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June 2017 Special Feature – The Honorable Maria D. Hernandez: Trailblazer for the Advancement of Juvenile Justice

by Danni R. Murphy and Alan J. Crivaro

The Honorable Maria D. Hernandez has been the Presiding Judge of the Juvenile Court for Orange County since January 1, 2014, and has been a judge of that court since 2010. In those few short years, Judge Hernandez has distinguished herself as a widely recognized leader in advancing the juvenile justice system—not only in our state, but in the nation. As the Honorable Kirk H. Nakamura, Assistant Presiding Judge of the Orange County Superior Court, has observed:

 

She is an impassioned advocate for children’s rights. Not surprisingly, she has received numerous awards for her dedication and hard work from many organizations including the CRF-OC, the California Judicial Council, Hispanic Bar Association (HBA), CASA-OC, and the OC Women Lawyers Association. She is an invaluable asset to the court and the Orange County justice system.

 

As is sometimes the case with those who accomplish much, Judge Hernandez is exceptionally humble about her achievements and reticent to discuss her personal life. Suffice it to say that she was raised in southern California, is married, and has adult children. Her family is a priority in her life. She especially enjoys her new role as “Memaw” to her two beautiful grandchildren.

On the professional side, she graduated from the University of California, Irvine and received her J.D. from Western State University in 1991. Not long thereafter, she was employed as a Senior Deputy Public Defender for Orange County where she served as a trial lawyer. She is fondly remembered by her former colleagues as a dedicated, gifted advocate for her clients. In 2006, she was appointed as a commissioner to the Orange County Superior Court. Three years later Governor Schwarzenegger appointed her to the bench.

As a lawyer, Judge Hernandez was a member of the board of directors for the Orange County Bar Association and served on or chaired several of its committees. As a Juvenile Court judge, she had both dependency and delinquency calendars. She presided over Juvenile Drug Court, Dependency Drug Court, and the Boys’ Court Program. The judge also chaired the task force on Commercially Sexually Exploited Children (CSEC). In this role, she was the recipient of the 2016 Diamond Individual Award for her commitment to eradicating the human trafficking of sexually exploited children. She is also a frequent lecturer and a faculty member for the Center for Judiciary Education and Research (CJER).

Judge Hernandez presently serves on the Judicial Council’s Advisory Committee on Providing Access and Fairness (PAF) and is on the steering committee for Chief Justice Cantil-Sakauye’s Keeping Kids in School and Out of Court Initiative (KKIS). Both are critical working bodies that are concerned with the development and dissemination of new approaches in addressing the varied demands of the juvenile justice system for each of California’s fifty-eight counties.

The list of law and community organizations she is actively involved with is long and too numerous to detail here. The same is true of the awards that have been bestowed upon her. Only the highlights have been presented.

Recently, we had the opportunity to meet with Judge Hernandez in her chambers. It does not take but a minute in her presence to be impressed by her effervescent personality, enthusiasm, and focused attention. Above all, she is a person of unbounding energy and compassion. As is her way, Judge Hernandez would rather be discussing an issue about the juvenile justice system than most anything else, although she is a sports fan. Judge Hernandez shared some of her experiences with us.

What is the role of the Juvenile Court judge?

Juvenile Court judges have unique roles and obligations that are set forth in Standard 5.40 of the Standards of Judicial Administration. Among the judicial obligations imposed by 5.40, this Standard requires us to provide active leadership within the community in determining the needs of, and developing resources and services for, at-risk children and families. At-risk children include delinquents, dependents, and status offenders. A judge is to investigate and determine the availability of specific prevention, intervention, and treatment services in the community for at-risk children and their families, and enforce the delivery of those specific services and treatment. We must take an active part in the formation of a community-wide network to promote private and public sector efforts to focus attention and resources for at-risk children and their families. We are to maintain close liaisons with our schools. Lastly, we must “educate the community and its institutions through every available means, including the media, concerning the role of the Juvenile Court in meeting the complex needs of at-risk children and their families.”

As is the duty of all judicial officers, we must assure that our community members are able to readily have access to justice. This is particularly important when addressing the needs of at risk children and families. Our juvenile bench is dedicated to eradicating barriers and assuring that our most vulnerable population has the appropriate tools and information to promote trust and confidence in our judicial system.

Although these standards may seem overwhelming at times, it is without a doubt a privilege and the most rewarding work I have done in my professional career. Holding offenders accountable for their actions in developmentally appropriate ways, reducing re-offending, and ensuring public safety will secure better outcomes for all members of our community. Working in collaboration certainly allows us to effectuate these directives and outcomes.

You serve on many local and statewide committees and projects. How has this experience affected you as the Presiding Judge of Juvenile Court?

