Rivera v. Orange County Probation Department (In Re Rivera)

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE MARIA G. RIVERA, No. 14-60044
Debtor,
BAP No.
13-1476
MARIA G. RIVERA,
Appellant,
OPINION
v.
ORANGE COUNTY PROBATION
DEPARTMENT,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Pappas, and Latham, Bankruptcy Judges,
Presiding
Argued and Submitted June 6, 2016
Pasadena, California
Filed August 10, 2016
Before: Stephen Reinhardt, and Kim McLane Wardlaw,
Circuit Judges, and Mark W. Bennett,* District Judge.
Opinion by Judge Reinhardt
*
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
2 IN RE RIVERA
SUMMARY**
Bankruptcy
The panel reversed the judgment of the Bankruptcy
Appellate Panel, which had affirmed the bankruptcy court’s
denial of a debtor’s motion to sanction Orange County for
persisting post-discharge in its efforts to collect a debt arising
from the debtor’s son’s involuntary juvenile detention.
The panel held that the debtor’s liability for the costs of
support of her son while in detention was not a “domestic
support obligation” and thus was not excepted from discharge
in bankruptcy under 11 U.S.C. § 523(a)(5).
COUNSEL
Brett H. Ramsaur (argued) and Todd E. Lundell, Snell &
Wilmer, Costa Mesa, California, for Appellant.
Adam C. Clanton (argued), Deputy; Laurie A. Shade, Senior
Deputy; Nicholas S. Chrisos, County Counsel; Orange
County Counsel, Santa Ana, California; for Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE RIVERA 3
OPINION
REINHARDT, Circuit Judge:
INTRODUCTION
We must decide whether a mother’s debt to Orange
County arising from her son’s involuntary juvenile detention
is a “domestic support obligation” and thus excepted from
discharge in bankruptcy. We conclude that it is not.
FACTUAL BACKGROUND
Appellant Maria Rivera is the mother of a minor who was
held in juvenile detention in Orange County for more than a
year, from 2008–2010. Upon her son’s release, the County
Probation Department sent Rivera a bill.
California law makes the parents of juvenile detainees
“liable for the reasonable costs of support of the minor while
the minor is” held in detention. Cal. Welf. & Inst. Code
§ 903(a). A county may seek reimbursement under § 903
only “for food and food preparation, clothing, personal
supplies, and medical expenses,” id., and the statute imposes
a cap of $30 per day. § 903(c). Within those constraints, the
statute limits the bill to the parents’ “ability to pay” at the
time the debt is imposed. Id.
As a result, Rivera’s bill did not cover the entire cost to
the County of her son’s detention, but it was a large sum
nevertheless. The County sought to recover $23.90 from
Rivera for each day her son was detained, and $2,199 for
legal expenses. The total bill came to $16,372.
4 IN RE RIVERA
Rivera did her best to pay. After selling her house, she
paid $9,508 on May 10, 2010. Part of the debt remained,
however, and the County continued sending Rivera regular
bills. Eventually, she was served with an order to appear
before the juvenile court, and when she failed to do so, the
court entered a default judgment against her. The judgment
stated that she still owed the County $9,905, despite her
earlier payment.1
Several months later, in September 2011, Rivera filed for
bankruptcy under Chapter 7 of the Bankruptcy Code. She
had no assets to distribute, only debts to discharge. In
January 2012, Rivera received a full discharge and, thus, the
“fresh start” that the protections of the Bankruptcy Code seek
to provide. Harris v. Viegelahn, 135 S. Ct. 1829, 1835
(2015).
Orange County, however, persisted in its efforts to collect
Rivera’s debt even after the conclusion of her bankruptcy
case. The County believed that Rivera’s debt was a
“domestic support obligation” (“DSO”) like alimony or child
support – the kind of debt that is not dischargable in
bankruptcy under 11 U.S.C. § 523(a)(5).
Rivera believed that any remaining debt to the County
had been fully discharged. In her bankruptcy petition, she
had listed her unpaid obligation to the County as a priority
1
The County’s accounting in this case is highly questionable. It is
unclear how this amount was reached. Rivera’s son’s expenses totaled
$16,372. After Rivera’s payment on May 10, 2010, this would leave at
most $6,864. In addition, the child’s father negotiated with the County to
pay $3,336. If the father paid the full amount he promised, only $3,528
would appear to remain. At Oral Argument, County counsel was unable
to explain this apparent discrepancy.
