BILL ANALYSIS Ó
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 73 (Feuer) - As Amended: March 31, 2011
SUBJECT : Dependency proceedings: public access
SUMMARY : Creates a four-year pilot in three counties, to test
whether California should consider moving from presumptively
closed juvenile dependency hearings to presumptively open
juvenile dependency hearings. Specifically, this bill :
1)Requires the Judicial Council to establish a four-year pilot
project, within a year of securing private funding, in the
counties of Los Angeles and Ventura, and a third unnamed
county, to presumptively open juvenile dependency court
hearings to members of the public unless the court finds it
would be contrary to the best interests of the child, and
subject to certain conditions.
2)Conditions the implementation of the pilot project upon
securing sufficient private funding for both the pilot and the
evaluation.
3)Requires the court to follow certain guidelines related to
presumptively open juvenile court hearings, including:
a) At the beginning of a hearing, requires the court to
explain to all the parties in the case, as well as all
those present in the courtroom, that the hearing is
presumptively open to the public, unless it would not be in
the child's best interests;
b) Afterwards, requires the court to ask the parties if
there is any reason to close the hearing to the public;
and,
c) If the court hearing remains open, requires the court to
warn all individuals present in the court of the
restrictions required by the open court proceeding, set
forth in #7-9 below, and to prohibit anyone other than the
court employees and court reporter from taking photographs
or making any audio, video, or other recordings of the
court proceeding.
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4)Requires the child's attorney to advise the child before the
hearing, in an age appropriate manner, of the right to request
a closed hearing, and provides that if no attorney is present
on behalf of the child, the court will advise the child of
this right.
5)Requires the court to consider whether opening the court
proceedings to the public is contrary to the child's best
interests when any of the following occur:
a) An objection is made by the child's attorney;
b) Any other party to the proceeding requests the hearing
be closed; or,
c) The court on its own motion wants the proceeding closed
to the public.
6)Provides that the Judicial Council may adopt guidelines of
factors the courts should consider when determining the best
interests of the child for the purposes of the pilot project.
7)Instructs the court to take appropriate action to keep
confidential and prevent the release of personally
identifiable information about the child, the child's sibling,
or parent in any open hearing.
8)Offers, one of the ways a court may attempt to keep personally
identifiable information confidential is by directing the
parties to the case, their attorneys and witnesses to avoid
disclosing any personally identifiable information in open
court.
9)Describes "personally identifiable information" as information
such as last names, addresses, birthdates, social security
numbers, tribal enrollment numbers, telephone numbers, e-mail
addresses, driver's license numbers, places of employment,
school identification numbers, military identification
numbers, or any other distinguishing characteristics that tend
to identify the child or the child's sibling or parent.
10)Provides that the court still has the right to take a child's
testimony in chambers pursuant to existing law.
11)Gives the court the discretion to close the proceedings to
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the public on its own motion, or upon a motion by the parties
or the child's attorney and to admit any person whose
attendance is required by the court.
12)Clarifies that the confidential status of juvenile court
records, and inspection of those records shall remain subject
to existing law.
13)Requires the Judicial Council to contract with an independent
organization to conduct an evaluation and prepare a report to
the Legislature within six months of the completion of the
pilot to include, but not be limited to all of the following:
a) The results of the pilot project and a recommendation as
to whether presumptively open juvenile dependency court
hearings should be implemented on a statewide basis;
b) A qualitative and quantitative analysis on open
hearings, as well as an assessment of the effects of open
court proceedings on children;
c) Information on whether the proceedings were found, on
balance, to be in the best interests of the children
involved;
d) Information on whether open proceedings generally served
to raise public awareness regarding juvenile dependency and
foster care systems and whether public opinion of these
systems appeared to be enhanced as a result of the open
proceedings;
e) The type of media coverage, if any, generated regarding
the juvenile dependency and foster care systems as a result
of the pilot project;
f) Information regarding whether ideas for improving the
foster care system appear to have been generated by the
pilot, including legislation to benefit children; and,
g) The manner in which judicial discretion has been
exercised, along with a list of criteria to guide the
exercise of that discretion.
14)Makes the following findings and declarations:
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a) California is currently among the states that requires
all juvenile dependency proceedings be closed to the
public, except under specified circumstances, and that many
states increasingly permit or require public access to
juvenile court hearings in juvenile dependency cases
involving child abuse and neglect;
b) It is difficult for the public or the Legislature to
address problems or inadequacies in a court 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, including the dependency courts,
can be held more accountable, and of educating the public
about the needs of the child welfare system; and,
c) 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.
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
(WIC) Section 300.
