I'm persuaded by Justice Ramirez's opinion this afternoon.
At the same time, I'm totally persuaded by Justice Menetrez's dissent.
Yet I readily concede that they can't both be right.
Justice Ramirez's analysis seems spot on. The federal Indian Child Welfare Act (ICWA) requires that the court inquire into whether either parent has Native American ancestry before we terminate parental rights; it's motivated by a shameful history of wrongfully taking away children from Native American parents. Here, the father appeals, saying that the court terminated his parental rights without finding out whether he had Indian ancestry. As Justice Ramirez cogently explains:
"The issue arose because the mother plainly did have Indian ancestry — she was an enrolled member of a federally recognized Indian tribe; an older daughter had been removed from her custody and transferred to the jurisdiction of the tribe. Apparently no one thought it was worth asking whether the father, too, might have Indian ancestry. When the mother’s tribe surprised everyone by reporting that the child was not a member and not eligible for membership, the juvenile court found — without any further inquiry regarding the father — that ICWA did not apply."
Well, that clearly shouldn't have happened. As everyone rightly concedes.
The only question that remains is: What should we do at this point?
To which Justice Ramirez responds: Nothing. He says: "San Bernardino County Children and Family Services (CFS) does not dispute that there was an erroneous failure to inquire. It contends only that the father has not shown that the error was prejudicial. We agree. The father has not claimed — in the juvenile court, in his opening brief, in his reply brief, or at oral argument — that he has any Indian ancestry. Because he has not managed to clear this rather low hurdle, there is no reason to suppose that, absent the error, the outcome would have been any different. And, more to the point, there is no reason to reverse and remand for a further inquiry, which would not only entail effort and expense, but would also delay permanency for A.C."
That sounds right to me. Don't forget the factual backdrop: It's a tiny little kid, and the allegations are that "the mother used methamphetamine, physically abused the child, failed to feed the child, and failed to obtain medical care for the child." As for Dad, "[t]here was some initial uncertainty as to whether D.M. or one E.R. was the child’s father," but eventually mother says it's D.M., who's in prison, and even when he gets out, "the father [] failed to participate in his reunification services plan and had made only 'minimal' progress."
So we've got a tiny kid who's desperately in need of care, parents who are by no means the greatest, and a caring foster parent who wants to adopt the child.
With the only barrier being that everyone below we so focused on the mother than they forgot to ask the father about potential Indian ancestry.
But Justice Ramirez says: So what? When the appellate briefing doesn't even hint that the father might, in fact, have Indian ancestry, let's just cut to the chase. We all know how this case is going to come out: that Father doesn't have Indian ancestry, and the kid should be adopted, so let's do it. The error was harmless since there's not even the tiniest reason to think that the father in fact has Indian ancestry such that the result below would even be the slightest bit different. Get the kid to loving parents now.
Strong stuff. Persuasive.
But Justice Menetrez's dissent is equally persuasive.
He says: "Uh, sorry, but that's not the way things work. Of course there's no evidence that Father has Indian ancestry. Because no one ever asked him. And, critically, this case is on appeal. On appeal, we are generally limited to the record below. You don't say: 'Oh, on appeal, if you want to win, you are required to introduce new evidence that you didn't introduce below -- here, the fact that Father in fact has Indian ancestry.' That's not how it works. So, doctrinally, it's simply flat wrong to affirm and the basis that the appellate briefs don't insist (or introduce evidence) on a particular factual point that we all admit is outside record. Instead, you remand. Period."
Plus, wholly apart from doctrine (and precedent), Justice Menetrez has a profoundly practical point to make as well:
"Rebecca R. and the majority opinion put parents’ appellate counsel in a strange and untenable position. Appellate attorneys ordinarily do not, need not, and are not paid to conduct any investigation of facts outside the record. (Cf. Josiah Z., supra, 36 Cal.4th at pp. 671-672 [minor’s appellate counsel may seek but need not be granted funds necessary to investigate facts outside the record].) But in a case like this one, Rebecca R. and the majority opinion require Father’s counsel to interview Father about his Native American ancestry and then, in defiance of Zeth S., provide the information to the Court of Appeal as a basis for reversal. And what if counsel is unable to interview Father in time? Parents in dependency cases are sometimes homeless or otherwise hard to find. If counsel cannot reach Father, must counsel interview paternal relatives? Moreover, a parent appealing from the termination of parental rights can assert ICWA error as to a nonappealing parent. (See, e.g., N.G., supra, 27 Cal.App.5th at pp. 477-478.) Must counsel for the appealing parent interview the nonappealing parent? Just how much of the trial court’s and CFS’s jobs does the majority opinion reassign to appellate counsel?"
