In a vote that perhaps surprised even Supervisor Matt Rexroad, who brought the issue forward, the Yolo County Board of Supervisors voted 4-1 to issue notice of filing a blanket Code of Civil Procedure section 170.6 motion to remove Judge Steven Basha from presiding over Juvenile Dependency hearings.
As Mr. Rexroad wrote in a letter, “Foster Parents strongly believed there is a ‘pervasive bias’ by Judge Basha and the court system towards birth parents and reunification. Those interviewed state that over his years on the bench, the Judge ‘has been outrageously pro reunification, and takes actions that negatively impact Foster Families.’
“I personally witnessed him on May 9, 2014 at University Covenant Church in Davis stand in front of a dinner honoring foster parents and state that in the end he was going to thank the foster parents and give the children back to their biological parents,” he said.
Monica O’Brien, a foster parent, confirmed the judge’s comments from that day. “There has been a theme of predetermining that that’s his plan to return the parents,” she said. “There are several foster parents that wish they could come and speak, but they are very fearful of doing that. They do have current children that are in foster care and they are not concerned that they want to keep this child because they love this child, they are concerned about what happens to that child if they go back to their bio parents.”
Tricia Hand, another foster parent who adopted two of the children, described the horrible circumstance of one her children whose mother (she had already adopted the sister) had her parental rights terminated after multiple failures in rehab programs.
During the process of adopting the first child, which took two and a half years, the birth mother gave birth to her youngest child. “She was positive for drugs at birth, just as her sister was,” Ms. Hand said. In this case, there was no reunification process as this was this woman’s sixth child. But this didn’t turn out to be an easy process. Instead. her boyfriend, a man who was a convicted felon out on parole, fought for custody of the baby.
The man appeared in court and asked for custody, despite a request for DNA testing from the social worker, the lawyer and even the alleged birth father’s parents. “Judge Bash agreed to just give this man parental [rights] for the hearing.”
Ms. Hand explained that the man was arrested again and that Judge Basha was willing to grant him in-custody visitation rights, and it was only because the man’s parents pleaded with their son to renounce his rights that this process ended.
She said, “I was baffled that Judge Basha thought this was in the best interest of my child.” She said, “Judge Basha’s actions on that day showed me that reunification at all costs is what he thought was best.”
But there were other perspectives at the meeting as well. Tracey Fauver, Executive Director of Yolo County CASA (Court Appointed Special Advocates), explained that her organization advocates in about one-quarter of the child welfare cases in Yolo County on behalf of the children, and monitors close to 90 percent of those cases.
She 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.
“It becomes very clear immediately that Judge Basha weighs the best interests of the child in all of his decisions,” she said. “That doesn’t mean that he always agrees with our CASAs.” She added, “It is very easy to find fault in an under-resourced and bureaucratic [system] that deals with families in their worst life moments.”
Barbara Miltner an attorney and a CASA, had her comments read by Ms. Fauver. “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. The rest to remove Judge Basha from juvenile dependency cases appears to be one of simple disagreement with Judge Basha’s lawful exercise of judicial discretion.”
Disagreement, she argued “does not render those determinations unlawfully biased.”
John Myers, a law professor at McGeorge Law School, has acted as conflict counsel in dependency cases in Yolo County. He noted that the county 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.
Don Saylor commended Supervisor Rexroad on his passion for this issue and the work that has been accomplished in the last year. “I think it’s a very slippery slope for us to begin to challenge judicial proceedings. I frankly don’t have the information and haven’t sat in the hearings to watch them. We have had conflicting information presented to us even today,” he said in announcing he was not prepared to support this at this time.
It turns out he was the lone holdout, however.
Jim Provenza, who sits on the committee with Mr. Rexroad, explained that there was a range in dependency as to who favors reunification. He explained that if we the county believe one judge is too far to one extreme, “we’re the client and we can say that judge is prejudiced to our interests.”
He said this is something that we can do, “the question is should we do it.”
Supervisor Provenza said he did not know, coming in, which way he was going to lean, but a couple of things steered him into support for Mr. Rexroad’s solution. He said that “being 46th on length of time to permanency is a serious problem particularly with young children.”
He said that having a dedicated attorney for children in every case would have helped “and the courts were unwilling to entertain that.” He said that “that bothers me.” He called that a systemic problem.
Supervisor Provenza said that a suggested meeting with the presiding judge, Judge Janet Gaard, “was refused.
“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.”
Oscar Villegas said, “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.” He said that his interactions with Judge Basha have shown his true commitment to the kids in every possible way. “What I’m hearing is his judicial philosophy is precluding the types of changes that we may want to dial up.
“I don’t take this lightly at all,” he said. “Our role in asking the courts to consider a rotation is something that I think we need to take very seriously.”
County Counsel Philip Pogledich explained that, while we heard serious concerns, “those are matters that are not prejudice but relate more to whether the judge is administering courtroom in an appropriate manner.”
He pointed out that in signing a 170.6 motion you sign under penalty of perjury, and “the judge under whom this case is assigned is prejudiced against the party, its attorney or its interests so that said party cannot or believes it cannot have a fair and impartial trial or hearing before such judge.
“The standard is prejudice,” he explained. “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.”
In the end, the board voted 4-1 to send the letter and to go forward with a blanket 170.6 motion. Don Saylor dissented in both votes.
—David M. Greenwald reporting