IN RE RIVERA 5
unsecured debt, not a DSO, and the County did not object in
writing to this characterization. Rivera moved to reopen her
bankruptcy case and asked the bankruptcy court to sanction
the County for attempting to collect a discharged debt. The
court reopened the case, and issued a tentative ruling in
Rivera’s favor.
After further briefing, however, the bankruptcy judge
changed his mind and ruled in favor of the County. The
judge was persuaded that Congress expanded the category of
DSOs in the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (BAPCPA) to include Rivera’s debt.
The judge agreed with the County that Rivera’s debt was in
the nature of support because the County sought to recover
only the costs of her son’s food, clothing, and medicine, not
the full cost of his detention. The Bankruptcy Appellate
Panel affirmed on largely the same ground, and Rivera
appealed. Whether Rivera’s debt to the County is a domestic
support obligation is the issue before us.
DISCUSSION
I.
Bankruptcy gives people from all walks of life a “fresh
start.” Harris, 135 S. Ct. at 1835. “[A] debtor who
successfully navigates the bankruptcy process is ordinarily
entitled to a discharge of all pre-petition debts.” In re
Leibowitz, 217 F.3d 799, 801 (9th Cir. 2000). Some debts,
however, are not eligible for discharge. Among them are
domestic support obligations – the financial obligations upon
which family members and former family members rely.
Section 523(a)(5) of the Bankruptcy Code excepts DSOs
from discharge. The purpose of this exception is to ensure
6 IN RE RIVERA
that spouses and children continue to receive support even if
the support provider has declared bankruptcy. See In re
Chang, 163 F.3d 1138, 1140 (9th Cir. 1998). The exception
to discharge for DSOs thus “strikes a balance between
competing policies.” Id. On the one hand, bankruptcy
permits a petitioner to wipe his slate clean when debts
become impossible to overcome. “On the other hand, this
court has recognized an overriding public policy favoring the
enforcement of familial obligations.” Id. Bankruptcy
provides a way to leave one’s debts, but not one’s most
fundamental family obligations, behind.
Before 2005, the Bankruptcy Code provided that a debt
was a DSO and thus excepted from discharge if it was owed
“to a spouse, former spouse, or child of the debtor, for
alimony to, maintenance for, or support of such spouse or
child, in connection with a separation agreement, divorce
decree or other order of a court of record, determination made
in accordance with State or territorial law by a governmental
unit, or property settlement agreement. . . .” 11 U.S.C.
§ 523(a)(5) (pre-2005). The definition also provided for
several exceptions.
Under this definition, it was clear that ordinary family
support obligations owed directly to a child or former spouse
were DSOs. Courts divided, however, on the DSO status of
debts owed to government agencies concerned with family
support. Compare, e.g., City of Oakland v. Fralick, 215 B.R.
132, 133 (W.D. Mich. 1997) (foster care debt is not a DSO
because it is “owed to an entity other than a child, spouse or
ex-spouse”); with In re Burton, 132 B.R. 575 (Bankr. N.D.
Ind. 1988) (foster care debt is a DSO because it is in the
nature of familial support). Compare also, e.g., In re
Spencer, 182 B.R. 263 (Bankr. E.D. Cal. 1995) (a debt owed
IN RE RIVERA 7
to a state wardship unit is not a DSO because it is owed to a
government unit); with In re Canganelli, 132 B.R. 369
(Bankr. N.D. Ind. 1991) (wardship debt is a DSO because it
is in the nature of domestic support). Compare also, e.g., In
re Linn, 38 B.R. 762, 762 (9th Cir. B.A.P. 1984) (debt arising
from a “court appointed attorney and psychiatrist for [a]
minor child” in a custody proceeding is not a DSO because it
is owed to a government entity); with Chang, 163 F.3d at
1141 (debt arising from a court appointed guardian ad litem
and neutral mental health expert in a custody proceeding is a
DSO because it is in the nature of child support).
