BIRD, C. J., Concurring and Dissenting. I agree with my colleague, Justice Newman, that a judge of the juvenile court should state reasons on the record before removing a minor from his home and committing [29]him to the California Youth Authority.1 Not only is this procedure more efficient and less time consuming than a formal rehearing under Welfare and Institutions Code section 252, it is mandated by statute and by the United States and California Constitutions.
I
The facts are instructive. A petition was filed against appellant, John H., in the Juvenile Court of Los Angeles County on October 28, 1975. A referee ordered appellant detained on October 29th, and on November 14th, a second referee found him to be a proper subject to be dealt with under the Juvenile Court Law. A third referee sustained the petition filed against appellant on November 18th.
The dispositional hearing was held in the early afternoon of December 1st before a fourth referee. Both the probation officer and the investigating police officer recommended a camp placement. Although appellant had never previously been placed in any setting outside his home, the referee ordered appellant committed to the Youth Authority. Later that same afternoon, a judge of the juvenile court signed an order entitled “commitment to the youth authority (Juvenile),” which “hereby committed [appellant] to the Youth Authority ....” That form contained a preprinted sentence stating that “[t]he mental and physical condition and qualifications of this person are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” At the time the judge signed this order, no transcript of the jurisdictional or dispositional hearing had been prepared. Thus the judge was unaware of the evidence presented at the jurisdictional and dispositional hearings, the arguments of appellant’s counsel, and the basis on which the referee decided to commit appellant to the Youth Authority. A probation report had been [30]prepared before the dispositional hearing, but the record is silent as to whether the judge saw it before he signed appellant’s commitment order.
The day after the judge signed the commitment order, an unsigned document entitled “findings and order of referee disposition #1)” was filed. Two boxes were checked off on this form. Next to these boxes was boilerplate language taken from Welfare and Institutions Code sections 726,2 subdivision (c), and 734.3 The record does not reveal who checked these boxes. The judge’s name is typed at the top of the form, but neither the name nor the signature of the referee who conducted the dispositional hearing appears.
II
On this record, the majority holds that the juvenile court judge (1) “expressly approved” the referee’s order removing appellant from his home (§ 249),4 and (2) “fully satisfied” himself that the minor would benefit from Youth Authority commitment (§ 734).
In holding that section 249 was complied with, the majority interprets the words, “expressly approved,” as requiring a mere countersignature by the judge of the referee’s order. (Maj. opn., ante, at p. 26.) This analysis is erroneous for several reasons. First, there was no signed order by the referee which the judge could have countersigned. It is unlikely that the Legislature meant to do away with the referee’s signature altogether, since the word “countersign” implies the existence of a prior signature to be authenticated. Moreover, even if one were to assume that the referee’s order was the unsigned document entitled “findings and order of referee (disposition # 1),” the judge cannot be deemed to have “countersigned” this order, since it was not prepared until after the [31]judge had signed the commitment papers and it was never signed by the judge.5
By focusing on the act of countersignature, the majority misreads the Legislature’s intent in requiring express approval by a judge of a referee’s order. The majority opinion bases its narrow reading of section 249 on the advisory committee comment to rule 1318 of the California Rules of Court. (Maj. opn., ante, at p. 26.)6 The advisory committee, in turn, relied on the report of a special juvenile justice study commission in 1960. (Governor’s Special Study Com. on Juvenile Justice, Part I, Recommendations for Changes in California's Juvenile Court Law (1960) p. 36.)7 Recommendation 19, subdivision (C), of the report reads in part: “In the event the child is removed from his home, the referee’s order is final when countersigned by the juvenile court judge, provided no request for review is made within the three day period.” (Ibid., italics added.)
However, the comment to Recommendation 19 shows that the express . approval provision of section 249 was meant to require more than a mere countersignature by the juvenile court judge. At the time the commission recommended enactment of section 555 (now § 249), current law required referees “to submit [all] their findings to the juvenile court judge for final approval prior to the implementation of the disposition.” (Governor's Special Study Com., Part I, supra, at p. 36.) The commission believed this procedure “place[d] an excessive burden on the conscientious juvenile court judge who [was] already overworked and often force[d\\ approval to be rendered on a perfunctory basis.” (Ibid., italics added.) Therefore, the commission recommended that this approval procedure be dropped altogether where the referee did not “remove the child from his home.” (Ibid.) In all other dispositions, however, the prior [32]procedure—requiring something more than “approval... on a perfunctory basis”—was to be retained. In the present case the referee’s order was for the removal of appellant from his home. Clearly, something more than “perfunctory” approval of that order by the judge was contemplated by the Legislature when it enacted section 249. (See In re Dale S. (1970) 10 Cal.App.3d 952, 956 [89 Cal.Rptr. 499].)
