San Bernardino County Dept. of Public Social Services v. Superior Court

• Decision Date: 12 July 1991
• Docket Number: No. E009021,E009021
• Citation: 232 Cal.App.3d 188,283 Cal.Rptr. 332
• Court: California Court of Appeals Court of Appeals
• Parties: , 19 Media L. Rep. 1545 SAN BERNARDINO COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent. The SUN NEWSPAPER, Real Party in Interest.

Page 332

283 Cal.Rptr. 332

232 Cal.App.3d 188, 19 Media L. Rep. 1545

SAN BERNARDINO COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent The SUN NEWSPAPER, Real Party in Interest.

No. E009021.

Court of Appeal, Fourth District, Division 2, California.

July 12, 1991.

[232 Cal.App.3d 192] Alan K. Marks, County Counsel, Linda C. Stern, Deputy County Counsel, for petitioner Dept. of Public Social Services.

David L. McKenna, Public Defender, Joseph M. Petrasek, Supervising Deputy Public Defender, for petitioners Minors.

Juarez and Vega and John N. Vega, San Bernardino, for petitioner Joseph S.

Howard, Friedman & Gebbie and Gloria Gebbie, San Bernardino, for petitioner Sandra S.

Thompson & Colegate and James D. Ward, Riverside, for real party in interest.

OPINION

HOLLENHORST, Acting Presiding Justice.

In this case, we hold that the constitutionally protected public right of access to trials and pretrial proceedings in criminal cases does not extend to juvenile dependency proceedings. However, members of the press are persons having a "direct and legitimate interest in the work of the court" and may be permitted to attend such proceedings in the exercise of the juvenile court's discretion under WELFARE AND INSTITUTIONS CODE SECTION 346¹. In this case, however, the juvenile court abused its discretion in allowing THE SUN Newspaper (Sun), real party in interest, to attend the proceedings subject to limitations on its right to investigate and publish.

FACTS

On October 24, 1990, petitioner, Department of Public Social Services for the County of San Bernardino (DPSS), filed petitions pursuant to section 300 to have the seven minor children of Joseph S. and Sandra S. declared dependents of the juvenile court. The primary basis for each of the petitions was allegations of neglect and abuse by the parents against their daughter, Rose S. According to reports published in the Sun, Rose had been kept locked in a closet by the parents for most of 10 years. When she was found, Rose was lying in her own feces and in urine-stained clothes. The Sun ran numerous articles about the incident and the case gained some national attention as well.

On November 29, 1990, the Sun filed a request for access to the juvenile court's files and records regarding the minors. DPSS, the minors and the parents (hereinafter, petitioners) opposed access and a hearing was held on the issue of whether the Sun would be permitted access to the court files and records and to the court proceedings. ² At the hearing the court took evidence regarding the effects further publicity would have on the minors and on reunification efforts by the family.

The following day the court issued its order denying the Sun access to the court records and files. However, it granted the Sun permission to attend the court proceedings but prohibited the Sun from (1) publishing the names of any of the minors; (2) publishing any likeness, characters, cartoons or photographs of the minors; (3) interviewing any of the minors unless their attorney is present; (4) interviewing the minors' caretakers in front of the minors; (5) interviewing any mental health professional to whom the minors had been referred; and (6) in the future, doing any act which might interfere with reunification or have a negative impact upon the providing of reunification services.

Petitioners thereupon filed this petition for writ of mandate or prohibition contending that the juvenile court, respondent herein, erred and/or abused its discretion in allowing the Sun to attend the court proceedings. The Sun contends that respondent court's order permitting access to the proceedings was proper but that the conditions imposed on that permission are unconstitutional.

SECTION 346

Preliminarily, we dispose of petitioners' contention that section 346 ³ does not authorize the juvenile court to admit members of the press to juvenile dependency proceedings. A similar contention made in connection with a juvenile delinquency proceeding was rejected by the California Supreme Court in Brian W. v. Superior Court (1978) 20 Cal.3d 618, 143 Cal.Rptr. 717, 574 P.2d 788.

