Monday, November 30, 2009

Child Welfare Cases and Gag Orders

There is a certain Florida judge, at least one that I have reliable information about, who issues gag orders restraining parents from talking about the specifics of their child welfare cases, prohibiting them from disparaging or denigrating anyone who has worked on their case as a condition of keeping custody of their children after they win a TPR (Termination of Parental Rights) hearing. In fact, the parents reportedly face threats of contempt and having the entire child welfare nightmare repeated if they dare speak out about their case. Holding children who have not been abused as hostage to protect the reputations of child welfare agency actors and the courts by having their official conduct publicly exposed is shocking. Shocking! 

By way of background, in Florida, it seems dependency hearings are open to the public, but TPR hearings are closed to the public. I've attended dependency hearings in Florida, and they are conducted pretty much the same as in other states. 

I will assume for purposes of this discussion that confidentiality of Florida's child welfare files and TPR proceedings serves legitimate state interests. That is not to say that I necessarily agree with this premise. I simply choose to argue that this confidentiality protection belongs to the parents and the children, not to the state. Consequently, the parent who wins at a termination of parental rights hearing and regains custody of their children possesses the sole right to enforce or waive that confidentiality on behalf of their children. 

However, the states routinely whip out the confidentiality argument to protect themselves from free speech of their victims that would expose their conduct during the administration and adjudication of a child welfare case to  public scrutiny. The parents' attorneys don't even challenge this practice, often advising their clients not to rock the boat, thereby contributing to the conspiracy of silence surrounding what really happens in a child welfare case.  Who could imagine that free speech could be so effectively destroyed on such a wholesale basis? What parent would risk speaking out if their children were subject to arbitrary state seizure, dangerous foster care and termination of parental rights? What a power trip!

Oddly, the law does not support this practice. 

Let's assume, arguendo, that confidentiality does apply to the state workers. The courts have held that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Even confidential proceedings into judicial conduct are not protected from the disclosure and publication of truthful information about their proceedings which are protected by state confidentiality statutes, so how could child welfare workers' conduct be confidential?

But extending the family's confidentiality to the case worker is silly. A better argument would be to assert the privacy interests of the individuals administering the case. This doesn't fly, either. The courts have universally held that individuals acting in their official capacity have no expectation of privacy when they conduct the business of the state. They are conducting the business of the people, using taxpayer funds and the people have a right to know all. Yes, even child welfare workers are subject to public scrutiny, and who better to expose them than their clients?  

But what if we assume they do have a privacy right? Time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. Even when the free speech would harm the reputation of the individual or institution being discussed. The U.S. Supreme Court has firmly established that injury to one's official reputation is insufficient reason for repressing speech that would otherwise be free. So, if case workers get it wrong, we all have the right to know all about it. 

A Florida case actually addresses the validity of a permanent post-judgement gag order, stating Florida law precludes the judge from enforcing the gag order now that he has no jurisdiction over the parties. The appeal was denied because the issue of the gag order was moot. Bottom line, if the case is closed, the gag order is unenforceable. But even if the judge were to attempt to enforce it, he would have to overcome all the barriers to gagging free speech cited above, which would open him to disciplinary action and appeal. 

So, given these facts, I'd tell all. . .  after I got the kids out of the state. After all, it only takes one false allegation to terminate parental rights. 

No comments:

Post a Comment

Leave the emotions, propaganda and rhetoric at the door. This blogger is only interested in intelligent, logical, well-thought out, factually based comments which are on-topic, indicating the writer has an open mind and a mature ability to reason.