A Watched System: Press Access to Juvenile Dependency Hearings
By Jamie Kapalko
Introduction
Every day in courts around the country, children, families, social workers, attorneys, and guardians ad litem attend hearings involving some of the most acute determinations that can be made by the state. In these hearings (called “dependency hearings”), courts find that parents have abused or neglected their children, remove children from their homes, send children in foster care back into the custody of their parents, require families to use rehabilitative services, and sometimes even terminate parental rights (or decline to do any of these things). In over half of all states, these hearings are presumptively closed to members of the public and press. Some see this closure as secrecy that prevents journalists from accurately informing the public and legislators about the children welfare system. Others see it as a protective measure for children and families at one of the most sensitive times of their lives. In a growing minority of states, dependency hearings are presumptively open to the public and press. Most recently, Judge Michael Nash issued an order opening Los Angeles County’s dependency hearings to the press. The Los Angeles dependency court is a part of the Los Angeles Superior Court, the largest trial court system in the nation,[i] and the county’s foster care system is one of the largest in the country.[ii]
This report characterizes the state of the law around the country, describing the varying levels of access to dependency hearings that states give to members of the press. It then provides a closer look at the laws in three states – California, Minnesota, and Arizona – and how they function. Finally, this report describes the arguments made by those in favor of and opposed to open dependency hearings. This report focuses solely on the issue of press access, not wider public access, which involves a different set of considerations. The purpose of this effort is not to draw a conclusion about whether hearings should be presumptively open or closed to the press, but rather to gain a fuller understanding of the issue.
Overview of the State of the Law
Juvenile dependency courts are “presumptively closed” to the press in 28 states and “presumptively open” to the press in 24 states.[iii] Statutes usually do not refer to the press specifically; rather, they apply to the general public, which includes the press. A few states distinguish between the general public and the press in their statutes and treat them differently.[iv] “Presumptively closed” generally means that by default, journalists may not attend a hearing, and journalists who want to attend have the burden of convincing the court to allow them to do so (under standards dictated by statute, usually involving some judicial discretion). Most commonly, state laws establishing presumptively closed courts give judges some discretion to allow individual journalists to attend a hearing when they have a “proper,” “legitimate,” or “direct” interest in “the case or work of the court.”[v] Several states also restrict journalists who attend from divulging information that identifies the child or family.[vi] A few states have statutes with language that minimizes opportunities for access to closed hearings, either by not mentioning the possibility of allowing access at all or by allowing judges to open hearings only when there are “compelling reasons” for doing so.[vii]
“Presumptively open” courts allow members of the press to attend by default. State laws establishing these courts usually give the judge discretion to close hearings to all members of the press and public or bar specific individuals from attending (while leaving the hearing open to others) under certain circumstances, often when doing so is in the child’s best interests.[viii] Like the “presumptively closed” category, there are also several states that prohibit journalists from disclosing identifying information about the child or family (or give judges discretion to prohibit such identification).[ix] Finally, a few states limit closure to “exceptional circumstances” or do not address closure at all in their statutes.[x]
This paper will assess three states’ laws in greater depth: California, Minnesota, and Arizona. California’s statute is representative of most states with presumptively closed courts, since it uses the common language -- “direct and legitimate interest in the particular case or the work of the court” -- mentioned above. Minnesota’s statute is one of the most open, allowing closure “only in exceptional circumstances.” Finally, Arizona’s courts are presumptively open and can be closed “for good cause shown” (in consideration of a set of factors listed in the statute), but the statute prohibits attendees (both members of the press and the general public) from releasing identifying information about the child. This feature is found in statutes establishing both presumptively closed and presumptively open courts.
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[i] “Court Services,” Los Angeles County Sheriff’s Department, accessed March 4, 2012, http://la-sheriff.org/lasd_services/contract_law/court_srv1.html; Kevin O’Leary, “And Justice for Some: L.A.’s Shrinking Court System,” Time, March 21, 2010, http://www.time.com/time/nation/article/0,8599,1973909,00.html.
[ii] “About Us,” CASA of Los Angeles, accessed March 4, 2012, http://casala.org/casa-of-los-angeles; “Letter from the President and CEO,” The Alliance for Children’s Rights, accessed March 4, 2012, http://kids-alliance.org/TheAlliance_CEO_Letter.php.
