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Memorandum of Law Regarding Closed Hearings in Dependency Court

and Objection to Hearing Being Closed

As a citizen observing this court hearing, I am engaged in first amendment protected public
participation regarding issues of importance to society. As a member of the public who
demands the right to observe and document official government activities and conduct, I
enter my objection to this hearing being closed, and/or being ordered to leave. I am a court
watcher and I have a legitimate interest in the business of this court. This interest overrides
any government interest in concealing what occurs during this hearing, and it overrides
any confidentiality claims or any other unsupported special interest claims.

The Colorado Constitution, Article II section 6 states, “Courts of justice shall be open to
every person, and a speedy remedy afforded for every injury to person, property or
character; and right and justice should be administered without sale, denial or delay.

The business of the court is a matter of public concern, including the public interest in the fair
administration of justice. There are no restrictions on the observation, collection or dissemination
of information that is heard there.

“What transpires in the court room is public property -- those who see and hear
what transpired can report it with impunity. There is no special prerequisite of the
judiciary which enables it, as distinguished from other institutions of democratic
government, to suppress, edit or censor events which transpire in proceedings
before it.” Craig v. Harney, 331 U.S. 367; Maryland v. Baltimore Radio Show
Inc., 338 U.S. 912

In Colorado, C.R.S. 19-1-106 mandates that the public shall not be excluded from
dependency hearings.

In addition to ensuring that judge and prosecutor carry out their duties responsibly,
a public trial encourages witnesses to come forward and discourages perjury. See
Douglas v. Wainwright, 714 F.2d 1532, 1541 (CA11 1983), cert. pending, Nos.
83-817, 83-995; United States ex rel. Bennett v. Rundle, 419 F.2d 599, 606 (CA3
1969). Waller v, Georgia, 1984.SCT.42065; 467 U.S. 39, 104 S. Ct. 2210, 81 L.
Ed. 2d 31, 52 U.S.L.W. 4618 (05/21/84).

In the case of People v. Hensley, 75 Ohio St. 255, 79 N.E. 462, the court said:
“The people have the right to know what is being done in their courts, and free
observation and the utmost freedom of discussion of the proceedings of public
tribunals that is consistent with truth and decency, tends to the public welfare.”
Quoting In re Hearings Concerning Canon 35 of Canons of Judicial Ethics,
296 P.2d 465, 132 Colo. 591 (Colo. 02/27/1956).

1
Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91
Harv. L. Rev. 1899, 1923 20 (1978) states the purposes of public access to the courts by
explaining when the “theatre of justice,” does not progress or end consistently with what a
member of the public, or public opinion at large, deems proper, citizens can attempt to initiate
reform. This is a key reason that dependency courts are frequently targeted for court watching.
Dependency & Neglect (D&N) cases are rampant with reports of perjury, lying,
misrepresentation, falsification of records, denial of due process and wholesale violations of
rights of the child and parents. These reports are exacerbated by frequent disclosures of judicial
biases favoring child protection agencies and running D&N hearings so informally that it runs
roughshod over due process protections of the parents and children. These reports are validated
by routinely closing these hearings to the public. The best defense to these claims is to insure that
these hearings remain open to public scrutiny as mandated by the legislature.

Neither the courts nor any other branch of the government can be allowed to affect the content or
tenor of the dissemination of information obtained about their official conduct by choreographing
which news organizations or members of the public have first hand access to relevant
information.
A person singled out for exclusion from the courtroom, who is thereby barred
from first-hand knowledge of what is happening there, moreover, is placed at an
extraordinary disadvantage in his or her attempt to compete in the “marketplace of
ideas” about the conduct of judges and the judicial system. Cf. Anderson v.
Cryovac, Inc., 805 F. 2d 1, 9 (1st Cir. 1986)

A mere declaration of the court is not sufficient to justify closing a hearing to the public. If, in the
best interests of the child and supported by evidence, the court closes the hearing to the general
public, the statute mandates that anyone who has an interest in the business of the court shall be
allowed to remain, as designated by either the child or the parent. By statute, the court does not
have the discretion to order a person to leave as long as the parent or child desires that person to
be present.
If is isn’t bad enough that public scrutiny of this important arena of government function
is thwarted when hearings are closed, child protection agencies, with the endorsement of the
court, have successfully isolated respondent parents and subject children from their support
networks during their involvement in a case. They have conspired and acted to deny their victims
the most minimum protections, considerations, self determination and human dignity.
The parents and children are dragged before a strange tribunal to stand alone, without
friend or family to be there for them during, what is arguably, the most trying, confusing and
horrifying experience of their lives. To add insult to injury, these hearings are conducted secretly
in a room full of apparent adversaries,1 including their own attorneys. To exclude their family,
friends and advocates against their wishes is to arrogantly deny them their last shred of self-
determination and dignity.

1
There are often observers not associated with the case who are case workers, their
supervisors and others who are not removed from the court.

2
These government officials have eluded even the most minimum level of accountability
for their official conduct. It is quite easy to perpetrate court and agency abuses when nobody can
see it or expose it. Family rights advocates, acting as court watchers, have expressed an extreme
concern and outrage over the misuse of confidentiality to protect exposure of government abuses
and to perpetuate the increasingly self-serving and abusive government activities affecting the
most vulnerable members of our society. This practice is unconscionable. The need for
concerned public citizens to accurately document official government conduct in every aspect of
child protection is vital to insure the integrity of this multi-billion dollar government program
and the safety of children and families in our society.
A government official who has nothing to hide, has nothing to fear from the public eye.

Confidentiality
Certain proceedings have elements that are considered to be confidential. This most
frequently occurs in cases involving children.
Closing courts on cases involving children does a great disservice to those children.
Public scrutiny, documentation and review of child protection agency and court proceedings can
only be in the best interests of the child. Secrecy about government conduct affecting a child is
never in a child’s best interests. Secrecy has always shrouded shameful government conduct, and
child welfare is no exception.
It is important to note that most state statutes governing confidentiality only protect the
identity and address of protected persons. Any information involving government conduct is not
protected by confidentiality.
C.R.S. 19-3-307 provides that only identifying information and address of a child,
family or informant shall be confidential. The information, exclusive of that specifically
proscribed, which is disclosed during a public hearing is not confidential. Additionally,
confidentiality attaches to the family member and may be voluntarily waived as he or she wishes.
Confidentiality does NOT attach to any official performance of duties by any government
agency or any officer of the court. Confidentiality for children or parents cannot legitimately be
used to conceal government functions or conduct from the public. The court does not have the
discretion to prevent anyone from attending a court hearing or to preemptively restrict the
collection or dissemination of the information revealed during that hearing based on
confidentiality claims.
To preemptively exclude the public and forbid public scrutiny of D&N court hearings
would be to repudiate the provisions of our constitution and The Colorado Children’s Code by
arbitrary rule of court, when the statute expressly prohibits such restraints by clearly indicating
that the remedy for violation of confidentiality is a punishable offense.
It is too easy for the court to justify closing the hearing “in the best interests of the child,”
when in reality, it is in the best interests of the court and/or the agency to eliminate public
scrutiny and prevent unwanted exposure of questionable official conduct.
The circumstances wherein it would actually be in the best interests of the child to be the
subject of closed hearings, aka secret, star-chamber proceedings, would be extremely rare, if not
non-existent. It should, therefore, be correspondingly rare that D&N hearings are closed to the
public.