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Published online by Cambridge University Press: 08 May 2025
Nathan Witkin, in his article The Cost of Closed Doors…, attempts to reframe the question of whether child dependency proceedings should be open or closed to the public and press by positing a balancing test between “dependent families seeking privacy…and the macro-level benefits of a more transparent system.” Witkin’s hypothesis is that opening dependency proceedings educates the public that child welfare spending must be increased, that transparency leads to “greater per capita” spending in open versus closed dependency systems, and finally, that more child welfare spending will result in fewer per capita child welfare fatalities in open court states. This article will examine both sides of Witkin’s proposed balancing test to demonstrate that his approach fails to prove his hypotheses. First, it will discuss how Witkin’s almost total reliance on twenty-five to thirty-year-old psychological studies rather than on contemporary mental health research substantially understates the potential dangers to child abuse victims, especially LGBTQ+ and polyvictimized children, from opening child dependency proceedings. Second, it will present evidence that the welfare budgets did not constantly increase in some closed court states that were later opened to the public, but rather fluctuated through sporadic ups and downs which over time resulted in almost no net longitudinal budgetary increases. Second, those originally closed courts that were later opened had their child fatality rates actually increase which is the opposite of Witkin’s predictions.
Lecturer in Law, USC Gould School of Law; Assistant Clinical Vol Professor, UCLA David Geffen School of Medicine, Department of Psychiatry; Professor Emeritus, Whittier Law School. For the past 44 years, Professor Patton has been involved in the child dependency system as an attorney, expert witness, professor and researcher. For the past 25 years he has authored dozens of papers, lectured, and testified in court and in legislative hearings on the risks and benefits of having child dependency proceedings closed or open to the press and public.
1 Nathan Witkin, The Cost of Closed Doors: Media Access to Dependency Courts Linked to Indicators of Accountability and Public Awareness, 74 Juv. Fam. Ct. J. 35 (2023).
2 Id. at 45–46.
3 Id. at 38, 44.
4 U.S. Dep’t of Health & Hum. Servs., Child Maltreatment 2022, at xi (2022), https://www.acf.hhs.gov/cb/report/child-maltreatment-2022.
5 The federal government in the Child Abuse Prevention and Treatment Act (CAPTA), originally enacted on January 31, 1974, established state level criteria for the receipt and use of federal funding for child abuse purposes. CAPTA, Pub. L. No. 93-247, 88 Stat. 4 (1974) (to be codified at 42 U.S.C. §§ 5101–08). CAPTA has been modified many times, but at a minimum it requires states to provide certain minimal due process rights in dependency proceedings, requires presumptive placement for children placed outside the home, and requires that the government provide reasonable efforts at helping families reunify rather than terminating parents’ rights and placing their children in adoptive placements. See U.S. Dep’t of Health & Hum. Servs., Child’s. Bureau, About CAPTA: A Legislative History (2019), https://www.childwelfare.gov/resources/about-capta-legislative-history.
6 Because of the standards required under CAPTA, supra., there is a great uniformity in state dependency court statutes. For an example of state statutes setting out the governments’ many burdens in dependency cases, see Cal. Welf. & Inst. Code §§ 300–350 (West 2024).
7 Ashley U. Provencher et al., The Standard of Proof at Adjudication of Abuse or Neglect: Its Influence on Case Outcomes at Key Junctures, 17 Soc. Work & Soc. Sci. Rev. 22, 27 (2014).
8 See discussion infra Section I.D. For an overview of the many confidentiality laws regarding the personal information of parents and children who appear in dependency court, see Ann M. Haralambie, Confidentiality, in Child Welfare Law & Practice: Representing Children, Parents, and Agencies in Neglect, Abuse, and Dependency Cases 493–513 (Josh Gupta-Kagan et al. eds., Nat’l Ass’n of Couns. for Child. 4th ed. 2022) [hereinafter The Red Book].
9 For an extensive discussion of the many psychological and psychiatric issues inherent in child dependency proceedings and the mental health and treatment issues discussed in those hearings, see Joshua B. Kay, Mental Health Evaluations and Treatment for Parents and Children, in The Red Book, supra note 8, at 473–492.
10 In order for a parent who has a drug or alcohol problem to satisfy court ordered reunification services, the parent must successfully complete a drug/alcohol treatment plan. See Jud. Council of Cal., Ctr. for Fams., Child. & the Cts., Dependency Quick Guide: A Dogbook for Attorneys Representing Children and Parents 85–86, 110 (3d ed. 2022); In re Neil D., 65 Cal. Rptr. 3d 771 (Cal. Ct. App. 2007).
