Friday, January 27, 2012

Open courts in child welfare: LA Judge takes a big step in the right direction

UPDATE, JAN 31: STILL ANOTHER INDICATION THAT OPEN COURTS WORK: Though only a minority of states have open court hearings in child welfare cases, they include some of the largest - New York, Texas, Illinois and Florida among them.  Once court hearings are opened in Los Angeles, nearly half of America's foster children will live in a jurisdiction with open hearings. Yet in all the years that these hearings have been open, no state has closed them again, and none of the fears of opponents has come to pass.

            Court hearings concerning cases alleging child abuse and neglect in Los Angeles County would be presumed open to the press, but remain closed to most of the public under a draft order issued Friday by the Presiding Judge of the county’s Juvenile Court.  Judge Michael Nash will hold a hearing on the draft order Monday. 

            If Judge Nash proceeds with this order as written, it will be a significant step forward in holding the county Department of Children and Family Services and the courts themselves accountable for what the system does to children and families in Los Angeles. [UPDATE: JAN. 31: At the conclusion of the hearing, Judge Nash announced that he will issue a final order after making some minor changes to the draft.]  As we explain in our Due Process Agenda, none of the many other state and local systems that have opened these courts has closed them again because all the fears of opponents proved groundless.  The need for opening these hearings is superbly explained in a letter from Berkeley attorney Edward Opton, reprinted in the previous post to this Blog.

            The order also has some unfortunate limitations.  But in reading the reasoning Judge Nash offers in his draft order, it appears he considers this as far as he can go under existing law, based on rulings from California appellate courts.

            Under the proposed order:

Members of the press shall be allowed access to Juvenile Dependency Court hearings unless there is a reasonable likelihood that such access will be harmful to the child’s or children’s best interests.

Any party can raise an objection to a reporter’s presence, at which point the judge would have to rule on the issue of “reasonable likelihood” of harm.  The order offers no guidelines, no definition of harm, and no standard of proof that someone objecting to the presence of reporters must meet.  That gives lousy judges plenty of leeway to keep their courts closed whenever they don’t want reporters to see how those courts do their jobs. 

The provisions for the general public are a little more confusing, and a lot more restrictive.  According to the draft:

Members of the public shall be admitted to Juvenile Dependency Court hearings at the request of or with the consent of a child about whom a petition has been filed. Other members of the public may enter the courtroom and be present at a hearing if the court finds that such persons have a direct or legitimate interest in the case or the work of the court.  Upon request of the court, such persons shall specifically articulate the purpose of their presence.

            As I read it, this means that if the child (which often will really mean the child’s lawyer) wants someone in the courtroom, that person is allowed in no- questions-asked.  Anyone else has to prove a “legitimate interest.” [UPDATE, FEB 1: Judge Nash's final order clarifies that this is, indeed, what he meant.]

            But it’s possible that Judge Nash is saying that, for a member of the public to be admitted, that person would have to both have an invitation from the child’s lawyer and meet the legitimate interest test.  That’s unlikely, but if it is what Judge Nash is saying then it would set a terrible precedent.  It would give one party to the case a power denied to all the others, instead of leaving such decisions up to the judge.  This is exactly the kind of condition the sponsor of legislation to open California courts statewide wisely rejected.

            The other problem, of course, is that the order opens up the question of  what, exactly constitutes “the press”?

The appellate court decisions on which Judge Nash relies predate the Internet.  No doubt a reporter for the Los Angeles Times, even Garrett Therolf, would be considered a member of the press.   But the best coverage of child welfare in Los Angeles has come from WitnessLA, a Blog written and edited by Celeste Fremon, a former reporter for LA Weekly.  Is she a member of the press?  Given the strong reporting often seen at WitnessLA, I doubt that Fremon really would have a problem. But it illustrates how drawing the kind of distinction Judge Nash has in mind has become more difficult.

            The good news is that for decades Illinois and New Mexico have operated this way.  In those states juvenile courts are presumed open to the press and closed to the public.   Those states don’t seem to have encountered any difficulties.