2)Prohibits any person other than other than a parent, guardian,
or relative of the child, to be present at any such juvenile
dependency hearing, unless there as a witness. WIC 345.
3)Prohibits the public from attending a juvenile court hearing
with certain exceptions:
a) A parent or guardian requests makes a request and it is
consented to by the child who is the subject of the
petition;
b) The child requests to open the hearing to the public;
or,
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c) The judge or referee determines a member of the public
has a direct and legitimate interest in the particular case
or the work of the court. WIC 346.
4)Restricts the inspection of juvenile court case files to
specified individuals with an interest in the case, such as
the parties to the case, their attorneys, members of child
protective agencies, the State Department of Social Services,
and court personnel. WIC 827.
5)Requires the release of juvenile court records to the public
when a dependent child under the jurisdiction of the court is
deceased and the interested parties have been provided with an
opportunity to file an objection. Requires the court to
redact any information relating to another child or which
could identify another child prior to the release of those
documents, unless the court makes a specific order to the
contrary. WIC 827.
6)Requires the court to weigh or balance only the interests of
the child when determining whether to release the documents of
a deceased child. WIC 827.
7)Restricts access to juvenile case files and provides that the
juvenile court may only release a portion of or information
related to the contents of juvenile case files protected by
state or federal law if the disclosure is not detrimental to
the safety, protection, or physical or emotional well-being of
a child directly or indirectly connected to the juvenile case
that is the subject of a petition, and requires due process be
provided to allow all interested parties to object to the
release of the record. WIC 827.
8)Defines a "juvenile case file" as a petition filed in any
juvenile court proceeding, reports of the probation officer,
and all other documents filed in that case or made available
to the probation officer in making his or her report, or to
the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other
hearing officer. WIC 827.
9)Requires the judge of the juvenile court to control all
proceedings during the hearings with a view toward the
expeditious and effective ascertainment of the judicial facts
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and all the information related to the condition and welfare
of the person on whose behalf the petition is brought. Unless
there is a contested issue or law, requires the judge to
conduct the proceedings in an informal and nonadversarial
atmosphere with a view toward obtaining the maximum
cooperation of the child and all interested persons interested
in his or her welfare. WIC 350.
10)Provides that the child may provide testimony without the
parents present in the judge's chambers if the parents are
represented by counsel present at the time the testimony is
given and, if: the court determines that testimony in chambers
is necessary to ensure truthful testimony; the minor is likely
to be intimidated in a formal courtroom setting; or the minor
fears testifying in front of his or her parents. Allows the
parents of the child to request the court reporter read back
the testimony provided in chambers or to have counsel
summarize the testimony after it has been provided. WIC 350.
FISCAL EFFECT : Unknown.
COMMENTS :
Need for this bill : According to the author, this bill will
allow for a narrowly constructed study of presumptively open
dependency court hearings through a pilot project which will
provide the state with the information it needs to consider
whether to open all juvenile dependency courts statewide. The
author and supporters of presumptively open juvenile dependency
courts view this as a cost-effective way to accomplish needed
system reforms through increased public awareness, public
education on needs of the child welfare services system, and
increased accountability and transparency among the participants
and stakeholders in the juvenile dependency proceedings.
According to the author:
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 difficult, life changing decisions.
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All dependency court hearings in California today are
presumptively closed to the public. The media,
advocates and even friends and relatives Ýare] barred
from the court courtroom. 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.
ÝThis bill] creates a four-year, three-county pilot to
test whether making dependency hearings presumptively
open to the public will increase the accountability
and transparency of the dependency court system.
However, not all hearings would be open. This bill
requires that hearings be closed if it is not in the
child's best interest for the hearings 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, the children's confidential information, along
with all records, remain confidential. Finally, the
bill requires an independent and thorough evaluation
of the pilot to be paid for with private funds.
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 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
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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.
Background of presumptively closed juvenile dependency hearings:
From 1937 to 1961 the Welfare and Institutions Code allowed
children in California to request a private hearing, but state
law did not require closed juvenile court hearings. California
closed juvenile dependency hearings to the public with narrow
exceptions in 1961 following recommendations put forth by a
Governor's Commission Study Report.
Current law requires juvenile dependency and delinquency
proceedings to be presumptively closed to the public, meaning
they are generally closed, but allow for exceptions to be made,
at the discretion of the court, for individuals with a
legitimate and direct interest in either the case before the
court, or the work of the court more broadly. Children or
parents may request a hearing be opened to members of the
public, although the child must consent to the request of a
parent to open the hearing. Under these exceptions, judges have
had broad discretion to allow different members of the public
whom they decide have a direct and legitimate interest, to sit
in on juvenile dependency hearings. Family members and friends
of the parties to a case, groups of social work students,
policymakers, and members of the press are examples of
interested parties who have been have been allowed to sit in on
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normally closed juvenile dependency court proceedings.
