Guest contributor Sonya Ziaja, a lawyer who writes regularly for LegalMatch’s Law Blog and for her consultancy’s blog, Shark. Laser. Blawg, suggests that before reversing the presumption against public access to foster child proceedings in juvenile court to a presumption favoring such access — a prospect now embodied in pending legislation in California — we should ask whether journalists are using their current rights to attend such hearings to keep the public informed.

In the debate over whether to “open” California’s foster courts to the public, California is consistently portrayed as part of an increasingly small group of states which keep dependency court proceedings closed. This framing is misleading and prevents the public from having an open dialogue about what is best for youth in dependency court.

Rather than being strictly closed to the public, California dependency proceedings have a presumption of confidentiality. The presumption allows the child, the child’s parents or guardian (with consent of the child) to open the proceeding to the public. It also allows judges to admit specific people—including journalists—who have a “direct and legitimate interest in the particular case or the work of the court.” In other words, dependency courts in California are open to the journalists and members of the public, so long as they can get over the presumption of confidentiality.

In the next two years, California will be considering AB 73. The bill would change the presumption of confidentiality to a presumption of transparency in a four-year pilot project in volunteer counties. The pilot program would provide an opportunity to study the effects of switching the presumption on the welfare system as well as on kids.

Similar studies have been conducted in other states. But the methodology, and conclusions, of those studies are questionable. The largest study conducted so far was competed by the National Center for State Courts’, which  examined the effects of the open court proceedings on abused children. The study suggests that open court proceedings do not cause “extraordinary harm.” Professor William Wesley Patton enumerates the methodological flaws in the study:

. . . (1) a search for only “extraordinary” psychological harm caused by open court proceedings and publicity, instead of analyzing all psychological harm; (2) an inadequate study of media publicity regarding abused children; (3) no survey of those most aware of any effects of the open court system on abused children’s psychopathology, including children, parents, and treating psychologists; (4) a failure to investigate post-adjudication trauma; and (5) neither pediatric psychiatrists nor pediatric-psychiatric literature were consulted regarding the study’s conclusions.

(Patton, When the empirical base crumbles: the myth that open dependency proceedings do not psychologically damage abused children, Law and Psychology Review, 2009)

Future studies could remedy these errors. And a pilot program in California would allow for at least some of these issues to be resolved.

Proponents and opponents of the bill agree that the foster court system is in need of reform and that a pilot program could provide much needed data to inform that reform. Where they differ is in how to balance the need of foster children for privacy against the possibility that increased transparency will help reform the foster care system.

California Youth Connection (“CYC”), the only statewide foster child advocacy group run by former and current foster youth, is among those who put privacy before increased transparency. They argue that because the effects of a presumption of openness is unknown, foster children should have the right to choose whether a proceeding will be open to the public at large. The CYC writes,

. . . on the potentially life-changing subject of whether every detail of their personal, private lives should be open to thescrutiny of the media and any member of the public who happens to be in the courtroom, we believe that foster children should have an absolute right and veto power over whether they are subjected to the emotional trauma of having people hear the often painful and embarrassing details of their lives.

Other advocates too are concerned that if youth don’t have the protection of presumed confidentiality they could be re-traumatized.

Proponents of AB 73 argue that increased scrutiny will lead to better policies that will protect foster youth. In other states, reporting on dependency court proceedings have led to changes in state welfare systems. Journalist Barbara White Stack reports that her own investigative journalism as well as the work of Detroit Free Press reporter Jack Kresnak on dependency courts led to common-sense changes:  developing a state website containing the names and photographs of missing kids, “checking parents’ criminal records before returning their children and to immediately and thoroughly examine all children under 6 in a household in which neglect or abuse has been alleged.”

I think that between these two camps there is a middle ground. But it will require more effort on the part of journalists. Increasing media attention on dependency courts and foster care could be beneficial to California. We do not necessarily need to change the presumption of confidentiality in order to do so. There is already an avenue for the press to be involved in foster court proceedings. White Stack challenges journalists to ask judges to be admitted into dependency court proceedings. This is legal in California as well. Her work, at proceedings not open to the general public led to reforms. This approach can work for us too.