In Brian W., the court discussed press access to a juvenile delinquency proceeding under section 676. This section provided that "Unless requested by the minor concerning whom the petition has been filed and any parent or guardian present, the public shall not be admitted to a juvenile court hearing. The judge or referee may nevertheless admit such persons as he deems to have a direct and legitimate interest in the particular case or the work of the court." (Id., at p. 622, 143 Cal.Rptr. 717, 574 P.2d 788.) Relying on the legislative history the court concluded that "in vesting the judge with discretion to admit to juvenile court proceedings persons having a 'direct and legitimate interest in the particular case or the work of the court,' it was the purpose of the Legislature to allow press attendance at juvenile hearings." (Id., at p. 623, 143 Cal.Rptr. 717, 574 P.2d 788.)

In finding that the Legislature intended section 676 to give the court discretion to admit the press, the court in Brian W. noted that the language in section 676 was added in 1961 pursuant to a special study commission on juvenile justice. The commission explained that it was " 'proposing minor changes in the language of the law to make private hearings mandatory, unless the minor and/or his parents desire the public's presence....' " (Id., at p. 622, 143 Cal.Rptr. 717, 574 P.2d 788.) However, the commission went on to state " 'we do not intend that this recommendation be used to exclude bonafide representatives of the press from attending juvenile court hearings. In so stating, we are convinced the press will continue to respect their voluntarily adopted code of ethics, whereby the names of juvenile offenders are not identified to the public. [p] We believe the press can assist juvenile courts in becoming more effective instruments of social rehabilitation by providing the public with greater knowledge of juvenile court processes, procedures, and unmet needs. We, therefore, urge juvenile courts to actively encourage greater participation by the press. It is the feeling of the Commission that proceedings of the juvenile court should be confidential, not secret.' (Italics added.)" (Id., at pp. 622-623, 143 Cal.Rptr. 717, 574 P.2d 788.)

Dependency proceedings were not separated from other juvenile court proceedings until 1976 when article 6 (§ 300 et seq.), including section 346, was added. Thus in 1961 when the commission made its recommendations and section 676 was amended, the section applied to both dependency and delinquency proceedings. (See Historical Note to section 346: "This section was derived from § 676 insofar as that section related to dependent children.")

From this, it is readily apparent that the Legislature added section 346 to ensure not only that dependency proceedings remained private but also that the juvenile court in a dependency proceeding retained the same discretion to admit the press and other persons having a "direct and legitimate interest" as the court had under section 676. Accordingly the court's determination in Brian W. that the juvenile court has discretion under section 676 to admit members of the press applies equally to section 346.

Ordinarily, at this point we would proceed with a review of the court's order to determine whether it abused its discretion under section 346 in allowing real party access to the proceedings. However, critical to the proper consideration of that issue is the question of whether the press and the public have a constitutional right to attend juvenile court dependency proceedings. ⁴ We now proceed to that question.

THE FIRST AMENDMENT RIGHT OF ACCESS

In the past decade, on four separate occasions, the United States Supreme Court has addressed the issue of whether the public has a First Amendment right to attend court proceedings. In Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (Richmond Newspapers), a plurality of the court held that the public enjoys a First Amendment right to attend criminal trials. In reaching this conclusion, the plurality noted that criminal trials historically have been public proceedings and that public criminal trials serve a number of societal values. Historically, open criminal trials "gave assurance that the proceedings were conducted fairly to all concerned, ... discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality." (Id., at p. 569, 100 S.Ct. at p. 2823.) Open proceedings further "had significant community therapeutic value" by "providing an outlet for community concern, hostility, and emotion." (Id., at pp. 570-571, 100 S.Ct. at pp. 2823-2824.) Finally, public trials provide an "opportunity both for understanding the system in general and its workings in a particular case" thereby enhancing public confidence in the judicial system. (Id., at p. 572, 100 S.Ct. at p. 2825.) Noting that this First Amendment right of access was a qualified right, the court held that a closed proceeding is permissible if closure is necessary to serve an specifically articulated overriding state interest and narrowly tailored to serve that interest. (Id., at p. 581, 100 S.Ct. at p. 2829.)

Two years later, the court struck as unconstitutional a state statute mandating that the testimony of minor victims in criminal trials involving certain sex offenses be taken in closed proceedings. (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (Globe).) The court reaffirmed its decision in Richmond Newspapers that the First Amendment guarantees the public a right of access to criminal trials. The court also determined that the state had a compelling interest in "safeguarding...