MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

March 3, 2003

 

 

The Committee on Judiciarywas called to order at 9:05 a.m., on Monday, March 3, 2003.  Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Bernie Anderson, Chairman

Mr. John Oceguera, Vice Chairman

Mrs. Sharron Angle

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. William Horne

Mr. Garn Mabey

Mr. Harry Mortenson

Mr. Rod Sherer

 

 

COMMITTEE MEMBERS ABSENT:

 

Ms. Genie Ohrenschall (excused)

 

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Nancy Elder, Committee Recording Secretary

 

OTHERS PRESENT:

 

Judge Gerald W. Hardcastle, Clark County Juvenile Court, Eighth Judicial District, Las Vegas, Nevada

Judge Charles M. McGee, Washoe County, Second Judicial District, Reno, Nevada

Michael Capello, Director, Washoe County Department of Social Services, Reno, Nevada

Susan Klein-Rothschild, Director, Clark County Department of Family Services, Las Vegas, Nevada

Cindi-Elaine Heron, Court Master, Family Division, Second Judicial District, Reno, Nevada

Katherine MacKenzie, Washoe County Public Defender’s Office, Reno, Nevada

Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Resources, Carson City, Nevada

Karen Dickerson, Deputy Attorney General, Office of the Attorney General, representing the Division of Child and Family Services, Department of Human Resources, Carson City, Nevada

Myra A. Sheehan, Attorney at Law, representing Nevada Trial Lawyers Association, Reno, Nevada

Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney, Reno, Nevada

Dan Musgrove, Director, Clark County Office of the County Manager, Las Vegas, Nevada

Kathleen Buchanan, Clark County Public Guardian, Las Vegas, Nevada

Chairman Anderson:

The Assembly Committee on Judiciary will please come to order.  [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]

 

Good morning, Judge Bunch in Battle Mountain, and those of you who are on the Internet on a regular basis, welcome again. 

 

[Roll called.]  Fourteen members are here.  Ms. Ohrenschall should be excused; a quorum is present.

 

Finally, please note the sign on the table concerning the legality or misrepresentation of facts before the legislative body.

 

The first bill for the day would be Ms. Buckley’s study bill, A.B. 132.

 

Assembly Bill 132:  Provides that proceedings concerning abuse or neglect of children are presumptively open to public. (BDR 38-689)

 

Assemblywoman Barbara Buckley, District No. 8, Clark County:

[Introduced herself.]  I have the honor of serving as chair of the first voyage of the Legislative Committee on Children, Youth, and Families.  This statutory committee was created by the last legislative session to ensure the work that was embarked upon by the [2001-2002] interim Legislative Committee on Children, Youth, and Families, was carried forward.  Basically, things improved for Nevada’s abused and neglected children. 

 

The Chair gave me ten minutes to highlight the work of this statutory committee for those of you who may not have had the opportunity yet to study this bulletin (Exhibit C) in detail.  I believe our freshmen did [read the bulletin] and I have a few questions prepared. 

 

Just to go through some of the highlights of it, Mr. Chair, it is an amazing thing in the legislative process how there are some areas of our system that are just broken and everybody who works in that system knows it.  People who advocate in and around that system know it, but because we are so besieged with so many problems, it does not catch our attention.  Sometimes the forces all align themselves and then a subject matter catches the attention of the Legislature.  And that is what happened with regard to abused and neglected children in the 1999 Legislative Session.

 

We were hearing a bill that had to do with how long a child can remain in foster care before the federal government said, “You are not doing your best by this child.”  The feds passed what is called The Adoption and Safe Families Act (ASFA) and every state had to codify its compliance with that new federal statute.  Basically, it gave states choices.  If a child is out of his home, if a parent hasn’t seen the child, hasn’t made any efforts to see the child, at some point that child is going to be freed up for adoption.

 

[Assemblywoman Buckley continued.]  So this bill came before the Assembly Committee on Judiciary.  At the same time, [former] Speaker Joseph E. Dini, Jr. was very concerned about the operation of a child welfare office in his district.  This caused the Chairman to create a subcommittee, chaired by Assemblywoman Ellen Koivisto; serving on it was the Chairman [Anderson], Assemblyman Carpenter, and myself.  So we began studying in great detail the system for how we help abused and neglected children. 

 

What we found in our work was that children were not being served very well.  While the Child Welfare League of America recommends certain caseloads and ratios for a caseworker to take care of children, we were so far exceeding those due to our budget problems.  I think, even now, we have some offices where they will have one worker for every 40 children, when the standard is 18, 25—we are just so far out of the ballpark with the number.  And what does that matter?  Sometimes that social worker is the only way an abused child could see his siblings, the only way to make sure a child does not fall through the cracks, the only chance to make sure someone is on the phone to find the best home for that child.  So we found that we were failing in that regard.

 

Our other major finding was that our foster care payment rates were so low at the time—they were $12 a day.  The general rate to board a dog was higher than what we were paying foster parents!  We had children with severe emotional disturbances, diagnosed as such within our system, but we allocated no funds to treat them. 

 

In the major counties, we had a bifurcated child welfare system, which meant it consisted of two parts.  If a complaint of abuse and neglect were made, the local child welfare agency, either in Washoe or Clark Counties, would intervene.  If it were substantiated, they would remove the child.  They would try to see if the parents could get their act together, maybe offering services, but at some point, if it looked like that was not going to happen, then the child’s care was transferred to the state.  That meant, usually, that the child would get a new home because the county and the state were on different tracks and had licenses with different homes, and a different social worker. 

 

So anyone who actually began to get to know the child, they were gone.  Anybody who actually worked with the parents, they were gone.  So the child had to change workers, homes, and therapists because the county and the state had different contracts with different therapists; usually, the counties paid a little bit better than the state did.  So the child’s life, already so torn apart by abuse and neglect, was further torn apart by our system.

 

[Assemblywoman Buckley continued.]  The legal system was also bifurcated.  Of course, the District Attorney represents the county for the first six months, but then when the child is transferred to the state, the Attorney General represents the state and so legal information would get lost because the District Attorney would bring the initial charges, but ultimately if a petition for termination of parental rights was brought, that would be brought by the Attorney General.  So sometimes critical legal information wasn’t transferred.  We had one particularly egregious case in Clark County where parents were accused of murdering one of their children.  Actually, there was a chance that their other children were going to be returned because this information just got lost in the cracks of this horrible bifurcated system. 

 

We have tried to make efforts over the past several years to change the status quo in many ways.  In the last legislative session, money was included in the budget to increase the foster care payment rates and to end this bifurcated system for children.  It probably, in my opinion, was one of the most important things that the Legislature did in the last legislative session.  Washoe County was ahead of Clark County because they had chosen to adopt a parallel foster care system and Senator Maurice E. Washington and Chairman Anderson had led the way to do a pilot project to see if they could be integrated in advance of Clark County.  That went very well and Washoe County was integrated in the past couple of months—probably longer than that now, but they will tell you when they come up.

 

The integration in Clark County was approved by the Legislature and then delayed because of the budget cuts.  It was so distressing to see all that hard work just put on hold due to the budget cuts.  It is included in the budget for this biennium to be done.

 

The rural areas also received a lot of concern.  The problems were different there because the rural areas were not bifurcated, the state took control of the child from day one, but they still had the same problems with the caseload growth.  They still had the same problems with distances; so we always included a “We are going to improve the child welfare system in every part of the state” approach, and with our rural representatives, such as Assemblyman Carpenter, we made sure improvements were carried out throughout the entire state.

 

[Assemblywoman Buckley continued.]  So that gives you a little bit of background about what we have been working on in the child welfare arena.  We also, during both the last interim committee and this legislative statutory committee, basically said we’ll take any ideas that people have for improving the system in general, and that is where A.B. 132 comes from.  We have other bills that are pending this session, many of which are going to the Assembly Committee on Health and Human Services and the Assembly Committee on Ways and Means.  I will just highlight a couple of those for you. 

 

We have recommendations to help our children aging out of the foster care system.  When kids turn 18, we turn them loose; we don’t give them any sort of bridge.  For example, they lose their medical coverage, their Medicaid coverage.  We have a bill draft recommendation to allow them to keep their health insurance coverage until they are 19 or 20 to give them a little bit of a bridge until they can get up on their feet. 

 

We have a bill draft for permanent guardianships, which will come to this Committee.  Other assistance includes additional assistance to kids who are trying to get into college from our foster care system, to help them, improvements in the mental health services, and, of course, trying to manage the bifurcated child welfare system.  So if there are no questions on what the committee did, or if the Chair wants to add anything since he worked so hard on all these initiatives, I will go into the bill.

 

Chairman Anderson: 

Eight minutes and 30 seconds could hardly do the huge amount of work that has been done by this interim committee, particularly by you, Ms. Buckley, in championing this cause over the past six years.  It’s easy for us to take a look at this big document without recognizing that you have been working at it for six years, not just a while.  We have a new Committee, and lost at least two members who put a good deal of time into this, but who needed to go to staff to bring some seniority to another committee and some understanding there.  These are their issues, so there is a high buy-in already for those of us who have been through this for some time.

