This is exactly what's wrong with textualism.
A California statute says that you don't have to be provided with full reunification services with your child if a previous child of yours was removed "pursuant to Section 361" and the court found that this prior removal was because you (essentially) didn't even try. That provision makes sense. The basic point of the statute is to say that we'll still give you a shot at getting your kid back, but we're not going to give you the full panoply of rights -- and keep the kid in additional limbo for years -- when it's fairly clear based on past experience that you're not going to do what's required to keep your child (e.g., stop shooting heroin and meth).
But what if your prior child was removed in a different state rather than California? Is that a removal "pursuant to Section 361"?
The Court of Appeal here says, categorically, no. Here's what Justice Margulies says:
"In our view the language of section 361.5 is clear and unambiguous, rendering it unnecessary to resort to any extrinsic aids. The plain language of the statute is limited to cases involving the removal of a sibling or half sibling from the parent "pursuant to Section 361." (Italics added.) The Legislature
did not include any language that would permit the extension of this provision to a circumstance in which a sibling was previously removed pursuant to the dependency law of another jurisdiction, whether or not that law is comparable to section 361. It is undisputed here that a half sibling of C.R. was previously removed from Mother‘s custody pursuant to Wisconsin law, not pursuant to Section 361. The clear language of section 361.5, subdivision (b)(10) does not apply to these facts."
With respect, I strongly disagree.
It's not that the phrase "pursuant to Section 361" doesn't have meaning. It does. But that language is in no way as categorically dispositive as the Court of Appeal frames it.
Imagine, for example, that Wisconsin has the exact same statute as California. Even calls it the exact same thing: "Section 361". You mean to tell me that if the statutory scheme is identical, the judicial findings exactly the same, and the facts exactly on point, the statute requires a different result merely because the judge in one case was in California and the judge in another was in Wisconsin? That's silly. Both as a practical matter as well as an interpretive one. It's not remotely what the Legislature would have envisioned. (And, parenthetically, even if it did, I think such a statutory regime might well violate the Full Faith and Credit Clause.)
The whole "statute is unambiguous so that's the end of the matter" line simply doesn't work. It's no different than if the Legislature had amended the statute so that the first child was taken away under "Section 360" -- a statute subsequently renumbered to 361. Doesn't matter. Same intent. Same purpose. Same result. Purportedly "unambiguous" statute notwithstanding.
So the Scalia/Thomas-like analysis here is, I think, simply wrong. Profoundly so. To say that the mere fact that we're talking about an initial removal in Wisconsin makes the statute categorically inapplicable not only elevates form over substance, but does so both erroneously and perniciously.
That said, the Court of Appeal may perhaps reach the right result in this particular case. Later on in the opinion, Justice Margulies argues that Wisconsin's statutory regime may contain provisions that are substantively different than California's. So be it. If Wisconsin doesn't have an analogue -- and a darn close one -- to Section 361, then that's indeed dispositive.
But that's the relevant question. Not the mere fact that the removal was in Wisconsin rather than in California.
And yes, yes, I know that the Legislature could have easily said "a statute like Section 361" or something like that. But guess what? Sometimes the Legislature doesn't think of everything. Or employs shorthand. Or relies on -- wait for it -- the judiciary to employ common law construction. How crazy is that?
Not very, in my view. Not at all.
So I think this opinion makes a textbook (and serious) error. But one that is, unfortunately, increasingly common. Despite the fact that it may well reach the right result.
The only danger is that someone will actually believe what the Court of Appeal says and think that, yep, text like this is both unambiguous and categorically dispositive.
