Thursday, December 1, 2011

Proposed Juvenile Court Order Subjects Youth to More Harm

By Maureen Pacheco

This op-ed was originally published in the Nov. 28 edition of the Los Angeles Daily Journal.

As a former public defender and current clinical director of the delinquency clinic at Loyola Law School, Los Angeles, I've seen far too many children charged with crimes. It is especially heartbreaking when I see young people whose poor behavior can be traced back, in part, to a dependency system that failed to meet their needs.

I want nothing more than to strengthen the dependency system and improve outcomes for young people who deserve our protection and support. Unfortunately, a proposed blanket order from Los Angeles Juvenile Court Presiding Judge Michael Nash to presumptively open juvenile dependency court proceedings - hearings for foster children and youth - to the public and the media would do more harm than good.

That's the conclusion legislators reached earlier this year, when they listened to youth and attorneys for both children and families and squarely rejected a bill to presumptively open dependency courts. Yet Judge Nash is moving forward with an order that circumvents the legislative process, contradicts current law, and disregards the youths' desire for privacy.

Youth have put forward an alternative that would both protect them and accomplish the goal of opening the system to greater analysis: allow the youth or his attorney to "opt out" of the automatic opening of a public hearing. Judge Nash should listen to the youth and adopt this alternative, or scrap his damaging blanket order.

As currently written, the order will not improve the dependency system that serves foster youth. Instead, the order risks re-traumatizing youth who have already been through the worst by making public the most intimate details of their lives, at the most difficult times in their lives.

Commonly discussed in dependency courts are details about a youth's psychotropic medications, disabilities, medical and mental health diagnoses, school grades, weight gain or loss, eating disorders, bedwetting, sexual orientation/identity, sexual behavior including pregnancy, abortion, and sexually transmitted diseases.

Those are details no one wants to share with the world -- but under this order, youth who have already suffered indescribably would face the unfathomable experience of having these matters discussed in open court. The one dignity that the court does and must continue to provide is control over who else gets to hear such testimony, and children, youth, and the attorneys should maintain discretion over this decision.

The order also directly conflicts with current law and the California Rule of Court governing dependency proceedings. The law makes courts presumptively closed for a reason - to protect the privacy of children and youth. Judges already have - and use -- discretion to open courts when doing so serves the interest of the child, such as enabling family members, teachers, and pastors to support the family during a difficult process. Judges across the state have also opened the proceedings to the press.

There's no need to put vulnerable children, youth, and families through the added burden of proving why their most humiliating experiences should not be told in front of anyone who walks into a courtroom.

While there is plenty of reason to think presumptively opening courts to the press, including bloggers, entertainment news and other quasi-media outlets -- not to mention predators looking for their next victims - will be harmful to children and youth, there's no evidence to suggest transparency will be achieved or help youth, as Judge Nash contends.

There are now several studies that examine the so-called "sunshine" effect of presumptively opening dependency courts. Most recently, a yearlong study by the Connecticut court system concluded there was no conclusive data from any state demonstrating an increased accountability in the juvenile court system or in improving services for children and families. Instead, studies of both dependency and delinquency systems show the impact of public and media access serves to promote inflammatory, sensational stories that don't represent the vast majority of child welfare cases.

Over 25 years working as a defense attorney, I developed a strong interest in strengthening the child welfare system and I've learned that youth themselves are in the best position to know how decisions affect them. Give youth and their attorneys the right to veto the automatic opening of their hearings to the public, or leave things the way they are to ensure children and youths' privacy is protected.

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