By John Myers
(The following was a letter to the Yolo County Board of Supervisors from Professor John Myers regarding the proposed Code of Civil Procedure section 170.6 motion to recuse Judge Basha from hearing juvenile dependency cases; the judge ended up requesting reassignment on his own).
I have reviewed Supervisor Rexroad’s thoughtful letter to the Honorable Janet Gaard, dated March 1, 2017. In his letter, Mr. Rexroad asks Judge Gaard, in her capacity as the Presiding Judge, to reassign Judge Steven Basha, from his present assignment presiding over Juvenile Court Dependency proceedings.
I write in three capacities. First, as a resident of Yolo County (Davis). Second, as an attorney who regularly appears in Judge Basha’s courtroom to represent children. Third, as a law professor at Pacific-McGeorge. As an academic, I have devoted thirty-five years to the study of child abuse and neglect, and to the history and operations of the child protection system and the juvenile court.
I have great respect for Mr. Rexroad, and I believe, without reservation, that he is motivated entirely by his desire to do the right thing by the dependent children of Yolo County. Of course, the same may truthfully be said for Judge Basha.
In the first paragraph of Mr. Rexroad’s letter, he criticizes Judge Basha for “failure to order bypass of reunification service when recommended.” But, of course, it is not a judge’s duty to rubber stamp bypass recommendations made by the Child Welfare Department. It is a judge’s solemn responsibility to try such cases based on the evidence, and to apply the law fairly and impartially. The Department will win some bypass cases and lose others. That is the nature of litigation. It is worth remembering that in bypass cases, the parents of Yolo County are ably represented by experienced attorneys who are sworn to provide zealous advocacy for the parents, in opposition to bypass. If the Department loses a bypass case, perhaps we should look first at the decision to bring the case, and/or to the adequacy of the evidence presented in support of bypass. A judge should not be criticized for ruling against the government unless there is clear evidence of systematic bias in the judge’s rulings. I see no evidence of such bias in Judge Basha’s rulings. As I have appeared before him, I have detected no bias of any type, except an abiding “bias” to do the fair and correct thing for all concerned, but especially for the children of our county. Finally, it is worth noting that in the vast majority of cases, Judge Basha orders what the Department requests.
In the second paragraph of Mr. Rexroad’s letter, he describes the sentiments of an unspecified portion of foster parents, who, as Mr. Rexroad puts it, “strongly believe there is a ‘pervasive bias’ by Judge Basha and the court system toward birth parents and reunification.” Before putting much stock in this concern, it would be useful to know what percent of foster parents share this belief. More importantly, it is not surprising that some (perhaps many) foster parents entertain the belief that juvenile court is too lenient with birth parents. I dare say this sentiment is true for foster parents across America. The concern is not unique to Yolo County, or to Judge Basha. Our long-suffering foster parents (where would we be without them!) so often see the children they nurture returned to parents who love their children, but who are simply not up to the task of C+ parenting, let alone A-parenting. Indeed, given foster parents’ unique perspective, it would not surprise me if most of them believed the juvenile court places too much emphasis on reunification. What foster parents often fail to grasp, however, is the larger policy priority – driven by federal and state law – that requires the juvenile court to emphasize reunification. Indeed, California law makes it so difficult to bypass reunification, that many children who would unquestionably benefit from bypass, termination of parental rights, and adoption into new families, must be returned to marginally competent parents. Judge Basha didn’t write the law. He administers it.
In the fourth paragraph of his letter, Mr. Rexroad accuses Judge Basha of choosing “reunification at every opportunity without consideration of the best interest of the child ….” This is neither a fair nor an accurate description of Judge Basha’s approach to cases. My own experience in Judge Basha’s courtroom belies Mr. Rexroad’s accusation. Does Judge Basha get every decision right? Of course not, but let no one doubt that he is focused like a laser on children’s best interest.