A presumptively open court, as proposed under this bill, would
allow for the public to access juvenile dependency court
hearings in a limited number of California counties for a period
of four years, to determine whether changing the presumption
from closed to open would result in any benefits to the child
welfare system or dependency courts.
Open courts in other states: Nationally, only two states allow
open courts, but approximately 15 have moved to presumptively
open courts. Another 15 states, including California, require
presumptively closed dependency courts, and 19 are completely
closed to the public. Notably, of the states allowing for all
dependency court hearings to be open to public access, Oregon
was opened on the basis of its constitution and later by statute
and Pennsylvania via a recent court decision.
Concerns over potential for harm to children: The extent and
degree to which the experiences of the states with open courts
can sufficiently inform California's decision about whether or
how to open its courts is one of several debated matters
surrounding this bill. Proponents have argued that states with
open courts have not seen the sort of serious harm to children
predicted by this bill's opponents, who include foster youth
advocates, county welfare directors, and social workers, among
others. Proponents also argue that opening juvenile dependency
courts in California will result in a heightened sense of public
awareness and interest in child welfare services. Anecdotally,
those involved with child welfare systems in states with open
courts have suggested that the change from closed to open
proceedings seems to have generated little interest from the
public - positive or negative.
When it comes to the question of whether open courts cause harm
to children, opponents argue that research related to the
outcomes of open proceedings from other states has been flimsy
at best, with methodological and design flaws that limit the
usefulness of their findings. In fact, the state of Connecticut
briefly piloted open courts over the course of ten months in
2010 and found, as follows, based on a review of data from other
states:
Based on the research conducted by the Board, it was
unable to find conclusive data from other states that
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have contemplated open courts, or have opened their
court, that demonstrates open courts are effective in
increasing accountability of the juvenile court system
and improving services to children and families. In
addition, significant concerns remained for many Board
members that opening child protection proceedings
could potentially harm children. These concerns were
not alleviated by the experience of other states due
to the lack of any reliable data from those states;
however, it was noted that no state that has opened
its juvenile court has since repealed their statute
that provided the public with greater access to these
proceedings.
Connecticut has since ended the pilot without expanding open
courts on a statewide basis. Interestingly, the Connecticut
study also found in its review of New York's presumptively open
courts that while New York laws give members of the public and
media access to all common areas of the family court, which
include juvenile dependency courtrooms, it also gives judges
broad discretion to close the court if it is found to be in the
best interest of the child. According to the Chief Clerk of
the New York City Family Court, in practice, judges in New York
have interpreted "best interests" to mean that only those
persons with an "interest" in a particular case can attend - a
standard not unlike California's today.
Why close juvenile dependency court hearings at all?: Children
are placed in the hands of the court through no fault of their
own due to alleged child abuse or neglect, and when that abuse
or neglect is substantiated and a decision is made to remove the
parental rights, the court must attempt to act in the best
interests of the child. Requiring juvenile dependency court
proceedings to be closed when such significant life-altering
decisions are being made, and every other court proceeding, with
the exception of juvenile delinquency proceedings, is made open
to the public, defies the principles of openness and
transparency in government according to proponents. A wide
range of court hearings dealing with sensitive and even tragic
matters are by law and as a matter of principle, open to the
public-from murder and sexual assault to family court
proceedings. Only in rare cases are court hearings closed to
the public on a judge's motion. Furthermore, proponents argue
that the secrecy of closed hearings has had a negative impact on
the courts, and by extension, the children whose interests they
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seek to serve.
The most often cited rationale for keeping California's juvenile
court proceedings presumptively closed is the potential for harm
to the children involved in these proceedings. From the
potential for added emotional or psychological stress of
detailing one's life in front of strangers, to the potential for
bullying from peers, or the perceived or very real threats of
violence from abusive relatives or acquaintances, the concerns
related to child safety and wellbeing are numerous.
The concept that the court should protect the child's
confidentiality with separate, closed hearings dates back to the
establishment of the first juvenile court in 1899 in Chicago.
The courts at that time recognized the importance of protecting
juvenile offenders from the stigmas associated with acts
committed in their childhood, and affirmed a belief in the
potential for rehabilitation of youth offenders. However, the
subject of this bill, juvenile dependency court proceedings are
unlike any other type of court proceedings, both because of the
age of the victim, which requires the court and county to assume
a paternalistic responsibility for the wellbeing of the child
and because of the court's relationship to the victim and the
person(s) alleged to have abused or neglected the victim.
Moreover, the type of involvement required of the minor victim
throughout the course of the case is unlike that seen in any
other type of court proceeding.
