BILL ANALYSIS Ó
AB 73
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 73 (Feuer) - As Amended: March 31, 2011
SUBJECT : DEPENDENCY HEARING: PUBLIC ACCESS
KEY ISSUES :
1)Should California test, through a short-term, limited-scope
pilot project (complete with an independent and thorough
evaluation) whether increasing the accountability and
transparency of the dependency court system MIGHT improve
outcomes for foster children by making dependency hearings
presumptively open to the public, unless doing so is not in
the foster child's best interestS?
2)IN ORDER TO HELP ENSURE THAT FOSTER CHILDREN ARE PROTECTED
FROM HARM, SHOULD CHILDREN'S CONFIDENTIAL INFORMATION BE KEPT
PRIVATE, AS THIS BILL REQUIRES, EVEN IF HEARINGS ARE OPEN?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
When children are removed from their families due to abuse or
neglect, the state effectively becomes their parent and the
juvenile dependency court must make life-altering decisions,
including where a child will live and whether to terminate
parental rights. Unfortunately, far too often dependency courts
do not have adequate time, resources, or information on which to
base these difficult, life changing decisions. All dependency
court hearings in California today are presumptively closed to
the public. The media, advocates and even friends and relatives
are barred from most courtrooms. As a result every significant,
life altering decision about a foster child's safety, security
and living arrangements is done in secrecy, behind closed doors
- without public scrutiny, accountability or transparency.
AB 73 creates a four-year, three-county pilot in volunteer
counties only to test whether making dependency hearings
presumptively open to the public might help to increase the
accountability and transparency of the dependency court system.
However, even in this narrow and time-limited experiment not all
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hearings would be open. This bill requires that hearings be
closed if it is not in the child's best interests for hearings
to be open. This allows for public oversight of the court
process, while still ensuring that individual children are
protected from harm. Moreover, the bill requires that, even if
a particular hearing is open to the public, the child's
confidential information, along with all records, shall remain
confidential. Finally, the bill requires an independent and
thorough evaluation of the three-county pilot, to be paid for
solely with private funds.
Supporters, including the Alliance for Children's Rights,
Children's Advocacy Institute, California Protective Parents
Association, the Judicial Council, the Los Angeles and Ventura
County Boards of Supervisors, and the Los Angeles County
Department of Children and Family Services (who support in
concept), believe the bill will increase transparency and
accountability of a system designed to protect abused and
neglected children from harm, while protecting these children by
preserving their privacy and confidentiality.
Opponents, including California Youth Connection (who oppose
unless amended), California Public Defenders Association, County
Welfare Directors Association of California (who oppose unless
amended), and Service Employees International Union, are
concerned that the bill could further traumatize abused or
neglected children without necessarily improving the dependency
court process.
The author believes that foster children "deserve a
well-functioning dependency system that protects them from
further harm and helps them thrive. No secret court system can
guarantee that. Children need sunshine to thrive and so does
our dependency system." The author notes there have been far
too many tragedies in this secret system which some needed
sunshine might help reduce. All newspapers in the state who
have thus far weighed in on the measure have editorialized in
favor of it, including the Los Angeles Times, the San Jose
Mercury News, the San Francisco Chronicle and the Orange County
Register.
SUMMARY : Creates a volunteer privately-funded three-county
pilot project to make dependency hearings presumptively open to
the public, unless an open proceeding is found not to be in the
dependent child's best interests. Specifically, this bill :
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1)States:
a) It is difficult for the public or the Legislature to
address problems or inadequacies in a system if the system
is hidden from public view. Public access to juvenile
court hearings has the benefit of ensuring that the child
welfare system can be held more accountable, and of
educating the public about the needs of the child welfare
system; and
b) California has a compelling interest in protecting the
privacy rights of abused or neglected children in order to
protect them from further harm. Children's privacy rights
can be protected by keeping children's identity information
confidential and providing judges the discretion to close
completely individual hearings based on the circumstances
of the cases and the needs and best interests of specific
children, while presumptively ensuring those proceedings
are open and transparent.