The appellate record in the present case is devoid of any indication that the judge’s express approval of the referee’s order—if such approval can be inferred from the act of signing the commitment to the Youth Authority—constituted anything more than a perfunctory act. It is clear that the judge did not have the benefit of a reporter’s transcript of the dispositional or jurisdictional hearings for they were not prepared until three months later. The judge did not have the benefit of the referee’s written order (if the unsigned “findings and order of the referee” is indeed the referee’s order), since it was not filled out until the next day.8 Finally, there is no indication that the judge “did have the benefit of an 11-page probation officer’s report. .. .” (Maj. opn., ante, at p. 25.) Although this report was in existence and hence theoretically available to the judge, there is a distinction between having it available and actually reviewing it. Indeed, the record does not even reflect that the probation report was transferred from the courtroom where the dispositional hearing was held to the courtroom of the judge who signed the commitment to the California Youth Authority.
In addition to section 249, the California Constitution requires more than a mere perfunctory approval by a juvenile court judge of a referee’s order to remove a minor from his home. Article VI, section 22 of our state Constitution restricts referees to the exercise of “subordinate judicial duties.” (In re Edgar M. (1975) 14 Cal.3d 727 [122 Cal.Rptr. 574, 537 P.2d 406].) There is no question that the conduct of a contested dispositional hearing and the removal of a minor from his home are not subordinate judicial duties. (Id., at p. 735.) Therefore, to comply with the state Constitution, a referee’s removal order must be reviewed and adopted in a meaningful way by a juvenile court judge.
The majority asserts that a judge’s mere signature satisfies the constitutional command so long as the right to a rehearing before a judge [33]is available. (Maj. opn., ante, at p. 26.) However, mere endorsement does not suffice to make a referee’s order that of a judge. (See In re Edgar M., supra, 14 Cal.3d at p. 738.) While a minor may waive his statutory right under section 252 to a rehearing, such a waiver cannot expand the authority of a referee beyond the limits set by the citizens of this state when they approved article VI, section 22. In effect, the majority’s holding allows referees, on their own, to remove minors from the custody of the parents, a clear violation of the California Constitution.
The majority has also diluted the duties imposed on a juvenile court judge when committing a minor to the California Youth Authority. In enacting section 734, the Legislature set forth specific language that before a juvenile may be committed to the California Youth Authority, a “judge of the court” must be “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” (Italics added.) Section 734 is the only statute among the surrounding provisions in the Welfare and Institutions Code that requires action by a judge rather than by the juvenile court, which would include the court referees. (See § 725 et seq.; compare § 249.) In pinpointing the “judge” as opposed to the juvenile court generally, the Legislature made clear that it was the judge’s duty to personally evaluate the minor’s suitability before any commitment could be made to the Youth Authority.
By ignoring this requirement and focusing on Welfare and Institutions Code section 726, which provides that no juvenile may be taken from the physical custody of a parent “unless upon the [dispositional] hearing the court finds one of [certain enumerated] facts,” the majority sidesteps the real issues presented by this case. There is no question that section 726 was satisfied.9 This single-minded focus on section 726 enables the majority to overlook the requirements of sections 249 and 734 that a judge of the juvenile court must perform certain duties when a minor is placed outside his home or committed to the California Youth Authority.