Depending on the circumstances of each case, a foster child may
interact with the court on an ongoing basis for weeks, months,
and even years at a time. For those youth who do not exit
foster care to permanency, they may quite literally grow up in
the juvenile court system, with every personal detail of their
lives, including their mental and physical health, dating,
academic performance, and details of their abuse, discussed
periodically in the courtroom setting. In order to make good
decisions on the child's behalf, the court benefits from an open
and honest dialogue with all parties. Juvenile dependency
proceedings could even be described as, "social work in the
courtroom setting."
Parents and guardians involved in these proceedings are also
uniquely situated, as state and federal laws do not always take
a punitive approach and encourage working with parents to safely
reunify families when possible. Approximately 66% of the
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substantiated cases that enter the child welfare system in
California are cases of neglect, rather than cases of abuse,
often stemming from poverty. With the proper assessment and
coordination of services and court oversight, some parents can
make significant progress in addressing the problems that led to
the court's intervention and be safely reunified with their
children.
Finally, opponents of this bill have argued that the
identification of children involved in juvenile dependency
proceedings is more likely in California than in other states
that have tested or currently conduct open hearings because
California's laws treat children differently than those states
with respect to the child's role in court. For example, in
California, the child is a party to the case, has a right to
attend court proceedings, and is often asked to participate in
the hearing, including by providing testimony. In fact, one of
the proposed pilot project counties, Los Angeles, is a model
county for the participation of dependent children in its court
proceedings, and has made a special commitment to ensure that
children attend as many of their hearings as possible.
Pilot Counties: Thus far, the Counties of Los Angeles and
Ventura have been identified as participating counties for the
pilot project. A third unnamed county has yet to be selected,
but according to the author, it would need to be a county
willing to participate.
Los Angeles County is home to the largest child welfare system
in the country, with almost half of the state's 60,000 foster
children on its caseload. It is one of two California counties
granted a federal Title IV-E financing waiver which allows it to
block-grant federal foster care funding, meaning that to the
degree the county is able to achieve greater rates of permanency
through reunification, adoption, and guardianship, it may save
money and reinvest it in creative improvements to the child
welfare system. Los Angeles has also invested in its dependency
court building and has made a demonstrated commitment to
participation by its children and youth in judicial proceedings.
The court facility was designed to be youth- and
family-friendly and includes a large waiting room outside the
various courtrooms where, on any given day, parents, children
and caregivers wait to be called into closed hearings. The Los
Angeles County Juvenile Court also works to provide
transportation to ensure as much participation by foster
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children in their hearings and the facility includes a space for
youth to be tutored, play, or otherwise spend the day while
awaiting their hearing.
Over the past several years, Los Angeles has faced increased
public scrutiny of its child welfare system after the deaths of
several children known to the child welfare system, and some
evidence that the Los Angeles Department of Child and Family
Services (DCFS) is overwhelmed, with basic equipment,
procedures and processes lacking.
In contrast, the County of Ventura, the other pilot county
currently identified in the bill, is home to approximately 700
of California's foster children. The county boards of
supervisors in both Los Angeles and Ventura support
participation in this pilot.
The media and juvenile dependency hearings: Editorial boards and
opinion pieces in newspapers from around the state have argued
vigorously in favor of this bill, including the Los Angeles
Times, the Sacramento Bee, San Francisco Examiner, and the
Orange County Register. The proponents point to examples of
responsible journalists who have been allowed into juvenile
dependency courts and who have helped to reform the child
welfare system as a result. In 2008, the Santa Clara County
Superior Court Presiding Judge allowed a reporter to spend a
year investigating its dependency courts, which led to a
year-long series of investigative articles on the challenges of
the foster care system in that county and subsequent state
legislation to increase youth participation in court hearings
statewide. Earlier, journalist Ed Humes published a book: No
Matter How Loud I Shout: A Year in the Life of Juvenile Court
chronicling the year he was allowed to access Los Angeles
juvenile delinquency hearings in 1994. While both of these
examples produced important dialogue, and even tangible reforms
of the child welfare system, they were accomplished within the
parameters of existing law.
Given that the press is not routinely allowed into otherwise
closed hearings, they tend to write articles about children
known to the child welfare system who die when the system fails
them in California - either at the hands of their parents, or at
the hands of their foster parent caregivers. The reason for
this is that the records of dependent children who die can be
made public. These tragic cases highlight the worst of our
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child welfare system while the everyday realities of dependency
proceedings are rarely known.
Opponents of this bill, on the other hand, criticize open court
pilots in other states where reporters have published
information in papers and online which identified the minor
victim of dependency proceedings: the details of their abuse,
the names of their parents or siblings, and even their home
address or the name of the child's school. Examples such as
these are startling reminders of what public access entails.
