Open Juvenile Courts in Georgia - SB 207

“SB 207 - Open Juvenile Courts: The New Law and its Challenges”

Georgia Child Welfare Legal AcademyJanuary 27, 2010

Emory Law SchoolAtlanta, Georgia

Presented by:Judge Velma Cowen Tilley

Judge Thomas B. “Britt” Hammond

Former Law: O.C.G.A. § 15-11-78

Presumptively closed hearings: “Except as otherwise provided…the general

public shall be excluded from hearings involving delinquency, deprivation, or unruliness.”

Who was permitted? “Only the parties, their counsel, witnesses,

persons accompanying a party for his or her assistance and any other person as the court finds has a proper interest in the proceeding…”

The child is also permitted, but may be temporarily excluded, except while allegations of delinquency or unruly conduct are being made against him or her.

Former Law: O.C.G.A. § 15-11-78, continued

Exceptions: The general public shall be admitted to: The Adjudication hearing involving a Designated

Felony; The Adjudication hearing involving an allegation of

delinquency brought against a child who has previously been adjudicated delinquent; Note: The Court shall close any delinquency hearing on

an allegation of sexual assault or involving substantial evidence of matters of deprivation.

Any child support hearing; Any hearing in a legitimation action; or At the court’s discretion, any dispositional hearing.

The Act: Senate Bill 207

Signed by Gov. Perdue on April 30, 2009Amends O.C.G.A. § 15-11-78 relating to

the exclusion of the public from certain hearings.

Purpose: “…to admit the general public to certain proceedings in juvenile court with certain exceptions…”

Effective date: January 1, 2010 Does not apply to any juvenile court proceeding

filed before that date. Cases filed before January 1, 2010 shall be governed by current law.

The Act: Senate Bill 207, continued

Presumptively open hearings: The general public shall be admitted to: all

of the hearings listed as exceptions under current law; and

“Any hearing in a deprivation proceeding, except as otherwise provided…”

“Deprivation Proceeding” defined by the act as “…a court proceeding stemming from a petition alleging that a child is a deprived child.”

The Act: Senate Bill 207, continued

Exceptions: (Procedure for closing) The court may close a hearing only upon

the following: Making a finding upon the record; Issuing a signed order as to the reason or

reasons for closing all or part of the hearing; and

Stating that: (1) the proceeding involves an allegation

that would constitute a sexual offense under Chapter 6 of Title 16; or

(2) it is in the best interests of the child.

The Act: Senate Bill 207, continued

Required considerations if closing in the best interest of the child In making such determination, the court

shall consider such factors as: The age of the child; The nature of the allegations; The effect open proceedings will have on the

court’s ability to reunite and rehabilitate the family unit; and

Whether closure is necessary to protect the privacy of a child, of a foster parent or other caretaker of a child, or of a victim of domestic violence.

The Act: Senate Bill 207, continued

Who can move to close or exclude a person from a hearing? The court; A party; The child; The child’s attorney or guardian ad

litem.

The Act: Senate Bill 207, continued

Who may be admitted if closed? The parties; Their counsels; The witnesses; Persons accompanying a party for

his or her assistance; and Any other person as the court finds

has a proper interest in the proceeding.

The Act: Senate Bill 207, continued

Criminal or delinquent conduct exception If the conduct alleged could give rise to a

criminal or delinquent prosecution, then attorneys for the prosecution and defense shall be admitted.

See, In the Interest of M.S., Ga. App. A08A1771 (12-31-2008) [Former law ruling] [Father of child objected to the presence of the A.D.A. in the deprivation hearing under O.C.G.A. § 15-11-78. The court permitted the A.D.A. in over the objection. COA held that the court had broad discretion in admitting persons and did not abuse its discretion in doing so on this occasion.]

The Act: Senate Bill 207, continued

Refusing admittance to an open hearing The court may refuse to admit a person upon

making a finding upon the record and issuing a signed order that the person’s presence at the hearing would Be detrimental to the best interest of the child; Impair the fact-finding process; or Be otherwise contrary to the interest of justice.

Temporary exclusion of child in T.P.R. The court may temporarily exclude the child

from the hearing except while allegations of delinquency or unruly conduct are being heard.

The Act: Senate Bill 207, continued

Requests for use of electronic recording, transmission, videotaping, motion picture or still photography Must be made, at least two days in

advance of the hearing; and Request is evaluated pursuant to

standards set forth in O.C.G.A. § 15-1-10.1(b).

Even if the press is admitted: The court may order the media not to

release identifying information concerning the child or family members or foster parent or other caretaker of a child.

The Act: Senate Bill 207, continued

The general public shall be excluded from proceedings in juvenile court unless the hearing has been specified as one open to the general public.

Examples: Delinquency first time offenders; Unruly offenders; Emancipation proceedings; Parental notice of abortion proceedings.

