Lead Opinion
Opinion
SUMMARY
The child in this dependency case appeals the juvenile court’s order allowing access by the Los Angeles Times (The Times) to the dependency proceedings. In allowing access, the juvenile court complied with a blanket order from the presiding judge of the juvenile court. The blanket order provides that all members of the press “shall be allowed access” to dependency hearings unless there is a reasonable likelihood that access will be harmful to the child’s best interests. The order further provides that no one may be denied access to a courtroom until an objection has been made, and until the objecting party has demonstrated that harm or detriment to the child is reasonably likely to occur as a result of permitting access.
BACKGROUND
Section 346 governs public and media attendance at dependency court hearings. Section 346 states: “Unless requested by a parent or guardian and consented to or requested by the minor concerning whom the petition has been filed, 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.” This has been the law for several decades.
On January 31, 2012, the presiding judge of the juvenile court, the Hon. Michael Nash, issued a blanket order “to provide guidance to the parties, the press and members of the public as to how the Los Angeles Juvenile Dependency Court will apply” section 346. (Super. Ct. L.A. County, Juvenile Div., Blanket Order (Jan. 31, 2012) (Blanket Order).) The order was issued after the presiding judge solicited and received written comments on a proposed order and held a public hearing at which all interested parties were invited to speak.
The key provisions of the Blanket Order are these.
First, members of the press are “deemed to have a legitimate interest in the work of the court,” and “shall be allowed access to Juvenile Dependency Court hearings unless there is a reasonable likelihood that such access will be harmful to the child’s or children’s best interests.” (Blanket Order, Nos. 1 & 2.)
Second, any party may object to access by members of the press or the public. The objecting party “must demonstrate that harm or detriment to the minor child is reasonably likely to occur in the case as a result of permitting the public or press access to the proceeding.” (Blanket Order, No. 4.) When an objection is made, “the court will consider such factors as the age of each child, the nature of the allegations, the extent of the present or expected publicity and its effect, if any, on the children and on family reunification and permanence, and the safety and well-being of the child, parents and family,
Third, the court may not deny access to the courtroom to a member of the press or public “until an objection has been made and the court has found, based on the evidence and argument presented, that either the member of the public has no legitimate interest in the case or the work of the court, or if there is a legitimate interest, that, after balancing the considerations [listed above], access must be denied.” (Blanket Order, No. 7.)
After the Blanket Order was issued, representatives of The Times began to attend dependency hearings, and Children’s Law Center lawyers and others responded by objecting to the presence of the press. One of these cases was that of A.L., a girl of 15, and her four younger siblings.
The Los Angeles County Department of Children and Family Services (Department) had detained the five children after A.L. was assaulted by her stepfather, J.P. The Department’s petition alleged J.P. had an unresolved history of alcohol abuse that led to acts of brutal domestic violence on the mother and A.L. The petition alleged the mother was aware of and had not protected the children from J.P.’s alcohol abuse.
A pretrial resolution conference was scheduled for February 7, 2012, one week after Judge Nash issued the Blanket Order. A reporter and an attorney for The Times were present. A.L.’s counsel objected to their presence in the courtroom, and asked to continue the matter and to brief the issue of confidentiality. Counsel for The Times asserted that counsel for the Children’s Law Center was “making blanket objections, which are impermissible under the court’s blanket order . . . , and we would request the proceedings proceed.” The court set a briefing schedule and an adjudication date of March 13, 2012.
A.L.’s separate objection stated these grounds: “The facts underlying this case are particularly brutal, and the oldest child in particular was the victim of a brutal assault by her father. This child is at an age (15) where children are extremely sensitive to the possibility of their private information being disseminated to others. Child will be personally present at the hearing in question, and has a right to personally participate in the hearing, without the threat that intimate details and other confidential information about her personal life may become known to strangers. This child has requested to be able to personally inform the court as to why she does not wish strangers present at her hearing, and she will be available at the adjudication to do tha[t].”