2)Requires the Judicial Council, notwithstanding that dependency
hearings are presumptively closed to the public, and subject
to securing funding, to establish a four-year pilot project in
Los Angeles, Ventura and one unnamed county to presumptively
admit members of the public to a juvenile dependency court
hearing, subject to confidentiality requirements, unless the
court finds that admitting the public would not be in the
child's best interests.
3)Requires the child's attorney, prior to the hearing, to advise
the child of the right to request that the hearing be closed.
4)Requires the court at the start of the hearing to explain that
the hearing is presumptively open, unless it is not in the
best interests of the child, and to inquire if there are
reasons to close the hearing. Requires the court to admonish
the parties as to the confidentiality requirements in #6,
below, and to prohibit anyone, except court employees, from
taking photographs or making audio, video or other recordings
of the court proceeding.
5)If a request is made to close the hearing, or if the court on
its own motion wants the proceeding to be closed to the
public, the court shall consider whether having the particular
proceedings open to the public is contrary to the child's best
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interests. Allows the court to close the hearing at any point
in the proceeding. Allows the Judicial Council to adopt
guidelines of factors that courts should consider when
determining the best interests of the child.
6)Requires the court to take appropriate action to keep
personally identifiable information about the child or about
the child's sibling or parents confidential and to prevent
release of that information in any court hearing open to the
public, including, but not limited to, directing all parties,
their attorneys and witnesses to refrain from disclosing any
such personally identifiable information in open court. For
purposes of this section, "personally identifiable
information" means both the first and last name, address, date
of birth, social security number, tribal enrollment number,
telephone number, driver's license number, place or places of
employment, school identification number, military
identification number, or any other distinguishing
characteristic that tends to identify a particular person.
7)Requires an independent organization to conduct an evaluation
and prepare a report to the Legislature of the results of the
pilot project, with a recommendation as to whether the project
should be implemented on a statewide basis. Requires the
report to be submitted to the Legislature within six months of
the completion of the pilot project. Requires the report to
include both qualitative and quantitative analysis on open
hearings and to measure the effects on children with regard to
the opening of proceedings. Specifies particular issues that
the report must address.
8)Requires that the pilot project and the evaluation be done
with private funds and makes the pilot contingent upon
securing sufficient private funds to conduct the pilot project
and the evaluation.
9)Specifically provides that juvenile court records must remain
confidential, as provided by existing law.
EXISTING LAW :
1)Provides that children may become dependent children of the
juvenile court and removed from their parents or guardian on
the basis of abuse or neglect. (Welfare and Institutions Code
Section 300. Unless otherwise stated, all further statutory
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references are to that code.)
2)Provides that, unless requested by a parent or guardian and
consented to or requested by the child, the public shall not
be admitted to a juvenile court hearing. Nevertheless, allows
the judge to admit individuals that the judge deems to have a
direct and legitimate interest in the particular case or the
work of the court. (Section 346.)
COMMENTS : When children are removed from their families due to
abuse or neglect, the state, through the child welfare agency
and the juvenile dependency court, effectively becomes their
parent. Nearly 60,000 children in California today are under
the supervision of the dependency court. The dependency court
has vast power over these children - determining what services
they and their families will receive, who will care for them, in
both the short- and long-term, and what contact they will have
with their families. The court even decides whether to
terminate parental rights and begin adoption proceedings.
Today these decisions are all made in a court process that is
presumptively closed to the public. Sadly, there have been many
stories of tragedies involving children in the dependency court
system that raise the question whether the secrecy of the
current system increases the potential such harm may occur,
including children left in dangerous situations, others removed
inappropriately from their families, while still others are
placed with foster parents who harm them. No less disturbing
are stories of children shuffled from placement to placement,
changing schools every few months, while others spend years
being inappropriately medicated.
This bill creates a four-year, three-county voluntary pilot
program to test whether making dependency hearings presumptively
open to the public will increase the accountability and
transparency of the dependency court system. However, under the
bill not all hearings would be open. Hearings will be closed if
it is not in the child's best interests for them to be open.