11 For a survey and introduction to the debate between open and closed court advocates, see, for example, S. Area Consortium of Hum. Servs., Literature Review: Open Juvenile Dependency Courts, https://theacademy.sdsu.edu/wp-content/uploads/2015/02/SACHS-Lit-Review-Open-Courts-FINAL.pdf [hereinafter SACHS Review]; Lisa M. Jones et al., Protecting Victims’ Identities in Press Coverage of Child Victimization, 11 Journalism 347 (2010); Marie Saint-Jacques et al., The Role of Media in Reporting Child Abuse, 38 J. Soc. Serv. Res. 292 (2012); Jane Long Weatherred, Child Sexual Abuse and the Media: A Literature Review, 24 J. Child Sexual Abuse 16 (2015); Bob Lonne & Nigel Parton, Portrayals of Child Abuse Scandals in the Media in Australia and England: Impacts on Practice, Policy and Systems, 38 Child Abuse & Neglect 822 (2014).
12 The press does have a right to access in criminal trials, jury selection, and preliminary hearings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Press-Enterprise Co. v. Superior Ct. (Press-Enterprise I), 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (Press-Enterprise II), 478 U.S. 1 (1986).
13 United States v. A.D., 28 F.3d 1353, 1355 (3d Cir. 1994); NBC Subsidiary (KNBC-TV), Inc. v. Superior Ct., 980 P.2d 337, 361 n.30 (Cal. 1999); W. v. Superior Ct., 574 P.2d 788, 792 (Cal. 1978); San Bernardino Cnty. Dep’t of Pub. Soc. Servs. v. Superior Ct., 283 Cal. Rptr. 332, 339–40 (Cal. Ct. App. 1991); Florida Publ’g Co. v. Morgan, 322 S.E.2d 233, 236 (Ga. 1984); Edward A. Sherman Publ’g Co. v. Goldberg, 443 A.2d 1252, 1257–58 (R.I. 1982); In re J.S., 438 A.2d 1125, 1129 (Vt. 1981).
14 William Wesley Patton, Bringing Facts into Fiction: The First ‘Data-Based’ Accountability Analysis of the Differences Between Presumptively Open, Discretionarily Open, and Closed Child-Dependency-Court Systems, 44 U. Mem. L. Rev. 831, 844–45 (2014).
15 Witkin, supra note 1, at 48–51.
16 San Bernardino Cnty., 283 Cal. Rptr. 332.
17 Id. at 340–342.
18 Id. at 338–340.
19 Witkin, supra note 1, at 37.
20 See id.
21 See discussion infra Section I.A.
22 See discussion infra Section I.C.
23 One of the studies, the Runyan Study, involves children testifying in North Carolina dependency proceedings. At the time of the Runyan Study the North Carolina law would have read: “The adjudicatory hearing shall be held in the district at such time and place as the Chief District Judge shall designate. The judge may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted.” N.C. Sess. Laws 1979-815 § 7A-568. However, the Runyan North Carolina study does not specify whether the twelve children who testified in dependency court testified in open or closed proceedings. See Desmond K. Runyan et al., Impact of Legal Intervention on Sexually Abused Children, 113 J. Pediatrics 647, 647–53. For an extensive discussion of the Runyan Study, see discussion infra Section I.B.
24 See discussion infra Section I.D.3.
25 Witkin, supra note 1, at 37 (discussing Debra Whitcomb et al., The Emotional Effects of Testifying on Sexually Abused Children (U.S. Dep’t of Just., NCJ No. 146414, 1994)).
26 The North Carolina statute in force at the time of the Runyan study would have read: “The adjudicatory hearing shall be held in the district at such time and place as the Chief District Judge shall designate. The judge may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted.” N.C. Sess. Laws 1979-815 § 7A-568. The Runyan North Carolina study did not state whether or not the twelve children who testified in juvenile court did so in courts open or closed to the public. See Runyan et al., supra note 23, at 647–53. Therefore, it is incorrect for Witkin to assume that those hearings were opened to the press and public.
27 The Denver study analyzed trauma of children involved as witnesses in adult criminal proceedings. See Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sex Abuse Victims, 57 Monographs Soc’y for Rsch. Child Dev. 1, 8 (1992). However, the study found that when adult criminal proceedings are closed to the press and public the child witnesses “appeared to benefit.” See Whitcomb et al., supra note 25, at 6.
29 See generally Debra Whitcomb et al., Child Victim as Witness Research and Development Program (U.S. Dep’t of Just., NCJ No. 132425, 1991); see also Whitcomb et al., supra note 25, at 4–5.
