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| Arizona Republic
A child-welfare case put national attention on a family whose children were taken by the Arizona Department of Child Safety after police with guns drawn raided their house to check on a feverish toddler.
But their hearings in Juvenile Court raised questions far beyond the police raid. In a seemingly unprecedented move, a judge first removed a reporter and a state legislator from an open court hearing, then barred another reporter from publishing news about the case, then moved to walk back those restrictions after media attorneys intervened.
On Tuesday, Maricopa County Juvenile Court Presiding Judge Timothy J. Ryan issued a new set of directions that raised further questions.
He concluded that a reporter had previously violated court rules protecting the family’s privacy by publishing a story in The Arizona Republic — though he did not cite what information had violated the rules.
In the same hearing, though, he ordered that transcripts of previous hearings be released to The Arizona Republic. The state objected to the release of unredacted transcripts. The release is under temporary stay, awaiting word on whether the state will turn to an appeals court in an attempt to continue blocking media access to the proceedings.
Ryan concluded that a reporter and legislator at the March 7 hearing violated confidentiality restrictions “by holding a press conference outside of the court room that same day.” State Rep. Kelly Townsend, R-Mesa, gave an interview with a Republic reporter in the parking lot outside the public Mesa courthouse that day.
“I gave a generic statement outside the courthouse about my fears that pertain to my concerns about vaccinations and DCS — that is not a press conference,” Townsend told The Republic late Tuesday. “For them to portray, to announce everything that happened in the (court) record as fact, when that’s not what happened, is an egregious misrepresentation of the facts. If they are willing to treat a lawmaker like this, how are they treating parents?”
Arguments over the rights of the public — and of parents involved in child-welfare cases — to observe the legal process that can separate children from their parents came to a head Tuesday afternoon at a hearing on media access to the case.
Court rules keep most DCS cases open to the public, but require that observers not reveal certain information that would identify the parties in the cases. Arguments over just what information can or cannot be revealed could affect future courtroom news reports for decades to come, limiting what the public, the media, and ultimately parents themselves must keep private under government orders in child-welfare cases.
“What this case reveals,” said David DeLugas, executive director and legal counsel for the National Association of Parents, “is the tension and the distrust between government agencies that are supposed to be protecting the welfare and health of children and parents who have the right to make decisions about their children.”
A push for secrecy
The state argued for secrecy from the start.
At a Mesa courthouse for child-welfare hearings, a state attorney representing the Arizona Department of Child Safety repeatedly asked a judge to bar the media and public from the case.
The case had made international news, drawing attention to the use of force by police and the battle over parents’ rights to make medical decisions for their children versus the power of child-welfare officials, police and doctors.
Rep. Kelly Townsend on child-welfare warrant law, removal of Chandler toddler
Rep. Kelly Townsend, R-Mesa, talks about Chandler police breaking down the door of a home to take a toddler with a spiking fever from parents.
Sean Logan, The Republic | azcentral.com
A doctor had told the parents to take the toddler to a hospital to ensure the spiking fever and lack of vaccinations weren’t signaling meningitis. But the parents decided not to when the child’s fever subsided.
Police, with a warrant to remove the child for medical attention, later entered the home, and a DCS caseworker took all three of the family’s children into state custody. Officials later determined the child’s temperature had dropped to about 101 degrees, according to court proceedings, but the toddler had a respiratory virus.
Coverage and video of the police activity went viral, but when the state and court moved to prevent media coverage of the case, it further became a flashpoint on social media for some parents who believe it’s easier for DCS and the Arizona Attorney General’s Office to keep their kids when the public isn’t watching.
Assistant Attorney General Greg Coordes argued at the family’s initial March 7 hearing that closing the proceedings would protect the children’s privacy.
Attorneys for the parents said their clients wanted the hearings to remain open.
Judge Jennifer Green denied the state’s request to close the hearing. The Maricopa County Juvenile Court judge told the courtroom that Arizona favors a justice system with court hearings open to the public. But Green also issued a warning: Anyone who remains in the courtroom could be held in contempt of court if they revealed personally identifiable information about the children or any others in the hearing.
