An Argument For, and One Against, Open Family Courts

Sunshine Is Good for Children

Matthew Fraidin, Associate Professor of Law at the University of the District of Columbia David A. Clarke School of Law.

Fraidin, who oversees a clinical program where students represent birth parents in maltreatment cases, delivered the following remarks within his testimony at a Washington, D.C. City Council hearing in 2009:

In my law students’ cases, more than 60 percent of the children taken from their families have been returned without ever being found abused or neglected. Yes, more than 60 percent of the children taken from their living rooms and schoolhouses, from their brothers and sisters and teachers and grandparents and friends…do not need to be there, by the government’s own admission.

They take the children, the Court rubber-stamps the removal, and only later, when my students find the information the agency missed, explain to the agency the information it distorted, and demonstrate that the child would be safest and healthiest in her own home, does the government agree – voluntarily! – to send the child home and dismiss its own case.

Secret proceedings means that you can’t meet the children whose lives are turned upside-down, perhaps never to be righted – for no reason. You can’t observe the rubber-stamp hearings. You can’t watch a case worker hem and haw an explanation about why a distraught child hasn’t been referred to a therapist, despite a court order directing the referral. You can’t see a lawyer guessing at his client’s position, rather than knowing it, because the lawyer hasn’t met with the client since the previous court hearing.

You can’t sit in the back of a courtroom and shake your head in frustration and disgust at a judge who openly flouts the law, refusing to let a child live with her beloved aunt, simply because it is that judge’s “personal policy” not to allow children to live with relatives unless [the child welfare agency] agrees.

You can’t know what’s going on, and you can’t do anything about it.

One of my former child clients, now dead by gunshot, asked his group home not to house him with a roommate because, he admitted, he was disliked by some of the other children and felt uncomfortable with them. The group home ignored him, as well as my similar request on his behalf. Another resident of the group home – also now-deceased by gunshot — came in and stabbed my client in the shoulder with a screwdriver. Bad enough, but the agency then proposed to bring both boys to the CFSA offices to put them in a room together to “mediate the dispute.” No one knew this went on – no one has ever known until you, now, some six or more years later.

In addition to being stabbed, the child was victimized when his new roommate allowed other boys into the shared room. The other boys stole some of my child client’s clothing. It was all he had, in two garbage bags and a battered suitcase. He’d been in foster care since he was nine years old, and had carted sneakers and clothing to the dozen or more homes he’d lived in.

He was enraged by the theft, and broke some of the thief’s property and kicked a hole in a wall. Arrested for the destruction of property, he was locked up overnight, for the first time ever, and charged as a juvenile. The CFSA worker was set to tell the delinquency judge that the child’s best interests would be served by going to Oak Hill [D.C.’s juvenile jail] because it would “be therapeutic for him.”

I remonstrated with the worker in the courthouse hallway and burned up telephone lines for hours until I located a foster parent with an empty bed and persuaded CFSA that a foster home would be more appropriate for the child than Oak Hill.

Until now, no one has known about this.

We want children to grow up to understand that their actions have consequences. While parents try to teach this value to their charges, the adults surrounding children in the foster care system are not responsible for what they do and don’t do. In our secret system, adults don’t have to live the value, to practice what they preach.

Yes, we must ensure that the right adults have the right information to help children. It is equally important, however, to make sure we don’t give adults a blank check to go along with that power. We have to make sure they use their power to help children. We are all responsible and we all must watch: family, friends, neighbors, the press.

No one can be healthy in the dark: sunshine is good for children.

Journalist vs. Social Worker: My Internal Conflict about Access to Dependency Court Proceedings

Anna Jacobi, former Teach for America volunteer and graduate student at the University of California-Berkeley School of Social Work

Jacobi wrote the following piece during her time as a fellow in the Journalism for Social Change program:

On one hand, I can see the need for lifting the veil of secrecy that shrouds the dependency court process.  Perhaps the need for confidentiality does not help to protect kids in care, but instead may hurt them.

Journalists being present in dependency court proceedings can help to provide accountability where it has been lacking.

However, the social worker in me screams at the notion that the system has to be watched to work for kids.  And also, I consider the impact on the actual court participants: the youth.

I brought up the debate with a number of teens in a group home in Oakland and they immediately opposed the idea of any reporters in the courtroom. “My business out there for everyone? You crazy!” one said.

They vehemently agreed that they would definitely not attend a court hearing where a reporter may be present.

Even if that reporter had signed a code of ethics, I asked? No way, they shot back.

Even if there would be no way anyone would know which case was being reported on or who was being discussed?  No.  No way.

From the youths’ perspective, they explained that their “business” is already public enough without needing any reporter to make it more so. So, if the impact of opening the dependency court proceedings is to further disengage youth in foster care themselves from the court process, what is the purpose? It makes an already scary system even scarier.

People who work directly with youth in foster care during the dependency court proceedings are troubled by the potential negative impact of opening access to reporters.  Aileen Collins, a fellow volunteer for Court Appointed Special Advocates Court, questions whether opening access will actually help.

“My worry is that only certain cases will get attention, and ultimately, the goal of creating accountability will not be achieved,” she explains. “I am also concerned that children’s privacy will be jeopardized and cases will be sensationalized.”

JD Delaney, an 18-year-old in foster care in Santa Clara County, articulates both the positives and the negatives of opening access to dependency court.

“Positively, it can probably help out the system a bit and make sure that all the youths’ needs are met,” she said. “Judges have a lot of kids and they can’t really remember everything.  And so having someone record it or write about it will help the judge know everything that is said so that the judge can get things done.”

However, JD said, “I know I wouldn’t want to share some of the stuff I would normally share in court if I knew that there would be journalists there.” She also questioned how the presence of reporters might in fact discourage youth participation from her peers.  “Youth may not speak at all. They may just stop going to court because they may not want other people to hear about what’s going on in their life.  I mean, would you want a complete stranger to know the deepest things about you?”

The skepticism around journalists being able to ethically report on dependency court processes also highlights broader confidentiality issues that are inherent to the foster care system.

“Even if the journalists were to say that they would never say something, that they would never repeat something like that to others… a lot of foster youth have trust issues already,” JD said.

When I suggested the notion of a standard code of ethics for journalists, JD was wary: “That’s just signing a piece of paper.”

For me, JD’s skepticism about the long-term impact captures my own questions.  Who would this really be benefitting?  If shining light on a somewhat shady system means making the people that it is meant to protect uncomfortable, are journalists really helping?

From one day to the next, depending on the hat that I either chose or am forced to wear, my own opinion about whether or not I am in favor of media access to dependency court drastically changes.  I can see the systematic benefit that more accountability can provide, but also the potential for individual harm if youth are less likely to engage in their own court process.

At the end of the day, I do firmly believe that journalists can ethically report on dependency court proceedings. However, given the potential for negative impact on actual youth in care, I side with JD: The final decision about whether or not to allow journalists in the courtroom should be solely in the hands of the youth.

If they are comfortable with it, great. If in any way having a media representative present will disengage the youth from the dependency court process, that reporter has no place in the courtroom.

If opening access to dependency court proceedings means the choice between journalists or youth in care participating in the court proceedings, the inclusion of media is not an option.  Regardless of what hat I am wearing, I feel that foster youth have a right to participate in their “business” in court and if anyone gets in the way of that, journalist or otherwise, they are doing a disservice to the youth involved.

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