This allows for public oversight of the court process, while
still ensuring that individual children are protected from
further harm. Moreover, the bill requires that, even if a
hearing is open to the public, children's and parents'
confidential information, along with all records, remain
confidential. Finally, the bill requires an independent and
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thorough evaluation of the pilot to be paid for with private
funds.
In support of the bill, the author writes: "Foster children
deserve a well-functioning dependency system that protects them
from further harm and helps them thrive. No secret court system
can guarantee that. Children need sunshine to thrive and so
does our dependency system."
The Dependency Court's Very Significant Role in Child
Protection : The Legislature has provided dependency courts with
very significant, on-going oversight responsibilities to ensure
that children removed from their families due to abuse and
neglect and placed under the court's jurisdiction are not only
protected from further harm, but also thrive. An initial
detention hearing is held immediately after a child is removed
from his or her parents due to abuse or neglect to determine if
the child should remain detained. Within 15 days of the
dependency court's decision to detain the child, the court must
hold a jurisdictional hearing to decide whether the child falls
within the dependency court's jurisdiction under Welfare &
Institutions Code Section 300. If the child continues to be
detained, a dispositional hearing must be held no later than ten
days after the jurisdictional hearing. If the child is made a
dependent of the court, the court must decide where the child
should live and what reunification services, if any, the parents
should receive.
The court must review the case of each child who has been
removed from his or her parents every six months. At this
review hearing, the court assesses the parents' progress towards
possible reunification. The court can reunify the family and
dismiss the case, reunify the family and continue to monitor the
family through family maintenance services, or maintain the case
without reunification. Within 12 months after the child is
removed from his or her parents (or less for children under
three years of age at removal), the court must determine whether
the child should be returned home or whether efforts to reunite
the family should be terminated. If the child is not returned
home, efforts could still continue to reunify the family. If
reunification efforts end, the court must determine a different
permanency plan for the child. Possibilities include adoption,
legal guardianship or some other permanent arrangement.
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Constitutional Right of Access to Court Proceedings : The First
Amendment right to attend court hearings was first recognized by
the U.S. Supreme Court in 1980 in Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980). In that case, involving a
criminal trial, the Supreme Court established a two-part inquiry
to determine whether particular court proceedings are
constitutionally required to be open to the public: (1) A
historical analysis of access to similar proceedings; and (2) an
analysis of the function served by public access to the
particular court proceedings. In analyzing the functions of an
open court, the Court found that open trials ensure that court
proceedings are conducted fairly, with public attention
discouraging perjury, biased court decisions, and misconduct by
trial participants. Beyond enhancing the fairness of trial
outcomes and the quality of testimony, public trials boost
public confidence in the justice system and enhance public
satisfaction that justice is being done. The Court concluded
that public access to criminal trials could be limited only
where there is an "overriding Ýstate] interest articulated in
the findings."
The Supreme Court reiterated the constitutional right of access
to criminal courts in 1982 in Globe Newspaper Co. v. Superior
Court for Norfolk County (1982), 457 U.S. 596, when it struck
down a Massachusetts law that banned the press and public from
the courtroom during the testimony of an abused child in a sex
abuse trial. Although the court determined that the state's
interest in safeguarding the psychological and physical welfare
of a child was a compelling one, that interest was insufficient
to justify a blanket public access prohibition. The Supreme
Court has continued to recognize and expand the public's right
of access to court proceedings. (See, e.g., Press-Enterprise
Co. v. Superior Court, 464 U.S. 501 (1984) (jury selection);
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)
(preliminary hearings).)
