Metropolitan News-Enterprise

Monday, June 4, 2001

Page 1

Court of Appeal Bars Media Access to Deceased Foster Child’s Records

By KENNETH OFGANG, Staff Writer/Appellate Courts

A trial court may bar public disclosure of the records of a deceased child who dies in foster care in order to protect the interests of a living child, the Fifth District Court of Appeal ruled Friday. 

In what appears to be the first published case under a 1999 law designed to shine a light on problems in the dependency system that may have contributed to a child’s death, the panel rejected media arguments that disclosure of the records, in redacted form if necessary to protect other children, is mandatory. 

Instead, the panel concluded that a trial judge may seal the records entirely if he or she finds it necessary, and that such an order is reviewable under the substantial evidence test. 

Applying that test, Justice Nikolas Dibiaso said that the records of a deceased child, identified as Jaime M., “amply justify a conclusion that release of any part of them would be highly detrimental to the well being of another child” who was named in the same petition. 

Jaime M. died in February of last year. His foster mother was later charged with his murder.

Three weeks after he died, the publisher of the Visalia Times Delta—later joined by The Fresno Bee—petitioned for disclosure of his juvenile court records underWelfare and Institutions Code Sec. 827 and a related court rule. 

Deceased Children

Records of deceased dependent children are subject to release under Sec. 827(a)(2). As amended in 1999, it provides that the files may be released by court order, upon petition and after opportunity for interested parties to object, subject to a limitation:

“Any information relating to another child or which could identify another child…shall be redacted from the juvenile case file prior to release, unless a specific order is made by the juvenile court to the contrary.Except as provided in this paragraph, the presiding judge of the juvenile court may issue an order prohibiting or limiting access to the juvenile case file, or any portion thereof, of a deceased child only upon a showing that release of the juvenile case file or any portion thereof is detrimental to the safety, protection, or physical, or emotional well-being of another child who is directly or indirectly connected to the juvenile case that is the subject of the petition.”

In Jaime’s case, the state Department of Social Services, the Kings County Human Services Agency, the parents, and a court-appointed advocate for the interests of the deceased child all objected to the petition. Kings Superior Court Judge George L. Orndoff denied the petition, without specifically addressing the newspapers’ claim that redaction was the appropriate means of protecting the interests of the living child. 

Dibiaso acknowledged that the law creates a presumption in favor of release when the child is deceased, contrary to the presumption of confidentiality when the child is alive. But the statute also creates two separate exceptions, he reasoned—one when the record merely refers to a living child, the second when the living child would be injured by the disclosure. 

Sole Remedy

In the first instance, the justice explained, the sole remedy is redaction. But in the second, he said, the remedy may extend to outright prohibition of disclosure if redaction would be inadequate to protect the living child’s identity.

While Orndoff didn’t specifically rule on the issue, the finding of detriment to the child, accompanied by a denial of the petition, was an implied finding that redaction would be an inadequate remedy, Dibiaso said. 

Having examined the records, he added, the panel found substantial evidence that the other child named in the petition—not otherwise identified in the opinion—would be harmed if any portion of Jaime’s case file was released. 

Richard B. Isham, the Visalia attorney who argued the case for the Times Delta, said his client may seek review by the state Supreme Court. 

“I think the press is right,” he told the MetNews. “Finding out [the background of a child who has died in foster care] is ultimately beneficial to more kids than not finding out.” 

Allowing a social services agency, which may be guilty of wrongdoing leading to the death, to object to disclosure of its conduct “is a very odd way to run an open society,” he said. 

The county’s lawyer, Deputy County Counsel Jeannette Cauble, said she had not read the opinion and couldn’t comment. 

The case is Pack v. Kings County Department of Human Services, 01 S.O.S. 2625.