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Who's Your Client?
March 11, 2012 permalink
A reporter took advantage of California's new open family courts to spend a day in the courtroom. He confirms what fixcas has been saying for years. Lawyers in family court often do not speak to their clients at all. In the California story, lawyer Kyle Puro was sitting next to his client, but did not recognize him.
Rare look at children's court finds tension runs high
MONTEREY PARK - The first case of the day was an easy one.
A 15-year-old girl had run away to Mexico.
Since she was out of country, she was officially released from the Los Angeles County Department of Children and Family Services caseload.
Jurisdiction terminated, as they say in court.
That was one of 24 cases to be considered recently by Referee Robert Stevenson in the Edmund D. Edelman Children's Court in Monterey Park, which is the court that oversees foster care.
For the first time since the 1960s, children's courts in Los Angeles County have been opened to the media, which means reporters are now allowed to watch proceedings unless the judge, commissioner or referee decide it is in the best interest of the child to exclude the media.
The change came about last month after an order by Supervising Judge Michael Nash.
It provides a rare look into California's dependency court, a system that for decades has had almost no public scrutiny and where the fate of children - whether they will stay in the foster system or return to their parents - is decided.
Stevenson ran a tight ship during a recent visit, sometimes struggling to keep his cool as he tried to bring order to a room that included biological parents, relatives, witnesses, clerks, a bailiff and about eight attorneys who rotated between the different cases.
Stevenson became most upset when Los Angeles Dependency Lawyers Inc. attorney Kyle Puro did not realize he was sitting next to his client, who was the father of a 15-year-old boy.
Stevenson also reprimanded Puro, who is a publicly funded attorney assigned to the case, for not having his client's file on hand. By the time the file arrived, the boy's father had already left. The hearing never happened.
"You've got to pull it together," Stevenson said to Puro before he ordered the attorney to speak to him privately and disappeared with the attorney through a door in the back of the courtroom.
Stevenson also ordered a social worker to attend a sanction meeting after the worker failed to file paperwork on time for a hearing.
The worker called in and reported having a "family emergency," but Stevenson didn't buy it.
If the social worker couldn't come up with a better reason at the sanction hearing, Stevenson has the right to fine DCFS up to $1,500.
One attorney representing a 2-year-old child recommended the county launch an investigation into the child's former foster parents because the foster parents had taught the child a few words in sign language. The attorney alleged it inhibited the child's verbal speech, but an investigation was never launched.
The child's birth parents defended the former foster parents.
"They did a great job," said the father of the former foster parents.
It was a happy day for him and the child's mother. They had officially regained custody of their daughter and were no longer under court supervision.
Huge workload, small budget
About 25,000 cases annually go before the combined 21 judges, commissioners and referees who oversee cases at the court, according to information from the Los Angeles County Superior Court.
The attorneys appointed to represent the children struggle under a miniscule state budget of about $680 per case.
The publicly funded firm that represents foster children, the Children's Law Center of Los Angeles (CLCLA), has officially come out against Nash's order to open courts.
So has Los Angeles Dependency Lawyers (LADL), the public firm that represents the parents and guardians.
Supervising CLCLA Executive Director Leslie Starr Heimov said lawyers managing hundreds of cases don't have time to determine whether it's in a child's best interest to exclude the press.
Attorneys working at the court have about 150 cases at a time.
"What we're asking for is an orderly procedure where we get more than three seconds to make our case," Heimov said.
The children in foster care have often suffered physical abuse, starvation, sexual abuse and neglect.
"Sometimes we can't predict how they are going to react to a reporter," she said. "They don't always have this capacity to deal with change."
Heimov also questioned whether Nash had the authority to go against state law that requires courts to be private.
LADL supervising attorney Marlene Furth said her staff attorneys have one complaint, and it's not low pay.
"The one thing they say, the one thing, is that they don't have time to talk with their clients," she said.
There isn't really time to have a case-by-case review of whether the press should be in the courtroom, attorneys said.
Press rattles nerves
Furth said Puro is a good attorney who won an important legal victory later in the week.
"There was just this level of tension," she said of a reporter being in the courtroom. "Everyone is like, `The press is watching. The press is watching."'
The scene in court was indeed a tense one for the first hour. Afraid of identifying the children by their names, everyone in court referred to one 12-year-old boy by his initials.
After speaking with this reporter during a break, Stevenson decided it would be better to call the children by their first names, saying it was too awkward to address a child by a few letters of the alphabet.
"I was very uncomfortable," he said.
During the hearings, Stevenson took time to ask each child how he or she was doing in school and how each child was feeling.
Furth said she wasn't sure it was good to have the press in the court room.
The press adds an air of tension, she said.
"Criminal court is a court of punishment," she said. "But, ideally, our court is one of rehabilitation. We need our clients to feel comfortable talking about drug use and the other issues of their cases."
