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Recent California Court of Appeals Ruling Impacts Press Access to Juvenile Dependency Cases

6e4dd5edf1The issue of whether the press and public should be allowed to sit in on juvenile dependency (foster care) hearings in California has been the subject of much debate in recent years, and has divided child advocates. Dependency hearings often involve highly sensitive issues involving child abuse or neglect, and the children involved have a right to participate in the hearings. Opponents of open courts argue that allowing the press in is against children’s best interests, may cause the child additional trauma, and may “interfere with the rehabilitation or reunification of the family.”1 Proponents of open dependency courts say that opening the courts may “shed light onto a deteriorating system and substandard level of social work.”2 Balancing these interests is no easy task. Judges have differed as to how courts should conduct this delicate weighing of competing interests, and whether the default should be open or closed proceedings.

California law allows for access to those with a direct and legitimate interest in a particular case or the work of the court in general. In early 2012, the presiding judge of the juvenile court in Los Angeles, the Honorable Michael Nash, issued a “blanket order” interpreting this statute to provide a presumption in favor of the openness of dependency proceedings. A recent decision of the California Court of Appeals, Second District, held that the blanket order violates California law, which presumes that juvenile proceedings will be closed. The March 3, 2014 decision in In re A.L. tipped the scales back in favor of closed proceedings, at least for the time being.

Juvenile Dependency Hearings in California

In adult criminal trials, the person on trial has a constitutionally protected right to a public trial. The press also has a First Amendment right of access to criminal trials.3 These related rights stem from the fear that closed doors will lead to corrupt or arbitrary criminal trials. No such constitutionally protected public right of access has been recognized for juvenile dependency proceedings.4 Unlike adult criminal proceedings, juvenile dependency proceedings in California were intended from their inception “to be informal, nonadversarial and private.”5

Legislative history reflects California’s inner turmoil about whether and how to allow public access to juvenile dependency proceedings. In 2011, AB73, a bill proposing to open dependency proceedings to the public, died without a recorded vote. The bill failed to pass the Senate, who expressed reservation about making “a change of this magnitude without greater certainty that the action is in the best interest of children in dependency courts.”6

At the same time, the relevant California law (section 346) explicitly contemplates allowing in members of the public. It allows courts in their discretion to admit those with a “direct and legitimate interest” in the proceedings. Further, previous cases have recognized that part of the legislative history of section 346 reflected a desire for juvenile courts to “actively encourage greater participation by the courts.”7

Finally, federal law offers no guidance; revisions to CAPTA and Title IV-E left it to the states to determine policies relating to public access to dependency proceedings.8 Other states have grappled with this issue, resulting in a wide range of approaches. For example, in Minnesota, a foster care task force examined the issue and recommended that “[t]here should be a presumption that hearings in juvenile protection matters will be open absent exceptional circumstances.”9 It focused on the need for accountability and for the community to be able to comment on the standards used in child protection cases. The Minnesota Supreme Court subsequently issued an order allowing counties to volunteer to participate in a three-year pilot project opening child protection hearings and court file records. An evaluation of the pilot program by the National Center for State Courts concluded:

There are clearly costs attached to open hearings/records, especially for court administrative staff. Other costs may be borne by the parties to child protection cases, especially children and parents (and foster parents), who risk losing privacy. During the course of the data collection, the NCSC project team did not encounter any cases where harm to children or parents irrefutably resulted from open hearings/records although many professionals expressed concern for the potential of such harm. 10

The Minnesota approach is but one of many. Other states have explored various levels of confidentiality.11

The Blanket Order

The Honorable Michael Nash of the Los Angeles juvenile dependency court has long been an outspoken advocate of open courts as key to accountability.12 Prior to issuing the blanket order – now invalidated by the court of appeals’ decision – he solicited and received written comments and held a public hearing. The proposal engendered protests from some youth who feared their already difficult lives being made worse by seeing their family life “blasted on the morning paper.”13 The order was issued on January 31, 2012.

The order, while making hearings presumptively open to the press, also allowed anyone to object to the presence of a non-relative or guardian, and required that the press or other members of the public be barred if “there is a reasonable likelihood that such access will be harmful” to a child’s interest. The order was issued as guidance to courts in applying section 346, which governs admittance of members of the public to dependency hearings.