On March 13, 2012, the court stated its tentative ruling to allow the press to be present. AJL.’s counsel asked “that the press be excluded from that preliminary hearing as to the question whether they should be present,” because otherwise “[e]verything that we want to keep confidential is public.” The Times pointed out that the Blanket Order provided otherwise, and objected to the filing of the child’s separate sealed objection without leave of court. A.L.’s counsel argued that the court’s discretion to allow the press to attend should be on a case-by-case basis, “according to the particular facts of our client, which should be kept confidential unless Your Honor believes that they need not [be] kept confidential.” The Times pointed out the press was deemed in the Blanket Order to have a legitimate interest, and “the only consideration for the court is whether they have met their burden as to reasonable likelihood of harm to the child.”
The court stated: “My ruling is that I don’t think the objector has met the burden to show that allowing the press access would result in the reasonable likelihood that such access would be harmful to the child or the children’s best interest in this case.”
On April 16, 2012, A.L. filed a writ petition seeking review and a stay of the juvenile court’s order, but this court denied the petition on April 19, 2012. (Case No. B240474.)
After A.L. filed her opening brief, the Whittier Law School Legal Policy Clinic requested amicus curiae status, and we granted its request to file a brief in support of A.L. The Department took no position on the issues A.L. raised, but advised the court that The Times had not been served with A.L.’s opening brief or the amicus curiae brief. This court invited The Times and the Los Angeles Superior Court to file amicus curiae briefs, and both did so. We also permitted the Children’s Advocacy Institute, Los Angeles Dependency Lawyers, Inc., and the California Academy of Child & Adolescent Psychiatry to file amicus curiae briefs, and permitted two supplemental amicus curiae briefs from Whittier Law School.
DISCUSSION
Before we turn to the issue before us, we note two preliminary points raised by the Los Angeles Superior Court and The Times, respectively, after the completion of briefing in this case: whether the juvenile court’s order allowing The Times to be present at A.L.’s hearings was an appealable order, and whether The Times should be designated a real party in interest in this case. We invited supplemental letter briefs, and answer both questions affirmatively.
First, the order allowing media access to A.L.’s dependency proceedings is reviewable on appeal, upon entry of the dispositional order, as an intermediate order substantially affecting the rights of a party. “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment . . .” (Welf. & Inst. Code, § 395, subd. (a)(1)), and in a dependency proceeding “the dispositional order constitutes a judgment” (In re Megan B. (1991)
The superior court asserts the order is not appealable because it does not “substantially affect the rights of the parties with regard to the disposition.” But this is a misreading of Code of Civil Procedure section 906, which applies to orders “affect[ing] the judgment” or “substantially affect[ing] the rights of a party.” The statutory right to confidential dependency hearings (absent consent or an exercise of the court’s discretion to admit members of the public) is manifestly a substantive right, and an order allowing press access is therefore reviewable, on appeal from the dispositional order, as an order that substantially affects the rights of a party.
The Blanket Order itself establishes that the order allowing press access was not final, but rather was subject to future modifying orders. (Blanket Order, No. 6 [“The court’s finding at one hearing or one portion of the hearing shall not prejudice a party or the court from making a similar motion at a subsequent hearing or later in the same hearing.”]; see Sjoberg v. Hastorf (1948)
Second, we agree with The Times that it should be designated a real party in interest in this appeal. A real party in interest is defined as “ ‘ “any person or entity whose interest will be directly affected by the proceeding . . . .” [Citation.]’ ” (Connerly v. State Personnel Bd. (2006)
We turn to the merits of the appeal. The validity of Judge Nash’s order depends on only one thing: whether or not it conflicts with state statutes or statewide court rules, or is inconsistent with the California Constitution or case law. “[T]he outer limits of [a court’s inherent rulemaking] authority are clear. A trial court is without authority to adopt local rules or procedures that
We conclude Judge Nash’s Blanket Order conflicts with section 346 and rule 5.530 of the California Rules of Court,
Section 346 is explicit. It says two things. The first is that the public “shall not be admitted to a juvenile court hearing” unless “requested by a parent or guardian and consented to or requested by” a dependent child. The second provides an exception to the first, and it is equally explicit: “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.”