The press is constitutionally protected against prior restraint,
and although they are bound by professional codes of ethics, the
law does not limit their ability to publish what they learn,
either in open court, or through old fashioned journalism.
Particularly illustrative on the limitations of constitutional
law is the case of The Baltimore Sun Company v. State of
Maryland, 667 A.2d 166 (Md. 1995), wherein the Maryland Court of
Appeals held that the access of the press cannot be
preconditioned by the juvenile court Ýemphasis added]:
This case involves the extent to which a juvenile
court can limit the media's use of information when
that court gives the media access to a previously
confidential juvenile proceeding. We hold that while a
court can place reasonable restrictions on the media's
use of information obtained in a confidential juvenile
proceeding, it cannot limit the media's publication of
information which it legitimately collected from other
sources, and cannot condition access to the juvenile
proceeding upon the media's publication of material
specified by the court.
The state of Maryland is not alone. The Minnesota courts have
also ruled that courts may not prohibit newspapers from
publishing lawfully-obtained information in open juvenile court
hearings or from the parties in the case (Minneapolis Star and
Tribune Co. v. Schmidt, 360 N.W.2d 433 ÝMinn. Ct. App. 1985];
Minneapolis Star and Tribune Co. v. Lee, 353 N.W.2d 213 ÝMinn.
Ct. App. 1984]).
When considering the policy implications of this bill,
therefore, the access of the media is central. The proponents
of this bill concede that the experience in other states has not
demonstrated that members of the public will wander into
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juvenile dependency court in any measurable numbers. More
likely, the "public" to whom this bill speaks are those
individuals directly or indirectly associated with the work of
the court, and the press. It is the media's telling of the
stories in the courtroom that may or may not serve to educate
the public and raise awareness and interest in these court
proceedings.
Opponents of the bill raise additional concerns about the impact
of electronic media, not yet a significant factor when other
open court studies were performed, such as the Minnesota pilot
study in the early 2001. Today's era of bloggers and social
media is a reminder of the possibility that, once published on
the internet, a story of child abuse or neglect which includes
identifying information might be searchable for long after the
child has grown up into adulthood. The opponents have
speculated that this type of information could have a
potentially negatively effect on a former dependent's future job
prospects or relationships.
The Impact of Openness: Underlying some of the arguments made
by the proponents for open courts is a long-standing culture
within the judiciary which diminishes the juvenile court
assignment for judges. Venerable child advocate and former
Presiding Judge of the Santa Clara Juvenile Court, Judge Leonard
Edwards wrote of these problems in a 1992 law journal article,
The Juvenile Court and the Role of the Juvenile Court Judge:
The juvenile court judges must have equal status with
judges on other judicial assignments. Only in this way
will judges be encouraged to remain in the juvenile
court and will the juvenile court have a strong voice
both in the community and in the court system where it
is competing for scarce resources?
The juvenile court is perceived of as a social and not
a legal court, a court in which the lawyer's legal
tools are useless.
Judge Edwards goes on to describe in the article that few judges
come to the bench with a background or interest in juvenile
court law, and that the physical isolation from their peers
contributes in some cases to what is a less attractive judicial
assignment.
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The desire to overcome these barriers and to attract more
interested, competent individuals to the juvenile court bench is
one of the laudable motivations behind some who support this
bill. Proponents believe that opening juvenile courts will have
a similar impact on all the courtroom participants, from social
workers to attorneys. The concept is that as long as this
important work is done in secret, there will be little incentive
for some to perform at their best and few opportunities to
identify and respond to shortcomings in the system.
Prior Legislation: Two past attempts have been made to change
California's presumptively closed dependency court system. The
first, SB 1391 (Schiff and Polanco) of 2000 would have created a
pilot to open juvenile dependency proceedings unless a motion
was filed by the child and the court found that opening the
hearing to the public would cause harm to the child's best
interests. SB 1391passed the Senate and Assembly Judiciary
Committees, but failed passage in the Assembly Appropriations
Committee due to concerns that California could lose federal
foster care funds for a failure to comply with federal
confidentiality requirements. Federal law later clarified
pursuant to the Child Abuse Prevention and Treatment Act (CAPTA)
reauthorization of 2003 that confidentiality requirements tied
to state funding do not prohibit states from granting public
access to court proceedings, provided the public access does not
jeopardize the safety and well-being of the child, parents, and
families.