That's totally right too. Persuasive, even. That's just simply not the way things work in the Court of Appeal.
So both opinions are, to me, pretty darn compelling. Yet only one of them can be right.
Which one?
It's a toughie. Rarely do I read majority and dissenting opinions that, IMHO, both make incredibly compelling arguments that equally resonate with me.
So where do I come out? Where do you?
In the end, I decided that Justice Menetrez was right on the law. That's not the way the Court of Appeal works.
But I also decided that I nonetheless agree with Justice Ramirez.
It's not the way the appellate courts normally work. But, in the end, I decided that an exception in the present circumstances makes sense.
We've got two choices. One option is to make it the trial court and CFS's responsibility to inquire -- which, of course, it totally is -- and to remand the case back down if they don't do their jobs. That's normally the right way to go.
But, to be honest, in the scheme of things, it's a SUPER TINY BURDEN to tell the parent (here, the father) to provide at least a smidgeon of evidence on appeal that the error at all mattered. That the guy has, in fact, some shred of Indian ancestry that matters. If the guy can't even (truthfully) say that, then what's the point of remanding? Just get the kid to loving and competent parents now. No need to waste another year or two with a remand and (potentially) another appeal.
Now, Justice Menetrez has a response, of course. He says (rightly) that that's not the way appeals work, but we're talking about little kids here, so I'm willing to make it the way appellate courts work in this particular (somewhat unusual) context. He also says -- again, rightly -- that it puts appellate counsel in a difficult position, because now they (1) have to investigate actual facts that aren't part of the record below (rather than merely writing briefs in their office), and (2) might practically have a hard time doing so because some parents are homeless, can't be located, etc. Again: All true.
But that's in part a consequence of how we structure these types of appeal with appointed counsel. It's worth remembering that the appellant in this case is the father. He's the one filing the appeal, not his lawyer. He's the one in charge. So, yes, sometimes it's hard to find parents like this, perhaps even to ask them the most fundamental and simple of questions: "Is there any reason whatsoever to think that you might in fact have any Indian ancestry?"
But if the lawyer can't find his client to ask such a simple -- and important - question, then that's a whole different problem, right? That's a problem that arises with lawyer-driven appeals. Once one remembers that it's the father who's prosecuting the appeal, it doesn't seem at all overly burdensome (to me, anyway) to say that you've got a very limited and easily satisfied obligation if you want to win on appeal: (1) stay in at least basic contact with your lawyer, and (2) answer a totally simple question on the merits. You don't have to introduce tons of evidence or anything. But you gotta at least be able to say (truthfully, of course) that you think you might have Indian ancestry because of Reasons X and Y. If you can't even say that, well, then, sorry, but there's no reason to keep your child in limbo. A place that no one should want. Time to end the dispute now and get the child to a loving, caring home -- like here, with an adoptive parent who's yearning to have the daughter in her life forever.
So that's how, to me, the balance plays out. I'm motivated by what's practically at stake: The actual and very real welfare of a child. As well as the practical reality: My sense is that, 99% of the time, these ICWA remands from the appellate courts are totally useless, and don't change the result in the slightest. To be clear: I'm fine with that if the parent(s) can say, on appeal, that maybe the result would be different, and give even the slimmest of reasons why. But if they can't even do that, then I'd go with what Justice Ramirez says here.
I get that Justice Menetrez -- and other reasonable people as well -- might strongly disagree. As well as argue (perhaps appropriately) that if an exception like this is to be made, it should be made by the California Supreme Court, not the Court of Appeal.
And I wouldn't object at all if the California Supreme Court granted review of this case in order to do precisely that. Indeed, I might recommend it.
But I think, in the end, the result reached by today's opinion is the right one.
Even though the dissent makes incredibly, incredibly strong arguments to the contrary.
Well done all. Cases like this one are hard, but they also reflect incredibly positively (IMHO) on the state of contemporary appellate jurisprudence in California. Good arguments. Reasonable positions. Persuasive contentions on all sides.
But, in the end, you make a call, and I think this one gets it right.
Even if doing so requires, admittedly, a bit of a stretch in the way we view appellate jurisprudence.
