Foster care in Los Angeles: The courts stay open – for now

UPDATE: WitnessLA has a good take on the appeals court decision here.


            An appeals court has refused to close Los Angeles County courts hearing cases alleging child abuse and neglect just days after they were opened by Presiding Juvenile Court Judge Michael Nash, according to the Los Angeles Times.  At the same time, one of the best recent essays in support of keeping these hearings open appears today in Pasadena Weekly.

            Although the ruling was only two sentences, the reasoning is important: The groups that tried to close the courts again have the contracts to provide representation for children and parents.  The appeals court ruled that they have no “standing” to challenge the ruling because open courts don’t do the lawyers any harm.  (Actually, one could argue that open courts do these lawyers a lot of harm because they reveal the pathetic excuse for “representation” that they provide – but that’s not an argument they’re likely to make on appeal.)

            In any event, the appeals court ruled that open courts can’t be challenged until that challenge is brought by someone who actually claims to have been harmed by open courts.  Given that the record all over the country has been that the fears of such harm have proven groundless, that’s likely to be a very high bar.

            Of course it’s impossible to guarantee that no child ever will be harmed by an open court hearing.  But we know that thousands of children are harmed every day when the hearings are closed – sometimes the harm even can be fatal, if a bad decision leads to the death of a child.  So, as I’ve noted before, while it’s impossible to guarantee that no child ever will be embarrassed by open courts, the odds are if courts are open the quality of everyone’s work will improve – and more children will live long enough to blush.

Foster care in Los Angeles: Opening courts in L.A. already is proving its value.

A story in today’s Los Angeles Times aptly illustrates the benefits of opening court hearings to the public in cases of alleged child abuse and neglect.  It also illustrates the one drawback – which has nothing to do with privacy.

The story appears even as the organization for lawyers who supposedly represent children in these cases is appealing the decision by Presiding Juvenile Court Judge Michael Nash to open these hearings to the press and, under some circumstances, the public.  According to the Times, the organization for lawyers supposedly representing parents plans to join the suit.

The real reason for the appeal also was illustrated in today’s story.

The story was the one that almost always appears when courts first are opened: reporters rush in to see what really goes on, and give readers their first glimpse of this reality.

The Times sent two reporters, Garrett Therolf and John Hoeffel.  Their story led with a case from the court of Judge D. Zeke Zeidler, in which a severely-abused child was not getting the help he needed.   Specifically, the caseworker from the Los Angeles County Department of Children and Family Services hadn’t done nearly enough to find a permanent home for the child.  According to the story:

When the caseworker described her limited efforts to comply with the order, the jurist delivered a stern rebuke.

"You as the government have chosen to become vested with this child" by removing him from his home, Zeidler said. "But the court does not find that the department has provided sufficient services."

The story concludes this way:

After Zeidler's hearing, the interim director of the county's child welfare agency said he would look into the judge's complaint about efforts to find the injured boy a permanent home. "I am always concerned when I hear that a judge is not satisfied with the efforts of a social worker," Philip Browning said.

Presumably, Browning wasn’t sitting in that particular courtroom at that moment.  Presumably, he was notified of the judge’s displeasure by a reporter.

So opening courts already has made a difference:

● Because a reporter was present this time, he could let the acting director of DCFS know that there will be a public price to pay if the child doesn’t get the help he needs.  Odds are the child now will get that help.

● Next time, knowing that a reporter might be present, the caseworker is likely to do a better job of finding the right placement for a child, or whatever else is required of the worker.

● The privacy of the child was protected – no names were used. 

SOME LAWYERS ARE EASILY “FREAKED OUT”

But there was more:

We got a first glimpse of what passes for legal representation in this court.  One judge was so clueless about how to handle open courts and the repeated objections filed by lawyers wanting their hearings closed that the whole process ground to a halt.  But Judge Zeidler handled everything with aplomb.

Even more revealing:

It wasn’t just the lawyers supposedly representing children who were objecting.  So were the lawyers who supposedly represent parents – even though the Los Angeles grassroots group advocating for families whose children have been taken, DCFS-Give Us Back Our Children – has been outspoken in its support for open courts.

Worse, some of the parents’ lawyers objecting to open hearings didn’t bother to check with their clients first.  Why?  According to their boss, they were just too “freaked out” by the thought of the general public finding out what they do and how they do it.  According to the Times:

"I think everyone is freaked out because this has only been in effect a couple of days," said Kenneth Krekorian, executive director of the law firm representing parents. "This is a big change for how things have historically happened."

Krekorian acknowledged that some lawyers were objecting to media presence without checking with their clients. He said he had advised his attorneys to consult with their clients before acting.

"How can you object without any direction from your client?" Zeidler asked one attorney. "Maybe he's a parent who doesn't feel he is getting adequate services, or maybe he feels his due process rights are being trampled and wants someone to know."

What does it tell you about the general quality of family representation in Los Angeles County that the chief lawyer actually had to explain to his staff that it’s generally a good idea to ask their clients what they want before purporting to speak to them – and still, they didn’t always do it?