Serving for the Chief Justice of our California Supreme Court on two of her state advisory committees, Keeping Kids in School and Out of Court and Providing Access & Fairness, has made me keenly aware of the need for our courts and its many dedicated stakeholders to consistently educate ourselves on and about the communities we serve. This tremendous collaboration has allowed us to be progressive in our programming and use our limited resources more wisely and effectively while planning for future innovative, strategic plans and better outcomes for our youth and families.

Would you please describe the minors who come within the purview of Juvenile Court?

Children under the jurisdiction of Juvenile Court are comprised of both youth who have been neglected and abused, as well as those charged with criminal allegations. We address the needs of the most vulnerable population—our children and families of Orange County. The court and our dedicated stakeholders work to achieve our statutory mandate to provide for the protection and safety of each child under our jurisdiction while ensuring the protection of the community we serve. We are guided statutorily by the California Welfare and Institutions Code, which specifically tells us those “who are in need of protective services shall receive care, treatment and guidance consistent with their best interests and the best interest of the public.” Cal. Welf. & Inst. Code § 202(b). Those under our jurisdiction, “as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances.” Id.

In our juvenile justice work, from the moment the child enters the doors, the immediacy and significance of properly assessing and evaluating the capacity, competency, and needs of the child can be complex and demanding. This of course cannot be completed in a vacuum and is done while always maintaining public safety and addressing the needs of our victims. The work with these children is multi-disciplinary, requiring investigation and both legal and social analysis relating to the child’s education, mental/physical health, and socio-economic environment circumstances, just to name a few. What all that translates into is the need to involve lawyers and professionals who are at the top of their fields in a diverse array of disciplines.

This is without question some of the most challenging work I have done in my career, but also the most important and rewarding work I have been privileged to be a part of.

In recent years, legislatures and courts have turned to the social sciences in an effort to improve the juvenile justice system. What impact has science made upon the system?

The youth we work with carry with them some of the most horrific and tragic trauma one can imagine. Their reactive responses to this maltreatment often manifest in extreme maladaptive and often criminal behaviors. We have learned through progressive and peer-reviewed scientific studies and functional MRI imaging studies, by experts such as Dr. Laurence Steinberg and Dr. Elizabeth Cauffman, that the emotional development of adolescents lags significantly behind their intellectual development. Their brains simply do not work like adult brains. Furthermore, empirical data and research being conducted by leaders in the field of child maltreatment and abuse, such as Dr. Jodi Quas at the University of California, Irvine, tell us the trauma inflicted in early years will have significant adverse impacts on neurological development and ultimately influence how the youth react, interact, and respond to daily life events.

We have created amazing partnerships with our universities that assist in bridging the gap between academic research and the implementation of sound policy and decision-making by the courts and our stakeholders. What we have learned from the sciences is simply that imposing punitive incarceration will not only be ineffectual, but may exacerbate the problems creating negative consequences for both the youth and our communities. We in Orange County and across the country have allowed the sciences and empirical data to guide us in making better-educated decisions about our children and families. Embracing this data, the United States Supreme Court has ruled repeatedly over the last decade that it is morally and constitutionally wrong to equate offenses committed by emotionally undeveloped adolescents with crimes carried out by adults.

We also know and work diligently in a collective effort to address and eliminate the fact that our children and families of color are overrepresented in our justice systems. A former juvenile justice youth who has successfully transitioned from the system said, “First, we need to invest in all our children, especially our kids of color. They should be entitled to receive the same education, resources, and opportunities as those of different races and incomes. Kids are at the most vulnerable and coachable stages in their lives. If they are positively taught early on, then the need to later lock them up will be decreased.”

Most juvenile offenders are not detained in the juvenile hall pending resolution of their case. Why is that?

Orange County has been a Juvenile Detention Alternative Initiative (JDAI) site for close to ten years. Our average daily juvenile hall population was, as recent as a decade ago, over 500 minors incarcerated. Today, we see numbers somewhere at about 100-150 daily. Although it is true that statistically juvenile crime continues to decline, that alone does not account for the decrease in detentions. These numbers tell us that community-based services for juvenile offenders are not only the best tools we have to help rehabilitate juvenile offenders, but they are also more cost effective. We strive in our daily operations to use validated risk assessment tools to objectively identify those who should be detained while making every effort to eliminate the overrepresentation of children and families of color in our systems. We consistently seek to locate and use appropriate community intervention and services. This of course requires funding and collaborative efforts by government, public, and nonprofit organizations. It truly does “take a village” to raise our children!