30 Witkin, supra note 1, at 37.
31 Runyan et al., supra note 26, at 647.
32 See id. at 648.
33 As noted earlier, the statute in force during the Runyan study would have read: “The adjudicatory hearing shall be held in the district at such time and place as the Chief District Judge shall designate. The judge may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted.” N.C. Sess. Laws 1979-815 § 7A-568. In any case, however, the Runyan study does not provide any information as to whether the twelve subjects testified in open or closed proceedings. See Runyan et al., supra note 23, at 647–53. Since the Runyan study was published in 1988, it seems unlikely that the dependency proceedings he studied would have been open, as the North Carolina Supreme Court, in 1969, held not only that the press and pubic have no constitutional right to attend juvenile proceedings [delinquency], but that opening the courts can have a significant negative impact on children: “North Carolina has determined by statutory enactment that a public hearing is neither required nor in the best interest of the youthful offender.” In re Burrus, 169 S.E.2d 879, 887 (N.C. 1969). It is perhaps not surprising that when the North Carolina legislature modified its Juvenile Court Code in 1998 that it included specific findings that juvenile court judges in dependency proceedings must make before opening or closing those juvenile court cases. See, e.g., N.C. Sess. Laws 1998-229 § 7B-801 (abuse, neglect, and dependency hearings). The North Carolina Legislature perhaps did not choose to presumptively open dependency proceedings because of the North Carolina Supreme Court’s earlier caution about potential danger to children in open courts.
34 See Runyan et al., supra note 26, at 650.
35 Daniël Lakens, Sample Size Justification, 8 Collabra art. no. 33267, at 21 (2022) (citations omitted) (“The awareness that sample sizes in past studies were often too small to meet any realistic inferential goals is growing among psychologists.”).
36 D. Stephen Lindsay, Editorial, Replication in Psychological Science, 26 Psych. Sci. 1827, 1828 (2015) (“Except when a correlation in the population is nearly perfect, a quite large sample size is required to ensure that the obtained correlation is highly likely to approximate the correlation in the population.”); Katherine S. Button et al., Power Failure: Why Small Sample Size Undermines the Reliability of Neuroscience, 14 Neuroscience 365, 373 (2013).
37 Runyan et al., supra note 26, at 652.
38 Id. For instance, in 2021 children ages 0 to 6 years old comprised more abused children than those children ages 10 to 17. See Number of Cases of Child Abuse in the United States in 2022, by Age of Victim, Statista (July 5, 2024), https://www.statista.com/statistics/203838/number-of-child-abuse-cases-in-the-us-by-age/. Although fewer very young children testify in child dependency proceedings, as the discussion, infra., demonstrates, an abused child does not have to testify in order for the open dependency proceedings to exacerbate their existing psychopathology. Confidential data regarding their and their family members’ medical, psychological, and drug abuse history can be used by bullies, and the fear of that disclosure can also enhance young children’s anxiety.
39 Runyan et al., supra note 26, at 651–52.
40 Id. at 652.
41 The unified juvenile code in effect at the time of the Runyan study, which governed, inter alia, dependency proceedings, contained several provisions speaking to short timelines or the primacy of juvenile wellbeing in carrying out hearings. See N.C. Sess. Laws 1979-815 § 7A-571 (giving priority to “the best interest of the juvenile” and “the interest of justice” in the judicial determination to allow for continuance “to allow additional factual evidence, social information or other information”); N.C. Sess. Laws 1979-815 § § 7A-542 (providing that “[n]o juvenile shall be held under a custody order for more than five calendar days without a hearing on the merits or a hearing to determine the need for continued custody” and requiring additional hearings on continued custody at least every seven days thereafter.); see also, e.g., Cal. Welf. & Inst. Code § 322 (West 2024) (allowing continuances for only one day); Cal. Welf. & Inst. Code § 334 (West 2024) (requiring that hearing on the merits must occur within thirty days of the dependency petition, or within fifteen days if the minor is in state custody).
42 Robert H. Pantell, Policy Statement: The Child Witness in the Courtroom, 139 Pediatrics 1, 5 (2017).
43 Id. at 6–7.
44 See generally Jessica Liebergott Hamblen & Murray Levine, The Legal Implications and Emotional Consequences of Sexually Abused Children Testifying as Victim-Witnesses, 21 L. & Psych. Rev. 139 (1997).