 

These are big steps, and it is disappointing to realize that some of the realities of where we should be going may have a fiscal problem; so there is no possible way—I just find it remarkable that you could have gotten that much information to us in such a short amount of time.  I feel every bit as strongly about it and I would take more than 10 minutes just getting warmed up, as you well know.  Are there questions for Ms. Buckley about the study?

 

We turn our attention, then, to A.B. 132, which would appear on the surface to be a simple piece of legislation, but has huge impact.

 

Assemblywoman Buckley:

Assembly Bill 132 proposes to open the system whereby cases are heard involving abused and neglected children.  As you know, generally, when it comes to children, we are pretty protective of their privacy, of protecting their names; that is also true in the abuse and neglect system.  I will ask Judge Hardcastle, who is here, with the Chair’s permission, to join me as he explains some of his rationale for the bill. 

 

By way of background, one of the things that the Committee was concerned about is who is really being protected in the abused and neglected hearings.  Since this child welfare study was started, wearing my other hat in my other life, we began representing abused and neglected children from some grants that we received in Clark County by individuals who were concerned that there was no independent legal representation being given to these children.  So I began to see, wearing a different hat, what really goes on in these court hearings; Judge Hardcastle, of course, can attest to this since this is what he does for a living. 

 

Basically, these court hearings are an opportunity to see that we, the community, are doing the best that we can for these children.  Often what the hearings come down to is nothing with regard to the child, but with regard to the system.  Why is this child being separated from his siblings?  Why is this child not allowed to see his siblings when this is all he wants to do?  Why is this child languishing in foster care when he wants to be adopted?  Why is this child in child haven when there is a relative ready, willing, and able to take this child?  These are the focus of these hearings.

 

Judge Hardcastle, in his presentation to our interim committee, prepared a white paper, which is included in your bulletin (Exhibit C) on page 58.  It is the case for open dependency hearings.  While, theoretically I think, the committee started from a viewpoint of why would we do this, we quickly came to the conclusion that we were doing more to protect the system and hurt the child by not opening up these hearings.  I think if anybody from the public or the press who still will not report the child’s name, as their principles are—if they would have attended some of these hearings where some of these issues came up—I think we would see a climate and a clamor for change; that is why the [interim] committee recommended this bill for this Committee’s consideration.

 

There are some proposed amendments coming from some others.  Summarizing quickly, what this does is make all hearings presumptively open, and those with amendments want the presumption the other way; they want it presumptively closed with allowing it to open.  I think that they think it would be going too far, too soon, and would like to take the first step instead of going the full way.  If that’s ultimately what happens in the Legislature, I think it is better to make some progress than no progress.  However, I was impressed by Judge Hardcastle’s argument and by the need that, while in theory this may seem counterintuitive, in practice, we would be doing more to help children by doing this.

 

So with that, I think I would like to turn it over to Judge Hardcastle, and then we can jointly take questions.

 

Judge Gerald W. Hardcastle, Clark County Juvenile Court, Eighth Judicial District:

First of all, I very much appreciate the opportunity to come here and speak about this bill.  I am somewhat daunted by the task; it’s a complex issue of emotion and fact that I think we really need to consider.  With that in mind, and also with the intention of trying to save a little bit of time, I wrote my comments and I intend to read them.  If you know me very well, you know that I can also get started and get off into the woodwork somewhere and never come back.  I hope by reading the comments that what will appear to be a lack of emotion is really done with some respect for your time and with the idea of trying to cover the arguments. 

 

I want to explain why my attention was drawn to the issue of open dependency hearings.  I might note that abuse and neglect hearings are the same as dependency hearings.  During the 11 years that I have been a family court judge, I have been a juvenile court judge for 8 of those years.  I am truly blessed with being able to serve this important duty.  However, I also believe that our child welfare system is in shambles and it is becoming worse.  I sit day after day in closed hearings listening to the sad stories of abused and neglected children and the sad efforts we are making on their behalf.  I have wished a thousand times that the community could see what I see and listen to what I listen to.

 

Because the dependency hearings are closed, the community will never see what I see.  As a result, the realities of abused and neglected children and the realities of our failing child welfare system are not understood, and those failures do continue.  As a result, I began research on open dependency hearings.  I learned that there are many other states that allow open dependency hearings; approximately 20 other states have open dependency hearings.  The clear trend, nationally, is toward open dependency hearings, and those who have open dependency hearings have favorable results. 

 

[Judge Gerald Hardcastle continued.]  I have learned that the vast majority of legal writing on the issue has endorsed open dependency hearings.  The experience of the Minnesota juvenile court and the juvenile courts in their pilot projects have found that open dependency hearings benefit children, provide a monitoring mechanism for a child welfare system, and lead to better factual determinations than closed hearings.  With few exceptions, the clear consensus is that it is time to open dependency hearings.  There was a New York study that read, and I will read their concluding remarks,

 

Accordingly, we have concluded that during the first two years of the experience in opening hearings under Judge Kaye’s new rule presumptively from any press and public access to the juvenile courts, the new rule has been a success.  The access rule is one court reform that appears to have achieved its objectives, providing a model for other state court systems to adopt and apply.

 

But let me see if I can make my case in a more personal fashion by referencing just one instance that occurred.  I will call the child Timmy, but that is not his real name.  Timmy is a young teenager.  He is a ward of my court as a neglected child; he also has behavioral issues.  As a result, Timmy was placed in a high-level institutional treatment center to stabilize his behavior.  This treatment institution is a hospital-like setting, where children are locked inside the confines of the property.  The institution has both acute and residential treatment components.  Regardless of the fact that such institutions serve a purpose, they are cold and confining.  The promise made to Timmy was that if he cooperated with and completed his treatment, he would be placed into a less restrictive foster home and be a part of a family.  It is also noted that these institutions are some of the most expensive placements for foster children.

 

Timmy complied with the program.  The program concluded that he was able to be released at the end of October, 2002.  But he was not released.  You see, the Division of Child and Family Services (DCFS), Department of Human Resources, had not adequately planned for his release and there was no place to release him.  I appointed an attorney to represent the child.  I held several hearings in an effort to get the DCFS to move the child into a therapeutic foster home, all to no avail.  Finally, in an act of total frustration, I directed the director of the DCFS to appear before me to explain why something could not be done for this child languishing in this institution.  I had hoped that by directing the director to appear something would be done.  The director did not appear.  Through the Attorney General, he advised that he was the director of the Division and I could not compel him personally to appear, but he could designate someone else to appear in his stead.  He [Timmy] was ultimately moved in February [2003] from the facility.

 

[Judge Gerald Hardcastle continued.]  I wonder if we would have done better by Timmy if the hearings had been open, and if the press and the public had understood what was going on in my courtroom.  There are many other concerns.  For instance, did you know that for a period of time this past year we ran out of bus tokens to give to parents so that they could get to appointments?  Abuse and neglect, neglect particularly, is fundamentally an issue of poverty.  We expect people to go to this appointment and that appointment to get their child back.  Running out of bus tokens kept parents from being able to get around town so they could keep these appointments. 

 

Did you know that the standard for visiting children, older children, by a caseworker is now once every two months in a face-to-face meeting?  A case manager is only expected to go out there once every two months in order to see that child because the caseload is so high.

 

There are many issues that arise in my courtroom on a weekly basis and affect how we treat these foster children.  In addressing the issue of whether dependency hearings should be open, it is fundamental to understand the historic importance that open government, and particularly, open court proceedings has had in our country.  In her excellent article on public access to the dependency court, Professor Kathleen Bean of the Brandeis School of Law said,

 

Public access to American court proceedings is a metaphor for justice.  Open courtrooms encourage truthfulness and discourage perjury.  They encourage fairness and discourage abuse.  And most important, they place our system of justice before the public and make it accountable.

 

Chief Justice Warren E. Burger, in the Richmond, Virginia case, discussed open court proceedings and noted that,

 

They assure fairness; they discourage perjury; they discourage other misconduct; they enhance performance of the participants; they protect judges from imputations of dishonesty; they discourage decisions based on secret bias or partiality; they educate the public; and they encourage public confidence in our system.

 

I do not believe that I need to spend a great deal of time justifying the importance of open court proceedings.  What is critical is that as citizens, we have the right to know what goes on in our courts.  As a nation, we believe that institutions function more effectively, more honestly, and more appropriately when we can watch what they do.  Open hearings produce better effort and engender greater confidence in what courts and governments do.  But of course, that does not address the issue of open dependency hearings.  At least in this country, and prior to the present movement to open such hearings, dependency hearings, traditionally and by statute, have been closed.  While it can be argued that we ought not mess with history, history is being modified relative to closed juvenile hearings.

