OPEN COURTS -- The California court system and Sacramento Superior Court in particular are being sued by a child welfare rights group for allegedly failing adequately to fund the dependency court processes that remove supposedly abused or neglected kids from their homes and farm them out to foster parents, report Cybthia Hubert and Denny Walsh for the Sacramento Bee.

Decisions that could profoundly affect the lives of these youngsters
often are made in minutes by lawyers and judicial officers who are
suffocating under "crushing caseloads," according to the lawsuit, filed
in U.S. District Court on Thursday by the Children's Advocacy Institute, based at the University of San Diego School of Law.

"This is a question of making sure that these kids get adequate
representation in what are perhaps the most important legal proceedings
of their lives," said Edward Howard of Sacramento, senior counsel for the advocacy institute. "When you sweep into a family and take kids away, you have a grave responsibility to take care of them."

Attorneys
are asking the federal court to certify the lawsuit, which names four
youngsters as plaintiffs, as a class action on behalf of thousands of children who end up in Sacramento
County dependency court each year. In a highly unusual move, the suit
asks the federal court to intervene at the state level and force
increased funding and lower caseloads for dependency court and its
attorneys.

Dependency courts across the state are overcrowded, Howard said, but Sacramento County's system is in crisis.

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Court-appointed attorneys and court referees are charged with protecting the safety and well-being of children whose parents or guardians pose a threat or fail to properly care for them.

In Sacramento
County's dependency court, five judicial referees are responsible for
about 5,100 active cases, the suit says, and decisions about such
critical issues as parental contact and living arrangements often are
made in minutes. Court-appointed lawyers who represent these children juggle
as many as 395 cases at once and typically cannot interview their
clients in depth, assess their state of mind or talk to witnesses, the
suit alleges.

The workload for attorneys is more than double the standard of 188 cases set by the state Judicial Council, and nearly four times that recommended by the National Association of Counsel for Children.

As
a result, the suit says, "lawyers rarely meet with their child clients
in their foster care placements, rely on brief telephone contacts or
courtroom exchanges to communicate, have no time to conduct complete
case investigations, virtually never pursue appeals and are forced to
rely on overworked county social workers" to assess their situations.

The lack of appeals means "thousands of children have
been forced to remain in placements or adhere to visitation plans
simply because there was no attorney available to take the next legal
step."

The picture painted by this lawsuit should surprise no one who understands how unwatched government works, even in a democracy dependent on informed popular oversight. One federal agency charged with oversight of the securities markets instead overlooks the risks that the public expects it to check, not because it's a secret agency but because not enough informed and interested observers are watching it.

Other federal agencies that would get informed and interested observation, were they not operating in secret, engage in torture, wholesale surveillance of law-abiding citizens and assassination plots—all in the name of national security.

So we need two conditions for Justice Brandeis's "sunlight" to act as "the best disinfectant:" open government and effective observers.  "Build it transparent and they will monitor" is often a reliable principle, but not always.

In the case of California's juvenile courts, there are two domains: delinquency and dependency.  Delinquency proceedings deal with offenders who, but for their age, would be tried for their alleged crimes in open court.  There the hearings that determine guilt or innocence and assign sentences are normally closed to the public, except when the charges involve violent or predatory crime or serious drug offenses, in which they are as open as any criminal proceeding. 

On the dependency side, concerned with protecting innocent and often very young children from abuse or neglect by either natural or foster parents, an interesting compromise exists.  The public in general is excluded from attending without the minor's consent, but not journalists, if they agree not to identify the minors involved. Welfare and Institutions Code Section 346 states, "The judge may nevertheless admit such persons as he deems to have a direct and legitimate interest in the case or the work of the court." That provision has been interpreted by the California Supreme Court to mean that "it was the purpose of the Legislature to allow press attendance at juvenile hearings . . ." upon the assumption that, in the words of a special study commission cited by the court,

we are convinced the press will continue to respect their voluntarily adopted code of ethics, whereby the names of juvenile offenders are not identified to the public. We believe the press can assist juvenile courts in becoming more effective instruments of social rehabilitation by providing the public with greater knowledge of juvenile court processes, procedures, and unmet needs. We, therefore, urge juvenile courts to actively encourage greater participation by the press. It is the feeling of the Commission that proceedings of the juvenile court should be confidential, not secret.

Brian W. v. Superior Court, 20 Cal.3d 618, 623 (1978).  Such access opportunity notwithstanding, apart from a very few news organizations like the Sacramento Bee, the media have paid scant attention to this sector—certainly none appear to have made it part of a regular beat, as with the criminal courts.  Only when a dependent child suffers spectacular or lethal abuse or neglect under the nose of county child protective services social workers—usually equally overloaded and operating in an utterly secret domain—does the press get interested, and usually only fleetingly. 

Last winter a 16-year-old boy who had spent the second half of his life, according to a grand jury transcript, as the torture toy of four adults despite two police interventions, slipped his chains in a home in Tracy and escaped to a nearby health club where he begged for help and finally got it.  As the Bee reported,

He was pale and malnourished, with scars from head to toe, burns so
severe they required skin grafts, and an ankle that was swollen and
deformed from a metal shackle that he said imprisoned him for more than
a year.  During his captivity at a Tracy home, the youth told
investigators, he slept on his knees chained to a fireplace grate with
his hands lashed behind his back, stole scraps of food to survive,
suffered regular beatings with a baseball bat, and screamed as his
tormentors burned him with chemicals and sliced him with a knife.

Once in a while a tortured child may slip captivity get headlines.  Merely neglected and more quietly abused children stay unseen, because of the law's concern that opening courts and protective services case files to public observation would injure their "privacy"—a contemporary example of Mr. Bumble's observation in Oliver Twist that "If the law supposes that . . . the law is a ass—a
idiot. If that’s the eye of the law . . . the
worst I wish the law is that his eye may be opened by experience—by
experience.” 

If the court-supervised system that dispenses with the care and custody of dependent children stays unwatched itself, it may be that nothing but federal court intervention—awkward, protracted and imperfect as it can be—will provide something like mercy for the invisible victims.