45 Witkin, supra note 1, at 37.
46 Id.
47 See Hamblen & Levine, supra note 44, at 171.
48 Id. (emphasis added).
49 Id. (emphasis added).
50 Witkin, supra note 1, at 37.
51 Id.
52 Hamblen & Levine, supra note 44, at 158.
53 Id. at 158.
54 Id. at 162.
55 Id. at 163.
56 Id. at 168.
57 Id. at 171–72.
58 Id. at 177.
59 Witkin, supra note 1, at 37.
61 For instance, in a study of the Los Angeles child dependency courts I attended more than twenty court hearings in which witnesses other than the abused child introduced evidence of family members’ drug addiction, criminal histories, and psychiatric treatment. See William Wesley Patton, Systemic Governmental Recalcitrance in Regulating Confidentiality Under the Child Abuse, Prevention & Treatment Act (CAPTA): A Case Study, 43 J. Legis. 193, 197–98 (2016). Witkin is simply wrong that open court opponents only fear harm from open hearings in which the abused child testifies.
62 Children with substance abusing parents “may even shy away from making friends, because they lack basic social skills or out of a profound fear that someone will find out the truth [about their parents].” Effects of Parental Substance Abuse on Children and Families, Am. Acad. Of Experts in Traumatic Stress, https://www.aaets.org/traumatic-stress-library/effects-of-parental-substance-abuse-on-children-and-families [https://perma.cc/EMP9-J8G3] (last visited Feb. 21, 2025). Children with substance abusing parents “[d]ue to the stigma … may be afraid of being judged or disrespected or may feel ashamed … [and keep] a family secret to themselves, even in the most difficult situations.” Ilona Tamutienė & Birutė Jogaitė, Disclosure of Alcohol-Related Harm: Children’s Experiences, 36 Nordic Stud. on Alcohol & Drugs, 209, 213 (2018). Many studies have revealed that children and other family members living with substance abusing parents suffer “various forms of stigma, from social isolation to self-imposed secrecy and feelings of shame and guilt.” Esther N. Monari, Richard Booth, Cheryl Forchuk & Rick Csiernik, Experience of Family Members of Relatives with Substance Use Disorders: An Integrative Literature, 30 Creative Nursing 232, 239 (2024).
63 Witkin, supra note 1, at 37 (“It is therefore problematic that the evidence for children suffering psychological harm from courtroom experiences relates exclusively to child testimony.”).
64 Comm. on Child Abuse & Neglect, Public Disclosure of Private Information About Victims of Abuse, 87 Pediatrics 261, 261 (1993).
65 William Wesley Patton, Viewing Child Witnesses Through a Child and Adolescent Psychiatric Lens, 16 Widener L. Rev. 369, 373 n.10 (2010).
66 Charles R. Petrof, Protecting the Anonymity of Child Sexual Assault Victims, 40 Wayne L. Rev. 1667, 1667 (1994).
67 David R. Katner, Confidentiality and Juvenile Mental Health Records in Dependency Proceedings, 12 Wm. & Mary Bill Rts. J. 511, 538–539 (2004).
68 See John N. Briere & Diana M. Elliott, Immediate and Long-Term Impacts of Child Sexual Abuse, 4 Sexual Abuse Of Child 54, 63 (1994); Dean G. Kilpatrick et. al, Youth Victimization: Prevalence and Implications 7–9 (U.S. Dep’t of Just., NCJ No. 194972, 2003).; Erna Olafson & Barbara W. Boat, Long-Term Management of the Sexually Abused Child: Considerations and Challenges, in Treatment of Child Abuse: A Common Ground for Mental Health, Medical and Legal Practitioners 14, 25 (Robert M. Reece ed. 2000).
69 Olafson & Boat, supra note 68, at 25; Susan V. McLeer et. al, Psychiatric Disorders in Sexually Abused Children, 33 J. Am. Acad. Child & Adolescent Psychiatry 313, 314 (1994); Erica J. Adams, Just. Pol’y Inst., Healing Invisible Wounds: Why Investing in Trauma-Informed Care for Children Makes Sense 4 (2010), https://justicepolicy.org/wp-content/uploads/justicepolicy/documents/10-07_rep_healinginvisiblewounds_jj-ps.pdf.
70 Witkin, supra note 1, at 37.
71 Katner, supra note 67, at 516 (“[W]hen a mental health professional testifies in a dependency proceeding, the testimony may be disclosed before people who are not connected to the child’s case in any way.”).
72 See, e.g., Social Security Act, 42 U.S.C. § 671(a)(8) (requiring State plans for foster care and adoption assistance to provide safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan); 42 U.S.C. § 5106a (establishing grants to States for child abuse or neglect prevention and treatment programs); 45 C.F.R. § 205.50 (providing for disclosure safeguards for eligible Title IV-A plans); 45 C.F.R. § 1355.21(a) (same for Titles IV-B and IV-E).
