Philadelphia Family Court building. Photo: P.J. D'Annunzio.

To the Legal:

I'm not sure which is most alarming: The fact that two of Philadelphia's most important judges appear to be ignorant of the success of open family court hearings in other states, the fact that they appear to presume all parents who come before them are guilty or the fact that they refer to children as “inventory.”

Judges Margaret Murphy and Walter Olszewski claim they keep hearings closed to protect children “plain and simple.” They indulge in the usual fearmongering about the supposed harm opening court hearings would do to children. They appear blissfully unaware that at least 40 percent of America's foster children already live in states where, for decades, such hearings have been open to the press and/or the public. There is no move in these states to close them again. That's because the fears have proven unfounded.

I am a former reporter turned advocate. Anyone who has read my work knows I often criticize my former profession. But one thing media are good about is protecting the confidentiality of child victims. So, for example, when The Legal Intelligencer exposed the enormous harm done to the grandchildren of Virginia McKale by both the Department of Human Services and the Philadelphia Family Court, the newspaper concealed the grandchildren's identities. Nevertheless, the court promptly doubled down on hiding its own and DHS's failure by issuing a gag order.

The judges write about the shortage of lawyers to represent children and families. They had the same problem in New York City—until New York opened its family courts. The public scrutiny led an informed public to demand better.

That's one reason why today, New York City has a model system of family representation in which a defense team offers alternatives to the cookie-cutter “service plans” often presented by agencies such as DHS. By providing better ways to keep children safe, they've significantly reduced the trauma of needless foster care. Today, New York City takes away children at one-third the rate of Philadelphia, even when rates of child poverty are factored in. (Philadelphia's rate of- emoval is the highest among America's big cities.) And they've done it with no compromise of child safety. That's why this model of representation—and open family courts—are supported even by the city's equivalent of DHS.

Yes, there are horror stories in New York. But the same horrors occur in Philadelphia. All those additional needless removals, rubber-stamped in closed court hearings, have done nothing to make children safer.

And, of course, it's not just other states. In discussing Pittsburgh the judges hide behind the fact that people still have to ask permission to observe the proceedings. But the key is not whether you have to ask, it's what answer you get. By saying yes, Pittsburgh dramatically improved its child welfare system. Who says so? The man who's run it for more than 20 years, Marc Cherna— someone who also was called upon to advise Philadelphia during one of its many child welfare crises. As Cherna told The Legal: “When it's open like that, when my workers were unprepared, you'd read about it. So you'd better come prepared. If a judge acted inappropriately, they'd be in the paper.”

Perhaps that's exactly what they're afraid of in Philadelphia, where Judge Lyris Younge's reign of error was allowed to continue year after year behind closed doors until it was exposed—by journalists.

Do Murphy and Olszewski really think that their former counterpart in Pittsburgh, Cheryl Lynn Allen, and former Pittsburgh Juvenile Court judge, now Supreme Court Justice Max Baer, who kept saying yes to opening courts, don't care about children? Or were they simply less afraid of what the media and the public would see once the doors were open.

I find it fascinating that, after saying over and over again that the law makes them keep their courts closed, only at the very end of their letter do Murphy and Olszewski slip in a brief acknowledgement that there's actually a rebuttable presumption of openness. I'm not a lawyer, but I find it hard to imagine that in Philadelphia the cases are so different from Pittsburgh that the presumption somehow almost always can be successfully rebutted.

The letter itself illustrates the urgent need for more scrutiny of how Philadelphia Family Court judges behave. They write that “dependency cases involve … instances primarily when children are found to be lacking proper parental care or control, subsistence, without proper education, when they have been neglected or physically, emotionally or mentally abused, abandoned or without a parent, guardian, or custodian.”

No, dependency cases involve allegations of such circumstances. The judges appear to presume that all of those accused are guilty—which raises an obvious question: What do we need courts for?

Then they write that the courts must “strike a delicate balance between parental rights and children's rights, between family stability and child safety.”

This assumes that DHS is always standing up for “children's rights” which are inherently at odds with “parental rights.” And it assumes that child removal equals child safety. That is the Big Lie of American child welfare.

The judges appear oblivious to the enormous emotional trauma inflicted on children by needless foster care—a trauma every bit as great when it happens in Philadelphia as when it happens at the Mexican border. Inflicting such trauma is the ultimate violation of children's rights. The judges appear unaware of the vast body of research showing that, in typical cases, children left in their own homes fare better even than comparably maltreated children placed in foster care. And they appear unaware of the studies by independent researchers showing a far higher rate of abuse in foster care than is revealed in official figures.

Family stability is not at odds with child safety, rather it is essential to child safety. In the overwhelming majority of cases keeping children in their own homes is not only the more humane than foster care, it is also safer than foster care. And tearing apart fewer families leaves workers more time to find the relatively few children in real danger.

The problems besetting child welfare fester in secrecy. Such secrecy allows real families to be demeaned as “inventory” in the judges' letter.

In New York, family courts were ordered open by one of the nation's most distinguished state appellate court judges, the late Judith Kaye, when she was chief judge of that state's highest court, the Court of Appeals. Kaye summed it up perfectly when she said this: “Sunshine is good for children.”

Plain and simple.

Sincerely,

Richard Wexler

Executive Director

National Coalition for Child Protection Reform