 

[Judge Gerald Hardcastle continued.]  The historical context of closed hearings in juvenile cases began with delinquency cases, not abuse and neglect cases.  Because of the fatherly approach, early reformers felt that closing the delinquency hearings would be therapeutic and eliminate the stigma of delinquency.  Almost without discussion, the closed hearing was made a part of dependency hearings.  However, recently there has been a national movement away from closed delinquency hearings.  Virtually all states have open delinquency hearings.  Nevada has open delinquency hearings.  Our experience with open delinquency hearings has been good.  I am unaware of any controversy arising from the Legislature’s decision to open delinquency hearings.  If we can open delinquency hearings, then we ought to be allowed to open abuse and neglect hearings so that that system can get the benefit of those hearings.

 

Assembly Bill 132 as written reflects how the best principles of law work.  First, it recognizes that hearings ought to be open.  Second, it allows an exception.  Hearings can be closed if the court determines that the child’s best interests are not served by opening the hearings.  The exception reflects that it is only the child’s best interest that is important to protect.  A hearing should not be closed because it would embarrass the court or because it would embarrass the agency or embarrass the parents or any other adult.  The dependency court is a court for children and about children.  The interest of others is not a reasonable or legitimate basis to close hearings.

 

Professor Bean in her article addresses one argument made by those favoring presumptively closed hearings.  Opponents tend to view the best interest of children and open hearings as opposing incompatible values.  She notes an analytical framework that pits public access to dependency court against the best interest of children and assumes on the balance that an open courtroom hurts the interests of children.  This assumption is false.  A particular child may benefit from his or her case being closed, but a standard of closure does not benefit a system that decides the same child’s future.  If access is presumed, however, individual assessment of cases in which closure is requested can continue to respond to the particular public access needs of that child.  At the same time, the standard of presumed access will continue to benefit the judicial system and, thus, the children the system serves.  This way, the best interests of children are served.

 

[Judge Gerald Hardcastle continued.]  Professor Bean’s position is that open hearings now bestow many benefits on those involved, including the children.  I might note, and I want to read very briefly from the “New York Experience.”  New York did a study on their system two years after they opened it.  In addressing the issue of the impact on children, they said,

 

The potential effect to children from having proceedings relative to them open to the public is hard to know with any certainty.  Many of the cases that have engendered press access controversies would have been extensively publicized and reported regardless of whether press access was granted or not, due to the high-profile nature of the litigants.  In cases that the media covers in order to report on systemic child welfare and child justice issues, as opposed to issues [in which] the identity of the litigants or the horror of the particular incidents that are involved, pseudonyms and other devices are used.

 

Essentially, what they found was that when it comes to systemic issues, newspapers largely protected the child, voluntarily.  When it came to high-profile cases where children’s names were involved, what they found out was, that information had largely been leaked anyway.  I think that historically, if you look at the nature of proceedings that have occurred in those child welfare cases that have made the newspaper in our state, what you will see is that long before the case has ever got to court, the names and identities were known in the high-profile cases.  If we dealt with systemic abuses, what we found out was that the identity of the children was not disclosed.

 

Before I close, I would like to address a few issues related to the proposed amendments by Washoe County.  First, I hope that this is not submitted by everyone in Washoe County, although from looking behind me, perhaps it is.

 

Second, there is an underlying assumption behind the proposed amendment.  The assumption is that open hearings do not benefit children.  The proposed amendments do not seek to strengthen the concept of open hearings and make it virtually impossible to have open hearings.  The amendment clearly seeks to turn the policy of open hearings inside out.  If open hearings can benefit the courts, the children, and the public, the amendment should be rejected.

 

[Judge Gerald Hardcastle continued.]  Third, the amendment gives no credence to the public’s right know what occurs in abuse and neglect proceedings.  The amendment implies the policy that no good can come from the public knowing the business of dependency courts.  It engenders business as usual away from the eyes of the public and others who may be interested in what occurs.  If Professor Bean is right, it means that the benefits that would occur to the system for children as a result of open hearings would be lost.

 

I would like to read Professor Bean’s conclusion before ending. 

 

The paramount question, said Judge Elaine Slobod of Orange County, New York, in a courtroom in 1988, is whether the parties and the children are better served by retaining the veil of confidentiality that covered the family court from its inception or by lifting that veil and laying breadth the society’s ills that lie beneath.  Access will lay bare the state of dependency court, and access will bring reform to the court.  Presumptive access can better serve the children and others in dependency court than can closure.  With daily access presumed in dependency courts across the nation, I believe that the public will follow the proceedings.  I believe that access will work as it is intended to work and that it will work in courts as it has worked for courts for centuries.  I believe it will perhaps slowly bring form to dependency court.  Access gives hope to reform, whereas now there is little hope.  I believe the children who will be in dependency court tomorrow should have that hope.

 

From my personal view, I sit on dependency cases every day.  It is presently all that I do.  I have seen confidentiality work for agencies; I have seen confidentiality work for parents; I have seen confidentiality, even perhaps, on occasion, even protect me.  But I have rarely seen it protect children. 

 

There is one final comment, Mr. Chairman.  I was on the Internet the other day and found that there are other states that are going through this process, and, like I said, there are 20 or 21 other states that have already opened up their dependency hearings.  The state of Washington is going through the process, and there was an article about the Washington process I would like to read because I think it fits exactly what we are going through, and it maybe gives us a feeling that we are not going through this alone, nor the judge or Ms. Buckley or whoever else is advocating for what she calls this counterintuitive philosophy, as others may believe that we are.  The article says,

 

The closed courtrooms where parents can lose custody of their kids in the state may soon, in this state, be open in an effort to shed more light on child abuse investigations.  Following a nationwide trend, a legislative proposal with bipartisan support would end the decades-old policy of closing hearings to protect the privacy of abused and neglected children. 

 

The Department of Social and Health Services (SHS), which takes its child abuse investigations to dependency court, recently dropped its longstanding objection to open hearing.  The SHS secretary, Dennis Braddock, thinks open courtrooms would remove some of the myth and mysteries about Washington’s child protective services.  “There are too many who believe that people are not honest in these hearings and that they are misrepresenting the situation,” Braddock said.  “As long as they can’t be involved, they think that is what happens.”

 

The [Washington] state Attorney General’s Office, which represents social workers in the hearings, has also been cited to back the proposal, House Bill 1236, as sponsored by Ruth Kagi, a Democrat, who chairs the House Children and Family Services Committee.  Senator Val Stevens, a Republican who chairs a similar Senate committee, is backing the Assembly proposal.  Both bills allow the public into hearings but wouldn’t open child abuse records to public inspection.  The [Washington] state Superior Court Judges Association also supports the bill, so long as judges can close hearings when they deem necessary.  “We do a better job when our hearings are open to the public or when we are inclined to be at our best,” said Thurston Superior Court Judge Paula Casey. 

 

The judges’ support is based on the assumption that federal funding won’t be jeopardized.  Washington gets about $75 million a year in federal child abuse prevention funds that require closed hearings.  But Casey says federal enforcement of that provision is unlikely.  Twenty-one states have open hearings to give judges the authorization to open them, according to the National Center for State Courts.  Oregon’s dependency courts have been open since 1980, and federal funding hasn’t been withheld.

 

[Judge Gerald Hardcastle continued.]  The experience of every state that has challenged it—and there is a provision in our bill that says that if federal funding is impaired, that the hearings will not be opened—with all 21 states—none of them have had any problem.  In fact, there are efforts now in front of Congress to formally change the provisions of what is called “capped” in order that federal funding will not be affected. 

 

My thoughts have been convoluted and somewhat sketchy, but this is an important issue and it is important to the children of Nevada.  We need help in our system.  We need to have everyone be as concerned as this Committee, and as the Legislature when it hears about it.  We need help; we need to have people out there understand what it is that we do, and how critical the needs of these children are, and we can’t do that in secret. 

 

Chairman Anderson:

I presume that you made this presentation to the committee that heard the initial testimony.  We appreciate your repeating it for us.

 

Vice Chairman Oceguera:

Your Honor, I was just wondering.  I understand what you are trying to do with the statute and I understand the policy there, but isn’t it almost a policy decision in, like at least Clark County, in my limited experience in law school going to the family court, that pretty much everything is closed; the doors are locked if your case is coming and you get to go in and that is about it?  Wouldn’t it almost help to have a policy decision made at the family court level that the doors would be open? 

 

Judge Gerald Hardcastle:

There has been.  First of all, the law is very clear that family court proceedings, unless closed, for instance, in divorce cases, the judge can close them, but the presumption is that they are open.  Delinquency cases—the same thing, they are open, unless the judge finds a good reason on a case-by-case basis to close them.  There is a tendency down there—I think, and I am not sure it is a healthy tendency—I think we have lost a lot of respect for why we have open hearings as judges.  Particularly in family court, we think it is really nobody’s business what goes on in the courtrooms, and while I emphatically disagree, there are some judges who routinely close their courts.  I think that is wrong.