In his fifth paragraph, Mr. Rexroad writes “of Judge Basha’s refusal to terminate parental rights when it is clear to everyone else involved that continuing services to the parents is futile.” Is there any systematic evidence – not just anecdotes – that Judge Basha refuses improperly to terminate parental rights? If the Department brings cases to terminate parental rights, and consistently loses, then don’t we need to ask about the evidence presented by the Department in support of termination, before we accuse the Judge of wrongdoing?
In the sixth paragraph of his letter, Mr. Rexroad describes witnessing the judge tell a gathering of foster parents that “in the end he was going to thank the foster parents and give the children back to their biological parents.” I wasn’t there, so I don’t know exactly what Judge Basha said, or how he said it. Perhaps he could have made his point more adroitly. If he was saying that the law favors reunification, then he was simply telling the truth.
Could another judge take over the dependency calendar? Of course. Making that change now, however, would unquestionably cause disruption. Dependency law is a unique and complex area of California and federal law. Judge Basha knows the law inside and out. His courtroom runs efficiently.
I am troubled by Mr. Rexroad’s suggestion that if Judge Basha is not removed from the juvenile court, that County Counsel should 170.6 disqualify the judge in all dependency cases. Such blanket challenges to a judge are not favored, and are virtually always bad public policy that threatens the independence of the judiciary. In Solberg v. Superior Court (1977) 19 Cal. 3d 182, the Supreme Court described “the abuse known as the ‘blanket challenge’ …” (p. 202). “A district attorney or a public defender [or a county counsel] must realize that his practice tends to be concentrated in a particular court, and that if he or his deputies file unwarranted ‘blanket challenges’ against a particular judge the effect may well be to antagonize the remaining judges of the court, one of whom will be assigned to replace their unseated colleague, and the presiding judge, who will make that assignment.” (p. 203). The high court remarked that in a previous case, it “strongly disapproved of the practice of ‘blanket challenges’, and we reaffirm that position ….” (p. 203). In a concurring and dissenting opinion, Justice Tobriner did not mince words: “In my view, the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality.” (p. 205). In People v. Superior Court (2016) 1 Cal. App. 5th 892 (4th DCA), the Court of Appeal recently agreed wholeheartedly with Justice Tobriner (p. 910).
Yolo County’s child protection agency is staffed by intelligent, hard-working, dedicated social workers. The juvenile court is staffed by attorneys who ably carry out their difficult mission. The court clerks, and our regular bailiff, are professional, efficient, and treat everyone who comes to court with patience and respect. The deputy county counsels who represent CPS are dedicated, well prepared, and competently serve the Department’s interests. Judge Basha presides with firm compassion. He is only human, but I have detected no sign of bias for or against any party.
In closing, the Board of Supervisors, including, of course, Mr. Rexroad, with whom I disagree here, but for whom I have abiding respect, deserves enormous credit for taking the issue of child protection very seriously. Your efforts have and will make the system better. My parting thought, however, is that removing Judge Basha from juvenile court will hinder rather than help your efforts.
John Myers is a law professor at McGeorge School of Law
I applaud Judge Basha for being willing to work in this difficult area of the law for such a long time. I myself lasted only 2 years. I could not even manage monthly meetings as a physician liaison since I could not stand the fact that despite pediatrician confirmation of severe neglect such as starvation, physical abuse demonstrated on x-rays showing repetitive fractures both old and recent, and my confirmation of sexual abuse of adolescent females, our state law which prioritizes biologic parental rights over the well being of the child,returned children to their perpetrator parents again and again.
I applaud the social service workers who, in a virtually thankless position try to get families connected with the services they need while documenting those who cannot or will not avail themselves of these services even on behalf of their children.
I applaud Supervisor Rexroad for recognizing that Yolo County, like all the rest of the state and the nation, has a major problem in terms of balancing the often conflicting interests of the biologic parents with the well being of the child.
I find an irony in societal views of the well being of the child over time. At a time when many believe that the fetus should be morally and legally considered an independent human being with all the inherent rights, many seem to believe that once that fetus is born, the child is now the property of the biologic parent to do with as they will. This is the essence of placing biologic parental rights above the well being of the child.