Several print reporters have attended hearings, she said.
And a television station also recently attended a hearing.
The staff at the court is scrambling to make up rules as they go along, attorneys said.
"Everyone is spooked," Furth said.
Older foster children also have opposed Nash's order.
California Youth Connection, a group representing foster children, said they don't want foster children's names and stories splashed across headlines or appearing on television. They also had questions how attorneys are supposed to argue whether it is in a child's best interest to have reporters in the courtroom.
Open-court advocates say scrutiny will increase performance.
Law professor Mathew Fraidin has written extensively on the topic.
Fraidin, an associate professor at the University of the District of Columbia David A. Clarke School of Law, got involved in a few foster care cases and wondered why he didn't know more about foster care.
"The kids were getting the short end of the stick in every way," he said. "One of the things I said was I can't believe I didn't know all this stuff is going on. If people knew this was happening, they would stop it."
Opening courts will help children in two ways, he said.
First, it will improve the performance of workers.
"The system actors don't have the benefit of oversight," he said. "They can get sloppy, and they do. They can get nasty, and they do."
Workers will do a better job if they know a reporter may write an embarrassing story about their failure, he said.
More importantly, however, was the fact that only the most sensational stories ever get published in the media.
Because those stories have a concurrent criminal case in open court, the media seizes on them, he said.
The day-to-day small failures that hurt children are "literally illegal to talk about," he said.
"The only stories people know about are the heinous, incredibly rare stories where kids were killed by their parents," he said.
The public never gets to hear about the lazy social worker who takes a month to give a foster parent a child's medical insurance card, he said.
"These secrecy laws prevent the people who know the stories from going out and talking about what they've seen," he said.
The idea of opening the dependency courts is an old one.
Back when he was in the state Senate in 2000, Rep. Adam Schiff, D-Pasadena, co-authored a law to open the dependency courts. It failed. So did another effort in 2004 by now Senate President Pro Tem Darrell Steinberg, D-Sacramento. Most recently, an effort in 2010 by Assemblyman Mike Feuer, D-Los Angeles, failed in an Assembly committee.
While statewide legislation has failed, Judge's Nash's decision for open courts only effects children's courts in Los Angeles County.
Seventeen states have opened juvenile dependency courts to the press.
A three-year evaluation of an open-court program in Minnesota found that the open hearings caused no harm to children or families, according to white-paper report prepared for the California Assembly's Judiciary Committee.
Nationwide, the trend is toward openness, according to the white paper.
A different kind of court
Dependency court cases are especially complex and have a much lower burden of proof, Fraidin said.
In California, a child and his or her siblings have a publicly appointed attorney.
So does each parent. The county has at least one attorney in the court, sometimes more.
Foster parents usually aren't allowed to be represented by attorneys, but they can be represented if they are awarded a "de facto parent" status and have money to hire one.
So, if you're counting, that's at least four attorneys participating in every hearing. Children older than 10 are usually ordered to attend hearings. Younger children are also sometimes allowed, or they are present because they could be called to testify, often against their own parents.
It's not uncommon for babies to cry or for toddlers to crawl under chairs during the middle of hearings.
Then there are the reports.
They can be inches high. A judge has to wade through the details of each child's life to see how each child is faring. Does the child need therapy? Is she behind in school? And, most importantly, are the child's parents ready to take their daughter back?
Most children in foster care have at least four hearings: three at the beginning of the case and a review at six months. If everything is going well with the biological family, the child is sent home at the six-month hearing. Sometimes the parents are doing so badly, a judge tells the county to stop trying to reunify the child with his or her family, which is referred to as the termination of reunification services.
If the parents are making progress, the judge can order more hearings at 12 months and 18 months. By the last review hearing, a judge usually has to make the tough call of sending the child home or placing the child somewhere else for adoption or guardianship.
For children less than 1 year old, the decision about permanency is to be made within the first six months, but the cases often last longer.
If things work like they're supposed to, the county has been working all along to make sure there is a good place for the child already available, such as a current foster home or a relative with close ties to the family.
Secrecy on top of weirdness
Foster care cases have their own set of rules, Fraidin said.
It's difficult to challenge findings from social workers. And some claims against parents or foster parents don't have a high burden of proof.
Because the law is so nuanced, oversite would help bring more justice to the cases, he said.
"The rules of evidence don't apply," he said. "Most orders are not appealable. Of all of the systems, this one should have more scrutiny."
In general, foster children are cared for by harried foster parents or relatives, overburdened social workers, and rushed attorneys who must abide by a unique set of rules that apply to almost no other segment of society.
"Now, on top of all that weirdness, you add secrecy?" Fraidin said. "That's a mistake."
Source: Pasadena Star-News