BAPCPA, the statute that modified the Bankruptcy Code
in 2005, resolved the dispute. Following the 2005
amendment, a debt does not lose its DSO status simply
because it is owed to a governmental unit. The statute now
states that a debt is a DSO if it is “owed to or recoverable
by. . . a spouse, former spouse, or child of the debtor or such
child’s parent, legal guardian, or responsible relative” or “a
governmental unit” and is “in the nature of alimony,
maintenance, or support (including assistance provided by a
governmental unit) of such spouse, former spouse, or child of
the debtor or such child’s parent, without regard to whether
such debt is expressly so designated.” 11 U.S.C. § 101(14A)
(emphasis added). This definition does not change the
substance or core meaning of the term DSO. It did, however,
remove any doubt that debts owed to various government
units for temporary child or spousal aid payments; for support
provided in foster care, wardship, and residential treatment
centers; or for expenses incurred for a child’s benefit in
8 IN RE RIVERA
divorce and custody proceedings could qualify as DSOs.2
Thus, BAPCPA carries forward the core purpose of the DSO
exception by ensuring that bankruptcy will not hinder the
enforcement of family obligations in circumstances in which
the government’s family support infrastructure – the network
of foster systems, aid agencies, family courts, and the like –
has intervened on a spouse’s, former spouse’s, or child’s
behalf.
The question before us, however, is whether debts owed
to government units that are not part of the government’s
family support infrastructure, and specifically debts to a
Probation Department for costs related to a juvenile’s
detention, are “in the nature of . . . support,” and thus are
DSOs. The answer to this question is the same after
BAPCPA as it was before, as BAPCPA changed only the
parties who could qualify as creditors to whom a DSO was
owed, not the definition or nature of family support itself.
II.
Rivera owes her debt to the Orange County Probation
Department – a law enforcement unit. The Department’s
mission statement describes it as a “public safety agency” that
makes use of “efficient and research supported corrections
practices to Reduce Crime[,] Assist the Courts in Managing
Offenders[,] Promote Lawful and Productive Lifestyles[, and]
2
This was already the general approach we preferred in this Circuit
before the BAPCPA amendments. See Chang, 163 F.3d at 1141
(explaining that the “identity of the payee is less important than the nature
of the debt”); Leibowitz, 217 F.3d at 803 (adopting the same approach and
explaining that the key question is whether the debt is “in the nature of
support”). Thus BAPCPA resolved the dispute in favor of this Circuit’s
approach.
IN RE RIVERA 9
Assist Victims.”3 The “support” that the Probation
Department provided to Rivera’s son in the course of his
detention was incidental to – and the price of – its larger
governmental purpose of promoting “public safety” and
“reduc[ing] crime” through “corrections practices.” In short,
the purpose of Rivera’s son’s detention was to enforce the
criminal law.
This sets Rivera’s case apart from all other cases in which
debts have been found to be covered by the statutory
definition of DSOs. The purpose of foster care and state
wardship, for example, is to provide for a minor’s safety,
well-being, and support. Foster systems and wardship units
are a part of the state’s child support infrastructure, not its
criminal justice system. This infrastructure is concerned with
child welfare, not the protection of society, and its institutions
assume custody over a minor because of problems with his
family home life or the absence of his parents; they seek to
reproduce for the child the kind of holistic support that
parents ordinarily provide.4 They are designed, in short, to
improve the child’s “domestic” circumstances. Accordingly,
many courts have found that foster care and wardship debts
are in the nature of support within the meaning of the
3
Orange County Probation Department, Mission Statement,
http://ocgov.com/gov/probation/about/mission (last visited Aug. 3, 2016).
4
Moreover, a noncustodial parent’s obligation to help bear a child’s
costs in foster care is similar to a typical domestic support obligation, in
which a noncustodial parent must support a child’s welfare in a different
home. See In re Hernandez, 496 B.R. 553 (8th Cir. B.A.P. 2013) (finding
that a debt owed by an estranged mother to the state to assist foster parents
who began to care for the child after the death of the father was in the
nature of support). As a result, a foster care debt is not materially
different from an ordinary child support debt.
10 IN RE RIVERA
bankruptcy statute. See, e.g., Canganelli, 132 B.R. at
394–95; Burton, 132 B.R. at 584; In re Huber, 80 B.R. 531
(Bankr. D. Colo. 1987); In re Carlson, 176 B.R. 890, 894
(Bankr. D. Minn. 1995).
