

We also reject the Agency's argument that, to the extent Bruno Y. was not Sally 

Y.H.'s father, Mother should have provided the name of Sally Y.H.'s father during "her 

argument on appeal." It was not Mother's duty to attempt to augment the record on 

appeal with such evidence. Rather, it was the Agency's duty to attempt to obtain Sally 

Y.H.'s father's information and to provide notice of this information before the 

termination of Mother's parental rights. (Breanna S., supra, 8 Cal.App.5th at p. 652

["Contrary to the Department's position on appeal, it was the social worker's duty to seek 

out this information, not the obligation of family members to volunteer it."].)

 

22 Since the record reveals that the Agency was in contact with Sally Y.H., and there 

is nothing in the record to indicate that Sally Y.H. lacked information about her father, it 

cannot be said that information about Sally Y.H.'s father was not ascertainable. The 

Agency does not argue otherwise.
21

With respect to prejudice, while the Agency's error is arguably one of federal 

dimension given its failure to provide the Tohono O'odham Nation with complete and 

accurate notice of the personal identifying information about the "direct lineal ancestors"

of E.H. who may have had tribal heritage (25 C.F.R. former § 23.11(b) (2016); 25 C.F.R. 

§ 23.111 (d)(3) (2018)), even assuming the state standard of prejudice applies, we cannot 

conclude that further inquiry and noticing of the tribe would not alter the result. Given 

that Sally Y.H. stated that her family had Tohono O'odham Nation heritage on her 

paternal side, the Agency's failure to include accurate information about her father in its 

ICWA Notice may have altered the tribe's determination as to whether E.H. was an 

Indian child. (See, e.g., Breanna S., supra, 8 Cal.App.5th at p. 654 [finding ICWA 

noticing error prejudicial where reviewing court "[could not] say with any degree of 

confidence that additional information concerning [a] relative . . . would not have altered 

the tribe's evaluation"].)23

We are not persuaded by the Agency's arguments that any errors in the notice were 

not prejudicial. The Agency argues that it is "unlikely that the Tohono O'odham Nation 

was impeded in its genealogical research," since its letter indicating that E.H. was not an 

Indian child indicated that it utilized the names and dates of birth of E.H. and her parents 

in determining that the tribe was not E.H.'s tribe for purposes of these proceedings.

 

23 The Agency makes no argument, and presents no evidence, suggesting that E.H. 

was ineligible for membership in the Tohono O'odham Nation irrespective of Sally Y.H.'s 

father's heritage, given the tribe's membership requirements.
22

This argument is unpersuasive since the letter from the Tohono O'odham Nation 

does not indicate the basis upon which the tribe made its determination as to E.H.'s Indian 

child status. Nor can we agree with the Agency's suggestion that the fact that the Tohono 

O'odham Nation did not ask for further information demonstrates that the Agency's error 

was harmless. The tribe was not required to ask the Agency to provide information that 

the record indicates the Agency should have reasonably attempted to obtain and provide 

to the tribe. Thus, we decline to find the Agency's error harmless simply because the 

tribe did not indicate that further information might have altered its determination, 

particularly given the other noticing errors acknowledged by the Agency. (Cf. 

Breanna S., supra, 8 Cal.App.5th at p. 655 ["once ICWA notice is required, as it plainly 

was in this case, we would be extremely reluctant under most circumstances to foreclose 

the tribe's prerogative to evaluate a child's membership rights without it first being 

provided all available information mandated by ICWA," and stating that such "reluctance 

is controlling here," given the absence of information on ICWA notices pertaining to a 

child's great-grandparents].)

Accordingly, we conclude that the Agency's ICWA related inquiry and noticing 

errors require reversal of the judgment terminating parental rights. We remand the case 

for the limited purpose of providing proper ICWA notice to the Tohono O'odham Nation.

IV

DISPOSITION

The judgment terminating mother's parental rights is reversed for the limited 

purpose of providing additional proper ICWA notice to the Tohono O'odham Nation, as 
23

follows. Upon remand, the juvenile court shall direct that the Agency provide the 

Tohono O'odham Nation with notice of the proceedings in this case together with 

accurate information pertaining to all known direct lineal ancestors of E.H., in 

accordance with all applicable law. If, after such notice is provided, the court finds that 

E.H. is an Indian child, the court shall proceed in conformity with the ICWA. If, after 

such notice is provided, the court finds that E.H. is not an Indian child, the judgment

terminating mother's parental rights shall be reinstated.

AARON, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.