THEY DIDN’T FREAK OUT IN NEW YORK

By the way, I’ve seen no news account from any other state that has opened these courts in which the attorneys were similarly “freaked.”  On the contrary, it was no problem in places like Minnesota and New York City, and it’s still no problem.  In fact, all over the country, no state that has opened these hearings has closed them again, and one-time opponents have become converts.  Yet the groups now suing or preparing to sue to close courts in Los Angeles apparently never consulted with their New York counterparts – or simply didn’t care about the reality of open courts.

There is a possible explanation for this:

This isn’t the first indication that the lawyers representing children in Los Angeles know that the public would be upset if it knew exactly what constitutes “representation” at these hearings. As attorney Edward Opton pointed out in a letter to judge Nash, the description of what they do and how they do it, in the memo sent to the judge by the children’s lawyers opposing his order is, in itself, remarkably damning.

All this suggests the real reason why the lawyers for children (and reportedly, soon, the lawyers for parents) are trying to close the courts again.  They don’t want people to see the quality of their work.  In particular, I suspect they fear a repeat of what happened in Santa Clara County. 

After the San Jose Mercury News won rare, temporary access to courts in Santa Clara County as part of a year-long investigation by reporter Karen De Sa, the newspaper’s series on the abysmal quality of representation forced the provider of defense counsel for families to completely reorganize and operate under the equivalent of what child welfare agencies might describe as a “corrective action plan.”  (The firm came within an inch of being replaced entirely, an outcome many advocates would have preferred.)

THE ONE DRAWBACK TO OPEN COURTS

As I said at the outset, the Times story also reveals the one real drawback to opening courts: A biased reporter will filter everything through his biases.

So, with all the cases to choose from, the story in which Garrett Therolf is the lead author of course begins with one of the very rare cases in which a child was brutally abused, instead of one of the many more typical cases, often involving children who never needed to be taken from their homes.

We knew this would happen and supported opening courts in Los Angeles anyway, on the theory that the solution to the problems of journalism is more journalism and, ultimately, better reporters would set the record straight.

But Therolf’s bias also came through when he completely shut out of his story a group opposing open courts that does not have a vested interest, and therefore is the most credible.

Members of the California Youth Connection, a group made up of current and former foster youth, are terrified of the most intimate details of their lives becoming public.  Their opposition killed legislation to open these hearings statewide.

So 19-year-old Lucias Bouge, who had been through at least 40 separate placements in the six years after his grandmother died, told a reporter about how at school, he never told anyone he did not live with his parents – and how we would not have wanted classmates to find out because of a public court hearing.

The fact that what CYC fears simply has not happened in state after state where these hearings are open has not been enough to overcome that fear.   The fact that the Times used no names in the one case it describes in detail today probably won’t allay those fears either.  No wonder.  If there is one group that has good reason not to trust anything told them by an adult it is current and former foster youth.

But the fact is, if Bouge gets his wish and the courts are closed again, all he will accomplish is to make it more likely that more children among the next generation of foster youth will have to endure exactly what he did.

I wish CYC had examined other states before giving in to its fears, something discussed in detail in these posts to this Blog.  But the fact that I, and Garrett Therolf, disagree with CYC is no reason to shut them out of the story.

We know about Bouge’s concerns because Hoeffel wrote about them for the Times’ LA Now Blog.  Similarly, last year, when CYC came out against opening courts statewide, it was almost certainly disappointing to Karen De Sa at the Mercury News.  But she gave their side of the story a full and fair airing, and the Mercury News put it on the front page.

But in the Los Angeles Times story that made the print edition today, with Therolf as the lead author, CYC was shut out.

I think Louis Bouge is wrong.  But Los Angeles Times readers, even those who read the paper the old-fashioned way, in print, had a right to “hear” Bouge and decide for themselves.  Garrett Therolf denied them that right – just as he has denied them the right to hear from the families needlessly torn apart by DCFS.

Open courts will give better reporters a chance to tell the whole story. 

UPDATE: LA child welfare hearings are open NOW

UPDATE, FEB. 2: I discussed the opening of these hearings on KPFK Radio this morning.  The audio is available here.


Court hearings in cases alleging child abuse or neglect in Los Angeles County are now presumed open to the media.

Presiding Juvenile Court Judge Michael Nash issued his final order last night.  It’s effective immediately.

Journalists will be allowed in unless a party to the case can persuade the judge that this would be “harmful to the child’s or children’s best interests.”

Members of the public will be admitted as well, if they can show “a direct or legitimate interest in the case or the work of the court” and their presence would not be “harmful to the child’s or children’s best interests.”

This marks a significant victory for all of us in child welfare who want to see courts and child welfare agencies made more accountable.  It will be that much harder for the county Department of Children and Families, private foster care agencies, and the courts themselves to cover up their mistakes.  

Open hearings are not a panacea.  But they have led to modest systemic improvements, and often big improvements in the outcome of individual cases.  And none of the fears of opponents has come to pass. Full details are in our  Due Process Agenda.

The former chief judge of New York State’s highest court, the Court of Appeals, and the judge who opened these hearings in New York State, Judith Kaye put it best:

“Sunshine is good for children.”

As noted in the previous post to this Blog, with this change, nearly half of America's foster children live in jurisdictions where court hearings are presumed open, as least to media.

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.

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:


LETTER FROM EDWARD OPTON TO JUDGE MICHAEL NASH

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.

                                                                        * * *

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.