Public Access to Dependency Hearings in California : Juvenile
court proceedings in California have not always been closed to
the public. From 1937 to 1961, when juvenile dependency and
delinquency proceedings were handled together, California law
permitted juveniles to request private proceedings but did not
require that all proceedings be closed. A Governor's Study
Commission report, issued in 1960, recommended that juvenile
court proceedings be made private. However, the Commission
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wrote that it did not intend to cut off media access to the
proceedings:
ÝW]e do not intend that this recommendation be used to
exclude bonafide representatives of the press from
attending juvenile court hearings. In so stating, we are
convinced the press will continue to respect their
voluntarily adopted code of ethics, whereby the names of
juvenile offenders are not identified to the public.
We believe the press can assist juvenile courts in becoming
more effective instruments of social rehabilitation by
providing the public with greater knowledge of juvenile
court processes, procedures, and unmet needs. We,
therefore, urge juvenile courts to actively encourage
greater participation by the press. It is the feeling of
the Commission that proceedings of the juvenile court
should be confidential, not secret.
(Governor's Special Study Commission on Juvenile Justice, Part I
- Recommendations for Change in California's Juvenile Court Law,
p. 24 (1960).)
As a result of the study, in 1961 the Legislature made juvenile
courts proceedings presumptively closed to the public. Under
current law, the public may not be admitted to a dependency
hearing unless "requested by a parent or guardian and consented
to or requested" by the dependent child. However, the court may
nevertheless admit individuals that the court "deems to have a
direct and legitimate interest in the particular case or the
work of the court." (Section 346.)
State Supreme Court Permits But Does Not Mandate Public Access
to Juvenile Court Proceedings : In 1979 in Brian W. v. Superior
Court (1978) 20 Cal.3d 618, the California Supreme Court
determined that a court could admit the media to a juvenile
delinquency proceeding. The court in that case found that
Section 676 of the Welfare & Institutions Code (nearly identical
to Section 346) authorizes the court to admit members of the
press to delinquency proceedings. The lower court in that case
had excluded members of the general public from the delinquency
hearing, but allowed the press to attend provided they did not
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disclose the defendant's name or identity; and the state Supreme
Court upheld that decision.
Following Brian W., a court of appeals in San Bernardino County
Department of Social Services v. Superior Court (1991) 232
Cal.App.3d 188, concluded that Section 346 also authorizes, but
does not require, the court to admit members of the press to
dependency hearings. The San Bernardino court found that the
juvenile court "should allow access unless there is a reasonable
likelihood that such access will be harmful to the child's or
children's best interest in the case." (Id. at 208.) The San
Bernardino court discussed at length the public policy
supporting access to dependency hearings: (1) public proceedings
may serve the twin goals of assuring fairness and giving the
appearance of fairness; (2) "access may serve to check judicial
abuse"; (3) public scrutiny may protect the rights of parents at
risk of being separated from their children; (4) to the extent
that access may reveal "crimes committed against and neglect
visited upon" children, public access can provide an outlet for
community outrage, concern, and emotion; and (5) public access
can serve to enhance the public's understanding of how the
system operates and to promote the success of any proposed
reform.
As a result of legislation and litigation, dependency court
hearings have, since 1961, generally been closed to the public,
but occasional exceptions have been made. The San Jose Mercury
News spent a year investigating dependency courts and then
produced a 2008 in-depth series on the systemic difficulties of
the foster care system. (Karen de Sá, Broken Families, Broken
Courts, San Jose Mercury News (Feb. 8-12, 2008).) The series
resulted in several substantial changes to the dependency court
in Santa Clara County and a new statewide statute increasing
youth access to their hearings. The series and these changes it
helped bring about were only possible because some dependency
court judges allowed access to their courtrooms.
Growing Trend Toward Public Access to Dependency Hearings :
Historically, juvenile courts in the United States - both
dependency and delinquency - have been closed to the public.
However, a growing number of states have opened up access to
dependency court proceedings and, in some cases, to dependency
court records, in hopes of improving outcomes for foster youth.
