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Utah judges may open child-protection hearings

Public ought to see courts in action, one says

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A decision last month by the Minnesota Supreme Court to open child neglect and abuse hearings to the public might cause a few ripples out here in the West, but they'll likely be a long time coming.

Ask to observe a child protection and custody hearing in juvenile court, likely the least-scrutinized governmental activity in Utah, and you'll be congenially but firmly turned down. Even a special hearing held in December to open the files for a special legislative panel to review the conduct of the courts and the attorney general's office was closed to the public and the news media.

But a few judges the past few weeks have been evaluating the pros and cons of opening their courtrooms.

"Maybe it would be good for the community to have these stories told," said Sharon McCulley, a 3rd District juvenile court judge and vice president of the National Council of Juvenile Court Judges. "I think people would be moved by the amount of compassion shown by the courts. By not permitting people to see the courts in action, people perceive it as operating behind of cloak of secrecy, that the court is adversarial toward parents or has something to hide."

The proceedings are indeed secret to ensure the privacy of the children in abuse and neglect cases, McCulley said. "The safety and well-being of the child has to remain the focus and the ultimate goal. But perhaps there are ways we could still do that but also consider a change in the law."

Several parents have complained the past year to Utah legislators who oversee child protection services, claiming the state acts too quickly and sometime capriciously in removing children from homes. They say judges are exceptionally and suspiciously pliant toward state child protection workers and the state Attorney General's Office, which provides legal representation for children in abuse cases and sometimes takes sole responsibility for the prosecution in those cases.

"The state's motto, 'the best interest of the child,' actually gives the state practically unassailable power," said a parent who is seeking restitution from the state for legal fees and court costs incurred in a suit against the Attorney General's Office. Rep. Matt Throckmorton, R-Springville, said after reviewing the case that the state acted improperly and that he will do what he can to help the family recover the costs, which total about $250,000.

"Those in the child protection system all know each other and stick up for each other," the father said. "The only strangers in the courtroom are the parents."

The stakes are so much higher in abuse cases and custody decisions, but the standard of proof is that much lower, he said. If the attorney general becomes involved in a case and makes a mistake, there is no procedure for filing a grievance other than filing a suit. Once that office or a hospital that has been referred an abuse case agrees it has occurred, they're committed to proving it, he said. "If that turns out not to be true, they've misdiagnosed and they become liable, so they must have a conviction. What that ultimately means is even if they're wrong they have to be right."

The state carefully follows all policies and procedures and has a healthy system of checks and balances, said Dave Carlson, former chief of the attorney general's child protection division. Many of the complaints from parents are the result of state and federal child welfare reforms that over the past seven years have drastically shortened the time states have to make child abuse and neglect custody decisions.

Carlson said children would often be in foster care for years with no time frame for decisions. "The state is not a very good parent, and kids were bounced around and it was devastating to them. Both the children and the families need finality."

The system had been running on a schedule that was convenient to the courts and to the caseworkers, not what was best for the child, Carlson said.

Adam Trupp, former juvenile court administrator now working as policy and procedure analyst for Division of Child and Family Services, said he can understand how the system could be viewed as closed off to the general public and therefore potentially too powerful.

Opening at least some of the procedures, or perhaps leaving the decision up to the individual judges, would be worth considering. "Another thing is we'll be watching Minnesota to see how that ruling actually plays out."

The Supreme Court there decided to open the traditionally secret hearings and records throughout the state beginning July 1.

"It's quite a breakthrough in terms of the historical experience of juvenile courts," said Mark Anfinson, an attorney representing the Minnesota Newspaper Association and a member of an advisory committee studying the subject. "You can't expect real public engagement until you have real public information."

Chief Justice Kathleen Blatz originally had pushed to open the cases. The presumption that government should function openly helped drive the court's decision, she said Wednesday.

"It concluded that basically the presumption should be for openness because that, in our free society, is what benefits the public we serve," Blatz said. "We operate openly. That is a presumption we've applied in every other area."

Opponents feared that airing family secrets would do more harm to children than good, especially in small communities. Proponents of opening the hearings argued that it could bring public attention to the child protection system and garner support for it.

Judge Kathleen Gearin, who handles juvenile protection cases in Ramsey County, said some judges continue to adamantly oppose opening such matters.

"Maybe they would have more sympathy for what their tax dollars are being spent for if they saw the intensity and complexity of the problems faced by these families," she said. "Sometimes the parents themselves have been abused, and they are struggling to be better parents than the generation behind them had been."

Contributing: The Associated Press

E-MAIL: jthalman@desnews.com