A fortnight ago, the appeals court for the Second Appellate District in California invalidated a court order that had eased media access to Los Angeles County’s otherwise closed juvenile dependency hearings.
This ends two years of intermittent sunshine on the complicated functionings of the largest child welfare system in the nation, and perhaps the world.
The appeals court decision hinges on how much discretion a judge should have in barring reporters, and has reignited the long-simmering debate about the costs and benefits of allowing reporters to be present at hearings where minors’ fates are decided.
While the March 3 ruling seemingly closed the door on the media, it also sets up the possibility of two developments: an appeal to the California State Supreme Court, or new legislation allowing greater media access to dependency proceedings, not only in Los Angeles, but across the state.
In my opinion, the dispute could and should be resolved through legislation that promotes a new, higher journalism: one practiced in the best interest of the child. .
A Judge’s Discretion and the Burden of Proof
In February of 2012, a week after Michael Nash, the Presiding Judge of Los Angeles’ Juvenile Court, had issued his now invalidated order, a reporter and a lawyer from the Los Angeles Times showed up at a hearing involving a 15-year-old girl and her four younger siblings. The girl had been removed from her parents by the Department of Children and Family Services (DCFS) after her father had allegedly committed “brutal domestic violence” against her and her mother.
It was a tense and uncertain time at the Edelman Children’s Court in Monterey Park California, a sprawling labyrinth of court-rooms and offices set atop a hill where judges and lawyers change the life trajectories of as many as 30,000 children a year. Like many other juvenile courts that had allowed press in, the first few weeks of openness in Los Angeles were met with a herd of reporters keen on easy access.
The courts are already chaotic. Children, like A.L. and her siblings, are not alone in the hearing rooms. Attorneys, bailiffs, court referees, clerks, guardians ad litem and an intermittent cast of family members and social workers are all part of the swirling tide of professionals, paraprofessionals and consumers that make up the county’s vast child welfare system.
The Children’s Law Center of California (CLC) represents every child in Los Angeles County: its 100 lawyers average a caseload of 300 each. From the start, CLC had opposed media access. And in those strange days after Nash issued his order, CLC attorneys were throwing up objections to almost any journalist in the room.
It was through her CLC lawyer that A.L. objected to the Times’ presence.
Almost a month later, the judge in A.L.’s case ruled that the Times would be allowed into the court-room, despite CLC’s assertion that “the child is at an age (15) where children are extremely sensitive to the possibility of their private information being disseminated to others.”
A.L.’s lawyers filed a writ to override the court’s decision, which was denied, setting it up for appeal and the decision in A.L.’s favor published on March 3.
That decision is centered on the concept of judicial discretion and burden of proof. Judge Nash’s order compelled court referees to allow the press in, and only force them out if someone could show a “reasonable likelihood that such access will be harmful to the children’s best interest.”
In his original order, Nash cited the California Welfare and Institutions Code (which governs the dependency system) and a number of cases including Brian W. v. Superior Court and San Bernardino County Dept. of Public Social Services v. Superior Court – which both dealt with media access to juvenile proceedings.
In 1991, the San Bernardino Sun newspaper requested access to the juvenile court records and files of a sibling group, which had been removed from their home under awful, headline-grabbing circumstances. The attorneys for the siblings objected. Ultimately the court denied the Sun access to the records, but used its discretion to admit the reporter into the hearing under certain conditions.
The appellate court struck down that ruling, but clarified the law around media access significantly:
“Members of the press are persons having a direct and legitimate interest in the work of the court and may be permitted to attend such proceedings in the juvenile court’s discretion under Welfare and Institutions Code Section 346.”
The problem is that Section 346 can be read both as exclusionary and inclusionary to the press. The section reads:
“Unless requested by a parent or guardian and consented or requested by the minor concerning whom the petition has been filed, the public shall not be admitted to a juvenile court hearing.” But, “the judge or referee may nevertheless admit such persons as he deems to have a direct and legitimate interest in the particular case or work of the court.”
While, A.L. seems to have had a reasonable objection to the Los Angeles Times presence during the February 2012 hearing, and the Times’ attorney and reporter may have shown insensitivity by not respecting her wishes, it is unclear where judicial discretion had been infringed upon. The judge in that courtroom had the ultimate discretion to either uphold or deny the objection.
The appellate decision seems to argue that the overall environment of the court, where the presiding judge had issued an order bending the culture towards openness, was one where individual court referees were inhibited from exercising the discretion that code section and case law give them.
“We agree that press attendance at dependency proceedings may be allowed, and that the legislature intended to encourage it, as Brian W. tells us,” the majority wrote in this month’s opinion. “But both Brian W. and San Bernardino are also clear that press admittance to dependency hearings involves an exercise of the juvenile court’s discretion in the context of the unique facts of each case.”
Further, the majority opinion looks to shift the burden of proof on access back to the press.
“The press must ultimately persuade the court that the balance of competing interests should be weighed in its favors – that is, there is no reasonable likelihood that access will be harmful to the child’s best interests.”
It is on this question, the likelihood of harm to a child, that the entire debate falls, and where one can discern an opportunity to bridge the gap between needed privacy for child victims and the social change transparency can bring.