73 Witkin, supra note 1, at 37.
76 Patton, supra note 61, at 209 n.83.
77 “Theoretically, a person could attend a juvenile dependency hearing, take extensive notes and have their own record of the case. If records provisions are developed to protect the confidentiality of the case and the child’s well-being, why then are the courtrooms open for all to see? [These provisions are] sending out a mixed message. On one hand, the state’s record provisions seem to indicate a concern for confidentiality, while on the other hand, the state’s open access rules turn their backs to such protection.” Jennifer L. Flint, Who Should Hold the Key? An Analysis of Access and Confidentiality in Juvenile Dependency Courts, 28 J. Juv. L. 45, 62 (2007).
78 See Cummings v. Missouri, 71 U.S. (1 Wall) 277, 288 (1866) (“[T]he maxim, that what cannot be done directly cannot be done indirectly; or as Coke has it, in the 29th chapter of his Commentary upon Magna Charta, ‘Quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud.’”); see also Marina Tenants Ass’n v. Deauville Marina Dev. Co., 226 Cal. Rptr. 321, 328 (Cal. Ct. App. 1986) (“Nor will equity lend its aid to accomplish by indirection what the law forbids to be done directly.”).
79 Witkin, supra note 1, at 37.
80 Id.
81 Id. at 36, 46.
82 Lisa M. Jones et al., Protecting Victims’ Identities in Press Coverage of Child Victimization, 11 Journalism 347, 353–54 (2010).
83 William Wesley Patton, Revictimizing Child Abuse Victims: An Empirical Rebuttal to the Open Juvenile Dependency Court Reform Movement, 38 Suffolk U. L. Rev. 303 (2005).
84 William Wesley Patton, The Psychiatric Implications of Media Ethics Code Policies Regarding the Publication of Child Abuse Victim Data: A Universal Deontological Model Code, 16 U.C. Davis J. Juv. L. & Pol’y 427, 453–456 (2012).
85 Child Maltreatment Statistics, Am. Soc’y for the Positive Care of Child., https://americanspcc.org/child-maltreatment-statistics/ (last visited Dec. 7, 2024); National Statistics on Child Abuse, Nat’l Child.’s All., https://www.nationalchildrensalliance.org/media-room/national-statistics-on-child-abuse/ (last visited Dec. 7, 2024).
86 One newspaper, the Pittsburgh Post Gazette responded to angry readers about its publication of identifying child victim data: “[a] newspaper is not an agency of government; it is a private information business that can make exceptions to any rule [such as not publishing child victims’ names]. If circumstances recommend an exception, it will be made, which has occurred.” Patton, supra note 84, at 438.
87 See Witkin, supra note 1, at 46.
88 David Finkelhor, Developmental Victimology: The Comprehensive Study of Childhood Victimizations, in Victims of Crime 9, 19–21 (R.C. Davis et al. eds. 3rd ed., 2007); David Finkelhor et al., Poly-Victimization: A Neglected Component in Child Victimization, 31 Child Abuse & Neglect 7 (2007).
89 Julian D. Ford et al., Poly-Victimization and Risk of Posttraumatic, Depressive, and Substance Use Disorders and Involvement in Delinquency in a National Sample of Adolescents, 46 J. Adolescent Health 545, 548–49 (2010).
90 See Cecilia Aslund et al., Subjective Social Status and Shaming Experiences in Relation to Adolescent Depression, 163 Archives Pediatrics & Adolescent Med. 55, 55 (2009) (finding positive correlation between “shaming experiences” and depression in high school students); Majone Steketee & Beata Gruszczynska, Juvenile Delinquency in Six New EU Member States, 16 Eur. J. on Crim. Pol’y & Rsch. 111, 116–18 (2010) (finding positive correlation between juvenile victimization and juvenile delinquency); Laia Soler et al., Effects of Poly-Victimization on Self-Esteem and Post-Traumatic Stress Symptoms in Spanish Adolescents, 21 Eur. Child & Adolescent Psychiatry 645, 650 (2012) (discussing the special role of poly-victimization in significantly decreasing adolescents’ sense of personal value).
91 See generally David Finkelhor et al., Re-Victimization Patterns in a National Longitudinal Sample of Children and Youth, 31 Child Abuse & Neglect 479 (2007); Michael Ungar, Community Resilience for Youth and Families: Facilitative Physical and Social Capital in Contexts of Adversity, 33 Child. & Youth Servs. Rev. 1742 (2011); Sonia Jain & Alison Klebanoff Cohen, Behavioral Adaptation Among Youth Exposed to Community Violence: A Longitudinal Multidisciplinary Study of Family, Peer and Neighborhood-Level Protective Factors, 14 Prevention Sci. 606 (2013).