According to court rules, that information is considered to be “name, address, date of birth, Social Security number, tribal enrollment number, telephone or telefacsimile number, driver’s license number, places of employment, school identification or military identification number or any other distinguishing characteristic that tends to identify a particular person.”
The Republic knows the names of the parents and children, but it does not typically identify children in the child-welfare system.
At least four people in the March 7 hearing were not parties to the case: a lawmaker concerned about how police and DCS had handled the case; two parents’ rights advocates; and a journalist reporting on the hearing
When the family’s second hearing took place on April 10 in the same Mesa courtroom, Ryan was on the bench. He said he was replacing Green to ensure statutes were properly followed.
At that pretrial hearing, Ryan issued directions from the bench that appear unprecedented in Arizona and nationally.
Ryan ordered a Republic reporter to leave the public courtroom.
Ryan barred from the public hearing Rep. Townsend, who had publicly criticized the state’s handling of the case and helped craft legislation requiring DCS to obtain a warrant before removing children from their parents.
Townsend had attended the March 7 hearing. She participated in news interviews and posted on social media about the case in the days that followed. She questioned whether the parents were unfairly targeted because they had not vaccinated their children, called on DCS to “immediately return the children who are also being traumatized” and said the case was “a complete miscarriage of justice and a shame to the state of Arizona.”
When she entered the family’s April 10 hearing, Ryan told her to leave.
“He said according to the recent news articles, it was their opinion that I had violated the confidentiality of the previous court hearing,” she told The Arizona Republic at the time. “I was stunned.”
Townsend asked Ryan for the court’s reasoning behind removing an elected state lawmaker from a public court hearing. She asked which statute or policy she violated.
Ryan told her it would be entered into the court record.
Townsend later told The Republic that she was concerned about how she would determine what violation the court had accused her of, considering court filings in the child-welfare hearings are often private.
Witnesses said Ryan warned the parents and the two parents’ rights advocates at the hearing against speaking publicly about the case. Then, the judge allowed attorneys to hold what he said was still a public hearing on the family’s fight to regain custody of their children, despite having banned the only news media at the proceeding and Townsend from the courtroom.
Advocate talks about parents’ free-speech rights
Lori Ford of the Arizona DCS Oversight Group advocates for parents’ free-speech rights.
Arizona Republic
Families and parental-rights advocates questioned whether limiting public scrutiny of the child-welfare system stifles free-speech rights, moves the system further from the intent of laws keeping courts open and favors a government agency with a troubled history of keeping missteps secret.
DeLugas, of the National Association of Parents, said that a judge may close child-welfare hearings but only after considering a set of narrow factors in Arizona law. However, he argued, that once a judge determines the hearing should remain open to the public, any admonishment barring disclosure of information at a public hearing or banning certain members of the public while allowing others to remain in the proceedings is unconstitutional and should be challenged.
“I’m shocked that it (the law) got through your Legislature,” he said. “If you go through the process and consider it (the hearing) to be open to the public, you cannot then tell attendees that you cannot disclose this information.”
DeLugas said actions of the DCS, state Attorney General’s Office and the judge in the case have captured national attention because families are fearful and suspicious that once the state has questioned their ability to parent, they may never get their child back.
Challenging the court’s orders: Oversight holds parents and the state accountable
On April 19, the parents attended the third hearing on their case. Ryan said the proceedings would remain open to the public. But then the judge issued sweeping restrictions on the news media and public reporting on the proceedings.
Lori Ford, with Arizona DCS Oversight Group, a parents’ rights advocate observing the April 19 hearing, said Ryan told a second Republic reporter “that she should not publish any news stories about the case.”
The parents’ children remained in the state’s legal and physical custody. But the judge’s order prevented The Republic and others in the courtroom from reporting on the status of the children.
Following the hearing, The Republic challenged the court’s orders, arguing that the judge had violated the U.S. and Arizona constitutions on First Amendment grounds.