The Act: Senate Bill 207, continued

Public inspection of files and records “The general public shall be allowed to

inspect…” Records of Juvenile Traffic Offenses (15-11-73);

or Any complaint, petition, or order from any case

that was open to the general public under 15-11-78, except deprivation proceedings; or

Any court files and records for proceedings involving a legitimation petition (15-11-28); or

Records related to a charge of delinquency transferred for criminal prosecution (15-11-30.2)

Note: The Act does not address the issue of making copies of files or records.

The Act: Senate Bill 207, continued

Public inspection of files and records, continuedQUESTION: Why can’t the general public inspect

records of deprivation proceedings that were open to the general public? Title IV-E restricts the use of information concerning children

involved in abuse and neglect cases. So, if a state wishes to keep receiving federal funds, then its laws must protect the confidentiality of these records.

QUESTION: So how does this impact open deprivation proceedings? The Deficit Reduction Omnibus Reconciliation Act of 2005

clarifies that the Title IV-E records confidentiality provisions does not limit the ability of the state to determine policies regarding public access to court proceedings on abuse and neglect.

The Act: Senate Bill 207, continued

Sealing the Record The procedure for sealing records

remains unchanged (15-11-79.2) 15-11-79.2(e) has been modified to

remove the prohibition against sealing the record of a hearing open to the general public; and

To specifically permit sealing any record containing information identifying a victim of a sexual offense under Chapter 6 of Title 16.

The Act: Senate Bill 207, continued

Information Sharing Mandate – New O.C.G.A. § 15-11-84 “Governmental entities…

State, county, consolidate or municipal governments, departments, boards or agencies, specifically including DJJ, DBHDD, DHS, DFCS, & Public Schools

…shall exchange with each other all information not held as confidential pursuant to federal law and relating to a child which may aid in the assessment, treatment, intervention or rehabilitation of a child…”

The Act: Senate Bill 207, continued

Information Sharing Mandate, continued “Information which is shared…shall

not be utilized to assist in the prosecution of the child… or utilized to the detriment of the child.”

Release of this information does not rescind the confidential nature of the information and it shall not be subject to public disclosure or inspection unless otherwise permitted by law.

Discussion PointsDo open deprivation proceedings violate

federal law?The Child Abuse Prevention and Treatment

Act of 1974 (CAPTA) required near complete record confidentiality. Title IV-E requires record confidentiality.

The 2003 reauthorization of CAPTA allowed the states to determine whether or not to open its deprivation proceedings. The Deficit Reduction Omnibus Reconciliation Act of 2005 clarified that states could open proceedings and not violate Title IV-E.

CAPTA required that the procedure for opening must “at a minimum ensure the safety and well being of the child, parents and families.”

Discussion PointsWill open deprivation proceedings lead

to greater accountability within juvenile courts?The 1998 Minnesota Open Courts Study

found that a greater number of foster parents and relatives attended; and

Some courts reported their staff being more aware of policies and procedures.

However, the Minnesota Open Courts Study also found that public participation significantly diminished within a few months of opening proceedings.

Discussion PointsWill media participation negatively affect

the outcomes of deprivation proceedings?The 1998 Minnesota Open Court Study

found that opening courts to the media was a “non-event.” Participation was heavy at first and tapered off within a few months.

What about motive and sensationalism? Some jurisdictions with open proceedings report

that the public and press are only interested in notorious cases.

Minnesota Open Court Study recommended special media training focusing on journalistic ethics in these cases.

Discussion PointsWill media participation

stigmatize families and hamper reunification, especially in small communities where gossip abounds?The Minnesota Open Courts Study

monitored this situation and found that generally no member of the public without a connection to the family attended the hearings.

SB 207 gives the court discretion to close proceedings in the child’s best interest.

Discussion PointsWill open deprivation proceedings create a

greater possibility of “re-victimizing” children?A 2005 survey of California pediatric

psychologists showed that pediatricians believed open courts would cause the severity of PTSD to increase.

SB 207 permits the closing of a hearing to protect the child and the exclusion of individuals from an open hearing.

Two jurisdictions (Washington & Florida) with similar open court laws to Georgia have seen little increase in public participation.

Discussion Points“Juvenile court secrecy harms children” (

www.bettercourtsforkids.org) To corroborate this statement, BCKO points to a specific individual

case where the court returned a child to the parents based on a DFCS and GAL recommendation, but over the objections of the CASA and the Citizen’s Review Panel.

This specific case was editorialized in AJC and was critical of the court and DFCS. (www.ajc.com/search/content/2008/10/30dhred.html)

Additional evidence presented to support this argument is a 2008 report of the University of San Diego’s School of Law entitled “State Secrecy and Child Deaths in the U.S.” Georgia’s public disclosure policy received an “F.” (www.childlaw.org/Misc/State_Secrecey_Final_Report_April24.pdg)

PROBLEM: It appears that the editorial’s criticism are based upon conclusions that are not supported by the entire body of evidence in the case.

QUESTION: What effect will the threat of a critical editorial have on the outcome of these cases?