92 Charles R. Tittle et al., A Test of a Micro-level Application of Shaming Theory, 50 Soc. Probs. 592, 611 (2003); Murat C. Mungan, Stigma Dilution and Over-Criminalization, 18 Am. L. & Econ. Rev. 88 (2015); Eric Rasmusen, Stigma and Self-Fulfilling Expectations of Criminality, 39 J.L. & Econ. 519 (1996); Eric Rasmusen, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L. Rev. 2186, 2193 (2003); Alon Harel & Alon Klement, The Economics of Stigma: Why More Detection of Crime May Result in Less Stigmatization, 36 J. Legal Stud. 355 (2007); Ifeoma Ajunwa, The Modern-Day Scarlet Letter, 83 Fordham L. Rev. 2999 (2015).
93 Katayoon Majd et al., Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts (2009); Michael Bochenek & A. Widney Brown, Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in US Schools (2001); Dawn M. Szymanski & Kimberly Balsam, Insidious trauma: Examining the Relationship Between Heterosexism and Lesbians’ PTSD Symptoms, 17 Traumatology 4 (2010); Sharon Schwartz & Ilan H. Meyer, Mental Health Disparities Research: The Impact of Within and Between Group Analyses on Tests of Social Stress Hypotheses, 70 Soc. Sci. & Med. 1111 (2010); Kate L. Collier et al., Sexual Orientation and Gender Identity/Expression Related Peer Victimization in Adolescence: A Systematic Review of Associated Psychosocial and Health Outcomes, 50 J. Sex Rsch. 299 (2013).
94 See sources cited supra note 93.
95 See generally Megan Martin et al., Ctr. for the Study of Soc. Pol’y, Out of the Shadows: Supporting LGBTQ Youth in Child Welfare through Cross-System Collaboration (2016).
96 William Wesley Patton, The Price of Sunshine: Open Dependency Courts and Their Risks to LGBTQ Child Abuse and Neglect Victims, 11 J. Hate Stud. 145 (2013); Jennifer A. Clements & Mitchell Rosenwald, Foster Parents’ Perspectives on LGB Youth in the Child Welfare System, 19 J. Gay & Lesbian Soc. Servs. 57, 58–59; Anne Gallegos et al., Exploring the Experiences of Lesbian, Gay, Bisexual, and Questioning Adolescents in Foster Care, 14 J. Fam. Soc. Work 226, 230 (2011).
97 Billie Gastic, Urban Students’ Attitudes About Sexual Minorities Across Intersections of Sex and Race/Ethnicity: Data from a Longitudinal Study, 9 J. LGBT Youth 42, 44 (2012); see also Cynthia L. Conley, Learning About a Child’s Gay or Lesbian Sexual Orientation: Parental Concerns About Societal Rejection, Loss of Loved Ones, and Child Well Being, 58 J. Homosexuality 1022 (2011); Marcus Anthony Hunter, All the Gays are White and all the Blacks are Straight: Black Gay Men, Identity and Community, 7 Sexuality Rsch. & Soc. Pol’y 81 (2010).
98 Amy L. Gower et al., Bullying Victimization among LGBTQ Youth: Current and Future Directions, 10 Current Sexual Health Reps. 246, 249 (2018) (“[B]ullying victimization should be understood in the context of other experiences of victimization that may be present for this vulnerable subgroup, such as harassment within families or in the community.”).
99 Christy Mallory & Elana Redfield, The Impact of 2023 Legislation on Transgender Youth, UCLA Sch. of L. Williams Inst. (Oct. 2023), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Legislation-Summary-Oct-2023.pdf.
100 Id. at 1.
101 Movement Advancement, Under Fire Series Rep. No. 2, Erasing LGBTQ People From Schools and Public Life (2023), https://www.mapresearch.org/file/MAP-Under-Fire-Erasing-LGBTQ-People_2023.pdf.
102 Nicholas Serafin, BORN TO EQUALITY: Minor Children, Equal Protection, and State Laws Targeting LGBTQ+ Youth, 75 Hastings L.J. 411, 413, 417 (2024).
103 Laura Meckler, Hannah Natanson & John D. Harden, In States with Laws Targeting LGBTQ Issues, School Hate Crimes Quadrupled, Wash. Post (Mar. 13, 2024, 10:32 PM), https://www.washingtonpost.com/education/2024/03/12/school-lgbtq-hate-crimes-incidents.
104 See Movement Advancement Project, supra note 101, at 2 (“Anti-LGBTQ activists are making a concerted effort to erase LGBTQ people, and especially LGBTQ youth, from public life. Perhaps this seems like hyperbole but consider this: if LGBTQ people can’t be visible in society and LGBTQ youth can’t be visible in school; if governments no longer collect data about LGBTQ people; if discussions about LGBTQ people simply can’t occur; if there aren’t books and school lessons about LGBTQ people, their contributions, and their lives; and if trans youth must be called by their old names and pronouns — then LGBTQ people will not be able to publicly exist.”).