In another line of cases, we identified debts to
government units or related third parties as in the nature of
support where those debts were inherently intertwined with
the establishment of child support obligations. In In re
Leibowitz, we considered the case of a mother who left her
husband and applied for temporary financial support from a
County aid program. 217 F.3d at 801. A condition of the
County’s support was that if she later won a child support
order from her ex-husband, any benefits accrued during her
enrollment in the aid program would be credited back to the
County. Eventually, the court ordered the ex-husband to
make monthly support payments and also to reimburse the
County for its support of the mother after the separation but
before the entry of the order. The question we confronted
was whether the portion of the father’s child support order
owed directly to the County was in the nature of support.
Similarly, in In re Chang, we considered whether the debt
arising from the cost of a court-appointed guardian ad litem
and neutral mental health expert in the course of custody
proceedings was in the nature of support. 163 F.3d at 1138.
In both cases, we decided that the debt was indeed in the
nature of support and thus excepted from discharge. Chang,
163 F.3d at 1141; Leibowitz, 217 F.3d at 803. The special
feature of Chang and Leibowitz is that the debts arose in the
course of custody and divorce proceedings – proceedings that
are integral to the creation of domestic support obligations –
and represented costs incurred to ensure the domestic welfare
of the child. The debts were also owed, as in the case of
IN RE RIVERA 11
foster care and wardship, to government units or actors for
which child support was the primary concern – to units that
were a part of the state’s family support infrastructure.
Rivera’s debt is different. It arises from her son’s
involuntary detention for law enforcement purposes by a
“public safety agency,” and the provision of food and
clothing is only incidental to such incarceration. Rivera’s son
was taken into custody not in order to provide a place where
he could secure a wholesome upbringing but because of his
criminal misbehavior; he was placed and remained in a
detention facility because of the state’s interest in enforcing
the law, not because of its interest in giving him a nourishing
home, affording him sustenance, ensuring his safety, or
providing him with an improved domestic environment. As
the Supreme Court explained, a state’s duty to provide basic
needs to an incarcerated person “arises not from the State’s
knowledge of the individual’s predicament or from its
expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own
behalf.” DeShaney v. Winnebago Cty. Dept. of Social Servs,
489 U.S. 189, 200 (1989). Moreover, Rivera’s debt is not
inherently intertwined with the establishment of child support
obligations. To the contrary: it comes not in the course of a
child custody hearing but in the wake of a criminal
proceeding that results in involuntary detention.
It is therefore both inaccurate and inconsistent with
precedent to characterize Rivera’s debt to the County as “in
the nature of . . . support” as that term is defined in the
Bankruptcy Code. See 11 U.S.C. § 101(14A). Unlike foster
care or wardship units, which seek to recreate a domestic
environment for children without a suitable home, and unlike
guardians and experts who are appointed on a child’s behalf
12 IN RE RIVERA
in family disputes in order to help protect a child’s domestic
welfare, juvenile detention serves not domestic but
correctional ends. In short, Rivera’s debt is not a domestic
support obligation and thus not excepted from discharge.
This conclusion is in harmony with the cases that have
directly addressed parents’ debts arising from a child’s
correctional detention. The one other bankruptcy court to
consider the dischargeability of parents’ juvenile detention
debts post-BAPCPA held that the debt “is not in the nature of
support,” reasoning that “an involuntary detention in a
juvenile facility hardly seems to fit within the purpose and
spirit of the statute.” In re Rosen, No. 11-07651-BHL-7,
2012 WL 1565617, at *2 (Bankr. S.D. Ind. May 2, 2012).
The few pre-BAPCPA decisions dealing with such debts
concluded that they were not DSOs, but did not directly
address the question of whether the debt was in the nature of
support and instead based their holdings on the fact that the
debt was owed directly to a government unit. See In re
Erfourth, 126 B.R. 736, 741 (Bankr. W.D. Mich. 1991); In re
Crouch, 199 B.R. 690, 693 (9th Cir. B.A.P. 1996). The
Seventh Circuit followed the same approach in holding a
parent’s debt in connection with a juvenile delinquent’s
custody dischargeable in In re Platter but tellingly observed
that “the ultimate purpose” of the debt “is not to provide the
debtor’s child with support; it is to provide the [County] with
reimbursement for its efforts.” 140 F.3d 676, 683 (7th Cir.