The Republic also argued that the news organization did not print personally identifiable information.
“Contrary to the State’s representations, The Republic has never violated this Court’s orders or printed or originated any information that would warrant the exclusion of its reporter from a hearing or would justify a wholesale prohibition against publishing information about the proceedings,” attorneys for The Republic argued in their motion.
Attorneys cited case law related to media coverage of a murder trial that found: “It is in the public interest that people understand as fully as possible the operation of the justice system, and the courts in particular.”
The public has a right to know how Arizona’s child-welfare and justice systems handle cases in which the government takes custody of parents’ children, Republic attorneys argued, asking the court to lift its restrictions on publication, ensure access to future hearings and provide transcripts of the previous hearings reporters had been barred from covering.
“Excluding members of the public from the hearing will not serve the child’s best interests. This case involves the State’s decision to remove children from their parents’ home at gunpoint based on information provided by a third party,” the motion stated. “Further public participation and oversight will only serve to benefit these children by holding both the parents and the State accountable for their actions.”
The Republic’s court challenge came after a similar Illinois case that also made its way to the judge overseeing the largest county child-welfare system in the state.
In an April ruling, on a prior restraint order, the presiding judge of the Cook County Juvenile Court’s child-protection division wrote that her initial order barring the media from publishing any information that could identify families in a child-welfare case was “overbroad.” She lifted much of her order but maintained restrictions on news organizations publishing the names or pictures of the minors in the case, according to ProPublica Illinois.
The media has a “right to act as a conduit of information and to keep the public informed as to the workings of the court and the Illinois child welfare system,” she wrote in her modified order.
State, DCS argue for broad restrictions on what public, media can disclose from public hearings
In response to The Republic’s motion, the state argued that personally identifiable information extends beyond names or dates of birth.
The state said that personally identifiable information includes “any other distinguishing characteristic that tends to identify a particular person.”
The state argued that The Republic violated the court’s order by publishing a video produced by the Chandler Police Department of officers at the family’s home.
The video was not obtained during a court proceeding: Chandler police posted the video, in which police officers are heard saying the names of the parents, on their Facebook page for the public when they announced recommending child-abuse charges against the parents.
As of Monday, the Chandler police video had been shared by the public 264 times and had more than 1,000 comments.
Amanda Steele, a spokeswoman for the Maricopa County Attorney’s Office, told The Republic last week that officials have declined to prosecute the parents based on “no reasonable likelihood of conviction.”
DeLugas said that “republishing what the Chandler Police Department had published is not a violation of the admonition because it was gained outside the court.”
“This is exactly why that admonition cannot be enforced in this case — all of this information is already in the public,” he said. “The argument is millions of people around the world have already or could have downloaded it (the police video) once the government published.”
The court scheduled a hearing on the The Republic’s motion May 14 for 8 a.m. at the same Mesa courthouse where the parents’ hearings had been held.
One problem: The court never informed The Republic’s attorneys of the hearing.
To censor or not to censor?
The day before the court hearing, Republic sources informed reporters that the court had scheduled a hearing on the news organization’s motion.
Republic reporters and their attorney Chase Bales attended the hearing that morning.
Inside the courtroom, Ryan informed those in attendance that, indeed, the court had scheduled a hearing on The Republic’s motion to intervene.
Ryan announced from the bench that he would allow The Republic reporter he had previously removed from a public hearing to remain in the open court proceeding.
He then also backed away from his ban on the news media and public from reporting on the public hearings in the case. Ryan said he wanted to clarify his earlier orders, saying he must have been misunderstood amid the hectic April 19 hearing.
Removal of kids from Chandler family ‘unjustified,’ attorney says
Cantor Law Group family law attorney Nicholas Boca, who is representing a Chandler mother whose children were removed from her home, explains why the removal by the Department of Child Safety was unnecessary.