Public access to dependency hearings, by state, is set forth in
the table below:
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Public Access to Dependency Courts
-------------------------------------------------------------
|Open |Presumptively |Presumptively |Closed |
| |Open |Closed | |
|-----------+--------------+-----------------+----------------|
|Oregon, |Alaska, |Alabama, |Arkansas, |
|Pennsylvani|Colorado, |Arizona, |Delaware, |
|a (case |Florida, |California, |District of |
|law allows |Indiana, |Connecticut, |Columbia, |
|judges to |Iowa, Kansas |Georgia, Hawaii, |Idaho, |
|close |(some |Illinois |Kentucky, |
|proceedings|hearings), |(exemptions for |Louisiana, |
|) |Maryland, |the media), |Massachusetts, |
| |Michigan, |Kansas (some |Mississippi, |
| |Minnesota, |hearings), |Missouri, |
| |Nebraska, |Maine, Nevada |Montana, New |
| |Nevada (some |(some counties), |Hampshire, New |
| |counties), |New Mexico |Jersey, North |
| |New York, |(exemptions for |Dakota, Rhode |
| |North |media), |Island, South |
| |Carolina, |Oklahoma, South |Carolina, |
| |Ohio, Texas, |Dakota, |Vermont, |
| |Utah, |Tennessee, |Virginia, West |
| |Washington |Wisconsin |Virginia, |
| | | |Wyoming |
-------------------------------------------------------------
State Evaluations of Dependency Court Public Access Show No Harm
Resulted to Children : Several states that have recently allowed
public access to their dependency courts have conducted
evaluations to ensure that children are not harmed by the
access. The most thorough evaluation to date was done for
Minnesota by the National Center for State Courts (NCSC).
Minnesota's three-year pilot not only opened up access to court
hearings but also to court records. As part of that study, NCSC
researchers visited every pilot site in Minnesota, conducted two
waves of surveys with child protection professionals, including
guardians ad litem, social workers, public defenders, county
attorneys and judges, and the media, reviewed court files,
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compiled data on filings and hearings, and compiled media
accounts. The researchers found that there were costs to open
hearings and records (particularly records, which require time
consuming redaction to protect confidentiality) and that there
were risks to parties about losing privacy. Note, Minnesota not
only opened up access to records, which may contain private
information, but also allowed courts to close only in
"exceptional circumstances," a much higher threshold than the
best interests standard in this bill.
However, even with those substantially less protective
provisions, the evaluation found: "During the course of the data
collection, the NCSC project team did not encounter any cases
where harm to children or parents irrefutably resulted from open
hearings/records although many professionals expressed concern
for the potential of such harm." (Fred Cheesman II, Key
Findings from the Evaluation of Open Hearings and Court Records
in Juvenile Protection Matters, p. 32 (National Center for State
Courts 2001).) The report went on to find that "real and
potential benefits result from open hearings/records, including
enhanced professional accountability, increased public and media
attention to child protection issues, and openness of judicial
proceedings in a free society." (Id.)
While the study was not exhaustive and had limitations, and open
court critics have questioned the validity of both that study
and a subsequent study done in Arizona, no evaluation of which
the Committee is aware has found any harm caused to children as
a result of the public access to dependency proceedings.
Following the evaluation, Minnesota expanded the pilot statewide
and other states, including Alaska and Pennsylvania, have opened
up access to their courts. To date, no states have reportedly
moved to limit access (with the possible exception of a 10-month
pilot in Connecticut).
Importantly, this bill provides substantial protections to
children significantly above and beyond that of any other state
that allows for public access to dependency hearings . As
discussed above, this bill provides significant protections for
foster children. First, it requires that court hearings be
closed if it is not in the child's best interests for them to be
open. Second, the bill requires that the child's attorney
explain to the child, prior to the hearing, that the child may
request that the hearing be closed. Third, it requires the
court to notify all parties of the closure rules at the start of
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the hearing and specifically inquire if there is any reason to
close the hearing. Fourth, the court is required to take
appropriate steps to keep confidential information about the
child, the child's siblings and the child's parents
confidential. This includes directing all parties and witnesses
to refrain from disclosing that information in open court.
Fifth, all photography and video and audio recording is
prohibited (except as required for court employees). Sixth, the
court can still take the child's testimony in chambers.