 

Chairman Anderson:

Are there other questions for Judge Hardcastle and Ms. Buckley relative to the bill?

 

Assemblyman Brown:

For either of you, as to the systemic problem you mentioned before, system issues, and I was wondering as far as the press was concerned you said—I am wondering if there are any states that somehow have statutorily allowed for the open process but—and I know this is a delicate issue—mandate it somehow so that the identity of the child, at least in reporting, be withheld so everyone was a “Timmy” in effect?  Are there any states that have addressed that or somehow tried to fashion that?

 

Assemblywoman Buckley:

I would have to ask the Research Division or Legal Division, through the Chair, to do that.  I know it is a tricky area.  I think the judge hit the nail on the head in his testimony.  In all my years working on this, either through my day job or through working on this through these different committees, I have never seen the name of a child reported, except one extremely high-profile case where the proceedings were closed and still the name was being reported.  I think, generally, the press is really good about not leaking the name of the child, and in the end if they do, they will do it whether we have a lull or not, just by virtue of . . .

 

Assemblyman Brown:

. . . who they are. 

 

Assemblyman Carpenter:

You mentioned a little bit in your testimony, but would you emphasize—in the bill it speaks to federal funds—would you go into a little more detail of what we are looking at here?  I don’t remember hearing that in the testimony on the interim committee, but maybe I missed it.  Would you emphasize that a little more? 

 

Assemblywoman Buckley:

This really did not come up much in our hearings which is why it does not sound that familiar.  In the drafting of the bill as requested by the interim committee, the issue came up, and basically, it has to do with federal confidentiality requirements under CAPTA, the Child Abuse Prevention and Treatment Act.  There are some concerns that that can be interpreted by the Department of Health and Human Services as restricting the states’ abilities to allow open court hearings.  As the judge noted in his testimony, 20 states have now done that, and not one’s funding has been affected and there is some move on the federal level to change this so it cannot even be a question. 

 

But what we had our Legal Division do, just in case somehow Nevada was targeted for doing this, we put in there a provision that says, “if our funding was jeopardized,” and this is on page 2, lines 10 through 13, that the judge would keep the information confidential to obtain federal funds.  So, for example, if they issued a new ruling and all 20 states had to change their laws today or be stripped of all the federal funding, then the judges could stop having open hearings so as not to jeopardize the federal funding.  Again, never enforced, but because the concern was mentioned, after our hearings that this might be an issue, we put it in just to protect ourselves.

 

Assemblyman Carpenter:

Is this in the statues of the other 20 or 21 states, or if we put it in ours, are we red-flagging it?

 

Assemblywoman Buckley:

I think I would defer to Miss Lang.  This is what the Legal Division came up with to deal with this concern that was raised at the last minute; I don’t know if they patterned it after other states or were using their own creativity.

 

Chairman Anderson:

Just a moment, we will let our Committee Counsel, the drafter, have first shot.

 

Risa Lang, Committee Counsel:

I can’t see if this was modeled after another state, but that is something we have done in other statutes where there is the potential that the federal government could read it to have some impact, just so there would not be any conflict if the judges were no longer allowed to do this, in order that we don’t lose federal funding, that there wouldn’t be a conflict between our law and what they were actually doing in practice.  Does that answer your question?  I am not certain whether other states have that provision or not.

 

Assemblyman Carpenter:

Maybe if it isn’t too much trouble we could research it a little bit and see what other states have done; you know me; I hate to red-flag anything for the feds; so, thank you.

 

Chairman Anderson:

Judge Hardcastle, I didn’t want to cut you off, I just wanted to make sure the Committee Counsel really had a chance to explain.

 

Judge Gerald Hardcastle:

The state of Minnesota faced this issue directly whenever they did their pilot project, and ultimately received a letter from the federal government saying that the federal government would not enforce those provisions against the state of Minnesota when they did their pilot project several years ago.  Since then, it simply has not been an issue.

 

Assemblyman Mortenson:

Judge Hardcastle, you mentioned that you feel judges too often close hearings.  Do some of the states have provisions whereby they set criteria that makes it a little more difficult for judges to just blatantly close a hearing for not too good of a reason?

 

Judge Gerald Hardcastle:

Judges are given a tremendous amount of discretion whether or not to close hearings.  We are talking, now, about delinquency cases and divorce cases.  I think there is a feeling that if the parties want to close a hearing, judges presently do it now, and in domestic cases, very freely.  If you want to set standards, you could.  Realistically, there are not a lot of people who are standing in line to get into courtrooms, but it is my opinion that we do close them far too much.  I think the public has a right to know the business of what goes on in its courts.

 

The standard is very general now.  If the Legislature wanted to define that in domestic and delinquency cases, they could.  It is noted that especially whenever we did away with the provisions relative to delinquency, that some of the judges still continued to put “closed hearings” on the doors in delinquency cases—at least at the time I was overseeing the delinquency division, I asked that those be removed because the public does have a right to know.

 

As far as setting standards by the Legislature, it is a hard thing to decide.  I think I would rather have it remain as one of general oversight but maybe impress upon judges that we do want it to be open.  We do expect people to be able to walk in and out of those courtrooms.

 

Assemblyman Brown:

Judge Hardcastle, we have had comments about the intuitive or counter-intuitive nature of this bill and I am trying to wrestle with that a little bit.  You mentioned that you have seen it work for this system and parents and children, and, to me, the intuitive portion seems like it would probably tend to work against the parents, but can you describe how you have seen or can anticipate this working for the parents?

 

Judge Gerald Hardcastle:

Yes, very easily.  There is a “clubiness” inside that courtroom that you don’t see, and the clubiness operates against parents.  Up until recently, we had no clubiness—this tendency that everybody is on one side, and the parents are on the other side.  Parents are greatly disadvantaged in my courtroom.  There are representatives that represent children and represent the Division [of Child and Family Services] and all of that.  By making the hearings open and fairer, we can see how we are treating parents, because fundamentally, we have the obligation of trying to get these children home.  We should be supporting parents. 

 

The example that I used of the fact that we don’t have bus tokens to get them across town to these meetings—would that arise in the situation where someone was looking and we brought that issue up?  That would be resolved.  The system really has to support parents.  I have a very fundamental belief that the best that we can do for children is to make their parents strong so that the parents can care for them.  The foster care system is a very terrible system, and if we can make parents strong, it will work better.  Sadly, in the process that we now have, parents are disfavored; they are beat up; they are not provided the services that they need.  And that unfairness, when exposed to the public light, I submit to you, would diminish.

 

Chairman Anderson:

Has anyone else for questions for Judge Hardcastle or Ms. Buckley?  Okay, we have been hearing the bill now for not quite an hour and I am reminded that we have a second bill; we need to hear the amendment and let me call Judge Charles McGee and Mr. Capello in that order.  Judge McGee, did you want Mr. Capello to come up with you?  [He indicated yes.]  Judge, what’s your preference, do you want Mr. Capello to go first or you?

 

Judge Charles M. McGee, Washoe County, Second Judicial District:

Selfishly, I would like to go first just because I have to get back to my calendar.  I think my biggest task here with you is to show care in what I am being critical about in the presentation you heard from Assemblywoman Buckley and my colleague Jerry Hardcastle.  I want to say that Jerry Hardcastle and I, 99 times out of 100, would be on the same side of the street.

 

Chairman Anderson:

I’m sorry, Judge McGee.  I forgot to introduce you and you didn’t mention your name.

 

Judge Charles McGee:

I am Chuck McGee and I am the senior family court judge in Washoe County, Nevada.  I also do the penalty cases as a business and I have been hearing these cases for 22 years now–four as a juvenile master and then over 18 years as a district court judge.  I am a First Amendment nut, despite a kind of conservative upbringing and background.  And I think the more attention the public has, the press has in government and court affairs, the better, except in this area, and that is what I am here to testify about. 

 

I am certainly not critical of the interim committee and ironically, it is living proof of some of Judge Hardcastle’s propositions because the more light you shed on a subject, the more attention is given, and the more money is given, the more the Legislature is paying attention to what is going on behind that screen of confidentiality which he mentioned.  So, I am in favor of opening the hearings and I have publicly been testifying in that fashion in the delinquency cases now for 12 years.

 

[Judge Charles McGee continued.]  But in this one very narrow area, I am in favor of presumptively closing instead of presumptively opening, and let me see if I can’t tell you why succinctly.  I have two cases currently pending where this is an issue.  In one, the two little girl victims who were sexually molested are 9 and 11 years old.  They have 11 aunts and uncles, so there are 12 in that “parentella.”  They have, despite their mother’s young age, four brothers and sisters, so there are six of them.  And you know who they fingered as the perp–the patriarch of the family.