The Debate in a New Venue
On Wednesday nights, I teach a class called Media for Social Change at the University of Southern California’s Sol Price School of Public Policy. About 30 graduate students, mostly studying public policy, with a handful of social work and journalism students sprinkled in, converge to discuss and find solutions to some of the largest problems facing children in or at risk of entering foster care.
The March 12 session focused squarely on open courts.
Our guests were David Estep and Jenny Cheung-Marino of the Children’s Law Center and Jill Stewart, managing editor of the LA Weekly. The three stood close to one another at the front of the class. It was nighttime, and all had worked a full day. Still, no one took the seats that had been arranged for them.
“Many children could be saved,” Stewart said of media being granted access to the courts. “Each case is such an incredible drama. It is like the hot new cable show, but just so sad. I have seen people changing when they see the media coming.”
This is a dynamic Stewart knows intimately. In the mid 1990s she visited the morgue while reporting on an explosive story for the Los Angeles Times.
“There he lay, a boy with long, dark eyelashes,” Stewart wrote in the July 1995 cover story. “IV punctures near his pelvis indicated that doctors had fought to revive him. On his foot was a toe tag, and upon it was a name that would soon prompt investigations of the county’s dependency court and the attorney panel that was supposed to protect him: Lance Helms.”
The story, which explored the County’s Child Death Review team and the deaths of scores of children at the hands of their parents and caretakers – including 2 1/2-year-old Lance Helms – led to legislation increasing transparency and deep reflection by county officials on how the system could be improved.
“I understand the arguments about the positive aspects of the press,” Estep, a CLC law firm director who worked as a journalist early in his career, said during the class. “The problem is, do we think it is fair to require a victim of abuse, a child, to present evidence why the press should be excluded?”
In A.L.’s case, a 15-year-old indeed had to argue that she was afraid of the details of her case getting being shared with her peers. Estep and Cheung-Marino pointed out that the press had always been granted access on a case-by-case basis as long as the reporter could show that the positive effect of coverage on the system outweighed the possible negative effects on children.
Excluding the possibility of a California Supreme Court decision striking down the appellate court’s decision, journalists will go back to having to petition the court for admittance. This will have a chilling effect on understaffed, overworked newsrooms, laying a cloak back over some of the most critical decisions a society can make.
“One possibility is that something bad will happen,” Stewart added. “The media will write stories about the inept social workers and judges and how things would have been different if the media was there. I do expect a law to come through the legislature in the next few years.”
Stewart is not alone.
Journalism in the Best Interest of the Child
In 2011, the Alliance for Children’s Rights, which provides legal representation for children in foster care and engages in policy reform, supported Assembly Bill 73, which attempted to do for the state what Nash’s order did for LA County.
Under major pressure from opponents, the bill never made it out of committee. Among the forces lined up against it: the Services Employees Union International, which represents social workers, the Children’s Law Center, and the California Youth Connection, a political advocacy group led by foster youth.
“As a practice I am not opposed to this [open courts] because I see that it could have more upsides than downsides,” said Janis Spire, executive director of the Alliance. “With proper safeguards, there is the possibility of highlighting an important issue and [it] could save children’s lives.”
She went on to say, “if the law is so clear and strong that it would preclude a presiding judge from having the authority to allow such discretion that includes safeguards, perhaps we should change the law.“
But how do we change the law in a manner that satisfies the journalist’s need to tell rich stories, coupled with the real privacy concerns of children who are victims of abuse and neglect?
In 2012, the organization I founded, Fostering Media Connections, held a symposium on media access in Boalt Hall at the University of California, Berkeley’s School of Law. There we presented a rigorously reported analysis of the costs and benefits of open courts in jurisdictions across the country.
We also presented a code of ethics for journalists to use when trying to access otherwise closed juvenile dependency courts. The code of ethics was built on the consensus of journalists and child advocates alike.
The lesson we learned and tried to share was that journalism had to bend. Ultimately, journalists must submit to the same rules of the game that everyone else in the courtroom does; and conduct journalism in the best interest of the child.
In A.L.’s case it seems the Los Angeles Times did not live up to that simple maxim, but that was never expected of them. There was never the political will at the state level to draw up a comprehensive law on transparency in the courts, and Nash’s order followed WIC 316 and legal precedent to arrive at a simplified rule based on “legitimate interest” and “reasonable likelihood” of harm.
In reviewing case law and code section. Listening to Estep, Cheung-Marino and Stewart in my classroom. Speaking with Spire in her downtown Los Angeles office. During countless conversations with youth who are in — or experienced — the system. Studying how other states successfully or unsuccessfully opened their dependency courts. And knowing deep down why journalists want to be journalists in the first place, I am sure that a balanced and ethical bargain between the child welfare system and the news media can be struck. The next step is to outline the details of that bargain.
More than two years of transparency in Los Angeles County have sobered the debate, giving me hope that the next attempt at a legislative fix will give the child welfare system a chance to shed its fears while inspiring journalists to raise their ethical standards, offering both an opportunity to do their best work in the best interests of children.
Daniel Heimpel is the founder of Fostering Media Connections and the publisher of The Imprint.