I take no stand whatsoever with regard to Judge Basha and the most appropriate handling of the Yolo Court assignments. What I see is a systemic problem in which once a child is born, legally speaking our laws have now, de facto, made that child a possession of its biological parents, no longer a fully independent human being with full rights in our society. We do not force married adults to remain with an abusive spouse. So why do we allow a law to stand that forces children back into the home of abusive parents, a choice which has resulted in the death of two children under the age of six in Yolo County within the past 3 years ?
The second irony is those who believe the opposite…
Truly, both views appear to be internally inconsistent… neither a fetus, nor child are independent as to providing their own ‘nutrition’, ‘shelter’, ‘nurture’… both are dependent on others… neither should be considered “property”.
Agreed. And they should be neither the property of the parent, nor of the state. It is a difficult issue all the way around.
A third point which neither Howard nor I have addressed.
Although it is true that neither the fetus nor the young child is independent in the sense of being able to provide its own food and other necessities of life, there is another distinguishing factor. The fetus has a capability that the young child does not. It can, through no fault of its own, endanger the life of the mother. It can do this even very early on in a pregnancy even before the OB/GYN can definitively determine its presence and location with accuracy. I have never performed an abortion that I did not consider medically indicated. However, I suspect that many lay people might not be able to differentiate medically indicated from elective. This is an excellent reason for not allowing religious leaders or legislators decide which should be allowed and which should not.
Therefore, I believe that we should always error on the side of the well being of the individual. If that means that we favor the individual that we know is an appropriately developed or developing human being over that which we are speculating may or may not have achieved 4 weeks of life because we literally cannot tell, I would error on the side of acting in the best interests of the mother. The idea that we should value the life of the child at conception over that of the mother, when we do not even know if a viable conception has occurred is patently absurd.
Tia… please understand I’m not talking about ‘absolutes’… I make a distinction between health/safety and convenience…
I believe that it is extremely moral to end a pregnancy if the mother’s and/or fetus’ life is jeopardized by continuing the pregnancy… it’s how I view ‘pro-life’ … granted, others don’t…
The “elective” part is what I should have focused on, as to views of ‘property rights’… but, I acknowledge that if the ‘elective’ part (we’re past the medical concern, right) is to be avoided, society should bear the costs of supporting the medical costs, if that is an issue… and to place the child in a supportive, nurturing environment if the parent(s) are not prepared to.
I actually agree with that. Depending on circumstances, we may disagree about the definition of an “individual”… on one hand, once the egg is fertilized, the result is a unique individual… on the other hand, @ 4 weeks, you are correct about “we don’t know what we don’t know” about viability, or possible hazards to what some would refer to as “the incubator”.
Pregnancies ‘go wrong’… my Mom had two pregnancies that did (some, would argue a third)… Mom had two ‘abortions’… her body figured out that this is not going well (‘spontaneous’ abortions, one before she realized she was pregnant).
Things can happen later, as well. I view “pro-life” as being cognizant of both lives… and, if medical doubt, agree that I’d favor the mother… if it came to an “either/or” decisions, to be sure… after all, it is “pro-life” to make sure that the woman, if she chooses, is healthy enough for a ‘do-over’…
I do have a problem with ‘abortion at will’… I agree that religion and legislation have no place in making medical decisions, unless that is the choice (religion) of the woman. Partial birth abortions are abhorrent to me… except in the rare cases that it is medically necessary, then, I’m good. But not for convenience… that would be treating the fetus as “property”.
Tia, I fully support your support/advocacy for contraception… I think if folk thought about it, there is common ground, between ban on abortions (which I do not support, as an absolute), and the whim of I’m ‘due’ next month, but am having second thoughts.
