I understand and appreciate Justice Gilbert's desire to expedite things. He thinks that the four kids at issue should be adopted by Aida ASAP, and that means terminating the parental rights of their biological parents as quickly as possible. So he makes that happen, and does so by admitting on appeal evidence that's not in the record and that wasn't admitted below.
Now, in truth, I've definitely read termination cases with much, much worse facts than those here. And particularly with respect to the father, Justice Gilbert may have a substantially harsher reaction to the guy than I do. The entirety of what we learn about Father is this:
"In January 2015, Father began a two-year term in the Ventura County jail. His mother brought the children on visits every other week. Further incarceration ensued in state prisons in Wasco and Susanville beginning in January 2017. Father was released in August 2020. From January 2017 when Father went to state prison until his release, letters and phone calls were the only contact with his children. Since Father’s release in August 2020, he did not contact Aida R. to see his children. . . .
Father testified that he is wiser and more mature than the man who went to prison. He earned his GED while in prison and received vocational training in facility maintenance and repair. He learned plumbing, tile, and fixture repair. He uses these skills in his current job as a handyman. While in prison he obtained certificates for attending classes in health education, alternatives to violence, “criminal thinking,” anger management, and substance abuse. He attended weekly meetings of Alcoholics Anonymous and Narcotics Anonymous. Father said he is in compliance with the conditions of parole, including monthly drug testing.
Father said he had not contacted Aida R. to see his children since he was released from prison in August 2020. He said he was advised by his attorney not to and was following that advice. He said he knew that he would have his day in court. Father said the last time he saw his children in person was in January 2017 before he went to prison in Wasco.
Father said his goal was to have his children placed in his care as soon as possible. He did not have a timeline because he did not know the process. He believed it had been beneficial for the children to stay with Aida R. for the last five years, where they had been thriving."
Okay. I've one thousand percent read about worse fathers than this one. (Now, obviously, I know about better fathers as well.)
But here's Justice Gilbert's reaction to the guy, pretty much in toto:
"Father challenges the conclusion of the HSA report that the parents have no relationship with their children. Father points to biweekly visits with the children while he was in jail and correspondence with the children while he was in prison. Suffice it to say that biweekly visits to jail and correspondence with the children while he was in prison do not constitute the parent and child relationship the children need.
Father points out that our Supreme Court in Ann S. required the trial court to consider exigent circumstances. (Guardianship of Ann S., supra, 45 Cal.4th at p. 1132.) Father claims his incarceration constitutes an exigent circumstance. If so, it is a circumstance of Father’s own making. At one time, Father chose criminality over being a responsible parent. We are quite sure the trial court considered Father’s incarceration in deciding to order the termination of his parental rights. . . .
Father has by his own account made great progress in becoming a responsible member of society. This is commendable. But that progress does not make up for the more than five years he spent away from his children due to his own choices."
A bit harsh, no? It almost sounds like: "If you commit a crime, we're taking your kids away, period, since at that point 'biweekly visits to jail and correspondence with the children while [] in prison do not constitute the parent and child relationship the children need.'"
I mention all this even though, honestly, it's not my central reaction to the opinion; rather, it's merely something that a little bit stood out to me. I really wanted to write because I wonder if Justice Gilbert is right that admitting the evidence he isolates on appeal actually resolves the underlying problem.
This is another one of the plethora of cases where the trial judge messes up by not doing what ICWA and California law requires. The law says that at the first hearing, the trial judge has to ask the parents whether there's any reason to believe that the child is an Indian child. But the judge here clearly didn't do that. So, normally, we'd have to remand the case to make that happen.
But Justice Gilbert says there's no need to do that here, because we can admit some new evidence that's not in the record, and that'll speed things up. Which -- and this is true -- is both permissible doctrinally (at least in some circumstances) as well as -- and I agree with him here -- often in the best interest of the kids, because if their best interests are getting adopted, then we want to make that happen ASAP, and without an unnecessary remand.
So Justice Gilbert admits on appeal a form that Mother signed -- that's not in the record -- in which she checked the box that said that (1) she might be eligible for enrollment in a federally recognized Indian tribe, and filled in "Tonoho O'Odham" in the blank line thereafter, and (2) also the box that said that she may have Indian ancestry (leaving the line for "Name of tribe(s)" blank). Helpfully, Justice Gilbert also attaches that new evidence to the opinion, as well as the letters from the O'Odham Nation that says that the parents and kids aren't members of that tribe.
Justice Gilbert accordingly holds that there's no need for a remand, because this evidence conclusively establishes that there's no need for an inquiry into ancestry, since there's nothing there.
But hold on.
Doesn't it matter what the mother might say on remand? Sure, she filled out a form at one point that said that she thought that she had Indian ancestry, and might be eligible for enrollment in the O'Odham Nation. But the law says that we're supposed to ask her about this stuff, and then conduct a reasonable inquiry. What if, on remand, she were to say: "Yeah, I filled out the form, and my best guess at the time was that it was the O'Odham Nation. But I'm no expert on Indian tribes. Maybe it was Apache, or Pima, or something else. All I know is that my father always told me he was an Indian, he looked really dark, he said he was from the Four Corners area, and I remember going to a reservation a couple of times when I was a child." Nothing she said on the form is inconsistent with that; indeed, she left blank the part of the form that said which tribe(s) she might have ancestry from. And, yes, at some point in the trial court, she apparently said she didn't have Indian ancestry, but we know she said the exact opposite on the sworn form that Justice Gilbert admits on appeal, so doesn't that suggest that an inquiry might perhaps be appropriate? That maybe, just maybe, the kid does indeed have Indian ancestry?
Look, as a practical matter, you and I both know how this is going to turn out. The kid's not going to have any Indian ancestry, and even if the kid does, we're never going to find out about it. Just like in 99.9% of the other parental termination cases, this is going to be a useless, time-wasting formality that doesn't actually result in anything -- other than (potentially) delaying a valuable adoption that's in the best interests of the child.
But our law's really, really concerned about that other 0.1% of cases. Where, despite all of our best guesses and experience about what practically happens, it turns out the kid does have Indian ancestry, and we're taking the child away from a tribe. Which is why-- and there's a strong historical backdrop here -- we go through this process in every single case. To make sure.
I'm persuaded by Justice Gilbert's motivation. It's a sincere and utterly well-intentioned one. (Even if I'm personally perhaps less categorically harsh about incarcerated parents.) I too want to see these kids put into the best family possible ASAP.
I'm just not persuaded that the evidence that he admits on appeal conclusively establishes, full stop, that a remand for compliance with ICWA would definitively not result in anything different.