 

So these little girls are in at the first hearing, the protective custody hearing, and their mother, under pressure from her family, had tried to tape-record a recanting of the story that they gave to the [Washoe County] Department of Social Services about being molested even though there was all kinds of physical corroboration for it.  If I didn’t have control of that courtroom to know what was going on, if I couldn’t presumptively close that protective custody hearing, I am not sure the information would have “outed,” if you will, because that entire family rallied around the patriarch.  It wasn’t until three months later that two of the aunts came forward and said, “You know, he did it to us too, and it has been our family shame for these last two generations.”  That case should be presumptively closed. 

 

In the second case, it is like the McCoys and the Hatfields.  Over here on the McCoys’ side is a 17-year-old boy and on the Hatfields’ side there is a 12-year-old girl with child.  The 17-year-old boy is putatively the biological father of the child.  If I were not able to close that hearing presumptively, I would have subjected that little 12-year-old girl to all kinds of verbal abuse from the family of the 17-year-old boy who thought she was a slut at the age of 12— having no knowledge and no control over what might have gone on in that courtroom at that first hearing. 

 

I listened very carefully to what Judge Hardcastle said, and I have respect for him and Barbara Buckley as leaders and as courageous leaders.  And I think that the spotlight should open up these hearings and the “clubiness” ought to be taken out of these kinds of dependency hearings.  They should not exist behind a curtain of confidentiality.  But, if I take his argument to what I think its logical conclusion is, he does not trust his colleagues or his successor to know when to open the doors and when to keep them closed, because I can bring in the public, the press, and the family that are not going to re-abuse the children in each of the cases that I know, there is not going to be a child protection issue.  So, I would ask you to vote in favor of the statute, A.B. 132, but to make it presumptively closed, and then allow other courageous judges who feel that this is the trend—and it is the national trend to open these hearings to the public—to open it up so that you can see what is going on so that you can help us correct some of the abuses that do exist.  To open it up carte blanche is taking too great a risk as to the safety of children, in my opinion, after 22 years of experience in this area. 

 

Chairman Anderson:

Judge McGee, I apologize for not giving a longer introduction of who you were myself; I usually do that.  I guess the question that I have is, if we were to pass A.B. 132 without the amendment that is being suggested, why would the judge in a case that is as volatile as the one you just described not have the good sense to close that one rather than to open it?  Why would the shoe not be on the other foot?  I mean, if we are saying that the judge has the good sense to close it—it is presumptively open—why would it just not work the other way in the exact same fashion?

 

Judge Charles McGee:

Sure, and it is an excellent question; let me see if I can’t reply to it.  In the Hatfield and McCoy example, and of course they are fictitious names, I might have known about it had they gotten in a fight in the outside lobby.  But typically these calendars are large, as Judge Hardcastle will tell you, and you have all kinds of people; you don’t know how they are related to the children, whether they are there on that case or the next case, if it’s presumptively open, and what kind of pressures are being brought to bear.

 

Judge Deborah E. Schumacher asked me to convey to you the fact that often times you have people, like neighbors, that are in there who have some kind of ax to grind against the parents next door, or the grandparents live next door and they don’t think that their own children, especially, “my son’s slutty wife” is fit and proper to raise the children.  They are there to arm themselves with further information that may not be in the best interest of the child.  In the case of the two little girls, I don’t know who is in the back of the room there; I don’t know what kind of body language is going on, and by the time I have the opportunity to sort it out, maybe the damage is done, maybe they have just closed their mouths.

 

Assemblyman Mortenson:

If you start a hearing open and you see certain events happening where you think it would be better to be closed, could you close that in the middle of the hearing? 

Judge Charles McGee:

Yes, but can I share one other thing with you?  I had a gentleman stand up and point his finger at his own stepchild, after having severely physically abused him, and the menacing manner in which he did that sent that child into a shell.  I also had, and this is a very long time ago, a lady who is now a Fourth Street prostitute who was 11 years old at the time and her mother told her, “I never wanted you in the first place, you little bitch.”  I don’t have the information to screen, prophylactically, the damaging information from the benign information from presumptively opening it.  If I can learn about the family, especially after the protective custody hearing and the caseworkers have developed a report and investigation, and I know where some of these trigger points are, then sure, I think the judge ought to open the hearing up as a matter of course.  If it doesn’t have these elements to it, it is just a surprise sometimes that I think re‑victimizes the children.

 

Chairman Anderson:

Are there other questions for the judge?  Thank you, Judge McGee; I will send you back to court.

 

Michael Capello, Director, Washoe County Department of Social Services: [Introduced himself] Thank you, Mr. Chairman.  I have accompanying me today Cynthia Gregory, Deputy District Attorney for the Washoe County District Attorney’s Office. 

 

First of all, I prepared a draft of our proposed amendment (Exhibit D) and in addition to that, included a colored flow chart (Exhibit E) that I would like to reference in my comments this morning.  I think this colored flow chart helps to give some . . .

 

Chairman Anderson:

Let me try to play teacher here for just a second, Mr. Capello.  Unbeknownst to you, while you began to speak, a group of students have joined us from Girl Scouts of America and I want to make sure that they understand that we are in the process of hearing a bill.  So that you might know for your own information, Assembly Bill 132, on behalf of the [interim] Legislative Committee on Children, Youth, and Families, determines whether family court hearings should be open or closed.  We are hearing about child abuse cases and whether it is in the best interest of the children to have those [hearings] to be presumptively open or presumptively closed. 

 

We have already heard from two speakers.  The first was Judge Hardcastle from Clark County, and the judge who just left the chamber just a second ago was Judge McGee from Washoe County.  Both of the judges have different opinions about how we should move in this particular regard. 

 

I was just trying to get them up to speed so that they will understand a little bit about what you are going to be telling us, Mr. Capello.

 

Michael Capello:

Thank you, Mr. Chairman.  On this color flow chart if I could draw your attention to the pink boxes in the middle, essentially, these are the major steps in a child welfare case as it would progress through the legal system, starting from the initial report, the investigation, then the very first hearing, which is the protective custody hearing.  That hearing is required by statute to occur within 72 hours of the child being placed into protective custody.  The standard of evidence for that is really a reasonable cause, so it is very early on in the case.  What we generally know are specific factors that indicate the child is at serious risk of harm, thus requiring their removal, but there is not a lot else known about that case or that family at that early stage of the case.

 

As you move across to the next box—that hearing is required to occur 30 days from the date that we file a petition requesting such a hearing.  During that time, we have the opportunity to complete our investigation and develop a report for the court that supports the Department’s continued pursuit of custody of those children to protect them from further abuse and neglect. 

 

Following that, the court makes a disposition with respect to the Department’s request on that petition for custody of those children.  Then, as we move through those hearings, every six months we must return to the family court for the judge to review the progress that that family and that child is making in their case plan.  Then, at the 12-month hearing, there must be a permanency plan approved by the court and we can move across into the termination of parental rights hearing for those children who are not reunified or another plan is not approved.  But essentially, the judge will be seeing those children once every six months.  It’s through that function that the judiciary provides the oversight of the agency and family in their case progress. 

 

Our proposed amendment essentially would allow the judge to make a decision that it was in the best interest of the individual child to open that hearing.  We recognize that there are many circumstances in which the light of public knowledge, which currently occurs through many processes, such as grand jury investigations, criminal child abuse cases that go criminal, where the public light is shown on the child welfare system; there are many situations where that has been beneficial.  It has revealed lack of funding, lack of training, and made some of the needs of the child welfare agencies a high priority for the policy makers.  So there is little debate that having opened this can result in that, particularly in the kinds of cases that Judge Hardcastle spoke of.  It is our belief that our amendment would certainly allow him or any other judicial officer to open those hearings to bring that forward. 

 

The issue we have is that many of the cases, particularly early on in the protective custody hearing and the adjudicatory hearing, are frankly regular families struggling with poverty, sometimes struggling with substance abuse and other family issues.  However, they are regular families and many of them early on in that process, through our intervention as a child welfare agency and the support of the courts, are able to bring resolution to those family issues and reunify and go on about being regular families in our community again.  I think part of the question is, is it appropriate in that point in a child’s life, in the life in the evolution of a family, to have their private issues potentially become public material?  And, I think, as I said, in my 20 years’ experience in dealing with child welfare—those cases early on—many of those families do reunify.

 

Where we see families who remain in the system is when we talk about multiple six-month reviews—children who languish in foster care or who languish in inappropriate placements.  Those certainly, I would agree, the openness, having the public light shone on those circumstances could be beneficial, and I would also submit to you that our proposed amendment would certainly allow for that to happen.  There is no doubt that judges experience frustration.  Agency administrators experience frustration with resources, with having the opportunity to do what we believe is often best for children, but are limited in the ability we have to make that happen.  I think there could be really no argument that openness could be beneficial, but the real question is, is openness always beneficial? 

 

Chairman Anderson:

Mr. Capello, I appreciate the flow chart and I think the Committee will find it useful to them in trying to make a decision.  Judge Hardcastle made a very, very strong argument about the lack of the financial resources to solve some of the underlying problems, not just for the parent to get to the hearing and to be physically present.  Does the state agency not hold it as in the best interest of the child to try to unite families?  Is that not their primary goal?