Seventh, records remain confidential. And, finally, the bill
creates a short-term pilot in three counties, with an
independent and vigorous evaluation to test whether
presumptively open court hearings improve outcomes for children,
while not causing them harm.
No other state that permits public access to dependency hearings
provides anything close to this level of protection for foster
children. As discussed above, Minnesota allows access to both
hearings and records and only closes hearings in exceptional
circumstances. (Minn. Juv. Prot. Pro. 27.01.) New York only
closes hearings when there is a compelling reason or a litigant
needs to be protected from harm, and there are no less
restrictive options to closure. (N.Y. Rules of Ct. 205.4.)
Florida permits closure when public interest and the welfare of
the child are best served. (Fla. Stat. Ann. 985.035.) Illinois
allows in only the media and, if good cause is shown for the
child's protection, prohibits disclosure of the child's
identity. (705 Ill. Comp. Stat. 405/1-5(1).) Ohio courts can
only close when there is a "reasonable and substantial" basis
for belief that a public proceedings could harm the child or
endanger fairness of the proceeding and the "potential for harm
outweighs the benefits of public access." (Ohio Rev. Code Ann.
2151.35; State ex rel. Scripps Howard Broadcasting Co. v.
Cuyahoga Cty. (1995) 652 N.E.2d 179.) Several other states,
including Colorado and Washington, use the best interests of the
child standard, but, unlike this bill, have no other protections
for the child.
Media across the state strongly support public access to
dependency court . Newspapers across the state strongly urge the
Legislature to provide greater transparency to dependency court
proceedings by allowing for public access. The Mercury News,
arguing for greater transparency, discovered that judges in
dependency court "routinely took just a few minutes to rule on a
child's fate; some lawyers never even met with their clients
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outside the court and never enlisted the help of experts. So we
know the system is inadequate to this monumental task before it,
and we know additional staffing isn't forthcoming. Opening up
these courts to public view may be the best possible way to help
end the dysfunction." (Editorial, Time to open up state's
dependency courts, San Jose Mercury News (Feb. 9, 2011.) Writes
the Los Angeles Times: "Secrecy in California's dependency
courts, where cases of child abuse and neglect are heard, has
protected negligent parents, foster parents and social workers
from serious scrutiny. And it has failed children."
(Editorial, A dependency court cure, Los Angeles Times (Feb. 12,
2011.)
The Orange County Register agrees, finding that "abuses fester
anytime that sunshine is not permitted." (Editorial, Kids court
shouldn't operate in secret, Orange County Register (March 9,
2011.) The San Francisco Chronicle concurs: "Californians
can't make the right reforms to our foster care system unless we
know how it's working. Opening the dependency courts is a small
but crucial step in the process." (Editorial, Dependency courts
must be open to public scrutiny, San Francisco Chronicle (March
20, 2011.) And, responding to concerns that children could be
embarrassed or otherwise harmed if hearings are open, a Los
Angeles Times Op-Ed found: "The choice is not between
embarrassing children or protecting them; it is between holding
the system accountable and cloaking it in secrecy. The problem
is not inquiring journalists or other observers; it is abusive
parents and neglectful officials who take over the lives of
these children and then fail them." (Jim Newton, Secrecy that
hurts kids, Los Angeles Times (March 8, 2011.)
Previous Legislation : Two previous efforts to provide public
access to dependency proceedings in California - SB 1391 (Schiff
and Polanco) in 2000 and AB 2627 (Steinberg) in 2004 - were
unsuccessful. SB 1391 passed the Senate and the Assembly
Judiciary Committee, but failed passage in the Assembly
Appropriations Committee over concerns that California could
lose its federal foster care funds for failure to comply with
federal confidentiality requirements. Federal requirements have
since been clarified to permit public access to dependency
hearings. (U.S. Department of Health & Human Services, Child
Welfare Policy Manual, 8.4E Title IV-E, General Title IV-E
Requirements, Confidentiality, Questions No. 7.) AB 2627 passed
the Assembly, but failed passage in the Senate.