1998). That observation is equally pertinent here.
Significantly, no court has previously held that a parent’s debt
resulting from a child’s juvenile detention is excepted from
discharge or that it constitutes a DSO.
IN RE RIVERA 13
III.
The conclusion that Rivera’s debt is not a domestic
support obligation as defined in 11 U.S.C. § 101(14A), and
thus not excepted from discharge in bankruptcy, vindicates
the purposes of the Bankruptcy Code and its discharge
exceptions.
“The principal purpose of the Bankruptcy Code is to grant
a fresh start to the honest but unfortunate debtor.” Marrama
v. Citizens Bank of Massachusetts, 549 U.S. 365, 367 (2007).
“Congress normally confines [exceptions to discharge] to
circumstances where strong, special policy considerations,
such as the presence of fault, argue for preserving the debt.”
Bullock v. BankChampaign, N.A., 133 S. Ct. 1754, 1760
(2013). The exceptions to discharge that the Code spells out
(including the exception for DSOs) are to be construed
narrowly so as to make a fresh start possible unless Congress
has clearly created an exception. Id.
There can be no doubt that Rivera is an “unfortunate but
honest debtor.” Marrama, 549 U.S. at 367. She incurred her
debt through no fault of her own. In fact, she incurred it as a
result of somebody else’s fault. It was her son’s actions, not
hers, that led to his detention in juvenile hall, and thus his
actions, not hers, that enabled the County to burden her with
this debt under § 903. Nevertheless, in the wake of her
child’s incarceration – “[o]ne of the greatest misfortunes a
parent may suffer,” In re Jerald C., 36 Cal. 3d 1, 10 (1984) –
Rivera made a good faith effort to pay her bill. She has paid
over half of it already, at great personal sacrifice. Rivera’s
debt thus arises in precisely the circumstance in which the
Bankruptcy Code seeks to provide a fresh start.
14 IN RE RIVERA
The specific exception to discharge for DSOs is designed
to ensure the continued “enforcement of familial obligations”
even through bankruptcy proceedings. Chang, 163 F.3d at
1140. While bankruptcy provides a fresh start for almost
everything, it does not permit debtors to abandon their
financial obligations to their children, spouses, former
spouses, and other beneficiaries who rely on domestic support
or to government units that help administer or enforce such
support.
Here, however, a conclusion that Rivera’s debt is
excepted from discharge would not benefit her son but, as the
Seventh Circuit pointed out, would only detract from her
ability to fulfill her family support obligations. See Platter,
140 F.3d at 683 (“Excluding this debt from discharge . . . will
neither protect spouses, former spouses, or children from
being injured by a debtor’s discharge nor will it further the
bankruptcy goal of a fresh start for the debtor.”); see also
Crouch, 199 B.R. at 693 (explaining that “[a] finding that the
debt in question here is nondischargeable. . . would not
further the statutory policy of protecting family support
obligations” but instead “would detract from the fresh start
policy embodied in § 523(a)(5)”). While the discharge of a
typical DSO harms the beneficiaries of domestic support by
depriving them of that support – hence the Bankruptcy
Code’s exception – the discharge of Rivera’s debt will almost
certainly benefit her son, who has much to gain from his
mother’s fresh start. The only entity affected negatively by
discharge in this case is the County, which will suffer only by
losing the portion of its cost of incarceration that it seeks so
adamantly to recover, surely not a loss that is inconsistent
with furthering the objectives of family support. To allow the
County “to recover its debt without entering the creditors’
queue is counter to the Bankruptcy Code’s general purpose
IN RE RIVERA 15
and [the discharge exception’s] specific purpose.” Platter,
140 F.3d at 683.
IV.
The County’s arguments that Rivera’s debt is excepted
from discharge are unpersuasive. Contrary to the County’s
assertion, Rivera’s debt is not in the nature of domestic
support simply because it represents in part the costs of her
son’s basic needs. There is no doubt that the County
“supported” Rivera’s son during his detention, and that the
expenses for which the County seeks reimbursement fall
under the general rubric of support; but that is not sufficient
to make an obligation a DSO.5 A credit card company could
hardly claim that a credit card debt is “in the nature of . . .
support” as contemplated by § 101(14A) because the
underlying charge was for food, medicine, and clothing for a
dependent child. Nor could a retailer or a hotelier claim that
an unpaid bill creates a debt “in the nature of . . . support”
because that bill represents the cost of a minor’s basic needs.