 

Michael Capello: 

Yes, The Adoption Safe Family Act gave us two primary missions.  One is to ensure the safety of children.  Prior to that, the primary mission appeared to be that we would make reasonable efforts to reunify a child with their families.  We now have a dual mission.  We have to attempt to reunify those children with their families but at the same time, preeminently, the safety of the child has been emphasized in that federal legislation.

 

Assemblyman Carpenter:

Couldn’t it be though, that if parents or whoever knew that they might be subject to public scrutiny or whatever, may want to move a little faster to straighten their lives out?

 

Michael Capello:

I think if we were to presume that the hearing was open from the beginning of the court process, it would certainly limit any opportunity for families to even have that explained to them.  Many of these families who start at that point are very confused about the court process.  Oftentimes, they are in a courtroom overwhelmed by agency staff, judges, and everything that happens to be going on around them.  I am not sure that would be something they would think of early in the process.  I think if the judge made it known that it would be his or her practice to open a hearing at some point in the process, that could potentially be a motivator.  I would have to think about that, but if it is open from day one, frankly . . .

 

Chairman Anderson:

We are trying to run for time here.  Ms. Rothschild, I am putting you on the timer.  This is a good time to say, “me too” if you are giving us information that we have not had.  We are an hour and 15 minutes in, so I need to know how long you intend to speak. 

 

Susan Klein-Rothschild, Director, Clark County Department of Family Services:

Mr. Chairman, approximately one to two minutes.  [Introduced herself.]  I do support granting the authority of the court to open the hearings based on the best interest of the child—while understanding that it needs to be done cautiously and thoughtfully.  I strongly support that hearings not be open until after the protective custody hearing when there is little information and a lot of emotion as was described in the handout provided by Mr. Capello.

 

I worked in Colorado for over 20 years where they have had open hearings; in that setting, we found that a lot of the fears and concerns were not realized in the child protective field in the open hearings.  It was a goal to increase accountability, community awareness, and best interest of the child.  I do support A.B. 132.

 

Chairman Anderson:

Impressive.  Are you are supporting it with the amendment?  Do you think this would be in the best interest of how we move or without the amendment?

 

Susan Klein-Rothschild:

I would support the bill either with the amendment or without the amendment with the piece that it only be after the protective custody hearing.

 

Chairman Anderson:

Are there questions from the Committee?  Thank you very much.  Cindy Heron, [please give us] information that we do not have.

 

Cindi-Elaine Heron, Court Master, Family Division, Second Judicial District: [Introduced herself.]  I handle about 75 percent of the dependency cases and I would support A.B. 132 with the amendment.  I think we need to keep the best interest of the children in mind.  I can agree with Judge Hardcastle that there are cases like “Timmy’s” that need to have an open hearing, but that can be served with the amendment. 

 

I, like Judge McGee, also had examples of children that have come through the court, but I think we have been presented with one today right in front of you.  We have the members of a Girl Scout troop here.  If you were to think of the child, in the eyes of a child, in the dependency arena and the horrors that are in that arena with abuse and neglect and substance abuse and the fact that a family can’t get it together, think of the child who comes in on a Girl Scout troop, sits there in the middle of the court proceeding and realizes, “That’s my family” or “That’s my neighbor.”  What does that do to that child?  I think opening the proceedings would be detrimental to the children and I am in favor of the amendment. 

 

Katherine MacKenzie, Washoe County Public Defender’s Office:

[Introduced herself.] I have been asked to come today to read to you the prepared remarks (Exhibit F) of my supervisor, Ms. Cynthia Lu; it will be very brief.

 

“My name is Cynthia Lu.  I work as a Chief Public Defender in Washoe County.  Our office represents parents and sometimes children in 432B dependency cases.  We are opposing A.B. 132.  Assembly Bill 132 jeopardizes the privacy rights of children, parents, and family.  Although proponents of A.B. 132 have stated that they do not believe that parents have any rights in these matters, the U.S. Supreme Court continues to clearly delineate parental rights as a fundamental right and has protected the privacy of families in its progeny of cases related to contraception. 

 

As a practical effect of A.B. 132, it is not only parents but children who may not want to publish to their peers or to the public that their family is having problems and they are in the foster care system.  Also, the parents would potentially have less candor in discussing their personal family problems with the court and the public.  This effect may potentially slow down the process of assisting these families because issues won’t be identified or addressed in front of the public, which is the very reason for having court hearings.  The bill takes away any privacy rights of all family members.  The effect of this bill is more likely to stigmatize families in smaller counties where everybody knows each other, as nosy neighbors will be more inclined to be in the courtroom to get the town gossip.

 

Even if the intention is to promote media exposure to make the system better, the reality is that members of the public may utilize this bill for gossip fodder.  The way the bill is currently written forces children, parents, or the agency to file motions to protect their privacy rights since the bill makes the hearings presumptively open, the burden of closed hearings is going to be placed upon the families.  It will be on the parents of the child to close the hearings.  Our office believes that there will be more motions to close hearings than motions to open hearings if the hearings were made presumptively closed.

 

An alternative bill has been suggested to have the hearings presumptively closed and parties may file a motion to open the hearings.  One issue this version would need to address is the standing issue of a party to file a motion to open the hearing, like the media.  However, this version would at least protect the privacy rights of the family from the onset and allow a court to hear and grant a motion to open a particular case.  Moreover, if the motion were being filed by a nosy neighbor, the court can obviously consider this factor and deny the motion where the goal is not too exposed or better the system but to gather gossip.

 

Another issue would be to create specific criteria of factors to warrant opening a hearing or case to the public as well as a standard of proof in that regard so that there is guidance as to what factors the court may look at to open a hearing.  We also discussed the amendment briefly Friday, and our office is cautiously in favor of the amendment, and we would volunteer our efforts to assist in amendments to that amendment to address several concerns.”

 

Chairman Anderson:

We have a work session coming up on Wednesday, and it is the Chair’s intention to take up the bill on Wednesday if we are able to.

 

Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Resources, Carson City:

[Introduced himself and provided written testimony (Exhibit G).]  I can’t keep this brief, but I will keep it as brief as I can.  You have heard an hour and a half in support of this, and although my staff members and I worked for many, many hundreds of hours with Ms. Buckley’s committee and agree and strongly support just about everything that came out of there, I very strongly oppose this bill.  Of over the thousand bills that are out this year, this is the one I most strongly oppose than any other, and I want to go through a few reasons why.

 

I don’t believe it has anything to do, at least from my point of view, with secrecy or covering up, but it does have to do with keeping kids safe and keeping families together.  Delinquency was brought up, but delinquency is a separate issue and in delinquency cases, those kids are charged with crimes, those youth have done things.  These kids have not done anything wrong.  They deserve privacy rights.  Their wrong is that they were victims of abuse or neglect, so it is a different ball game.  I don’t think it can be compared to delinquency.

 

A couple quick points.  I think children are much less likely to testify if they know that anybody can wander in the room—classmates, media, neighbors, anyone can come in—and often, and this is probably the biggest point to me—the child’s testimony is often critical in assuring that they don’t get re-abused or neglected. 

 

I have to give you a case example.  I know you have heard a couple today; I will keep mine short.  I have been in this field 27 years; I have also been a foster parent 27 years.  I had a situation where I had a 9-year-old child placed in my home.  This child had been repeatedly sexually abused by his stepfather.  When it came to court, we had a very difficult time convincing him to sit up there and testify and tell what happened.  If he didn’t, because there was no physical evidence, he would have gone right back to this perpetrator.  There is no way he would have done that in an open court.  We had a heck of a time getting him to do it in a closed court.  We are going to be sending kids back to the people that abuse them if we let this happen.  I am happy to report that he did testify; he didn’t get sent back.  I don’t think this is an isolated case; I think this happens fairly often.

 

[Edward Cotton continued.]  Second, parents who abuse their children often are able to work through the issues if they are not major abuse things, like sexual abuse, and they are able to get their kids returned.  They are often willing to admit the abuse as a first step towards healing and they work with us to get the kids back.  Very few cases are now contested.  They do admit it in meetings with us.  I believe that if you open courts it is gong to be much more difficult.  They are going to have lawyers who are going to be advising them not to admit it and to work with us in getting their kids back, so there are going to be a lot more contested hearings.

 

I also believe that most of these cases would result in motions to close the proceedings and would create a backlog in our courts.  You are going to have—instead of having a regular hearing for a child, you are going to have another hearing to decide whether to close it.  I can tell you from many of the DCFS cases we are going to be in there saying we believe this should be closed, which means there is going to have to be a hearing prior to a hearing, and I think that could cause some backlogs in the courts.

 

Also, I think the child victim could suffer repercussions from open hearings.  The child’s name would become widely known whether the media publishes or not.  Children who are abused, particularly sexually abused, often get ostracized by other children and other family members as though it was their fault.  I believe that this would add to that problem.

