Commentary: Did Board Overreach on Blanket 170.6 Motion?

There are a number of surprising things about what happened on Tuesday, with the Yolo County Board of Supervisors voting 4-1 to issue a blanket request, per Code of Civil Procedure section 170.6, to reassign Judge Steven Basha from presiding over juvenile matters.

First, I am surprised that it has not gotten more press from outside of Yolo County, as this is a fairly extreme and perhaps even unprecedented action for a county board.

Second, while I am not surprised that Supervisor Matt Rexroad would push this matter – I think he has raised strong reasons to do so – what caught me off guard was the 4-1 vote and the fact that both Supervisors Jim Provenza and Oscar Villegas – two very cautious men – joined in this action.

Having spoken to Mr. Rexroad on Monday morning, I think even he was caught off guard by the vote – he certainly did not know which way his colleagues would go.

In doing so, they in effect ignored the admonishments from their own county counsel on this.

County Counsel Philip Pogledich’s warned, “From my perspective a blanket 170.6 is something to take very very seriously.  It is a practice that is strongly disapproved by the California Supreme Court.”

I remain concerned about the impact on judicial independence.  Mr. Rexroad was probably directly addressing my Tuesday column when he pointed out in his comments that he is not trying to presuppose a ruling, only trying to make sure it is done by someone who is fair and impartial.

The problem is that the action itself has the potential of a chilling effect that says if we deem you to be making rulings outside of the normal range in terms of the number of reunifications or bypasses, we are going to take matters out of your hands.

I heard from attorneys, interestingly enough, from across the state, alarmed by this use of 170.6 by the board.

At the same time, it becomes clear that this is a message from the board to the judges that we have a concern and you are not addressing it.  The court outright refused to meet with board members.  The court flat out turned down $75,000 from the county to fund a dedicated minor’s counsel – both things cited by Jim Provenza as reasons why he ultimately took this action.

“I think I’m of the mind right now that we need to take the action suggested by Supervisor Matt Rexroad in order to address these systemic problems,” he said.  He said, “I don’t want to do this at all, (but) I think it’s the right thing to do for children.”

Supervisor Villegas had a similar response, “It is very troubling that we are not able to get to a very essential part of our puzzle here to be able to communicate to the courts.”

As one person pointed out, there is a clear misunderstanding of the law here and what the court’s responsibilities are but, without having the court even make an appearance at the meeting on Tuesday, there was no one to explain these factors to the board.

At the same time, I believe that the board did not get enough data here.  My own experiences in the system suggest that this is far more complicated than portrayed on Tuesday.

And from different sources came different information.  I think there is a clear notion that there are problems in the system, but not a clear sense for the solution.

John Myers, a law professor at McGeorge Law School, has acted as conflict counsel in dependency cases in Yolo County.  He noted that the board is doing more than most counties to solve this problem.

“I don’t think the solution is the judge,” he told the board.  He noted the caseload of 250 to 300 cases for the attorneys, “that’s malpractice per se.  You can’t do it.  You can’t be a competent lawyer and have that kind of a caseload.”

He also said that he would like to see a more aggressive approach by county counsel toward bypass – meaning bypassing reunification in cases where the parent is clearly unsuited.

In his letter to the board, he wrote, “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 comments to the board, he said he preferred the term judicial philosophy to bias.  “I think that Judge Basha has a judicial philosophy that may tend in the direction of permanence but the law requires him to favor parental rights, he doesn’t have a choice,” he said.

Tracey Fauver, Executive Director of Yolo County CASA (Court Appointed Special Advocates), said, “We find that Supervisor Rexroad’s concern that Judge Basha is overly biased towards reunification without the consideration of the best interest of the child to be unfair and unfounded.”

On the other hand of the spectrum comes the former foster and adoptive mother who inexplicably was dragged into a lengthy court battle for the adoption of her daughter because Judge Basha, according to her account, granted parental rights to a man with a long criminal background and refused to do any sort of paternity test.

These kinds of cases are harmful to the kids and discourage foster families from coming forward.

But, as another CASA pointed out, “Supervisor Rexroad has provided a range of opinion as to Judge Basha’s alleged bias, notably biased itself in canvassing only the children’s services side of what is a two party adversarial model.  But he hasn’t provided enough data.”

One source with extensive experience in the dependency system told us that the system is already stacked against biological parents and that Judge Basha is on the extreme side of the ledger mostly because he’s more fair to biological parents than most.

There are problems in the system, but it was pointed out to the Vanguard that two of the most egregious cases in Yolo – the Talamantes case and the Baby Justice case – were cases where social workers themselves made the call, not the judge or the dependency court.

Ms. Fauver’s comment also rings true here, “It is very easy to find fault in an under-resourced and bureaucratic [system] that deals with families in their worst life moments.”

