Academic journal article Harvard Law Review

Bankruptcy Law - Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 - Ninth Circuit Holds Mother's Debt to County for Son's Juvenile Detention Is Not Domestic Support Obligation and Therefore Is Dischargeable in Bankruptcy - Rivera V. Orange County Probation Department

Academic journal article Harvard Law Review

Bankruptcy Law - Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 - Ninth Circuit Holds Mother's Debt to County for Son's Juvenile Detention Is Not Domestic Support Obligation and Therefore Is Dischargeable in Bankruptcy - Rivera V. Orange County Probation Department

Article excerpt

BANKRUPTCY LAW--BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005--NINTH CIRCUIT HOLDS MOTHER'S DEBT TO COUNTY FOR SON'S JUVENILE DETENTION IS NOT DOMESTIC SUPPORT OBLIGATION AND THEREFORE IS DISCHARGEABLE IN BANKRUPTCY.--Rivera v. Orange County Probation Department, 832 F.3d 1103 (9th Cir. 2016).

Domestic support obligations (DSOs), or debts "in the nature of alimony, maintenance, or support ... of [a] spouse, former spouse, or child," (1) cannot be discharged in bankruptcy under the U.S. Bankruptcy Code. (2) One of a few, narrowly construed exceptions to the presumption that all eligible bankruptcy filers deserve a "fresh start," (3) the DSO exception exists to protect familial dependents from financial abandonment. Prior to 2005, courts were split over whether family-support debts were still Dsos when payable to government entities rather than to the dependents themselves. (4) The Bankruptcy Abuse Prevention and Consumer Protection Act of 20055 (BAPCpA), which clarified that a debt "owed to or recoverable by ... a governmental unit" could indeed be a DSO, (6) ostensibly resolved this discord. But BAPCPA had repercussions for criminal justice: state and local government entities--increasingly reliant on fines and fees to fill the public coffers (7)--gained an opportunity to pursue criminal justice debt collection beyond the exhaustion of debtors' financial resources, while overwhelmed debtors found themselves denied access to the time-honored safety valve ordinarily provided by bankruptcy. Recently, in Rivera v. Orange County Probation Department, (8) the Ninth Circuit held that a debt owed by a mother to a county probation department for her son's detention is not a Dso, and that the debt is therefore dischargeable in bankruptcy. (9) While the panel's acerbic opinion accentuates the broader criminal justice-debt issues at play in the growing number of cases like Rivera, the framework it created is suitable only for a comparatively circumscribed range of prospective parties.

Maria Rivera's juvenile son was incarcerated for 593 days by the Orange County Probation Department. (10) Under California statute, counties are authorized to charge the parents of a detained minor for the "reasonable costs of support of the minor" while so detained, though such charges are at the counties' discretion. (11) The statute prohibits counties from recovering from parents the costs of "incarceration, treatment, or supervision" (12) but permits charges for "food and food preparation, clothing, personal supplies, and medical expenses." (13) Pursuant to this statute, Orange County (the County) sent Rivera a bill in the amount of $16,372. (14) Rivera reportedly sold her house in an attempt to pay down the debt, eventually recompensing the County a total of $9,508.60. (15) But after she failed to appear at a hearing intended to gauge her ability to pay, the juvenile court entered a judgment against her for $9,905.40. (16)

Several months later, Rivera filed a bankruptcy petition in the U.S. Bankruptcy Court for the Central District of California and was granted a full discharge. (17) She had no assets to allocate. (18) The County, on the assumption that Rivera's debt was a DSO and thus excepted from discharge, (19) persisted in its collection attempts, prompting Rivera to file a motion to reopen her bankruptcy case. (20) The bankruptcy court granted the motion, but--after several hearings--concluded that Rivera's debt was in fact a DSO, denying her motion to hold the County in contempt of the discharge order. (21) Rivera appealed. (22) The U.S. Bankruptcy Appellate Panel for the Ninth Circuit "affirmed on largely the same ground," (23) concluding that "the debt [Rivera] owes to orange County is excepted from discharge as a [DSO]." (24)

The Ninth Circuit reversed. (25) Writing for the panel, Judge Reinhardt (26) began by identifying the competing policy concerns at issue. Bankruptcy, explained the panel, is meant to "give[] people from all walks of life a 'fresh start'" by allowing them to discharge insurmountable debt. …

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