The Blanket Order effects a paradigm shift from the plain meaning of section 346. Section 346 says the public “shall not be admitted,” with an exception for persons whom the judge or referee deems to have a direct and legitimate interest in the particular dependency case or the work of the court. The Blanket Order, on the other hand, declares that members of the press “shall be allowed access” unless and until a party objects and demonstrates that harm or detriment to the child is reasonably likely to occur as a result of permitting press access. Thus, the Blanket Order (1) entirely eliminates the statutorily designated role of the “judge or referee” in deciding whether to admit members of the press to the hearing, and (2) places new burdens on the child to monitor entrance to the courtroom, to make objections, and to prove harm is likely—before any member of the press may be excluded from the courtroom.
The Blanket Order’s requirements are not procedures or policies that “apply” or “implement” section 346 and the case law. The Blanket Order
The Superior Court and The Times argue the Blanket Order is not inconsistent with section 346. They rely on two cases that have considered section 346 or its predecessor. The Blanket Order itself purports to follow those authorities and their reasoning. We are not persuaded.
Brian W. v. Superior Court (1978)
The Supreme Court rejected the minor’s contention that the Legislature could not have intended to include the press among the class of persons with a “ ‘direct and legitimate interest in the particular case or the work of the court ....’” (Brian W, supra,
The second pertinent authority is San Bernardino, supra,
Following Brian W., the San Bernardino court rejected the contention that section 346 does not authorize the juvenile court to admit members of the press to juvenile dependency proceedings. (San Bernardino, supra, 232 Cal.App.3d at pp. 193-194.) After reiterating the legislative history described in Brian W., the court concluded: “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.” (San Bernardino, at p. 195.)
In San Bernardino, the court made several “observations to assist the court in exercising its discretion .... First, and foremost, the court’s discretion must be directed at determining what is in the best interests of the minors, for that obviously is its primary concern at all times in the juvenile proceeding. At the same time, the court should give proper consideration to the important social values which are fostered by allowing public or press access to the proceedings.” (San Bernardino, supra,
The court continued: “In attempting to balance these competing interests, the court should attempt to apply these broad principles to the unique facts of this case . . . .” (San Bernardino, supra,
The Times reads these cases to say that the Legislature enacted section 346 “with the intent that members of the press would be deemed to have a legitimate interest in the workings of the court,” and that it “cannot seriously be questioned that members of the press fall within the category of individuals who have a legitimate interest in the work of the court.” We agree that press attendance at dependency proceedings may be allowed, and that the Legislature intended to encourage it, as Brian W. tells us. But both Brian W.
Brian W. explicitly premised its conclusion that the Legislature intended to allow press attendance on the fact that section 346 “vest[ed] the judge with discretion to admit” persons with a direct and legitimate interest in the particular case or the work of the court. (Brian W, supra,
In short, the statutory rule is that “the public shall not be admitted to a juvenile court hearing,” with an exception for the admission of persons with a direct and legitimate interest in the case or the work of the court, at the discretion of the judge or referee. (§ 346.) The Blanket Order interferes with the statutorily required exercise of discretion by the “judge or referee” in each case (ibid.), by declaring the press cannot be excluded without an objection. That departs from the statute and the cases by removing the balancing scales and declaring press access is the new norm in every case unless there is an objection and the objection is sustained.
The Blanket Order effectively creates a presumption that every dependency proceeding is open to the press until such time as a party objects and proves the hearing should be closed. The statute, however, plainly embodies the contrary presumption, that proceedings are private until such time as the judge or referee exercises its discretion to admit a member of the public. As San Bernardino points out, “the history of juvenile courts is one of closed proceedings . . .” (San Bernardino, supra,
Counsel for the superior court represented to this court that the dependency courts have not been closed to the public in recent years, instead allowing witnesses, lawyers and parties in cases other than those before the court to be present in the courtroom, unless a party before the court objects. We are keenly aware that the Legislature has reduced funding of the courts for several consecutive years, and we accept as true the superior court’s representation that one inevitable consequence has been the reduction in courtroom staff, including even those who were necessary to protect the privacy of dependency proceedings in each case. But we are not persuaded that the deplorable consequences of inadequate trial court funding signal a legislative intent that dependency proceedings are presumptively open to the media. Counsel for the superior court also argued the dependency court practice in recent years is that a party who does not object to the presence of a member of the public is considered to have impliedly consented to their presence. But nothing in Welfare and Institutions Code section 346 or rule 5.530 of the California Rules of Court supports a rule of law that a child has the burden to discover the identity of strangers in the courtroom and voice an objection before the media may be excluded.