So where does this end up?  I think the board took a very extreme action – it is really a shot across the bow to the judges here, that they need to be more cooperative with the concerns of the board on this issue.

But I worry that the impact of the 170.6 blanket motion will have profound and unforeseen consequences that may go well beyond this instant issue.

—David M. Greenwald reporting



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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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10 thoughts on “Commentary: Did Board Overreach on Blanket 170.6 Motion?”

  1. Tia Will

    David

    I appreciate your coverage of this issue. Having attended the board meeting , I think that there are a couple more points that deserve more emphasis.

    I see no evidence of such bias in Judge Basha’s rulings.”

    One would not expect even an experienced professional to detect bias on occasional observations of individual cases since bias implies a repetitive pattern. Thus no one individual would be expected to perceive this unless they specifically reviewed all of the judges decisions in such matters. That does not mean that the bias is not there.

    In the case of Judge Basha however, it appears that we have his own statements on multiple occasions indicating prejudice ( the term that Counsel Pogledich said was operative here). He has been quoted at multiple public events saying that “in the end, he would return the children to their biologic parents”. To me, this is a blanket statement that regardless of the specifics of the individual case it is his goal and intent to return the child to the biologic parent. This, for me, is the definition of prejudgement.

    I know nothing at all of Judge Basha regarding either his courtroom management, or his judicial philosophy. However, it is my belief that our county, like the entire state, has a systemic problem with regard to child safety as illustrated by the two deaths of children under the age of six here in Yolo County. Both cases were preventable in my opinion ( in one case I do have special knowledge that I cannot reveal due to HIPPA) had the children not been placed with biological parents known to be either mentally unstable or in one case using drugs known to severely impact judgement.

    I believe that if the biologic parents are capable of providing a safe, nurturing home for their children, then that is undoubtedly the best placement. However, if for any reason they are incapable of or unwilling to provide such care, then an alternative placement should be made.

    Our current system is failing to protect those who have no ability to protect themselves. This has resulted in two deaths in 3 years. I do not pretend to know the best answer. But I do know that if individuals who are in positions of decision making are so biased in favor of family reunification that they cannot adequately assess such severe risk to a child that the result is death, then regardless of their role within the system, whether doctor, or social worker, or judge, then that individual should not be making those decisions.

    I don’t pretend to know whether or not this is “over reach” but I do salute Supervisor Rexroad for his dedication in bringing this to the attention of the Board of Supervisors and that of the community.

     

    1. Howard P

       then that individual should not be making those decisions.

      Doctors and social workers make recommendations… judges make ‘decisions’, which are appealable… (oh, and parents/caretakers make decisions, which might well not be in the best interest of a child, or themselves… some of those decisions are essentially irreversible).

      The evidence is this one judge, singled out, went with case workers’ recommendations predominantly.

      No judge or case worker was responsible, ultimately, for the deaths… it was the parent who killed.  It may be unfortunate that others did not effectively intervene, but they were not the killers.  Those who believe that the “state” should effectively intervene so that nothing ever goes terribly wrong for anybody, miss the point.  Unless we go to a total controlling government, which inflicts its will, good or bad, on every citizen, ‘stuff’ will happen…

       

      1. David Greenwald

        Howard: The evidence is that Basha is on the extreme end of the state in terms of both reunification and bypass.  Tia makes an interesting point about the need to see a pattern, on the other hand, one would likely begin to question the judge if you think his rulings are in error.

  2. David Greenwald Post author

    Breaking news: “Presiding Judge Janet Gaard announced today that, effective in June, the Yolo Superior Court will be making three judicial assignment changes:  Judge Steven M. Basha will hear juvenile delinquency matters, Judge Sonia Cortes will hear civil matters, and Judge Samuel McAdam will hear juvenile dependency matters.  The changes are in response to the following letter to Judge Gaard from Judge Basha.”

    Apparently this was Judge Basha’s decision.

  3. Matt Rexroad

    Key point of analysis for me — will 10-15 kids each year end up with a better outcome as a result of this board action?  I believe that answer is yes.

    Were any other options available to the Board of Supervisors to get the desired outcome? I am not aware of any.

    Easy call.

    Matt Rexroad

    916-539-0455

     

  4. Liz Miller

    I hope everyone realizes that children are deeply attached to their parents, whether the parenting is substandard or not, and children should be permanently removed only in the worst circumstances.

    That someone else can provide more for the child is not enough reason to remove the child, and is not good for the child longterm.

  5. Claire Benoit

    I agree with Liz and it is exactly why I have mixed feelings on this although I do agree a lot of kids are placed in danger due to parental ownership.

    my worry here is that the rights of “good enough” parents will be too easily challenged by a community that can get a little self righteous and judgmental… and may tend to undervalue biological connections.

    kids should not be placed in DANGER with biological parents. But neither should they be taken away from their biological parents UNLESS they are in DANGER.

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