Rivera’s debt is not in the nature of support for the purposes
of the Bankruptcy Code simply because the underlying
expenses for which the County seeks reimbursement can be
described ordinarily as support expenses. Where the
principal purpose of the County’s custody over Rivera’s son
is public safety, not the son’s domestic well-being or welfare,
the debt does not qualify as a domestic support obligation.
5
The same is as true of room as of board. Indeed, under the County’s
theory, it could except almost the entire cost of incarceration from
discharge, should state law permit it to send a more expansive bill.
Similarly, under that approach, the cost of a juvenile’s incarceration in an
adult prison could be excepted from discharge if a state sought to charge
his parents for such imprisonment.
16 IN RE RIVERA
For the same reason, Rivera’s debt is not in the nature of
support simply because state law limits the expenses for
which the County may legally seek reimbursement to certain
specific aspects of its total expenditure. We have said that
the way a state characterizes a debt is relevant, though not
conclusive, to its proper classification in bankruptcy, see
Chang, 163 F.3d at 1140, but the County draws the wrong
conclusion from the history of California Welfare and
Institutions Code § 903.
A previous version of the statute permitted counties to bill
parents for the full costs of their children’s detention. The
California Supreme Court found that version unconstitutional,
explaining that it is unacceptable to bill parents for the costs
of protecting society against the misdeeds of their children.
Jerald C., 36 Cal. 3d at 10–11. The Court then upheld the
present version, noting that it properly limits the debt to “the
reasonable costs expended for the support and maintenance
of the minor.” Cty. of San Mateo v. Dell J., 46 Cal. 3d 1236,
1250 (1988).
While providing an explanation as to why state law limits
the expenses for which a County may seek reimbursement to
the costs of the minor’s basic needs, the legislative action
does not, contrary to the County’s argument, support the
conclusion that state law characterizes Rivera’s debt as in the
nature of support for the purposes of federal bankruptcy law;
nor does it show that the purposes of the DSO exemption
would be served by holding that such claims fall within the
statutory definition of that exception. At least as important,
the statute explicitly states that its purpose is to “protect the
fiscal integrity of the county. . .,” Cal. Welf. & Inst. Code
§ 903(c), and at oral argument the County’s counsel stated
that the motivation for seeking to collect from Rivera was
IN RE RIVERA 17
indeed financial. The special federal policy excepting
domestic support obligations from discharge in bankruptcy
does not extend to the reimbursement of an obligation
assessed not to support a child or to help operate a
government department principally dedicated to the welfare
of children, but rather to protect the fiscal integrity of a
county’s juvenile detention system.
Finally, the county is wrong in arguing that BAPCPA
expanded the nature of the support that qualifies for
reimbursement as a DSO. We agree that BAPCPA provides
that debts to government units can now be DSOs and that
“assistance provided by a government unit” – like foster care,
residential treatment, or a court-appointed guardian – can
sometimes fall into that category. See 11 U.S.C.
§ 101(14A)(B). BAPCPA, however, did not alter the purpose
of the DSO discharge exception, nor did it change the
fundamental requirement that DSOs be for the purposes of
child or family support. See In re Hickey, 473 B.R. 361
(Bankr. D.Or. 2012) (“While § 523(a)(5) may have been
amended by BAPCPA, the changes did not change the
standard for whether a debt or obligation is in the nature of
support.”); In re Phegley, 443 B.R. 154, 157 (8th Cir. B.A.P.
2011) (“The BAPCPA amendments . . . did not change the
standard for whether an obligation is in the nature of
support.”). In sum, BAPCPA amended the Bankruptcy
Code’s DSO exemption so as to expand its scope to cases in
which “domestic support” is provided by a government
agency but not so as to change the nature of domestic support
itself.
18 IN RE RIVERA
CONCLUSION
Orange County’s persistence in collecting a debt of over
$9,000 from a bankrupt woman who has acted in good faith
in difficult circumstances has been nothing if not resolute.
