December 3, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In Connecticut, a man and his ex-wife were involved in a custody dispute. As so often happens, the mother claimed the father abused the kids. Whether her claim was true or not doesn’t seem to be known at this point, but whatever the case, her allegation alerted the state Department of Children and Families who took the three children into foster care. The father filed a petition in civil court attempting to have his children returned to him. Here’s an article about the case (CT Post, 12/2/14).
As a matter of journalistic routine, the Connecticut Law Tribune obtained a copy of the petition and began a story about the case. The mother then requested an injunction against publication of the story and the judge granted it. The Tribune, and the local ACLU appealed the decision to the state Supreme Court pointing out that prior restrictions on free speech aren’t favored by the Constitution. The state Supreme Court has yet to rule on the case.
Interestingly, the only reason the Tribune knew about the case at all is that the father filed it in civil court. Had he filed it in juvenile court, the file would have been confidential and reporters would never have learned about it. It seems there’s a rule in Connecticut that all juvenile proceedings remain secret.
"No one knows what goes on in those courts," said Smith, who helped the ACLU and other parties file court briefs in opposition to the injunction against the Connecticut Law Tribune. "That’s not the case in other states. But no matter what the subject is, you can’t allow a prior restraint to go unanswered."
People of Connecticut, reread Smith’s words, “No one knows what goes on in those courts.” That’s your government operating behind closed doors. Your government is adjudicating the rights of children and your rights to your children in secret. If that doesn’t make you uncomfortable and a tad angry, it should.
Not just in Connecticut, but across this country and around the world, the supposed well-being of children is being used to infringe the legitimate rights of just about everyone, but particularly parents. For example, everyone’s encouraged – and many people, like the police, teachers, medical personnel, etc. – are required to report on their friends and neighbors at the slightest suggestion of child abuse or neglect. (One result is massive over-reporting. Nationwide, some 80% of reports are unsubstantiated.)
Rights to due process of law diminish any time child protection agencies become involved in family life. Do parents have the right to decide what is and what isn’t appropriate medical care, religious upbringing, psychiatric care, education, etc. their children receive? We once thought so, but now we’re not so sure, because state agencies often consider their conclusions about those matters to be superior to those of parents and, if the parents disagree, subject them to their kids’ removal from their homes with all the attendant anguish and expense that entails. Does Mom think it’s OK for little Andy or Jenny to play outdoors or ride a bike to school? She may find those decisions second-guessed by strangers. Did Dad ground his daughter for insubordination? Too bad, a judge may decide his punishment to be too severe.
But of course all those instances I just mentioned, we know about. We know about them because the newspapers, television and radio told us about them. And in many of them, we’re rightly outraged at the abuse of power by the courts, CPS and other arms of the state. But citizens of Connecticut can’t be outraged because they can’t know. “No one knows what goes on in those courts.”
And, as we’ve seen before, when state agencies close the door to outside scrutiny, they open it to their own abuse of power. In Arizona, for example, the press is only permitted to get the files of child welfare agencies if a child dies. When that tragic event occurs, and the press is finally allowed to know the facts of the case, they often reveal a pattern of negligence by the state agency that led to the child’s continued abuse and ultimate death. In short, secrecy led directly to incompetence by caseworkers and supervisors and a child suffered terribly because of it.
The theory behind the secrecy of juvenile courts is that, if the facts were made public, the child, already suffering from abuse or neglect, would suffer more by the publicity.
Susan Cousineau, a court-appointed lawyer representing the three children who were placed in foster care by the state Department of Children and Families, did not return a call Tuesday seeking comment.
"These children have been through enough and they don’t need to have their business published in the paper for everyone to read," Cousineau told New Britain Superior Court Judge Stephen Frazzini during a court appearance Monday. She noted that all child protection cases are confidential under state law.
That’s bunk on at least a couple of levels. In the first place, there are so many child protection cases in any state at any time, that, to cover them all, there would have to be at least one newspaper devoted exclusively to that subject. For example, in Nebraska last year, over 5,000 kids were investigated by the child welfare agency. No news-gathering organization could possibly keep up with that flood of cases. The simple fact is that the overwhelming majority of them wouldn’t be newsworthy and they’d go by unreported on and unnoticed.
There would be a few made public and that would likely be either because of the horrific nature of the abuse or the bungling of the state agency. In the former case, there’s no reason why the child’s name couldn’t be kept confidential. In the latter, the public needs to know everything in as much detail as possible.
But far more important is the fact that we’ve seen time and again that, far from protecting kids, the secrecy with which child welfare agencies operate only protects those agencies and the people that work for them. That’s why Texas caseworkers and managers in the Tiffany Klapheke case were so intent on covering up their incompetence; they didn’t want the public to know that they’d utterly failed three vulnerable little kids. Secrecy allows that incompetence to continue and the ones harmed are children.
The Supreme Court of Connecticut should strike down that injunction as soon as possible. And the legislature should require juvenile court proceedings to be open to the press and the public. The Constitution requires the former; kids require the latter.
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