Public Access to Juvenile Dependency Proceedings in Washington State: an Important Piece of the Permanency Puzzle
| Publication year | 2003 |
I. Introduction
A drug-addicted mother appeared before a Washington superior court judge on drug-related charges and was sentenced to thirty months in prison.(fn1) Meanwhile, Washington State Child Protective Services ("CPS") placed her young son and infant daughter in foster care and filed a dependency petition against the mother with the juvenile court.(fn2) The children's fathers were already incarcerated.(fn3) The juvenile court established dependencies for both children, finding the children dependent on the State of Washington for their care.(fn4) Over the next three years, the state offered the mother drug treatment services and parenting classes in hopes that one day her children would be able to live with her again.(fn5) However, the mother did not think she needed help and only marginally complied with court-ordered services. The state gave her many opportunities to comply, and even though the mother showed little improvement, the state did not terminate her parental rights.(fn6) After the children had lived in foster care for three years, the state gave the mother another chance to raise her children, returning them to her while continuing to monitor the family's progress.(fn7) Four months later, Zy'Nyia Nobles, then 3Vand years old, died in her mother's care, her body found covered with substantial bruises.(fn8)
After Zy'Nyia's death, a child fatality review team, made up of physicians, social workers, legislators, and law enforcement officers, convened to figure out what went wrong and to recommend improvements to the state's child welfare system.(fn9) Although most child abuse and neglect cases do not end so tragically, in other respects this case was "run-of-the-mill."(fn10) During her brief life, Zy'Nyia had five social workers and five placements including her return to her mother.(fn11) Zy'Nyia's guardian ad litem ("GAL"), appointed by the court to advocate for her best interests, was overworked.(fn12) The juvenile court held numerous dependency review hearings and scheduled at least five termination of parental rights hearings, then continued them to a later date.(fn13) The case was heard before numerous commissioners and judges.(fn14)
The review team concluded that Zy'Nyia was the victim of a lack of consistency, continuity, and accountability, and that 3 1/2 years was far too long for any child to be in the child welfare system.(fn15) The team made several recommendations related to the handling of child abuse and neglect cases by the court system.(fn16) However, there is one recommendation that the review team did not make which has the potential to increase professional accountability and public awareness of the problems permeating the juvenile court system. This recommendation would be to allow public access to juvenile dependency proceedings.
The public was excluded from all juvenile dependency proceedings in Washington before July 27, 2003, including all of the proceedings in Zy'Nyia's case.(fn17) Until the Washington legislature changed the law in 2003, juvenile dependency proceedings were exempt from the state constitutional requirement that "[j]ustice in all cases shall be administered openly. . . .'"(fn18) In general, public opportunity to observe and critique governmental institutions is a fundamental principle of American democracy.(fn19) Over the past few decades, the U.S. Supreme Court has held in several cases that the public has a constitutional right to attend at least criminal proceedings.(fn20) However, the Court has also declared that the familial right to privacy is a "fundamental personal right."(fn21) Historically, juvenile dependency proceedings have been closed to the public in order to minimize the trauma and embarrassment suffered by children and parents and to facilitate family reunification.(fn22)
As do all states, Washington faces constant scrutiny from the media, the public, and child welfare advocates because many of its children linger too long in the child welfare system rather than being transitioned into safe, stable, and permanent homes.(fn23) Congress has passed child welfare laws that make it clear to the states that, while reuniting children with their families is important, finding them permanent homes within a reasonable period of time is in the best interests of children.(fn24)
Open proceedings are an important step towards the goal of permanency.(fn25) When proceedings are open, judges, caseworkers, GAL's, and attorneys can be held accountable for their decisions. When these stakeholders know that the public may be watching, they are more likely to think twice before returning a child like Zy'Nyia to her parents.(fn26) When the public has the opportunity to directly observe these proceedings or read about them in the newspapers, it will better understand how the child welfare and juvenile court systems operate.
Twenty-two states, including Washington, currently have open hearings or give judges discretion to open them.(fn27) New York's courts were opened in 1997 and Minnesota's courts were opened in July 2002 after a three-year pilot project.(fn28) States with open courts report that they can promote public understanding of the system and encourage the accountability of the participants in the system.(fn29)
This Comment argues that the Washington State legislature took an important step along the road to permanency for abused and neglected children in the state's care when it revised its Juvenile Court Act in 2003. This Act created the presumption that dependency proceedings are open to the public unless a judge determines that excluding the public is in the best interest of the child. This change in Washington state law represents one piece of the puzzle of reforms necessary to reach permanency goals for children in our child welfare system. Those states whose juvenile dependency hearings remain closed should now consider following in Washington's footsteps. Part II provides an overview of the types of dependency hearings covered by the Juvenile Court Act and describes the new law declaring these hearings open to the public. Part III discusses the shift in federal policy from reunification and family preservation to permanency, the growing demands on the juvenile courts created by these changes in federal law, the inefficiencies in Washington's juvenile dependency proceedings, and the minimal efforts of Washington's juvenile courts to adjust to these increased burdens. Part IV argues that, based on federal and state case law discussing the public's right to open proceedings, the Washington legislature correctly decided to open dependency proceedings to the public. Part V discusses the importance of public and media presence at dependency proceedings and the potential impact of their presence on stakeholder accountability. Part VI concludes the Comment by arguing that now that the courts are open, it is up to the media and the public to attend these proceedings and assure that the state finds safe, stable, permanent homes for its dependent children.
II. Overview of the juvenile dependency process in Washington
Section A provides a brief overview of the steps in the juvenile dependency process from the initial call to CPS to the termination of parental rights. Section B discusses the Washington statute opening juvenile dependency proceedings to the public.
Children typically enter the child welfare system as a result of child abuse and neglect.(fn30) In 2000 alone, the Washington State Department of Social and Health Services ("DSHS") received over 76,000 referrals to investigate suspected cases of child abuse and neglect.(fn31) CPS, a division of DSHS, has a duty to investigate and submit a report in every such case.(fn32) If CPS intervenes and removes a child from the home, DSHS must file a dependency petition with the juvenile court within seventy-two hours.(fn33) If the state files a dependency petition, all subsequent juvenile court hearings are governed by the Juvenile Court Act.(fn34)
Within seventy-five days of filing the dependency petition, the court must hold a fact-finding hearing to determine whether the child should be declared a dependent child.(fn35) Most dependency cases are settled before reaching the fact-finding hearing.(fn36) However, if they are not settled or dismissed, the court conducts a fact-finding hearing to determine whether the allegations in the dependency petition are true.(fn37) A juvenile court commissioner or judge conducts the hearing similarly to any civil, non-jury trial.(fn38) Prior to July 27, 2003, factfinding hearings in Washington were closed to the public and relatives, and foster parents could only be present for the limited purpose of providing information about the child's welfare.(fn39)
If the court finds a child dependent, it holds a disposition hearing to determine the child's placement and the appropriate services for the child and family.(fn40) Before the disposition hearing is held, DSHS must submit an Individual Service Plan ("ISP"), or "Report to Court," which includes all relevant social records and evaluations.(fn41) Parents are allowed to comment on the ISP.(fn42) At the disposition hearing...
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