Unfortunately, there does not seem to be much push for the ‘common ground’… I believe in life, and society’s responsibility to support that… for fetus, child, AND mother/father…
Actually Tia, don’t think you and I are that far off on basic principles… but this thread is about the topic of child custody, so I’ll stop the “drift” I contributed to…
Howard
I have felt for a long time that you and I were probably fairly close on this issue. And I agree, we should “drift back” to the topic at hand.
This action by the Board of Supervisors is troublesome to me. It puts our judges in the position of being held directly accountable to these 5 people. I do not believe this is a healthy way for a judicial system to work. What is to keep the Supervisors from filing similar motions on every judge that is appointed until they find one that interrupts the law they way they see fit?
Michelle – that’s been my concern
David
I also understand the concern, but again, would ask what alternative recourse would you recommend if there were to be judicial prejudice and no willingness to remedy ?
Legislature can look into reunification and bypass policies – that’s where I would start.
Hi Michelle,
I understand and am significantly in agreement with your position. What I wonder is what recourse you would suggest when a significant concern is raised and dismissed as not even worthy of discussion by those heading the regional justice system as occurred in this instance where a meeting was requested and denied ?
Was the meeting dismissed because the concern was not deemed worthy of discussion or because such a meeting is inappropriate?
“Was the meeting dismissed because the concern was not deemed worthy of discussion or because such a meeting is inappropriate?”
That was not clarified. However, I think that if the latter were the case, then there should have been some accounting of how that determination was made and what other recourse those concerned should pursue. According to two of the supervisors, that was not stated to be the case.
I will give an example today of what I just happened across coincidentally that makes me believe that there should be transparency around how judicial findings are arrived at.
From USA today : Kentucky judge refuses to hear adoptions involving gays because in his/her opinion, that is not “in the best interest of the child”. So where is the appropriate balance between personal religion/philosophy and judicial philosophy ? I don’t know the answer, but am merely putting the questions forward for consideration since Yolo county counsel indicated that the key concept here was prejudice. It would seem that the concept of prejudice may have been relevant in the Yolo County situation as it clearly would be in this Kentucky judge’s statement. However, at least he/she is refusing to hear them, not denying the prejudice.
Tia I think this Kentucky case is a good example of why we need anti-discrimination laws on the books.
Michelle
Agree with that. Perhaps we also need some kind of law that prevents discrimination against children when the issue is the right of the child to a stable nurturing environment vs the rights of “ownership” of the biologic parent.
I would argue that those opposed to the current system should work to change the law instead of using their positions of power to circumvent the process.
That is a misrepresentation of the standard. The law favors reunification when it is in the best interest of the child. If there’s a systemic bias in the system, it’s on the part of the child protection agencies that have their own interests and prejudices that can result in overzealousness in opposing reunification.
No. Children should not be returned to abusive situations, but neither should children be separated from their families permanently without providing parents a reasonable opportunity to demonstrate they can properly care for them.
Each side, including the County, is represented in dependency proceedings. An independent judiciary is vital to safeguarding the interests of all parties. There are processes for addressing judicial error in an individual case or general malfeasance. The County upsets the balance by threatening retaliation when things don’t go their way.
Eric
I understand that this is supposed to be the case. I also have personally been involved in a number of cases in which children were returned to abusive and unsafe situations under judicial interpretation of current law. I do not believe that it is possible to understand unless one has actually seen this happen.
Michelle
I agree with you about the desirability of changing laws with which one does not agree. But there is a spectrum of judicial philosophies with some judges more predisposed to weigh the interests of the child more highly and others predisposed to almost invariably side with the parent. As I have previously stated, I do not have any experience with this particular judge and therefore have nothing to say about the appropriateness of this particular action. However, I do know that working to change laws can take a lot of time, which some of our children simply do not have as witnessed by the Talamontes and Green deaths.
Tia –
I am sure you can cite to such cases. But anyone familiar with the foster care system can similarly cite to systemic abuse and poor overall outcomes for children who end up in that system. Innumerable articles and series have been written on the subject. There are no guarantees–but addressing the issue by intimidating the judiciary is not the answer.