article presented here in three parts, but see entire story here
The Department of Child Safety’s enforcement of confidentiality is peppered with exceptions — particularly when the public is paying attention.
Mary Jo Pitzl, Arizona Republic Updated 5:13 p.m. EDT May 6, 2019
(continued from part 1)
Who does privacy protect?
There are good reasons for privacy.
For starters, it’s required by federal law. The Child Abuse Prevention and Treatment Act says states must protect the records and reports of child abuse and neglect out of concern for the privacy of the children and parents involved.
“It’s a pretty bright line that privacy prevails when you talk about a child,” said Professor Robert Fellmeth, director of the Children’s Advocacy Institute at the University of San Diego.
A news story that names a child who has been abused, or who has been in and out of the foster-care system, can be humiliating to the child and lead to bullying or worse, he said. With the internet, those stories can live forever.
However, other details about a case shouldn’t be shrouded in secrecy, Fellmeth said. For example, there’s no good reason why confidentiality should shield information about how a child-welfare agency operates.
“That’s a question that doesn’t in any way prejudice the case or the child,” he said. Asking why something occurred on an agency’s watch, or why kids were removed from their homes, is fair game, Fellmeth said.
In the eyes of defense attorneys, the confidentiality laws, at least the way they are currently interpreted, are a convenient excuse to limit public scrutiny of how the state’s child-welfare system works.
In Hobson’s case, for example, the public doesn’t know when the children were adopted or why the agency approved seven adoptions to a single parent. Nor does the public know the size of the financial subsidy she received for caring for the children, although agency attorneys said they have moved to cut off those payments. Because court files are sealed, the public doesn’t know if that funding is continuing or has been terminated. The Republic is seeking that information but DCS has yet to reply.
DCS and its attorneys argue the state stands to lose millions in federal child-welfare dollars if the confidentiality provisions are not followed.
Does that happen?
“Never, never, never, ever,” said Fellmeth. “They haven’t done it for any area that involves children.”
California lost some federal child-welfare support when it failed to get a computer-reporting system going, Fellmeth said. But he has never found a state that lost the dollars the feds send to support the foster-care system.
Open courts are a blurry window
The public’s biggest window into the child-welfare system is the juvenile courts, which are open. But the law requires a judge to bar disclosure of information that would personally identify the child or children involved in a DCS case.
This is referred to in the law as an admonition, and court rules spell out what information must be kept private: “name, address, date of birth, social security number, tribal enrollment number, telephone or telefacsimile number, driver license number, places of employment, school identification or military identification number or any other distinguishing characteristic that tends to identify a particular person.”
Delivered from the bench, the admonition was intended to be part of juvenile court hearings since lawmakers in 2003 opened courtrooms. That law reversed years of closed hearings that were accessible only to the parents, case managers and attorneys involved in a case.
But The Republic has been in courtrooms where the privacy admonition has never been issued. In other instances, the warning has been unevenly interpreted.
In late April, a Republic reporter sat in on a juvenile court hearing in a case involving an infant removed from her mother. No privacy admonition was read.
Judges also have the discretion to close a proceeding if they deem it’s in the child’s best interest.
In the case of a Chandler couple whose children were removed after a dramatic standoff with police who had a warrant to take the children, DCS moved quickly to close court proceedings. The judge declined to do so. But in one hearing, a Republic reporter was ordered to leave the court. In a subsequent hearing, another reporter was ordered to not publish anything about the proceeding.
Colleen McNally, who until fall 2017 was the presiding judge of the juvenile court in Maricopa County, said she’s not aware of any guidance on what constitutes “the best interest of the child.” But she has ordered parents to take down Facebook posts, or GoFundMe appeals if they identify a child. In one instance, a family was posting their child’s medical records.
“I just picture the children finding out,” McNally said, adding that information can follow the child well into adulthood.
Court closures are rare, she said.
“It’s more just a case of nobody’s there,” she said.
It’s unusual for media or observers to show up unless it’s a high-profile case.
While the courts are open, it’s hard to know when a given case is happening, unless a party to the case shares that information. Court dockets are not published online and not shared if a person calls the court clerk’s office to find out.
(continued tomorrow)
