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