By Daniel Heimpel

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 functioning’s 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.

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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 hinges 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 two cases – 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 to 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. 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.

Cross posted with the Chronicle of Social Change. Read the full story here.

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