We express no view whether the Blanket Order may be salutary; it is not consistent with present law, and therefore not within the scope of the court’s authority.
That brings us to the question of the burden of proof. The Blanket Order requires the party objecting to access to “demonstrate that harm or detriment to the minor child is reasonably likely to occur in the case as a result” of permitting access. But section 346 creates a presumption that dependency proceedings are closed to the press and public. Instead, it is the member of the press or public who must first seek admission to the presumptively private hearing from the judge or referee, who exercises his or her discretion, balancing the competing interests, based on the unique facts of the case.
Section 346 is the product of a long history of presumptively private or closed dependency hearings. This presumption of closure may be rebutted in the exercise of the judge or referee’s discretion under the unique circumstances of each case. As is the usual case, the person seeking an action from the court—here, admission to the dependency proceeding—has the burden to show he is entitled to it. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
In summary, we recognize that the legislative history suggests that juvenile courts should actively encourage greater participation by the press. (Brian W, supra,
There may be merit in effecting the reforms provided in the Blanket Order, but it is not the role of the judiciary to provide a more open system of dependency adjudications. The Legislature has spoken with section 346, and it is for the Legislature, not the courts, to effect changes to the system it has put in place.
DISPOSITION
The order entitling the Los Angeles Times to attend AJL.’s dependency hearings pursuant to the blanket order rather than in conformance with section 346 is reversed.
Flier, J., concurred.
Notes
The presiding judge revised the Blanket Order on March 5, 2013, taking into consideration federal statutes requiring policies on public access that ensure the safety and well-being of the child, parents and family. We quote in this opinion from the modified order currently in effect.
The Blanket Order has other provisions not directly at issue here. It provides that members of the public “shall be admitted” to dependency court hearings “at the request of or with the consent of’ the child. Where a child does not request or consent to admission, members of the public “may enter the courtroom and be present at a hearing if the court finds that such persons have a direct or legitimate interest in the case or the work of the court.” Such persons must identify themselves and the purpose of their presence, on request of the court. (Blanket Order, No. 3.) The court’s finding after an objection at one hearing (or portion of a hearing) “shall not prejudice a party or the court from making a similar motion at a subsequent hearing or later in the same hearing.” (Blanket Order, No. 6.) No one is permitted to record, videotape or photograph any proceeding “without complying with California Rules of Court, Rule 1.150.” (Blanket Order, No. 8.)
The dissenting opinion contends the trial court’s order is not reviewable on appeal because it is unrelated to the appealable dispositional order (see discussion post, at p. 362 & fn. 4), and further observes that a legally sufficient writ petition would have been the proper vehicle for review of the trial court’s order. We find the latter assertion to be perplexing, since writ review was sought and denied. Denial of the writ, of course, did not extinguish the right to seek later appellate review.
The dissent contends the trial court’s order is not reviewable under Code of Civil Procedure section 906, citing authorities saying, for example, that section 906 “does not apply to interim orders that are unrelated to the appealable judgment or order from which an appeal is taken.” (Lopez v. Brown (2013)
California Rules of Court, rule 5.530 governs “[p]ersons present” at juvenile court proceedings. As relevant here, the rule lists persons who are “entitled to be present. ...” (Rule 5.530(b)(1)—(11).) Rule 5.530 also lists “[ojthers who may be admitted” under section 346 and other provisions: “Except as provided below, the public must not be admitted to a juvenile court hearing. The court may admit those whom the court deems to have a direct and legitimate interest in the case or in the work of the court.” (Rule 5.530(e).) And, “[i]f requested by a parent or guardian in a hearing under section 300, and consented to or requested by the child, the court may permit others to be present.” (Rule 5.530(e)(1).)
Welfare and Institutions Code section 676 applied to both dependency and delinquency proceedings until dependency proceedings were separated from other juvenile court proceedings in 1976. (San Bernardino, supra, 232 Cal.App.3d at pp. 194—195.)
Dissenting Opinion
I respectfully dissent.
