Thursday, January 26, 2012

GUEST BLOG: Foster care in America: The case for open courts

The Presiding Judge of Los Angeles County Juvenile Court, Michael Nash, is planning to open court hearings in child abuse and neglect cases to the press and the public.  He has solicited comment on a draft order opening these hearings.

A particularly compelling response came from attorney Edward Opton, who has practiced law in Oakland, California, since 1981.  He works with a national organization that advocates for the rights of low income children and youth. As Opton points out, toward the end of the letter, the description of the process offered by those who want the hearings closed actually is one of the strongest arguments for making them open.

With Opton’s permission, his letter to Judge Nash is reprinted here:


Dear Judge Nash:

This letter responds to the several comments you have received in objection to the current proposed blanket order concerning WIC 346.

The objectors to a juvenile court that would be presumptively open, but closed upon proper showing of good cause, without exception ignore the reasons that, in democracies, courts normally are open to the public.  The objectors point to a panoply of potential harms, almost all hypothetical, that might occur if dependency courts were open; but as to the benefits of open courts they say not a word. 

I suggest that the objectors are failing to take notice of a thousand years, or more, of history, in which the openness of the judicial system has developed hand in hand with government of the people, by the people and for the people, while closed courts, secret courts, Star Chambers have been the tools of dictatorship, oligarchy and arbitrary rule.  It goes without saying—but needs to be said more often—that the co-development and co-incidence of openness in government, including open judicial systems, on the one hand, and democracy on the other, is no accident.  Justice flourishes in the open; injustice in the dark.  This is a basic principle.  It is supported by theory and, even more important, by mankind's collective experience.  That experience is called history.

It follows that pleas for exceptions, for courts that operate in secret, cannot be persuasive unless they show that the particular proceedings they would keep secret differ in some exceptionally important respect from the great variety of proceedings, practically the whole of our judicial system, that are conducted in the open. 

The objectors to the Court's proposed blanket order do not and cannot make the case that the potential costs of open dependency hearings, such as embarrassment and stress, are different from or greater than  the identical “downsides” of openness in many other judicial settings. 
Consider, for example, marital dissolutions, applications for domestic violence restraining orders, mental competency hearings, and criminal proceedings of all types.   In all such proceedings, the alleged misbehavior of adults is contested.  Often the alleged misbehavior is reprehensible, and no matter whether the evidence of human failure concerns a bank president or a bank robber, it has the potential to embarrass not only the adult plaintiffs, defendants and witnesses, but also their families, including their children. 

In other words, the objectors' arguments that children might be harmed would apply with equal or greater force—or lack of force—to a large proportion, perhaps half or more, of all judicial hearings.  The objectors offer no rationale for making dependency hearings an exception to the general rule of open courts.  That general rule no doubt has costs for families, children included, but the benefits of open courts overbalance those costs.  No evidence has been offered that the balance of costs and benefits in dependency court is uniquely different, so different that the normal principles of our judicial system should not apply.
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The history of secret judicial proceedings teaches us that secret proceedings are unfair, unjust proceedings.  I know of no exceptions.  One side, the institutional side, has the advantage.  The other side, the individual, is the subject of the proceeding but seldom an effective participant, for she finds the procedure is stacked against her.  The forms of justice may be observed, but the reality is otherwise.

Consider, for example, typical dependency proceedings in Los Angeles Courts as described by a knowledgeable group of objectors to the proposed blanket order.  The objectors, who are children’s attorneys and/or executives who employ children's attorneys, describe the dependency court as a scene of manifest injustice:

“The typical work day of children's attorneys in court is very full.  Attorneys are constantly required to multi-task and juggle between many responsibilities.  Once the attorneys enter the courtroom in the morning, they are reading the 5-10 court reports they have just received minutes before and then they meet with and interview extended family members, caregivers and clients in the shelter area of the courthouse.  These conversations can take anywhere from 10-45 minutes or more depending on the child's current state of mind, the nature of the hearing, the complexity of the family situation and the number of children in the family.  The child's attorney must also negotiate settlements with parents' counsel and county counsel.  Throughout the day they are continuing to read late reports that are handed to them and speak to parties who continue to arrive.  When their child clients are present their attention must be focused on the child talking with them, explaining what is happening and watching for nonverbal clues regarding their clients well-being and any current distress or anxiety.”  (Letter from executives of Children's Law Center to Hon. M. Nash, November 28, 2011, p. 9.)

One might rephrase the objector's description of a routine day in court in transactional/operative terms as follows:

Children's attorneys come to court with two or more strikes against them and their clients.  They are handed written reports that caseworkers have compiled.  They now see for the first time the written evidence that will be used that day to consign their clients to be separated from their family, or to be reunited with the family.  Their clients may or may not have been consulted in the preparation of those reports, and if their clients were consulted, what they said may or may not be fairly represented in the reports.  The child's attorney was not present when the caseworker interviewed the child, and so, if there is a mismatch between what the child reportedly said to the caseworker and what the child is saying now to the attorney, the attorney is not in a good position to determine which version, if either,   is more reliable.  The children's attorneys must attempt on the spot to patch together oral evidence from family members and caregivers who they, the attorneys, may never have met before—and all this must be attempted not in a law office, with desks, quiet, privacy and staff, but in “the shelter care area of the courthouse.”  In this chaotic scene, the children's attorneys often cannot provide effective legal counsel.  Cases usually are resolved according to the recommendations of the Department of Children and Family Services, and the presence of the children's attorneys often is little more often a matter of form.  The formalities must be observed even if the reality of effective legal representation has become a distant memory, a law student's aspiration that has drained away in the assembly line routine of dependency court reality.

Does the above extrapolation from the objectors' November 28 letter fairly represent the reality of dependency court?  Is it totally off base, partially correct, or uncomfortably close to the truth?  The writer of this letter does not know, and that is the problem.  The secrecy of dependency court makes independent assessment impossible. 

What the writer of this letter does know is that allegations of unfairness, of “stacked decks” in dependency courts, are widespread, and they are of a remarkable consistency, though they enter cyberspace, via blogs and on-line comments to newspaper stories, from people who mostly are strangers to one another.  Such complaints are also consistent with principles of organizational sociology (or from another perspective, commonsense organizational politics): when isolated individuals and an institutional bureaucracy resolve conflicts in a setting where the bureaucracy is a repeat “player” and the individuals are not, the rules of engagement almost always develop to serve the interests of the repeat player, the bureaucracy—and especially so when the proceedings are secret.