[34]III
In other contexts, this court has required judges to express their reasons for dispositional choices because it serves important judicial interests. (In re Sturm (1974) 11 Cal.3d 258, 269-270 [113 Cal.Rptr. 361, 521 P.2d 97]; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 516-517 [113 Cal.Rptr. 836, 522 P.2d 12]; In re Podesto (1976) 15 Cal.3d 921, 937 [127 Cal.Rptr. 97, 544 P.2d 1297].) Without a written statement by a judge of the reasons for a decision, the appellate courts cannot determine whether a judge has properly exercised his authority. (Commentary, Standards Relating to Dispositional Proceedings, supra, Standard 7.1, p. 53; see also Commentary, National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections, supra, pp. 195-196; and F. Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, supra, 47 Tex.L.Rev. at p. 25.) A juvenile court’s discretion is limited in making Youth Authority commitments, since such commitments are considered dispositions of last resort under the Juvenile Court Law. (See § 202 (former § 502);10 In re Aline D. (1975) 14 Cal.3d 557, 566 [121 Cal.Rptr. 816, 536 P.2d 65]; In re Arthur N. (1976) 16 Cal.3d 226, 237 [127 Cal.Rptr. 641, 545 P.2d 1345]; In re Maria A. (1975) 52 Cal.App.3d 901, 903 [125 Cal.Rptr. 382].) Accordingly, a statement of reasons by the court is necessary if the appellate courts are to determine whether the juvenile court has acted within its statutorily limited discretion.
Appellate review of the juvenile court judge’s express approval of the referee’s, order can hardly be meaningful on the record now before this court. The court is asked to assume (1) that the judge gave his express approval to the referee’s order; (2) that the judge based the presumed express approval on a document which he may never have seen; and (3) [35]that the reasons the judge had for giving his presumed approval were among the reasons contemplated by the statute which required him to act.
Further, where the Legislature has made the juvenile court judge’s performance of a prescribed duty (i.e., the personal evaluation called for by sections 249 and 734) the precondition to a critical dispositional decision, due process requires that there be meaningful appellate review of the judge’s discharge of that statutoiy duty. (Kent v. United States (1966) 383 U.S. 541 [16 L.Ed.2d 84, 86 S.Ct. 1045].)11 Meaningful review depends upon the judge’s setting forth with sufficient specificity the reasons for his dispositional decision. (Id., at p. 561 [16 L.Ed.2d at p. 97].) The appellate court “may not ‘assume’ that there are adequate reasons....” (Ibid) Yet this is precisely what the majority has done here. It has “presume[d] from the judge’s approval of the [commitment] order that the judge relied upon the same or similar reasons as those stated by the referee.” (Maj. opn., ante, at p. 24.) This presumption flies in the face of the facts that the referee’s oral statement of reasons was untranscribed at the time of the judge’s authorization and that the record does not indicate that the judge considered any materials related to the case before signing the commitment order. By indulging such a presumption, the majority serves notice that it will tolerate perfunctory compliance with sections 249 and 734 and abdicates this court’s responsibility to assure fulfillment of the Legislature’s purpose in enacting these statutes.
[36]In building an adequate record the judge of the juvenile court guards “against the careless decision, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision.” (In re Podesto, supra, 15 Cal.3d at p. 937; see In re Sturm, supra, 11 Cal.3d at p. 269.) Although an articulation of reasons does not guarantee fairness, it certainly “pull[s] in that direction.” (K. Davis, Disretionary Justice, supra, p. 131.)
If the juvenile court expresses the rationale for a specific disposition, public faith in the judicial process is reinforced, and the parties and the public are persuaded that “decision-making is careful, reasoned and equitable.” (In re Podesto, supra, 15 Cal.3d at p. 937.) Regrettably, these goals have not been advanced by the majority’s endorsement of perfunctory performance of judicial responsibilities.
Tobriner, J., concurred.
Appellant’s petition for a rehearing was denied May 25, 1978. Bird, C. J., was of the opinion that the petition should be granted.
The leading authorities who have considered this issue are in accord with this conclusion. (See Standards Relating to Dispositional Proceedings, Institute of Judicial Administration—American Bar Association Joint Juvenile Justice Standards Project (Tentative Draft 1977) Standard 7.1, p. 51; National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections (1973) Standard 5.19, p. 195 and Report on Courts (1973) Standard 14.5, p. 304; Council of Judges of the National Council on Crime and Delinquency, Model Rules for Juvenile Courts (1969) Rule 32, p. 70; cf. K. Davis, Discretionary Justice (1969) p. 133; Berkowitz, The Constitutional Requirement for a Written Statement of Reasons and Facts in Support of the Sentencing Decision: A Due Process Proposal (1974) 60 Iowa L.Rev. 205; F. Cohen, Sentencing Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay (1968) 47 Texas L.Rev. 1, 24-25; see also Matter of Geary (1977) — Mont. — [562 P.2d 821, 823].)