The second bill, AB 2627 (Steinberg) in 2004 would have created
a five-year pilot in three counties to open juvenile dependency
proceedings unless a motion was filed by the child objecting to
opening the hearing and the court found that it would cause harm
to the child's best interests. AB 2627 passed the Assembly and
failed passage in the Senate Judiciary Committee. Both SB 1391
and AB 2627 included an evaluation of the proposed pilot.
Support:
In making the case for their support, the Children's
Advocacy Institute writes:
The lawyers for these children who are by state law
supposed to investigate the safety of their
placements, advocate for the child's best interests,
and serve as the child's voice in a bewildering
bureaucracy, have caseloads that are up to twice the
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ceiling identified by the California Judicial Council
(188 children per lawyer) and that ceiling is itself
almost twice what national experts suggest (100). As
a result, lawyers frequently are only able to meet
their child clients briefly before key hearings on
such matters as whether the child will be removed from
their parents' care, whether the child will be
administered psychotropic drugs, and whether they will
ever see their brothers or sisters again. Caseloads
prevent these lawyers from almost ever appealing or
even enforcing existing orders that benefit the child.
The Judicial Council of California writes in support:
The Judicial Council believes the 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 council has historically
supported this principle in prior legislation, and
since the last time the council took a position on
such legislation, additional states have opted to open
their juvenile dependency courts with no reports that
such openness has been detrimental to the children in
those courts.
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
their families. The current lack of public access can
only foster a lack of trust and understanding of this
vitally important system. Opening the courts
presumptively, while providing courts with the
authority to close them when circumstances dictate,
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.
The Los Angeles Commission for Children and Families writes in
strong support of this bill, that it will help to ensure that
children receive more quality representation during dependency
proceedings and better services for children and families. The
Presiding Judge of the Los Angeles Juvenile Court, Judge Michael
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Nash writes in support:
In my opinion, closed Dependency Courts do more to
protect an unsatisfactory system than they do to
protect children. While opening the courts is not the
ultimate panacea, it is at least a step in the right
direction. It will provide the public a greater
opportunity to learn more and better understand the
system and why it does not work well enough. It will
also create the potential for better accountability
since I believe it is more likely that people do
better when watched. Finally, it is more consistent
with our communities' values of openness and
transparency, which is exactly the case in other
courts, which often hear the same kinds of issues we
hear in Dependency Court.
Opposition:
The California Youth Connection (CYC), the country's largest
foster youth-led advocacy organization representing current and
former foster youth has a position of "oppose unless amended" on
this bill. CYC has asked for three amendments described in
their letter as follows:
1)That all children in the pilot counties be able to decide
whether to opt into the pilot project. Those who do not wish
to participate will have their court hearings remain
presumptively closed.
2)That any child who opts into the pilot project may request to
have a particular hearing closed at any point in the
proceedings, whether before or during a hearing, and that the
court will be required to comply with this request (the court
cannot ignore the request).
3)That the pilot projects be robustly evaluated, with a rigorous
scientific methodology performed by trained academicians, use
of control groups, and following participants over time to
observe any impacts that may not be immediately apparent. The
research questions should not just include what happens to the
individual children and their families, but also answer
questions about supporters' claims that open courts result in
overall greater public support for the foster care and child
welfare system.
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CYC goes on to write regarding the impacts of this bill on
foster youth:
We recognize that foster children do not have a lot of
absolute rights in the system - they cannot
participate in any extracurricular activity of their
choosing or demand a new placement without other
points of view being factored into the decision.
However, on the potentially life-changing subject of
whether every detail of their personal, private lives
should be open to the scrutiny of the media and any
member of the public who happens to be in the
courtroom, we believe that foster children should have
an absolute right and veto power over whether they are
subjected to the emotional trauma of having people
hear the often painful and embarrassing details of
their lives.
The Children's Law Center of Los Angeles (CLC) a nonprofit
organization that provides attorney representation for the
dependent children served by the Los Angeles County
Dependency Courts writes in opposition:
It has been our experience over the past 20 years that
some young people welcome the opportunity to share
their stories, to speak at public hearings, and to use
the media to expose injustices or raise public
awareness, and we have enthusiastically supported
their ability to speak out and to be heard. Those
youth would be unlikely to object to having their
hearings be open. However, other youth prefer to keep
their private lives private. For example, some
children as young 8 or 9 specifically request that
their social worker, not come to their school, because
they prefer to have school be a place where they can
forget, for a few hours, about their situation.
Others fear that if their friends, neighbors or even
extended family members learn that they are taking
psychotropic medication, are struggling with
depression, or are questioning their sexual
orientation that they will be teased, bullied, or
ostracized. Adding yet another intrusion, over the
youth's objection, flies in the face of the child
welfare agenda the State of California has so
carefully crafted over the past decade. The
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California Legislature can be proud of the many bills
enacted which affirm the importance of making the
child welfare and court systems more responsive to the
needs of the youth we all seek to protect and serve.