105 For discussions and lists of anti-LGBTQ+ legislation, see Mallory & Redfield, supra note 99; Serafin, supra note 102. See also Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2024, ACLU (last updated Dec. 6, 2024), https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2024.
106 The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health 3 (2023), https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
107 See discussion infra Sections II.A, II.B.
108 See discussion infra Section II.C.
109 Witkin, supra note 1, at 44–47.
110 See 2 Minn. Sup. Ct. State Ct. Adm’r’s Off., Evaluation Data: Open Hearings and Court Records in Juvenile Protection Matters (Nat’l Ctr. for State Cts. 2001), https://www.mncourts.gov/mncourtsgov/media/assets/documents/reports/Volume_3_-_SEC_I_.pdf.
111 1 Transcript of Proceedings Before the Honorable Marta S. Diaz, Dep’t 5, San Mateo Cnty. Hum. Servs. Agency v. Priv. Def. Program, San Mateo Cnty. Bar Ass’n (Cal. Super. Ct. Mar. 3, 2005) (on file with author) [hereinafter San Mateo Transcript].
112 Id. at 16. For a more extended discussion of the methodological and budget deficiencies in the Minnesota Pilot Project Report, see William Wesley Patton, When the Empirical Base Crumbles: The Myth that Open Dependency Proceedings Do Not Psychologically Damage Abused Children, 33 U. Ala. L. & Psych. Rev. 29 (2009).
113 San Mateo Transcript, supra note 111, at 44.
114 Id. at 44–46.
115 Id. See also 1 Minn. Sup. Ct. State Ct. Adm’r’s Off., Evaluation Data: Open Hearings and Court Records in Juvenile Protection Matters, at i, 15 (Nat’l Ctr. for State Cts. 2001) (specifying that the survey methodology will investigate “Instances of Extraordinary Harm to Children and/or Parents without ever defining the term “Extraordinary Harm”).
116 San Mateo Transcript, supra note 111, at 34, 44-46.
117 See SACHS Review, supra note 11, at 119.
118 Id.
119 Witkin, supra note 1, at 37.
120 San Mateo Transcript, supra note 111, at 54.
121 Id.
122 S. Area Consortium of Hum. Servs., supra note 11.
123 Minn. Sup. Ct. State Ct. Adm’r’s Off., supra note 115, at iv–v.
124 Id.
125 Id.
126 See Dionne Maxwell et al., Nat’l Council of Juv. & Fam. Ct. Judges, To Open or Not to Open: The Issue of Public Access in Child Protection Hearings, 13–14 (2004)
127 Witkin, supra note 1, at 37, 45.
128 See San Mateo Transcript, supra note 111, at 145.
129 Id. at 151.
130 Id. at 170, 182.
131 Id. at 170.
132 Id.
133 Witkin, supra note 1, at 37.
134 Conn. Juv. Access Pilot Program Advisory Bd., Report to the Connecticut General Assembly 19–21 (2010), https://www.jud.ct.gov/committees/juv_access/Final_report_123010.pdf.
135 For a discussion of the many issues in dependency proceedings that require expert mental health professionals’ testimony, see Am. Psych. Ass’n, Guidelines for Psychological Evaluations in Child Protection Matters, 68 Am. Psych. 20, 20 (2013).
136 Jud. Council of Cal., 2022 Court Statistics Report Statewide Caseload Trends 4 (2022), https://www.courts.ca.gov/documents/2022-Court-Statistics-Report.pdf.
137 Conn. Juv. Access Pilot Program Advisory Bd., supra note 134, at 15.
138 See id. at 13, 22–23.
139 Id. In addition, unlike in the Minnesota and Arizona studies, Connecticut surveyed parents’ attitudes toward opening the courts to the press and public. Id. at 12.
140 See the survey results of psychologists in William Wesley Patton, An Analysis of the Connecticut Juvenile Access Pilot Program HB No. 6419, at 25–26 (2010), printed in Conn. Juv. Access Pilot Program Advisory Bd., Report to the Connecticut General Assembly app. 9 (2010), https://www.jud.ct.gov/committees/juv_access/Advisory_Board_Report_Appendices.pdf .
141 See Witkin, supra note 1, at 41–44.
142 Witkin uses state funding for education because he claims that “analysis on per capita child welfare spending controls for per capita spending on public education across US states, an indicator of the public spending attitudes and pro-child priorities of each state. When this analysis controls for education spending, any estimated improvement in child welfare spending would therefore be above and beyond exiting tendencies about public spending on children.” Id. at 40. Witkin does not present any evidence to support his model. He does not analyze whether the public’s attitudes toward different funding purposes are static or dynamic. He does not provide data on why the public’s attitude toward court funding or even education is more important than its attitude on the myriad other child welfare funding issues included in states’ budgets, or funding in any particular area should be used to determine which states have more “pro-child priorities.”