Further, the order may not be viewed as a final order on a collateral matter as the Los Angeles Times has argued in its submissions to our court. In Sjoberg v. Hastorf (1948)
I disagree with The Times’ argument, based on cases such as In re Marriage of Lechowick (1998)
But even assuming the dependency court’s March 2012 order was an appealable order, our court would not have jurisdiction to entertain A.L.’s appeal because she filed her notice of appeal too late. Under California Rules of Court, rule 8.406(a)(1), a notice of appeal in a dependency proceeding must be filed within 60 days after “the making of the order being appealed.” In other words, upon the making of an appealable order or judgment in a dependency proceeding, a 60-day deadline to appeal begins to run. Further, if a party fails to appeal an appealable order or judgment within the prescribed time, a reviewing court does not have jurisdiction to review the order or judgment, and the time to appeal is not restarted or extended by a subsequent appealable order or judgment. (See Melinda K, supra,
Finally, I would find the dependency court’s nonappealable March 2012 order is not reviewable in the context of A.L.’s current appeal. A.L. filed a timely notice of appeal in June 2012, following entry of an appealable judgment, namely, the dependency court’s May 2012 dispositional orders. (§ 395; Melinda K., supra,
Section 395 reads: “A judgment in a proceeding under section 300 may be appealed in the same manner as any final judgment. . . .” As noted above, the order entered at a dispositional hearing is considered a final judgment. (In re Daniel K. (1998)
I would not address the dependency court’s order overruling AJL.’s objection to the presence of the press in the context of A.L.’s current appeal because the order does not substantially affect A.L.’s rights vis-a-vis the dependency court’s judgment. A judgment in a disposition hearing determines whether the child should be declared a dependent child. (In re Heather B. (1992)
To find the issue raised by A.L. reviewable on appeal, the majority broadly construes the language in Code of Civil Procedure section 906 “which substantially affects the rights of a party,” reasoning that A.L. had a “substantive right” (maj. opn., ante, at p. 362) to closed hearings in the dependency court. I would not read the phrase “which substantially affects the rights of a party” as broadly as the majority.
As explained in Lopez v. Brown (2013)
Insofar as the majority contends the latter two cases are distinguishable because they did not involve final judgments, this is both factually incorrect and also inconsequential. It is the principle that appellate review is not available unless the order substantially affects the rights of the parties as it relates to the judgment being appealed, not the procedural posture of the case, which is significant. The majority’s construction of what is reviewable on appeal has the potential for mischief in that it opens a door for our state’s appellate courts to review interim orders unrelated to judgments. This is not the role of an appellate court; appellate courts review the correctness of judgments.
This does not, as the majority asserts, leave a party without means of challenging an order overruling an objection to the manner in which a dependency court proceeding is being conducted. (Maj. opn., ante, at p. 362, fn. 4.) Such an order may be challenged by a petition for writ of mandate. The majority finds it “perplexing” that I assert the trial court’s order may be challenged by writ since “writ review was sought and denied” in this case. (Maj. opn., ante, at p. 361, fn. 3.) It is true that our court summarily denied a writ of mandate filed by A.L. on this subject. But a summary denial does not mean we denied review because we found A.L. had an adequate remedy by means of appeal. Our order did not cite a case indicating we were denying the writ on that basis. (See, e.g., Sutco Construction Co. v. Modesto High School Dist. (1989)
I would dismiss the appeal.
The petition of Los Angeles Times Communications LLC for review by the Supreme Court was denied June 18, 2014, S217779.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
In Lester v. Lennane (2000)
This appeal does not arise from an action commenced to challenge the propriety of the blanket order concerning the press issued by the dependency court’s presiding judge. (Maj. opn., ante, at p. 363.) A.L.’s appeal concerns a decision by one dependency court judge to allow the press to be present in the courtroom during the dependency proceedings.
I would also note that Lopez involved the equivalent of a final judgment under the so-called “ ‘death knell’ ” exception, applicable upon the denial of class certification. {Lopez, supra,
I would also take judicial notice of the fact that jurisdiction was terminated on May 30, 2013, and find the case moot. “ ‘A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief. [Citation.]’ ” (Carson Citizens for Reform v. Kawagoe (2009)