That AB73 allows for the case to be open over the
youth's objection is inconsistent with the long held
value that youth voice and participation is critical.
Young people who do not wish to share their private
lives with the public may be inclined to avoid the
courthouse completely rather than risk embarrassment
or worse.
The County Welfare Directors Association of California (CWDA)
has cited numerous concerns with this bill and in addition to
all of the amendments requested by CYC, requests specific
amendments to improve the evaluation of the pilot project
proposed by this bill, including requests that the bill require
a longitudinal study of at least three years with the
establishment of baseline data and a control group, measure
whether the bill has impacted public perceptions of child
welfare services, and that the California Department of Social
Services co-administer the evaluation. CWDA also expresses
numerous privacy and confidentiality concerns related to open
juvenile proceedings:
While supporters of the bill have noted that
"admonishment" language can be incorporated into the
bill, the court can only issue such an admonishment to
the parties in the case. As worded in the bill, the
court is essentially advising the parties to the case
to be careful what they say in open court. This is
because the court cannot legally admonish or direct
the press, or by extension any member of the public
who happens to be present in the courtroom, to keep
confidential any of the information about any of the
parties involved in a case. The press is free, under
the First Amendment, to write anything it wishes about
these cases, even information that would otherwise be
considered confidential (and is confidential today
under the presumptively closed court system).
Essentially, this means that once the courts are
presumptively opened, there is no longer any promise
of confidentiality for children involved in the cases
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whatsoever other than the press's good graces and
behavior. However, as the editor of the Pittsburgh
Post-Gazette is quoted as saying: "The important point
is that a newspaper is not an agency of government; it
is a private information business that can make
exceptions to any rule."
It is also important to note that the
breach-of-confidence findings listed above from the
Minnesota experiment - which should be disturbing in
any era - were reported in 2001, well before the
advent of YouTube, Twitter, Facebook and the explosion
of non-traditional, Internet-based media outlets that
practice sensational reportage not taught in
journalism school. Cellphones with cameras and roaming
capacity are ubiquitous in a way they were not in
these earlier experiments. The opportunity for
children to be ridiculed and mercilessly bullied,
especially children who identify as lesbian, gay,
transgender or bisexual, has never been greater.
Opening the courts to the media and the public means
opening them to everyone, not just the well-meaning,
ethical and knowledgeable reporters whom judges have
allowed into California courtrooms in the past.
The Service Employees International Union, the union
representing child welfare social workers write in opposition:
?ÝThis bill] is silent on the question of exactly when
proceedings will be opened. Detention hearings, for
example, take place at the very beginning of the
dependency process. This is before any serious
investigation or determination of the facts has taken
place, and up to 60 days before the court has
established a family's case plan. Having court open
at this earlier stage increases the danger that we
will disclose not only sensitive information, but
untrue accusations that could seriously harm a child
or wrongly accused parent.
Questions and Policy Concerns:
1)How will the state properly weigh the costs and benefits from
the open courts pilot? Opponents of this bill point out that
available research on the effects of open dependency court
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have not adequately considered the impact of these hearings on
the children and families involved in the proceedings, and
have not looked at the potential long-term impacts to the
parties and systems involved.
Even an attempt to determine the potentially positive effects
of public openness as intended by this policy change would
require a very creative research design. For example, how
would a baseline be created in an atmosphere that is otherwise
closed to non-participants to measure the impact of the
presence of a new person? The moment a researcher arrives to
observe and establish a baseline for activity, the effect of
being watched has been introduced. And even more challenging,
how does one quantify or qualify the impact of public scrutiny
on the quality of the work performed in the court? Does the
author plan include in the evaluation the requirement for a
control group as well?
2)Confidentiality protections: This bill seeks to protect the
child's confidentiality by requiring the Judge to admonish the
parties in the case and their attorneys to not divulge
confidential information, which shifts a large part of the
burden for ensuring confidentiality to the child and other
parties to the case. Furthermore, once an open proceeding has
started, neither the judge nor the attorney can know what
witnesses and parties will say, but for reasons stated in the
analysis above, the court will have little recourse to protect
that confidential information and keep it from getting
published. Should an accidental disclosure occur, what
remedies does the author suggest for the child or affected
parties? The court will not be able to screen or ask for the
identification of public attendees once a hearing is opened.
Additional guidance to courts may be needed to ensure the
confidentiality protections in this bill are as strong as
possible.
3)Judicial assignments: Should the author and proponents also
consider alternative ways of working with the Judicial Council
to create a professional pathway to the bench for individuals
with a legal background and interest in child welfare issues?