After the order was issued, the Los Angeles Times began attending hearings. According to the San Francisco Chronicle, the Times articles on the hearings provided “more textured look at what goes on in these hearings where life-altering decisions are made about where and with whom our most vulnerable children should live.”14 The Chronicle lauded the blanket order as striking “a sensible balance between transparency and privacy.”15 Los Angeles Times reporters who attended the dependency hearings relayed that “[w]hen families realize that I’m in court, they seek me out, often with heartbreaking stories of what they consider mistreatment by judges, social workers and lawyers. Not only do they not object to a reporter being present, they complain that reporters aren’t present more often to see what happens in these courtrooms.”16

Almost immediately after the order was issued, Children’s Law Center lawyers, who represent over 27,000 children, began objecting to the presence of the press. In re A.L. was one such case, involving a 15-year-old girl and her four younger siblings. The case involved brutal domestic violence on the mother and A.L. herself at the hands of an alcoholic stepfather.17 Her lawyers informed the court that she did not want strangers present at her hearing.

In re A.L.

A.L.’s case reached the California court of appeals for the Second Circuit, which declared the blanket order invalid in March 2014. In its decision, the court characterized the blanket order as a “paradigm shift” from the plain meaning of California law. The court explained that the statute creates a presumption against public access – stating the public “shall not be admitted” – with an exception for those whom the judge deems to have a direct and legitimate interest in the proceedings. In contrast, the blanket order says that members of the press “shall be allowed access” unless a party objects and demonstrates harm to the child is reasonably likely to occur.

Prior cases had ducked the precise legal question of who bears the burden of proof; in essence, what will be the default. Under the blanket order, the default was that the press would be admitted, unless someone showed that the press should not be admitted. In In re A.L., the court addressed the question head on, clarifying that there is a “presumption of closure” and the press has the burden of showing it is entitled to admission to a dependency proceeding.18 This was the heart of the court’s rejection of the blanket order: the court held that “it places a burden on the child that is not contemplated by section 346 or anything in the legislative history.”19

In its decision, the court repeatedly emphasized the fact that the blanket order failed to require an “exercise of the juvenile court’s discretion in the context of the unique facts of each case.”20 It concluded that the law requires that a court balance the interests and consider the unique facts of each case before the press is admitted in any given case. Because the blanket order allows for the press to be admitted without these case-by-case considerations necessarily occurring, the court declared it invalid.

What Happens Next?

Following the court of appeals’ decision, Judge Nash revised his order and solicited public comment. The revised order “thread[s] the needle” by “offering the press a way in, but forcing reporters to be conscious of the potential harm their coverage could cause to vulnerable children.”21

Further, the court of appeals’ decision ended with a seeming invitation to the legislature to act. It observed: “there may be merit in effecting the reforms provided in the blanket order, but it is not the role of the judiciary to provide a more open system to dependency adjudication.”22 It remains to be seen whether this will be the catalyst for proponents of open courts to finally pass the reform they have been seeking for many years.

  1. San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal. App. 3d 188, 200.
  2. Edward Opton, NCYL, Open letter to Honorable Michael Nash, Presiding Judge of Juvenile Court, Juvenile Division, Superior Court of Los Angeles County.
  3. Press-Enterprise Co. v. Superior Court of California, Riverside County, 104 S.Ct. 819, 827 (1984) (Stevens, J., concurring).
  4. San Bernardino (1991) 232 Cal. App. 3d 188, 192.
  5. Id. at 198.
  6. AB73, 2011-2012, California Legislature.
  7. In re Brian W. (1978) 20 Cal.3d 618, 622.
  8. Flint, Jennifer, Who Should Hold the Key? An Analysis of Access and Confidentiality in Juvenile Dependency Courts, bepress Legal Series, Paper 1246, p. 6 (2006).
  9. Minnesota Supreme Court Foster Care and Adoption Task Force Final Report, p. 123 (January 1997).
  10. Cheesman, F., Key Findings From the Evaluation of Open Hearings and Court Records in Juvenile Protection Matters, Final Report-Volume 1, National Center for State Courts, (August 2001), p. 85)
  11. SACHS Literature Review: Open Dependency Courts, Academy for Professional Excellence, San Diego State School of Social Work (February 2011).
  12. John Diaz, Open dependency courts to media, San Francisco Chronicle, Nov. 6, 2012.
  13. Garrett Therlof, Foster children protest public juvenile dependency hearings, Los Angeles Times, Nov. 21, 2011.
  14. John Diaz, Open dependency courts to media, San Francisco Chronicle, Nov. 6, 2012.
  15. Id.
  16. Jim Newton, When you write about Dependency Court, you get an earful, Los Angeles Times, June 25, 2013.
  17. In re A.L., 224 Cal. App. 4th 354, 359 (1014).
  18. 224 Cal. App. 4th 354, 368-69 (March 3, 2014).
  19. Id. at 367.
  20. Id.
  21. Juvvie Judge Nash issues revised order to keep dependency courts open to media, California’s Children blog, March 26, 2014, available at:
  22. Id. at 369.