 

A couple quick things that I will finish with.  We have not been asked for a fiscal note on this.  There is a note in one of the articles that Judge Hardcastle referred to.  In the state of New York, they estimated $5.6 million just to train their staff on how to deal with situations differently if there is an open court, so we would have to look into what fiscal impact this may have. 

 

Child Abuse Prevention and Treatment Act (CAPTA) issues have been brought up.  I won’t go into those if there is a work study; we can work on some of those.  Assemblyman Brown talked earlier about the press and those kinds of issues.  I have lots of information on that.  There seems to be the assumption the press wouldn’t print the names of kids with damaging information.  Some press have higher standards than others.  I have cases, if you would like me to go into them I can, where specifically the press printed names that were extremely damaging to the kids and their siblings in death cases.  [The press] took their pictures, printed their names, and followed them around.  You can’t count on the ethics of the press to not do that. 

 

I am cutting a lot out because you did say there would be a work group on it.  So, maybe I will finish here.  Simply, I would like to cite a statement from Esther Wattenberg; she was one of the five members of the Minnesota Supreme Court’s Task Force that studied this issue in Michigan and other states.  When people talk about the good this will do, her quote was, “There is not one shred of evidence to support the assumptions that press and public access to public hearings will improve the quality of the judge, advocacy, child welfare work, or reduce the overloaded system.”  I have lots of other things for the work group I would like to discuss at that group, but I don’t think this is good.  With the amendment, I think it is good, but I would agree with the last speaker that there are some things, qualifiers, that need to be put in it. 

 

Chairman Anderson:

Mr. Cotton, did you have an opportunity to testify in front of the study Committee on Children, Youth, and Families over the last two years?

 

Edward Cotton:

Mr. Chairman, yes I did.

 

Chairman Anderson:

On this issue?

 

Edward Cotton:

Yes, I did.  I said every single other thing that came out of there, I was very supportive of.

 

Assemblywoman Buckley:

I just want to say one thing, even though I should probably save it for the work session, and if you cut me off I will understand.  I just would like to point out that criminal proceedings where a child may have to testify that their parent abused them are open to the public, and that at the protective order hearings, at least in Clark County, a child never testifies, ever, because what you do is you rely on the police, you rely on the hearsay, so this talk about embarrassing a child so that they won’t testify–they never testify, so I think that is misleading.  And then the last thing I want to point out to the Girl Scout troop is when a state agency doesn’t like your bill, they say it costs $5 million. 

 

Edward Cotton:

Mr. Chair, can I say that is New York’s estimate of what it would cost them; we have not done a fiscal note on it here yet.

Chairman Anderson:

And, for your defense—I was going to mention to the Girl Scout group that that is called “lobbying,” for those of you who may not recognize it.

 

Assemblyman Carpenter:

It seems by the statistics that we heard that more states are doing this and I think someone mentioned that Colorado has been doing it for 20 years or more.  Why is the emphasis to open these up instead of states repealing their statutes? 

 

Edward Cotton:

There are still more states that don’t have them open than do.  This is a very controversial issue, and I don’t know if Ms. Dickerson wants to talk about the CAPTA issues.  Actually, in response from questions from the state, [the feds] did release their answer, which was that you can’t do this and get federal funds.  The issue is they have not been enforcing that because they have lots of other priorities and they haven’t been going after them. 

 

There is a case in New York where they were open, where in fact, it got bogged down later in appellate court.  I won’t go through the whole case, but it was one I briefly talked about earlier about publishing photographs and following kids around after a court hearing.  These events eventually convinced an appellate court to reverse the ruling of the family court that allowed press access to child protective hearings, so these are all over the board now.  There are some states that are not considering it at all; some have it wide open.  I think the results have been very mixed, and I think that the “presumptively closed” with some specific kinds of cases that could be open is a very good compromise that would allow us to not have problems with the feds and would allow us to not have some of the problems that have occurred when they have been opened.

 

Chairman Anderson:

Mr. Cotton, the Chair has—not having served on this particular interim committee, which is kind of unusual since this is an issue that I have been following for 12 years now—one of the major problems that seems to happen with your agency is the insufficient amount of funding to meet the demand for services.  Is there not the potential to raise public awareness of the plight of your agency of trying to [serve] the best interests of the child by opening it up to public view—the fact that there is not enough money to provide bus tokens; there is not enough money to provide counseling; there is not enough money to provide the kind of services you need?

 

Edward Cotton:

Absolutely, we are underfunded, and absolutely, if there were ways to publicize the fact that that is true, that would be great.  I have not seen a study from any state where that has happened; that is why I quoted the Minnesota Supreme Court’ Task Force.  In fact, what tends to happen is the media come and get very involved on a couple of very high-profile cases for the thrill of it.  Whereas, all the other cases agencies are working with to get kids home to work with families don’t get publicized; therefore, it hasn’t led to massive amounts of money flowing into child welfare systems.  If there are studies that show that has happened, I would certainly be receptive to them.  I have not seen that happening.  In fact, like I said, instead, they tend to focus on a couple of high-profile cases and not come in and make a real difference in publicizing the situation we are in.

 

Assemblyman Mabey:

I will be brief.  Mr. Cotton, what are your feelings about opening the hearing after the protective custody hearing?

 

Edward Cotton:

I am okay with that; I think they should still be presumptively closed so that there is at least an issue raised around why we are opening it, and I think that anyone who wants to open it, if there is a specific reason to open it, the judge could then rule on that.  As the amendment is written from Washoe County, I believe it would even allow the judge to do that.  It’s not called a motion; it is something else, to allow it to be open, so I have no problem with that.  I think that the chart that Mr. Capello prepared sums up where we are, and in that first area I don’t think they should ever be open.  Then those later areas I would agree but I still feel they should be presumptively closed with the notion that there are many types of cases where there could be a filing to get them opened. 

 

Karen Dickerson, Deputy Attorney General, representing the Division of Child and Family Services, Department of Human Resources:

[Introduced herself.]  Mr. Cotton has covered essentially almost every area.  I just wanted to add the impact to the Attorney General’s Office and the state as far as we would be forced to then file motions if this bill were passed, to close, in almost all cases, the hearings, at least initially.  This would require an additional hearing and a lot more paperwork to an already very overburdened system.  The time lines that Washoe County presented on their charts are all required under ASFA, the Adoptions and Safe Families Act; that directly ties in with funding.  If we have to file motions and get a separate hearing to close these hearings, which would create continuances to the 72‑hour hearing or whatever, that is in direct violation of federal law and how we get our matching monies from the federal government.  That is the only piece.

Chairman Anderson:

Did you hear the information from Judge Hardcastle relative to the Minnesota question where that very issue was broached?

 

Karen Dickerson:

I don’t believe I heard testimony about the time lines under ASFA.  I think that was just under CAPTA, as far as confidentiality.  I may be mistaken.

 

Assemblyman Carpenter:

Mr. Cotton, if these hearings were closed according to the way the amendment reads, would your agency ever make a motion to open any of them, and under what circumstances?

 

Edward Cotton:

I haven’t really thought about that; I can’t imagine any that we would.  There may be some that somebody would propose that we wouldn’t oppose, but I don’t know if we would push to have any open at this point.

 

Myra A. Sheehan, Attorney at Law, representing the Nevada Trial Lawyers Association:

I have about three areas, very quickly, that I will touch on.  And if you do have meetings after this, I would like to be involved in them.

 

From the trial lawyers’ practical aspect of this, you have heard a couple people testify that they would be moving to close the hearings, and I believe that that would be the general standing of most attorneys that came into court, certainly attorneys that represented parents.  Let me step back for a second.  I am in support of this with the amendment that the presumption is that these are closed rather than the presumption that they are opened because the practical aspect is you are going to clog the courts more.  Family court is already backed up; it is already clogged.  We are trying to figure out ways to streamline; this is going to back it up; guaranteed, it is going to happen. 

 

The other thing is that I don’t think we remember where the family court came from.  We created the family court to be different because we were handling families and children, so when we talk about opened hearings and those types of things, we must do it in the perspective of what we are talking about when we deal with the family court.  It is different.  We did it intentionally; you did it.  You created family court because we said these matters are more sensitive. 

 

I am also a little confused because we have a bill that we are working on that deals with children witnesses testifying, yet we are talking about having these open hearings.  Maybe that could work also to help in this matter, but there is Senate Bill 43 that talks about children witnesses and having special circumstances to where there is an alternative method to not let them testify in open court in front of a perpetrator, or, being victims, not having to testify in front of people.  Yet we have this where we are saying we are opening up these hearings.  I’m a little confused about how those two will play into each other.

 

The last thing that I would like to say, and taking off my hat as a trial lawyer, often when we have these hearings, you have victims that come forward and they testify and they say, “How is this going to affect you?”  So here I take off my hat as trial lawyer.