Judges and other stakeholders must continue to advocate for
qualified and interested judges to oversee the important work
of the juvenile dependency court.
Proposed amendments:
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Staff suggests the author take the following amendments:
1)Shorten the length of the pilot, introduce an interim report
mid-way through, and continue the evaluation of the pilot for
at least a year after the pilot has ended.
2)Require the Judicial Council to actively inform youth of their
rights with a form to be provided to all youth over the age of
10, which explains that the court is presumptively open unless
it is not in the child's best interests, and how a child may
object or respond to an objection by another party.
3)Clarify that if the judge is to advise a child of his or her
right to request a closed hearing, the judge must do so in an
age-appropriate manner.
4)Require the court to give special consideration to a child's
wishes when considering whether to close an otherwise open
proceeding.
5)Require the court to provide its reason on the record, in a
way that protects the child's confidentiality, for deciding to
keep a proceeding open to the public over the objection of a
child.
6)Require the hearing to consider a motion to close a proceeding
be closed to the public.
7)Require the Judicial Council to adopt guidelines for factors
courts should consider when determining the best interests of
the child, which shall include, but not be limited to:
a) Considerations related to the physical and emotional
safety and wellbeing of a particular child, which may
include significant embarrassment.
b) The child's privacy, including the likely disclosure of
otherwise sensitive and confidential educational, medical
or psychological information concerning the child.
8)Instructs the court to consider issuing appropriate orders as
one of possible "appropriate action" it may take to keep
personally identifiable information about a child or a
child's sibling or parent confidential.
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9)Clarify that "personally identifiable information" applies to
any particular person.
10)Require the Judicial Council to consult with the Department
of Social Services in contracting with an independent
organization required under this bill to prepare an evaluation
and report to the Legislation on the results of the pilot
project.
11)Require the Judicial Council to consult with a group of
stakeholders regarding the selection of the independent
organization contracted to conduct the evaluation, and in
establishing the evaluation criteria, which shall include:
representatives from the dependency courts and child welfare
agencies in the counties with pilots, children's advocates,
groups advocating on behalf of parents of children in foster
care, lawyers representing parties in dependency proceedings,
social workers, CYC, CWDA, and the California Newspaper
Publishers Association.
12)Require the evaluation to include development of a voluntary
survey to be made available to any member of the public who
attends an open proceeding pursuant to the pilot and to submit
results of the surveys, along with any interviews with members
of the public regarding their reasons for attending open
proceedings and their opinions of the juvenile dependency and
child welfare system before and after attending.
13)Require, as part of the evaluation, the independent evaluator
shall survey participants in a random sample of open court
proceedings, including but not limited to, children,
attorneys, court personnel, social workers, judges and
referees, regarding the impact of the open proceedings on the
individual, the proceedings, and the juvenile dependency and
foster care systems and documenting whether pilot participants
would recommend opening juvenile proceedings on a statewide
basis.
14)Require a report of data concerning media coverage, by type,
and including formal and informal television, print, and
electronic media coverage generated as a result of the pilot
project, including information on whether any photos, names or
other personally identifiable information may have leaked or
been published.
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15)Require the report to include the number of objections filed
with each court to close proceedings, the reasons provided for
keeping a proceeding open over the objection of a child, and
the total number of cases closed by the court's own motion by
county.
16)Require the report to include an assessment of any positive
or negative outcomes of open proceedings on individual
parties, public opinion, or the child welfare system based on
the information collected by the independent evaluator.
17)Require, if the recommendation of the evaluation is to open
juvenile dependency proceedings, the report to include
recommendations for proposed changes or guidelines that should
be included based on the findings of the evaluation.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on April 5, 2011, and was
approved on a 10-0 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Alliance for Children's Rights
Association of Certified Family Law Specialists of California
Association of Family Conciliation Courts
California Newspaper Publishers Association
California Protective Parents Association
California State PTA
Children's Advocacy Institute
Judicial Council of California
Los Angeles County Board of Supervisors
Los Angeles County Commission for Children and Families
Los Angeles County Department of Children and Family Services
(DCFS)
Los Angeles Juvenile Court
Ventura County Board of Supervisors
Ventura County Human Services Agency Director
2 Individuals
Opposition
California Association of Marriage and Family Therapists (CAMFT)
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California Public Defenders Association (CPDA)
California Youth Connection
Children's Law Center of Los Angeles
City and County of San Francisco
County Welfare Directors Association of California (CWDA)
John Burton Foundation
National Association of Social Workers, California Chapter
(NASW-CA)
Service Employees International Union
2 Individuals
Analysis Prepared by : Michelle Doty Cabrera / HUM. S. / (916)
319-2089