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Open Juvenile Courts in Georgia - SB 207

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This Georgia Child Welfare Legal Academy outlines the changes in the law regarding open v. closed juvenile courts after the passage of Senate Bill 207.

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Open Juvenile Courts in Georgia - SB 207

  1. 1. “SB 207 - Open Juvenile Courts: The New Law and its Challenges” Georgia Child Welfare Legal Academy January 27, 2010 Emory Law School Atlanta, Georgia Presented by: Judge Velma Cowen Tilley Judge Thomas B. “Britt” Hammond
  2. 2. 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.
  3. 3. 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.
  4. 4. The Act: Senate Bill 207  Signed by Gov. Perdue on April 30, 2009  Amends 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.
  5. 5. 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.”
  6. 6. 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.
  7. 7. 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.
  8. 8. 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.
  9. 9. 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.
  10. 10. 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.]
  11. 11. 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.
  12. 12. 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.
  13. 13. 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.
  14. 14. 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.
  15. 15. The Act: Senate Bill 207, continued  Public inspection of files and records, continued  QUESTION: 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.
  16. 16. 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.
  17. 17. 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…”
  18. 18. 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.
  19. 19. Discussion Points  Do 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
  20. 20. Discussion Points  Will 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.
  21. 21. Discussion Points  Will 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
  22. 22. Discussion Points  Will 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.
  23. 23. Discussion Points  Will 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.
  24. 24. 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.p dg)  PROBLEM: It appears that the editorial’s criticism are based

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