I'm about to reveal my ignorance of dependency law. But maybe the (somewhat) uninformed perspective of an outsider to this field may be helpful.
This case involves yet another ICWA appeal. A five-year old child (and his two-year old sister) are removed from their parents' home (for good reasons) in 2008. There are then over two years of services provided to the parents to try to reunify the family, but those fail. Meanwhile, the children are doing fine in foster care, and although the parents file an appeal of the termination order, the foster family wants to adopt the two-year old (who's now five) and the five-year old (now eight) is fast-tracked to be adopted by the same family. So the children will be together in a stable home with stable parents who love and care for them.
The only thing that stands in the way of the adoption is the pending appeal, but that gets dismissed on the merits in 2011. But father's got another appeal pending in which he claims that a slightly different order that terminated his parental rights was improper because the notice provisions of the Indian Child Welfare Act (ICWA) weren't strictly followed. It's not that notice wasn't provided, mind you. Father said that he had "Creek heritage" somewhere and would get back to the agency when and if he found out more information, and the state accordingly provided notice to a plethora of Creek tribes, none of whom were interested in the case or the child. But the form that the state sent out didn't provide information about Father's own parents, grandparents, etc., because the state didn't do the type of investigation required by ICWA. So the form was incomplete.
Justice Siggins writes an opinion in which he is critical -- appropriately, in my view -- of the Alameda County Counsel's office for defending the appeal with arguments that are meritless. He says that the office is making fanciful factual assertions and should have simply confessed error and made sure that notice was performed properly rather than delaying the case by defending it on appeal. But that didn't happen, so the Court of Appeal holds that, on the merits, the Father is correct. So the case gets sent back down for proper notice. Which means, in the meantime, the children continue to get older without adoptive parents. The inequity of which Justice Siggins recognizes, but blames on county counsel.
And there's a lot of that that's right.
But I wonder if there's a better way.
There's virtually no doubt in my mind that the tribes won't intervene. Ever. Even with the most exhaustive investigation and notice known to man. I'll give anyone 100-1 odds who wants to take the other side. The notice won't matter, there's not any substantial Creek heritage, and even after getting the right form, none of the tribes will do anything. I know it, the Court of Appeal knows it, and so do all the lawyers. So the only thing the appeal -- and the remand -- accomplishes is to keep the children in limbo.
That doesn't mean, of course, that the appeal lacks merit. It does. Notice wasn't followed. So, yes, you have to reverse. Because we can't say to a legal certainty that notice won't matter; absent notice, you don't actually know for sure what that notice will accomplish. That's the whole point of notice.
But that results in the kids being materially harmed for what's virtually certain to be no good reason. And that seems demonstrably wrong. So I was initially inclined to say that the judiciary should create something akin to the doctrine of harmless error -- so prevalent and routinely applied in every other area of the law -- and to apply it in ICWA cases in order to stop meaningless reversals like these.
But, in the end, I'm not sure that it's doctrinally consistent to do that in notice cases. I'm supremely confident that it would be a good idea as a practical matter. It'd get kids where they belong faster and more equitably. But, sadly, you can't always do what you'd like to do. Notice errors make harmless error analysis virtually impossible to apply consistently, so as much as I might "know" as a practical matter (and I do) that the error here is harmless, I'm reluctantly forced to concede that I probably couldn't make such a holding.
But here's my second thought. Which I think works.
No one has a right to a stay. Stays are equitable. Stays involve discretion. Parental rights here -- and in all ICWA cases on appeal -- were terminated by a final judgment on the merits. You had your shot, and you lost. And we all know that you're likely to lose on appeal as well. And that even in those cases in which the parents win, the likelihood of the appeal actually making a difference in where the child is placed is virtually nil.
So why wait? Let the parents appeal. But don't automatically stay the alternative placement. The Court of Appeal can not only summarily decide appeals, but it can also decide whether or not to stay a final judgment below. Similarly, it can decide to stay the mandate of its own decisions too. That's all permissible. And it's in the discretion of the court. Discretion that we're entirely happy to exercise -- as we routinely do -- on grounds that we "know" (e.g., that an appeal will likely fail, that a stay or no stay would be equitable, etc.) despite the fact that we can't doctrinally "prove" them. We're fine with that.
So take this case. Yep, ICWA notice wasn't properly given. So Father's appeal will succeed so we can give notice. But that doesn't mean the kids should stay in limbo. We don't have to stay the order terminating parental rights, and we're permitted to stay the mandate of the reversal of that order. Let the adoptions go forward despite the error. There's no reason the kids should suffer because the state did a crappy job and the Father's willing to harm the kids in order to obtain a meaningless procedural victory.
Is there a downside to what I've suggested? Sure. One time in a thousand (or million), a tribe will actually get notice as a result of a reinvestigation and actually successfully intervene. That'd surely be bad for the kid, as well as for the adoptive parents. Because we'd then take away the adoptive parents' rights.
But I'm exceptionally confident that the Court of Appeal can successfully exercise its discretion to exclude those cases in which this is a realistic possibility. They can tell -- as can I -- the types of cases in which an eventual intervention is more than merely theoretical, and in those cases, you can keep the status quo. But in the others, there's no reason for things not to go forward. I'm pretty confident the Court of Appeal can get it right.
But more critically, even were I convinced that, as a result of the procedure I suggest, there's one child in a million that might be ripped apart from his adoptive parents, avoidance of that risk doesn't justify the definite certainty of a procedure that keeps thousands of children in limbo and prevents them from being adopted by loving parents while practically meaningless appeals (and remands) like this one are pending. We're sure that those children are harmed. That pervasive harm isn't justified by a desire to prevent harm in the exceptional outlier case. Yes, it's possible that an adoption might one day be overturned, and the adoptive parents (and the child) might be informed of that theoretical possibility at the outset. But it'd be worth it for the thousands or millions of kids who would benefit.
I'd take that chance. As an adoptive parent. As a kid. As a society.
So I like that Justice Siggins ends his opinion by making his reversal of parental rights "conditional" on the provision of notice and the failure of a tribe to intervene. That's a good start. But it still leaves things in the limbo in which they now stand.
So I'd go further. No reason not to let the adoption go forward. And application of routine stay procedures would accomplish this result.
And we'll see if anyone in the Court of Appeal feels like taking up the mantle on this one. I think it's the right call. Even though it'd take guts to make it happen.
Because it's always easier to do what we've always done. Even when it's demonstrably bad to innocent children who haven't harmed a soul in their lives.