Section 726 states in pertinent part; “. . . no ward or dependent child shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts: ...(c) That the welfare of the minor requires that his custody be taken from his parent or guardian.”
All statutory references hereinafter are to the Welfare and Institutions Code.
Welfare and Institutions Code section 734: “No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.”
Welfare and Institutions Code section 249: “No order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court.”
“To ‘countersign’ is to add one’s signature to a document after another’s to attest authenticity of the document.” (Judicial Council of Cal., Annual Rep. (1977) p. 41.) (Italics added.)
Rule 1318(b) reads in pertinent part: “The following orders made by a referee shall not become effective unless expressly approved by a judge of the juvenile court within two judicial days: (1) Any order removing a minor from the physical custody of the person legally entitled thereto;...”
The commission was created by the governor in 1957. The Legislature based the comprehensive revision of the California Juvenile Court Law in 1961 (Stats. 1961, ch. 1616, §§ 1-5, pp. 3459-3508) largely upon the commission’s recommendations. Among its statutory proposals was former section 555 (now § 249) which the Legislature enacted verbatim. (Governor's Special Study Com. on Juvenile Justice. Part I, supra, at p. 58.)
It is illogical to “presume from the judge’s approval of the order [of the referee] that the judge relied upon the same or similar reasons as those stated by the referee.” (Maj. opn., ante, at p. 24.) The judge had no way of knowing what those reasons were, let alone the basis for them.
By the use of the words, “upon the hearing,” in section 726, the Legislature has indicated that the duty to make the findings required by this section is imposed solely upon the officer of the court who personally conducts the dispositional hearing—here, a referee. Since the record indicates that the referee who conducted the dispositional hearing stated that “the welfare of the minor requires that custody be taken from the parents” (cf. § 726, subd. (c)) and since the referee fully set forth the reasons underlying this finding, section 726 was clearly satisfied.
Section 202, subdivision (a) provides in part: “The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state;... to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents. This chapter shall be liberally construed to carry out these purposes.” (Italics added.) (Stats. 1977, ch. 910, § 1, No. 3 Deering's Adv. Legis. Service, p. 1546.)
The quoted language is substantially the same as that in former section 502 which was. operative at the time of John H.'s dispositional hearing. (Stats. 1961, ch. 1616, § 2, p. 3460.) Section 502 was repealed in 1977. (Stats. 1977, ch. 910, § 4, No. 3 Deering's Adv. Legis. Service, p. 1548.)
The majority purports to distinguish the present case from Kent on this basis: Kent involved the juvenile court’s “critically important” determination to waive its jurisdiction over a minor and to transfer him to adult court. The majority improperly implies that because “the minor in the present case is retained within the jurisdiction of the juvenile court" (maj. opn., ante, at p. 23), the present proceedings are not critical. More than a decade ago, the Supreme Court held that adjudication proceedings within the juvenile court’s jurisdiction were sufficiently critical to compel the basic protections of due process, since such proceedings carry within them “. . . the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.” (In re Gault (1967) 387 U.S. 1, 36-37 [18 L.Ed.2d 527, 551, 87 S.Ct. 1428] [fn. omitted].) In the same year, the court held that the right to counsel applies to adult sentencing proceedings given “the critical nature of sentencing.” (Mempa v. Rhay (1967) 389 U.S. 128, 134 [19 L.Ed.2d 336, 340, 88 S.Ct. 254]; see In re Perez (1966) 65 Cal.2d 224 [53 Cal.Rptr. 414, 418 P.2d 6].) No reason appears why juvenile dispositional proceedings are not similarly “critical,” particularly when they involve the risk of commitment to the Youth Authority, the most drastic placement alternative contemplated by the Juvenile Court Law. (See § 202 (former § 502); In re Aline D., supra, 14 Cal.3d at p. 566; In re Arthur N., supra, 16 Cal.3d at p. 237; In re Bryan (1976) 16 Cal.3d 782, 788 [129 Cal.Rptr. 293, 548 P.2d 693]; In re Michael R. (1977) 73 Cal.App.3d 327, 333-335 [140 Cal.Rptr. 716].) Thus, the proceedings involved in the present case are sufficiently critical to require the kind of meaningful appellate review mandated by Kent.