Over the last decade, leaders in juvenile detention alternatives have proven we cannot arrest and incarcerate our way out of juvenile crime. That is not to say secured detention is not appropriate and we do indeed utilize it; however, for a large segment of our population we must create and implement community-based programming that holds offenders accountable for their actions in developmentally appropriate ways, reducing reoffenses and ensuring public safety in order to produce positive outcomes.

What is meant by the term “restorative justice”?

How do we respond to these complex issues? Innovative and community-based programming is clearly the answer. One such concept is the implementation of Restorative Justice Practice Models (RJ) that we see emerging across the country and in a variety of forums, both in the adult and juvenile settings.

In simplified form, this effective model is based upon several important coherent principles, including that crime harms individuals, communities, and the juvenile offender. It creates an obligation to right the wrong. A victim’s perspective is central to repairing the harm caused by the criminal act. The juvenile offender must be accountable, meaning accepting responsibility and acting to repair the harm done.

The efficacy of RJ is supported by data and endorsed by many professionals who deal with juvenile offenders. For example, a recent excerpt from the FBI Law Enforcement Bulletin underscores my point:

 

Due to limited information on how restorative justice works, many members of the public may misunderstand the concept and have preconceived notions. Used in 37 states, this approach ensures public safety, holds individuals accountable for their crimes, and facilitates development of coping skills, drug rehabilitation, or education for offenders. Restorative justice entails more than a symbolic interaction between parties. It has proven more successful in reducing recidivism and collecting restitution than the traditional retributive-justice process, which can fail to heal either the victim or offender, often resulting in worse criminal behavior.

 

David Newton, Restorative Justice and Youthful Offenders, FBI Law Enforcement Bulletin (Oct. 6, 2016), https://leb.fbi.gov/2016/october/restorative-justice-and-youthful-offenders. As a long-term benefit, it is foreseeable that, as juvenile recidivism decreases, so too should the prospect of the individual becoming an adult offender in the future.

In the fall of 2015, the Orange County Superior Court under your leadership held a Juvenile Justice Summit. Can you tell us about the summit?

The implementation of successful programming and resources akin to RJ require a multi-disciplinary problem-solving approach. We were able to convene over 400 professionals, including but not limited to representatives from the court, law enforcement, social services, probation, health care, and education for the first-ever Juvenile Justice Summit in Orange County. During the summit, we were able to identify and address gaps in our services, share positive programming, and candidly discuss how to achieve better outcomes for the children and families of Orange County. It provided a unique opportunity for the sharing of ideas and the removal of longstanding barriers and silos that assisted us in forging ahead with new perspectives on how best to serve our communities.

What challenges do you see facing our Juvenile Court in the near future?

Adequate funding for our courts and public education as to the needs of our at-risk communities are constant challenges. Our future as a community and a country is also at risk. As Chief Justice Tani G. Cantil-Sakauye so eloquently stated in her State of the Judiciary for 2017, “the rule of law is being challenged.” It is our rule of law that protects all of us and makes us equal. And, as I have witnessed, should our rule of law fail us, those who will be harmed first are our most vulnerable populations—namely, our abused, neglected children and at-risk families.

We are woefully underfunded, and the demands upon the professionals working with our children and families are increasing. The complexity and acuity level of the children we work with has drastically increased in the last decade. As with all the counties in our state, we do not have adequate intensive therapeutic placements for some of our most mentally ill children. All too often, probation facilities such as juvenile hall have become a default placement for these youths. I work closely with probation and health care leaders who also are frustrated and believe strongly that this is an injustice. Our children deserve better. Dr. Martin Luther King, Jr. has taught us, “Injustice anywhere is a threat to justice everywhere.” I would submit to all that this begins with our children! I am proud to work collectively with so many in our juvenile justice system who are committed to addressing these issues and will strive to overcome these issues despite our fiscal and social challenges.

Conclusion

In 2016, the Judicial Council bestowed upon Judge Hernandez the Distinguished Service Award—the highest award given by the state court’s governing body—in recognition of her demonstrated “personal dedication and extraordinary commitment to advancing and improving the juvenile justice system.” More recently, Chief Justice Tani G. Cantil-Sakauye remarked, “Judge Maria Hernandez is, quite simply, a trailblazer. She was awarded the Judicial Council’s Distinguished Service Award last year for good reason: She is an exceptional leader who has shown outstanding dedication to children and families.” We in Orange County agree with the Chief Justice on what makes Judge Hernandez so valuable to our community: “With her unyielding commitment to advancing and improving the juvenile justice system she helps ensure access to justice to our most vulnerable populations.”

Danni R. Murphy is a Past President of the OCBA. She can be reached at dannimurphy@hotmail.com. Alan J. Crivaro is a criminal defense lawyer in Newport Beach. He can be reached at acrivarolaw@hotmail.com.

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