[iii] The District of Columbia is included, and Nevada is counted in both categories because the law varies by county.
[iv] 705 Ill. Comp. Stat. 405/1-5 (West, Westlaw through 2011 Reg. Sess. P.A. 97-679); N.M. Stat. Ann. § 32A-4-20 (West, Westlaw through 2011 Sess.). This report focuses only on the press, but most of the statutes discussed here apply the same way to the general public.
[v] Cal. Welf. & Inst. Code § 346 (West, Westlaw through 2012 Reg. Sess. Ch. 5); R.I. Gen. Laws § 14-1-30 (West, Westlaw through 2011 Reg. Sess. Ch. 409); S.C. Code Ann. § 20-7-755 (West, Westlaw through 2011 Reg. Sess.).
[vi] D.C. Code § 16-2316 (West, Westlaw through Jan. 11, 2012); 705 Ill. Comp. Stat. 405/1-5.
[vii] Ark. Code Ann. § 9-27-325 (West, Westlaw through 2011 Reg. Sess.); Tenn. R. Juv. Proc. art. III, R. 27 (West, Westlaw through Jul. 15, 2011); S.D. Codified Laws § 26-7A-36 (West, Westlaw through 2011 Sp. Sess.).
[viii] Colo. Rev. Stat. § 19-1-106(2) (West, Westlaw through 2012 2nd Reg. Sess. Ch. 1); N.Y. R. for Fam. Ct. § 205.4 (West, Westlaw through Sept. 15, 2011); N.C. Gen. Stat. § 7B-801 (West, Westlaw through 2011 Reg. Sess. S.L. 2012-1).
[ix] Ariz. Rev. Stat. Ann. § 8-525 (West, Westlaw through Feb. 16, 2012); Conn. Gen. Stat. § 46b-122 (West, Westlaw through 2011 Oct. Sp. Sess.).
[x] Minn. Stat. Ann. § 260C.163(1)(c) (West, Westlaw through 2012 Reg. Sess. Ch. 123); Neb. Rev. Stat. § 24-1001 (West, Westlaw through 2011 1st Special Session).
Introduction
Every day in courts around the country, children, families, social workers, attorneys, and guardians ad litem attend hearings involving some of the most acute determinations that can be made by the state. In these hearings (called “dependency hearings”), courts find that parents have abused or neglected their children, remove children from their homes, send children in foster care back into the custody of their parents, require families to use rehabilitative services, and sometimes even terminate parental rights (or decline to do any of these things). In over half of all states, these hearings are presumptively closed to members of the public and press. Some see this closure as secrecy that prevents journalists from accurately informing the public and legislators about the children welfare system. Others see it as a protective measure for children and families at one of the most sensitive times of their lives. In a growing minority of states, dependency hearings are presumptively open to the public and press. Most recently, Judge Michael Nash issued an order opening Los Angeles County’s dependency hearings to the press. The Los Angeles dependency court is a part of the Los Angeles Superior Court, the largest trial court system in the nation,[i] and the county’s foster care system is one of the largest in the country.[ii]
This report characterizes the state of the law around the country, describing the varying levels of access to dependency hearings that states give to members of the press. It then provides a closer look at the laws in three states – California, Minnesota, and Arizona – and how they function. Finally, this report describes the arguments made by those in favor of and opposed to open dependency hearings. This report focuses solely on the issue of press access, not wider public access, which involves a different set of considerations. The purpose of this effort is not to draw a conclusion about whether hearings should be presumptively open or closed to the press, but rather to gain a fuller understanding of the issue.