Rivera’s case is troubling, however, because the County’s
actions compromise the goals of juvenile correction and the
best interests of the child, and, ironically, impair the ability of
his mother to provide him with future support. Burdening a
minor’s mother with debts to be paid following his detention
– debts that she cannot escape even in bankruptcy – hardly
serves the future welfare of the child and hardly enhances the
Probation Department’s attempt to transform him into a
productive member of society. Most disturbing, however, is
that the County’s actions undermine the very domestic
“support” for which it is ostensibly seeking reimbursement.
In relentlessly pursuing the debt’s collection and opposing its
discharge, the County raises yet another obstacle to Rivera’s
efforts to provide her son with the support about which the
County claims to be so deeply concerned. That “betray[s] a
misguided sense of values.” Jerald C., 36 Cal. 3d at 10.
The County’s actions also highlight a recurring problem
of public entities imposing fiscal burdens on those who can
least afford them. Orange County’s public budget shows that
the Probation Department relies on self-generated revenue for
more than 40% of its financing.6 Seeking to obtain that
revenue by unremittingly pursuing legal actions against
disadvantaged individuals – the counterproductive practice at
6
See FY 2016–17 Orange County Recommended Budget: Public
Protection, http://bos.ocgov.com/finance/2017WB/p1_frm.htm.
IN RE RIVERA 19
issue here – can have damaging effects on the community.7
Not only does such a policy unfairly conscript the poorest
members of society to bear the costs of public institutions,
operating “as a regressive tax,”8 but it takes advantage of
people when they are at their most vulnerable, essentially
imposing “a tax upon distress.”9 Moreover, experience shows
that the practice undermines the credibility of government
and the perceived integrity of the legal process.10
7
The problem is not limited to probation costs. Raising money for
government through law enforcement whatever the source – parking
tickets, police-issued citations, court-imposed fees, bills for court
appointed attorneys, punitive fines, incarceration charges, supervision
fees, and more – can lay a debt trap for the poor. When a minor offense
produces a debt, that debt, along with the attendant court appearances, can
lead to loss of employment or shelter, compounding interest, yet more
legal action, and an ever-expanding financial burden – a cycle as
predictable and counterproductive as it is intractable. See ALICIA
BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CENTER FOR
JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 13–17 (2010),
http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%2
0Fines%20FINAL.pdf; Beth A. Colgan, Paying for Gideon, 99 IOWA L.
REV. 1929 (2014).
8
Developments in the Law: Policing and Profit, 128 HARV. L. REV.
1706, 1734 (2015); see also HUMAN RIGHTS WATCH, PROFITING FROM
PROBATION (2014), http://www.hrw.org/sites/default/files/reports/us021
4_ForUpload_0.pdf.
9
Jeremy Bentham, A Protest Against Law-Taxes, in 2 THE WORKS OF
JEREMY BENTHAM 573 (John Bowring ed., 1843).
10
See, e.g, U.S. Dep’t of Justice, Civil Rights Div., Investigation of the
Ferguson Police Department (March 4, 2015) at 79 n.54 (reporting that
the revenue orientation of the Ferguson police, among other factors, has
“generated great distrust of Ferguson law enforcement, especially among
African Americans”).
20 IN RE RIVERA
Section 903 permits the County to impose debts on the
parents of children detained in juvenile hall, but it does not
require it to do so. Like so much else, it is a matter of the
County’s discretion whether to send the parent a bill in the
first place, and a matter of further discretion whether to
persist in collecting the debt when that parent’s circumstances
change for the worse. We would hope that in the future the
County will exercise its discretion in a way that protects the
best interests of minors and the society they will join as
adults, instead of following a directly opposite and harmful
course.11
***
For the reasons discussed above, the judgment of the
Bankruptcy Appellate Panel is REVERSED. Any further
proceedings below shall be consistent with this opinion.
11
Earlier this year, the Alameda County Board of Supervisors voted to
end the collection of juvenile probation fees under § 903, noting that “it
is in the interest of the County, of young people involved in the juvenile
justice system and their families, and of the larger community that
the County repeal the . . . juvenile probation fees.” Alameda Cty. Bd.
of Supervisors, Res. No. 2016-66 (Mar. 29, 2016),
http://www.acgov.org/board/bos_calendar/documents/DocsAgendaReg
_03_29_16/PUBLIC%20PROTECTION/Regular%20Calendar/Supervi
sor%20Valle_Supervisor%20Carson_229888.pdf.