 

Thank you, Chairman Anderson, I would like to introduce myself.  My name is Myra Sheehan and I am a survivor of incest.  I sat here and I listened.  I read this bill and I thought, how would this affect my family?  How would it help me?  How would it have helped me as a child?  I’m 48 years old.  I can tell you as I sit before you today—I am shaking as I tell you—I am a survivor of incest.  I cannot see how this would have helped me when I was 7 years old, 10 years old, 12 years old.  I cannot see how we can think that this is going to be helpful for children.  I cannot see how we can believe that opening it up so that we get better funding is going to help children like myself who are victims.  I stand before you today because I am an advocate, and I will testify; and I will come forward; and I will try to change bills, but don’t do it on my back when I was 7 years old.

 

Chairman Anderson:

Would anybody wish to question Ms. Sheehan in any of her capacities?  Thank you very much.  Some days I don’t like this job.  Does anybody else want to be heard on A.B. 132?  We will close the hearing.

 

I don’t think there is a more difficult issue that we can possibly deal with than the rights of a child.  The state of Nevada has moved in the area that the best interest of the child is our primary concern.  The agencies of the state government and the county governments that we are attempting to charge with these responsibilities, and the new approach, the overlay that the federal government has placed on us, is a concern nationally. 

 

I think we, here in Nevada, are doing a poor job of providing the dollars, but I don’t think you are going to find anybody in the agencies who does not believe that the child comes first.  So, what we need to do here, very simply, is try to make sure that we keep in mind what we feel is going to be in the best interests of the child. 

 

I know it is going to be a very difficult decision for me personally in proceeding with this particular piece of legislation.  We will try to see if we can get it into our Wednesday work session.  For those who are in the state agencies, I would ask that you take a hard look at the information. 

 

Is there anything else from the members of the Committee?  Let’s then turn to the second easy bill of the day, A.B. 151. 

 

Assembly Bill 151:  Authorizes public guardian to appoint deputies and revises provisions relating to term of office of appointed public guardian. (BDR 20-580)

 

We will open the hearing on A.B. 151. 

 

Madelyn Shipman, Deputy District Attorney, Civil Division, Washoe County District Attorney:

With me is Kay Joslin, Washoe County’s Public Guardian.  I know you only have a few minutes and you have been told that this should be a fairly simple bill.  Two sessions ago, I believe this Legislature clarified some provisions in the law that would authorize, even though technically it was already authorized, a separation of the public administrator and public guardian duties for Clark and Washoe Counties.

 

Subsequent to that clarification that authorized the separate appointment of a public guardian, and Washoe County and Clark County have both done so, it has come to the attention of our office, and this bill will take care of it, that the deputy appointment normally done by the public administrator did not exist within the guardian statutes. 

 

What this bill does is two very simple things.  One, it allows for the appointment of deputies for the public guardian to perform the official functions of the office.  My understanding is those relate to the financial and court details where they have to have their signatures on the paperwork; under the current situation no other person is authorized to sign those papers. 

 

Second, because it is an appointment and not an elected office, such as the public administrator, it just clarifies that it is an appointment and therefore there is no term of office, like four years; it is at the pleasure of the governing board.

 

Are there are any questions of myself or Ms. Joslin?  I understand that Ms. Buchanan is waiting down south to speak also; Dan Musgrove said I could introduce her to shorten the time for you to have to go through this.

 

Chairman Anderson:

I think the first part is fairly clear.  The second part, however, I think is not.  [Does] this give the County Commission the responsibility or the ability to appoint at will, which it currently does not have?

 

Madelyn Shipman:

It currently does because it is an appointed office.  The appointment is made by the board of county commissioners.  The reason—we just wanted to clarify this—is that previously the function of public guardian was performed ex officio by the public administrator, which had a term of office because it is an elected office for four years.  So, the purpose of this is simply to treat the public guardian as a department head like all other department heads of a county.

 

Assemblyman Carpenter:

When would there then be a review of this office by the county commissioners?  Don’t they review the performance of the county manager and other people?  How would that work into it?

 

Madelyn Shipman:

First of all, you would have the review of this department head’s performance by the county manager at the direction of the board of county commissioners on an annual performance review, or more often if deemed necessary.  So it would be treated like any other department head in the county. 

 

Secondly, I know that Ms. Joslin might not want to get into it, but we are doing internal audit functions right now of her office, which is what I pulled her away from in order to come here with us.  There are various ways in which the office of, and the function of, that office is being reviewed on a regular basis.

 

Chairman Anderson:

Mr. Carpenter, I see Mr. Musgrove came up, but Ms. Joslin, did you want to help us answer that question?  [She indicated no.]  Mr. Carpenter, are you satisfied with the answer, in the interest of time? 

 

Assemblyman Carpenter:

We are probably going to discuss it a little more.

 

Chairman Anderson:

I am not sure we are going to get a chance to discuss it much more, but we’ll hear some more testimony anyway.

Dan Musgrove, Director, Clark County Office of the County Manager:

Mr. Chairman, one of the things that this bill does in previous action by the Legislature by moving the public guardian under the direction of the county commission was to give the county manager the ability to perform those audits like Ms. Shipman testified to.  Before, when it was simply under the public administrator, it was up to that elected official to determine whether or not he wanted to undergo performance audits or fiscal/financial audits.  This gives the power to the county commission and the county manager; so I think it happens a little bit more often and gives a little bit more accountability.

 

Assemblyman Horne:

This is real simple, I’m unfamiliar with this area, but where would the deputies come from?  What pool are they appointed from? 

 

Madelyn Shipman:

Right now, your public guardians have staff and they have case managers and in our case, we have a deputy, but not a deputy authorized under the law; I could let Ms. Joslin answer the question.  I assume that she would appoint various individuals within her office who would be able to act in her absence or sign an official document in her absence.  That person, as the original language will show, will be covered under the official bond and surety of the Public Guardian; she will be appointing only those persons trusted to fulfill those functions.

 

Chairman Anderson:

Ms. Buchanan, we are supposed to be on the Floor at 11 a.m., so we are working under a tight time frame.  It is not that we don’t want to give full hearing to your testimony, however.  If you could proceed, that would be great; then we’ll open it up for questions for you.

 

Kathleen Buchanan, Clark County Public Guardian:

Thank you; it will be less than two minutes.  The Clark County Public Guardian’s Office does support this bill.  Currently our office manages approximately 700 individuals in the Guardianship Program and nearly 400 individuals in the Representative Payeeship Program.

 

Deputizing case managers would give them authority to act on behalf of the public guardian when interfacing with various institutions in matters that require immediate action.  The court gives the guardian authority to make all decisions regarding the assets and/or person of the ward.  Due to the scope and sensitivity of this authority, many institutions such as financial establishments, hospitals, and medical facilities are reluctant or will not comply with requests and needs of the Public Guardian’s Office unless I personally make the request and provide an original signature on documents.  This, as one might appreciate, can be extremely detrimental to the individual served by the office in cases where time is of the essence in securing and protecting assets or receiving medical treatment.

 

The assignment of deputies will ensure the timely withdrawal [or] closures of bank accounts to guarantee Medicaid and county eligibility for wards and/or clients.  Furthermore, it will assist in expediting and securing at-risk assets from exploiters.  Likewise, hospitals and medical facilities will be more comfortable in allowing deputized case managers to sign consents for treatments on behalf of the guardian.  This bill has my full support, as it will only add to the clarity to an already cloudy issue with service providers.  Passing this bill will only protect those wards and clients being served by guardians.  Thank you for your time and the opportunity to speak on A.B. 151.

 

Chairman Anderson:

That was two minutes to the moment.  Are there questions for Ms. Buchanan?  We will make your testimony (Exhibit H) part of the record and thank you for sending it up to us in advance.

 

Is there anybody else who wishes to give testimony in favor of or against Assembly Bill 151?  Let me close the hearing on A.B. 151.  We will bring the bill back to Committee.  Mr. Carpenter, did you have some concerns here?

 

Assemblyman Carpenter:

I think that these people have a lot of responsibility and I don’t have any problem with them appointing deputies and that, but I don’t see why it can’t be left that we do it for a period of four years.  That way, the county commissioners would definitely have to review the performance of the office and if anybody had any questions when they come up for review or appointment, you would be able to talk to the county commissioners about it.  That is my only point.

Chairman Anderson:

I understand.  Are there any other questions or concerns from members of the committee?  Okay then, let me see if we can get Mr. Carpenter’s question resolved before Wednesday’s work session; if we can, we’ll be able to put in on work session for then.  I definitely want to try to work with the other bill for Wednesday’s work session along with a couple of other issues that we have going. 

 

Is there any other information that needs to come?  We have three amendments that are on the Floor today.  The Chairman or the Vice Chairman will be taking care of those, so we have three bills moving to the Floor either today or tomorrow. 

 

We are adjourned [at 11:03 a.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                                 

Deborah Rengler

Transcribing Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

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