143 Id.
144 See id.
145 See id.
146 Id. at 44.
147 Id. at 44–45.
148 Id. at 45.
149 See discussion infra Sections III.B & tbl. 2, III.D & tbl. 4.
150 Witkin, supra note 1, at 43.
151 Id.
152 See discussion infra Sections III.A & tbl. 1, III.C & tbl. 3.
153 For child welfare budget data, Witkin used the Child Trends biennial data sets. Witkin, supra note 1, at 41. For Georgia’s child welfare budget data, I used the same Child Trends data sets from 2004-2006 to 2018-2020. See Kristina Rosinksy et al., Child Welfare Financing SFY2020 (2023), https://cms.childtrends.org/wp-content/uploads/2023/04/ChildWelfareFinancingReport_ChildTrends_May2023.pdf. For child fatality statistics I used the same data sets that Witkin used in the Child Maltreatment reports. See Child Maltreatment, Child.’s Bureau (database updated June 2024), https://www.acf.hhs.gov/cb/data-research/child-maltreatment.
155 The child fatality statistics are deaths per 100,000 children.
156 Witkin, supra note 1, at 44.
157 Id. at 36, 39.
158 Id. at 45.
159 Id. at 43.
160 Witkin, supra note 1, at 43.
162 The child welfare funding data for both Georgia and Arizona show significant fluctuations up and down on a year-to-year basis. A snapshot of the percentage increases and decreases does not demonstrate the real impact of those budgetary fluctuations because they do not result in a mathematically straightforward calculation. For instance, assume that Georgia had a $100 million child welfare budget prior to 2008. Once the courts were opened the seventeen percent budget cut in 2008-2010 reduced that budget to $83 million. The three percent cut in 2010-2012 would have further reduced the child welfare budget to 80.51 million. Assuming no change from 2012-2014, increasing the $80.51 million budget by twenty-six percent would result in a budget of only $101,442,600, or mere 1.442% net increase over the 2008-2010 budget cuts.
163 The child welfare funding during the closed court era in Georgia prior to 2004 is not included in the Child Trends data sets used by Witkin. See Witkin, supra note 1, at 41. Although it would have been better to have a greater span of spending data during the closed court period I have not found a reliable data source of Georgia child welfare spending 1999 to 2004 that is statistically comparable to the Child Trends data for the years 2004 to 2018.
164 In 2014 for the first time Child Trends did not include data on the average state change in welfare spending between 2012 and 2014. It appears that a change in the psychometricians who conducted that study for the 2012 to 2014 Child Trends reports may be the reason for the omission. Kristina Rosinksy & Dana Connelly, Child Welfare Financing SFY 2014: A Survey of Federal, State, and Local Expenditures 2–6 (2016), https://cms.childtrends.org/wp-content/uploads/2016/10/2016-53ChildWelfareFinancingSFY2014-1.pdf.
165 The Child Trends Report for changes between Georgia’s 2016 and 2018 total child welfare budget lists “N/A” because Georgia did not provide sufficient data for the study. See Kristina Rosinksy et al., Child Welfare Financing SFY 2018: A Survey of Federal, State, and Local Expenditures 66 app. A (2021), https://cms.childtrends.org/wp-content/uploads/2021/03/ChildWelfareFinancingReport_ChildTrends_March2021.pdf.
166 The reduction of the Georgia 2008 budget, according to Witkin, may have been in part a response to the recession. Id.
168 In 2021 Arizona did not report its child fatality data to the Children’s Bureau. See U.S. Dep’t of Health & Hum. Servs., Child Maltreatment 2021, at 59 tbl.4-1 (2021).
169 Witkin, supra note 1, at 35.
170 This data compares the Arizona open court child fatality rate with the national average rate only for years 2009-2020 since there is no information reported on the Arizona rate for 2021. Id.
171 See Witkin, supra note 1, at 35.
172 See Witkin, supra note 1, at 43.
173 See Kristina Rosinksy et al., supra note 153. Percentages are rounded up.
174 Id. at 42.
175 As demonstrated supra Sections III.B. & tbl. 2, III.D & tbl. 4, after calculating the numerous budget cuts and sporadic budget increases during both Georgia’s and Arizona’s open court era, the net child welfare budgets resulted in only a very small percentage change, not the dramatic increases predicted by Witkin. See Witkin, supra note 1, at 42.
176 Id. at 46.