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ARGUMENTS IN SUPPORT : Supporters include the Alliance for
Children's Rights, Children's Advocacy Institute, California
Protective Parents Association, the Judicial Council, the Los
Angeles and Ventura County Boards of Supervisors, and the Los
Angeles County Department of Children and Family Services (who,
like Los Angeles County, support in concept).
The Alliance for Children's Rights believes that the bill "will
not only make dependency court proceedings transparent, but in
doing so will implicitly create a layer of accountability for
all officials - judges, lawyers and social workers - involved."
The Alliance believes that "the best interests and privacy
rights of children will remain paramount because AB 73 provides
judges discretion to close proceedings and further that, when
open, hearings will be conducted in a manner designed to conceal
all identifying information relevant to the child."
The Judicial Council believes this bill "would enhance public
trust and confidence in the juvenile court by promoting
transparency and accountability while preserving the ability of
the court to protect the interests of abused and neglected
children in individual cases. . . . The work of juvenile
dependency courts is of critical importance to the public as it
involves significant involvement by the state in the lives of
children and families. The current lack of public access can
only foster a lack of trust and understanding of this vitally
important system." The Judicial Council believes that this bill
"will bring more attention to the needs of California's child
welfare system, and ensure that all of its decision makers,
including judges, can be held accountable for their actions."
In support of the bill, the Children's Advocacy Institute
writes: "Every facet of our dependency court system is
collapsing under crushing caseload. . . . The status quo has
not worked and is not working for Ýfoster] children."
Children's Advocacy Institute goes on to find "(i) there is
evidence from another state that indicates that opening up
dependency proceedings helps improve job the performance of
those in the court rooms; (ii) there is ample evidence from
other open-government contexts that government performance
improves when the business of the government is done in public;
(iii) there is a desperate need to educate the possibly
game-changing public on a routine, more than just a Ýfleeting]
expose basis, of how the daily operations of these caseload
besieged courts fail these children and are, in fact, partly
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responsible for the hideous outcomes described above; and (iv)
there is recent evidence that wider publicity about foster care
problems leads to noteworthy reform."
The California Protective Parents Association believes that "the
lack of transparency in juvenile dependency court hearings
hampers efforts to protect children."
Adds the California Newspaper Publishers Association: "The
presumption of closure, under current law, prevents the public
from understanding whether Ýdependency] courts and the various
state and local agencies relied upon by the courts are
succeeding or failing to adequately protect the staggering
number of children and families that come before them. AB 73,
by providing access to these proceedings, would promote the
integrity and credibility of dependency courts. It would have a
similar effect on the courts' supporting agencies by revealing
the level of proficiency of their investigations, findings and
conclusions and thereby holding these institutions accountable
for their performance. By achieving these objectives, the bill
would promote justice by strengthening public confidence in
these institutions and most importantly provide greater
protection for society's most vulnerable."
Los Angeles and Ventura Counties also support the bill, which
furthers their goal of improving the transparency of the child
welfare system while protecting families' privacy.
ARGUMENTS IN OPPOSITION : Opponents, including California Youth
Connection (who oppose unless amended), California Public
Defenders Association, the County Welfare Directors Association
of California (who oppose unless amended), the National
Association of Social Workers, California Chapter and the
Service Employees International Union argue first and foremost
that the bill is potentially harmful to abused children. They
argue that, at the very least, the proposed pilot should be
completely optional, so that foster children have an
unprecedented "veto" and can only participate if they willingly
choose to do so. Even if they choose to opt into the presumed
open hearings pilot, opponents argue that the hearing should
automatically close, regardless of the court's weighing of the
issues, if the child requests closure. Writes California Youth
Connection:
Dependency court hearings often discuss ways in which a youth
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may be acting out their emotional trauma from abuse or
separation from caregivers. A few common examples are
bedwetting, temper tantrums, sexualized behaviors,
developmental delays, bad academic performance, and other
behavioral and/or mental health issues. These are issues that
non foster children are able to deal with in the privacy of
their own homes, and we believe that foster children should be
guaranteed the same right to privacy if they wish.
