DEBATE

California: Open-hearing juvenile court

The door to San Mateo County's juvenile courts might crack open as a result of a hearing this week, but after two days of testimony before a skeptical judge, it appeared unlikely they would be kicked open completely. Juvenile Court Judge Marta Diaz concluded the hearing Friday and must decide if San Mateo County will be the first in California to open child abuse proceedings.
County counsel — which had sought fully open hearings — on Friday afternoon said they would welcome less.
“Openness is not an all or nothing proposition,” said Deputy County Counsel David Silberman after the hearings.
Diaz, who will likely issue a written ruling Monday, has a variety of options: keep the current closed system, open up all proceedings, or craft a way to allow greater access on a case by case basis. The current system keeps proceedings closed unless someone petitions to open them. Under state law, juvenile judges may grant access to people with a “legitimate interest” in a case — from foster parents to relatives to reporters.
Indeed, Diaz has allowed such access before, notably for the investigation into the death in 2002 of an 8-month-old baby in the county's care.

Another option — as county counsel requested — is to routinely open all hearings. But Diaz expressed doubt about whether she has the legal authority to do this, asking, “Who am I to make laws? I'm a judge.”
The private defender program, which opposes open proceedings, said Diaz would violate her oath of office if she rules in favor of opening hearings.
“Our point is, good idea or not, it's against the law,” Private Defender Kevin Thurber said on Friday.
But Diaz has another option: modified openness.
Deputy County Counsel William Smith suggested that perhaps the original request was over-reaching and that a third way could be found.
“I think maybe the petition was too large of an apple,” Smith told Diaz after she relentlessly questioned him.
Smith said many foster parents and relatives don't attend hearings because they don't know that they have the right to request access, and perhaps making the proceedings more easily open for them would be a step in the right direction.
Diaz agreed that “the world would not fall apart” if more people were notified that they can apply for access to the courtroom.
She also seemed open to the idea that providing more information about the proceedings such as the date, time, location and short description, without using names, might also help the public figure out whether to request access.

Duffy Carolan, a First Amendment lawyer who represents The Times, said the judge could decide to craft a standing order for all juvenile judges in the county to consider opening the proceedings at the outset of every case, even if a request had not been filed. The decision would be based on the facts of that case.
The county is pushing for open hearings to bring more accountability to the lawyers, judges and social workers who make decisions about abused children. The move was a result of the death of baby Angelo Marinda, who was sent home to his parents by county social workers on an unsupervised visit over Christmas 2002. During that visit, his father killed him.
Though major changes have occurred in the child welfare system since then, county counsel argued Thursday that open proceedings like those in Minnesota and Arizona are also needed. Studies of those two states' open courts programs showed no harm to children, but no major increase in accountability in the system either. At least 16 states have open juvenile courts.
On Friday, the private defenders called a law professor, who is a leading opponent of open courts, to rebut the two studies.
Professor William Wesley Patton of Whittier Law School said the press damages abused children by publishing their names and photographs. Patton broke down crying on the stand while describing the trauma one girl suffered when the details of her abuse, along with her name and photograph, were published in a Pennsylvania newspaper.
“I call it child abuse terrorism,” he said.

Emily Fancher
3 March 2005

http://www.insidebayarea.com/sanmateocountytimes/localnews/ci_2596885

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