Overview of the State of the Law
Juvenile dependency courts are “presumptively closed” to the press in 28 states and “presumptively open” to the press in 24 states.[iii] Statutes usually do not refer to the press specifically; rather, they apply to the general public, which includes the press. A few states distinguish between the general public and the press in their statutes and treat them differently.[iv] “Presumptively closed” generally means that by default, journalists may not attend a hearing, and journalists who want to attend have the burden of convincing the court to allow them to do so (under standards dictated by statute, usually involving some judicial discretion). Most commonly, state laws establishing presumptively closed courts give judges some discretion to allow individual journalists to attend a hearing when they have a “proper,” “legitimate,” or “direct” interest in “the case or work of the court.”[v] Several states also restrict journalists who attend from divulging information that identifies the child or family.[vi] A few states have statutes with language that minimizes opportunities for access to closed hearings, either by not mentioning the possibility of allowing access at all or by allowing judges to open hearings only when there are “compelling reasons” for doing so.[vii]
“Presumptively open” courts allow members of the press to attend by default. State laws establishing these courts usually give the judge discretion to close hearings to all members of the press and public or bar specific individuals from attending (while leaving the hearing open to others) under certain circumstances, often when doing so is in the child’s best interests.[viii] Like the “presumptively closed” category, there are also several states that prohibit journalists from disclosing identifying information about the child or family (or give judges discretion to prohibit such identification).[ix] Finally, a few states limit closure to “exceptional circumstances” or do not address closure at all in their statutes.[x]
This paper will assess three states’ laws in greater depth: California, Minnesota, and Arizona. California’s statute is representative of most states with presumptively closed courts, since it uses the common language -- “direct and legitimate interest in the particular case or the work of the court” -- mentioned above. Minnesota’s statute is one of the most open, allowing closure “only in exceptional circumstances.” Finally, Arizona’s courts are presumptively open and can be closed “for good cause shown” (in consideration of a set of factors listed in the statute), but the statute prohibits attendees (both members of the press and the general public) from releasing identifying information about the child. This feature is found in statutes establishing both presumptively closed and presumptively open courts.
Page 2 -->
[i] “Court Services,” Los Angeles County Sheriff’s Department, accessed March 4, 2012, http://la-sheriff.org/lasd_services/contract_law/court_srv1.html; Kevin O’Leary, “And Justice for Some: L.A.’s Shrinking Court System,” Time, March 21, 2010, http://www.time.com/time/nation/article/0,8599,1973909,00.html.
[ii] “About Us,” CASA of Los Angeles, accessed March 4, 2012, http://casala.org/casa-of-los-angeles; “Letter from the President and CEO,” The Alliance for Children’s Rights, accessed March 4, 2012, http://kids-alliance.org/TheAlliance_CEO_Letter.php.
[iii] The District of Columbia is included, and Nevada is counted in both categories because the law varies by county.
[iv] 705 Ill. Comp. Stat. 405/1-5 (West, Westlaw through 2011 Reg. Sess. P.A. 97-679); N.M. Stat. Ann. § 32A-4-20 (West, Westlaw through 2011 Sess.). This report focuses only on the press, but most of the statutes discussed here apply the same way to the general public.
[v] Cal. Welf. & Inst. Code § 346 (West, Westlaw through 2012 Reg. Sess. Ch. 5); R.I. Gen. Laws § 14-1-30 (West, Westlaw through 2011 Reg. Sess. Ch. 409); S.C. Code Ann. § 20-7-755 (West, Westlaw through 2011 Reg. Sess.).
[vi] D.C. Code § 16-2316 (West, Westlaw through Jan. 11, 2012); 705 Ill. Comp. Stat. 405/1-5.
[vii] Ark. Code Ann. § 9-27-325 (West, Westlaw through 2011 Reg. Sess.); Tenn. R. Juv. Proc. art. III, R. 27 (West, Westlaw through Jul. 15, 2011); S.D. Codified Laws § 26-7A-36 (West, Westlaw through 2011 Sp. Sess.).
[viii] Colo. Rev. Stat. § 19-1-106(2) (West, Westlaw through 2012 2nd Reg. Sess. Ch. 1); N.Y. R. for Fam. Ct. § 205.4 (West, Westlaw through Sept. 15, 2011); N.C. Gen. Stat. § 7B-801 (West, Westlaw through 2011 Reg. Sess. S.L. 2012-1).
[ix] Ariz. Rev. Stat. Ann. § 8-525 (West, Westlaw through Feb. 16, 2012); Conn. Gen. Stat. § 46b-122 (West, Westlaw through 2011 Oct. Sp. Sess.).
[x] Minn. Stat. Ann. § 260C.163(1)(c) (West, Westlaw through 2012 Reg. Sess. Ch. 123); Neb. Rev. Stat. § 24-1001 (West, Westlaw through 2011 1st Special Session).