It is worth noting that such a proposed approach, would, perhaps
inadvertently, make the dependency court system even more
secretive than current law, which allows the judge to "admit
individuals that the judge deems to have a direct and legitimate
interest in the particular case or the work of the court," even
if the child objects. Moreover, hearings where such emotional
trauma is discussed would very likely, under this bill's special
privacy protections, be closed at any rate pursuant to the
mandate the hearings continue to be closed under this measure
whenever doing so is in the best interests of the child.
Additionally, although the bill, as discussed above, contains
far more protections for the child and the child's privacy than
the 19 states that open their proceedings, the opponents believe
that, as the California Public Defenders Association writes,
publicity from dependency court hearings "is harmful to the
system-involved children, and impedes their ability to recover
from the trauma they have been subjected to by exacerbating the
risk of post-traumatic stress disorder."
Opponents also believe that the bill does not provide for a
sufficiently robust evaluation. Writes the County Welfare
Directors Association: "Chief among counties opposing even a
pilot is Ýthe child welfare directors'] concern that a pilot
would be poorly evaluated and lead to a statewide open-court
policy." The bill requires an independent evaluation, including
"both qualitative and quantitative analysis of open hearings and
shall measure the effects of opening the proceedings on
children," but opponents are concerned that even with this
language, the evaluation could still have methodological flaws.
The National Association of Social Workers, California Chapter
(NASW) is concerned about the child: "Fundamentally, we
question whether these hearings are ever in the best interest of
the child. The courtroom is a frightening place for a child and
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adding more strangers in the courtroom has the potential of
increasing trauma to the child as well as the family." However,
NASW is also "very concerned with the confidentiality of the
social workers involved in these cases. Nothing in this bill
protects their privacy."
The California Public Defenders Association is also concerned
that if proceedings are presumptively public, parents who could
be criminally prosecuted for actions taken against their child
may be impeded in presenting testimony in an open court setting
that could protect their parental rights. However, there are
often overlaps today between criminal cases and related civil
cases, such as custody and domestic violence cases, cases which
could result in a parent's loss of all contact with his or her
child. These civil hearings take place today in a fully open
courtroom with open records, without any issues raised.
Adds the Service Employees International Union:
Problems in the LA County child welfare system, among
others, have been well-publicized during the last two
years. . . . ÝL]ack of necessary resources, lack of
appropriate training for front-line workers, staffing
levels that put caseloads well-above recognized best
practice standards, and perhaps most critically, a lack of
communication between agencies that too often operate in
silos. This bill addresses none of these critical issues,
nor does it respond to any clear case that dependency
proceedings are broken and need fixing.
Thus even those who continue to have concerns that this
time-limited voluntary pilot program might inadvertently lead to
some harm to some children concur that dependency proceedings in
California desperately need fixing. As the Judicial Council
itself acknowledges, far too often today dependency courts do
not have adequate time, resources, or information on which to
base the difficult, life changing decisions that judges must
make every day: "California's dependency courts are
overstressed and underresourced, burdened by crowded dockets and
inadequate information." (California Blue Ribbon Commission on
Children in Foster Care, Fostering a New Future for California's
Children: Ensuring Every Child a Safe, Secure, and Permanent
Home: Final Report and Action 4 (May, 2009).)
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REGISTERED SUPPORT / OPPOSITION :
Support
Alliance for Children's Rights
Association of Certified Family Law Specialists (in concept)
California Protective Parents Association
Children's Advocacy Institute
Judicial Council
Los Angeles County Board of Supervisors (in concept)
Los Angeles County Department of Children and Family Services
(in concept)
Ventura County Board of Supervisors
One individual
Opposition :
California Youth Connection (unless amended)
California Public Defenders Association
County Welfare Directors Association of California (unless
amended)
National Association of Social Workers, California Chapter
Service Employees International Union
Two law professors
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334