Brian Snyder, Arizona Republic
Ryan said the news media and public may report on the court proceedings in the child-welfare case so long as they adhere to state laws that prohibit publication of personally identifiable information about the children, parents or others mentioned at the proceedings. That was the same narrow prohibition Green had made, citing state law, at the family’s first March 7 hearing, prior to Ryan taking over the case.
Ryan said the court would release redacted copies of the past hearing transcripts, which The Republic’s attorneys had asked for in their motion. An attorney for The Republic questioned the redactions.
The transcripts are to serve as a stand-in for the news media who had been barred from reporting on the hearing, The Republic’s attorney argued. Had the reporters been allowed to assert their First Amendment rights and report on the public hearing, they would have heard every detail of the case and decided which details they would publish, The Republic’s attorney said.
In essence, redacting the court transcripts would be prior restraint, which is a pre-publication censorship of the news media and public, The Republic’s attorney said.
Coordes, the state attorney representing DCS, argued that much of what was in the transcripts should be redacted as personally identifiable information.
Attorneys for the parents didn’t object to uncensored access to the transcripts. And again, they wanted the hearings to remain public.
The judge scheduled another hearing a week later for a decision on the transcripts. He also noted that he had written his conclusion as to whether The Republic had violated the court’s original admonition.
But he did not provide that document to all of the parties in the case that day.
Ryan said his order was written to protect personally identifiable information. He said he followed the model used by the Court of Appeals, which unlike juvenile courts are public.
Coordes quickly reviewed the judge’s writings. He balked. He told Ryan the state would want censored the name of the medical center where the mother had taken her child for treatment.
At the state’s request, Ryan gave the document only to the state attorney and DCS, to allow them to review it for what they wanted to redact.
Court observer: ‘I only feel half gagged’
DeLugas said that the state’s privacy and censorship arguments run counter to the intent of public hearings.
“Allowing 20, 30, 40 people (in the courtroom) access to all of this information but not anyone else serves no purpose,” he said. “It serves no public purpose, no judiciary-integrity purpose. It serves no purpose in protecting the child or the parents.”
Ford and Christina Lawler, members of the self-appointed watchdog group that attends child-welfare hearings to monitor parents’ and children’s rights, have observed each hearing in the Chandler family’s case.
Some members of the group are parents or grandparents who have fought the state for custody. The group uses social media and the media to share reports on potential government violations.
Ford said she feared speaking publicly about the Chandler case amid the judge’s warnings.
The father previously said he had publicly spoken about the case to protect his children and help other families. After warnings from Ryan, the father told The Republic he could no longer give interviews with news media about the case.
New law requires judge approval for DCS child removals
A new Arizona law requires a judge to approve a removal before a Department of Child Safety worker can take a child from their home.
Wochit
After Ryan loosened some of his restrictions at the May 14 hearing, Ford said, “I only feel half gagged.”
Ford said she’s pleased the case has received national media attention but worries the state will seize this as an opportunity to argue for gag orders and greater privacy in all Arizona child-welfare cases. Sunshine on the court system benefits everyone, she said.
“You can go into court hearings where you don’t know anybody — they’re open to the public … that’s your right,” she said. “It benefits the public trust. People are a little more behaved and more professional when there’s public in there watching them.”
At Tuesday’s hearing, the judge told those in the courtroom that Arizona child-welfare court proceedings used to be closed to the public. He said the state Legislature chose to open hearings with narrow restrictions to provide greater scrutiny of cases involving families and DCS.
“We do place a high priority of these proceedings being public,” Ryan said, responding to another request by the state to close future hearings in the case.
About this report
A three-year grant from the Arizona Community Foundation supports in-depth research on the topic of child welfare and Arizona’s foster-care system at The Arizona Republic and azcentral.com.
Are you part of the child-welfare system? We want to understand your story. Visit this site to share your story.
Reach the reporter at [email protected] and follow her on Twitter @diannananez.
Do you want to learn more about Arizona’s child-welfare system? Subscribe to The Arizona Republic/azcentral.com to keep up with our child-welfare coverage.
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