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Nebraska- Closed Courtrooms, Closed Processes, & Potentially, Retro-active Records Scrubbing

This is the latest in a series of posts I have done criticizing Nebraska’s legalized child abandonment laws. You can find my earlier posts via my Nebraska tag.


So Monday, in what could set a pattern for the “safe haven” cases, the court hearing for the first of the abandonment cases disappeared into a closed court session.

Nebraska, having non-anonymous legalized child abandonment, now appears to want things closed on the back end, in the court hearings.

Clearly this is more of the state attempting to cover its own ass than any genuine privacy concerns as the names of both the parents and the kids are not merely in the public record, but some parents have come forward to the media doing interviews and using their children’s names on Television and in print media.

None-the-less, yesterday Douglas County Juvenile Court Judge Douglas Johnson took the “rare” step of closing the hearing. No reason was given for having done so.

This particular case, dating back to September 1rst is not counted among the official Nebraska DHHS “safe haven” cases, as the boy was left off at a police station. Police stations are not state designated dump sites. The boy was however, placed in foster care following the abandonment, so he was certainly no less dumped than any of the other kids.

Not only is his case not among the officially state recognized “safe haven” statistics, but now his court proceedings have gone behind closed doors as well.

See Judge closes hearing over teen left by mother at police station:

In a rare decision, a Douglas County judge closed a court hearing Monday in a case related to the Nebraska safe haven law.

The hearing was for a 14-year-old boy whose mother left him Sept. 1 at the Omaha Police Department, mistakenly thinking that it qualified as a “safe haven.”

His mother was expected to enter a plea to an allegation that she neglected the boy by leaving him at the police station.

When the hearing was about to start, attorneys approached the bench to speak privately with Douglas County Juvenile Court Judge Douglas Johnson, who then announced that he was closing the hearing.

No written motion was filed, and no reason was given for the decision.

Fortunately, the Omaha World-Herald is still paying attention.

Unlike most of the rest of the world who seem to think the situation is now ‘resolved’ and attention can now shift elsewhere, the World-Herald staff appear to understand what a unique situation the Nebraska legislators and Governor created by passing their “child” abandonment law, and they continue to keep a watchful eye (as best they can what with closed hearings and all) despite the roadblocks thrown in their way.

The World-Herald objected in court and requested a delay to consult with its attorneys.

Johnson would not delay the hearing, saying it was important to expedite the case for the child’s sake.

“What an unfortunate decision,” World-Herald Executive Editor Mike Reilly said. “The U.S. Constitution, Nebraska statutes and common law all call for the public’s courtrooms to remain open to the public. Exceptions are to be made only through a public hearing process that was flouted here without explanation.”

In short, to whatever extent, the World Herald staff ‘get it’. They understand that secret hearings on cases Nebraska would far rather just go away, far from the public’s gaze are not an acceptable outcome.

The World-Herald is continuing to follow safe haven cases through those proceedings in order to educate the public about the law and its ramifications.

Perhaps the paper, like those of us who have been nose down in the details of these cases have come to understand that what happened in Nebraska was extraordinary, and that the ongoing child welfare mess on the back is likewise extraordinary.

Certainly most of these kids who were legally abandoned would most likely not have been were it not for the actions of Nebraska lawmakers. Much as the world’s attention is easily distracted, for some of us these kids are not to be forgotten.

Their ordeal, far beyond the mere act of being “legally abandoned” is ongoing. Their cases are only now beginning their journey of winding through the courts. Their custody issues and situational stability are still very much up in the air.

To the paper’s credit, they understand that the issues these kids face didn’t fade just because much of the media glare has moved on.

The World-Herald is also fighting for open hearings in the Gary Staton case. This will be particularly critical as the Staton kids are also at the heart of what may well be the first Indian Child Welfare Act (ICWA) claim in relation to any state’s “safe haven” law.

Equally critically important, Nebraska DHHS has filed a motion to retro-actively strip identifying information out of public documents.

This would create the first retro-active removal of information already in the public record relating to kids dumped under the law, in essence, a form of after the fact anonymity, something the Nebraska lawmakers did not write into the law in the first place.

The DHHS is doing an end run after the fact, attempting to obliterate information already in the public record by way of the courts.

The World-Herald also is fighting efforts to close a hearing in one of the official safe haven cases.

That case involves a father who left his nine children at a hospital under the safe haven law. The case increased national publicity about the safe haven law.

An HHS attorney filed a motion to close an Oct. 8 hearing a day before the hearing and requested that identifying information about the children and witnesses be removed from public documents.

The HHS attorney argued that the children’s need for privacy outweighed the public’s interest.

The World-Herald argued that access serves an important function to provide information about the cases. Additionally, family members have granted press interviews.

That decision is on hold while HHS is appealing another issue in the case.

Back in the September 1rst case, we see precisely what Marley and I have been writing about, when one parent dumps a kid, the other parent’s parental rights are trampled. Now it appears the boy’s father hopes to gain custody.

In the police station case, the guardian ad litem filed a motion last week requesting that visits between the teen and his mother be suspended temporarily at the suggestion of the boy’s therapist.

Action on that motion took place during the closed hearing.

The court’s order detailing the mother’s plea and any required services for her, determined during the closed hearing, was unavailable by the time the court closed for the day.

Johnson commended the mother for making positive progress.

A portion of the hearing about the boy’s father was held in open court.

The couple are divorced, and the mother had legal custody of the teen.

The father has been visiting his son, and HHS workers recommended making those visits unsupervised.

The father’s lawyer said he hopes that the teen can live with him.

This morning, the Omaha World-Herald published another article about the closed hearings, Bruning upset haven hearing closed:

Nebraska Attorney General Jon Bruning on Tuesday told lawyers for the State Department of Health and Human Services that they may not file motions to close hearings or seal evidence from the public without his consent, which he expects to be rare.

“I can’t foresee a circumstance where that would be necessary,” he said.

Bruning learned about the issue Tuesday through a World-Herald story about efforts to close two juvenile court hearings related to the safe haven law.

“The state’s interest is that the public know everything we’re doing,” Bruning said. “That’s what’s going to rule the day at the end, even when the state business is a bit messy and less than pleasant, as it has been in these safe haven cases. It brings up difficult realities.”

Juvenile court hearings are typically public and part of the usual process when a child is placed in foster care.

Then we learn Juvenile Court Judge Douglas Johnson closed the hearing thinking that the boy abandoned at the police station was a safe haven case, which clearly, according to Nebraska DHHS it never was.

This is remarkable, as it means even judges hearing these cases are unaware that some of these cases never qualified as “safe haven” cases:

Douglas County Juvenile Court Judge Douglas Johnson closed a hearing Monday about a 14-year-old boy whose mother left him Sept. 1 at an Omaha police station, mistakenly believing that it qualified as a “safe haven.”

Clearly when it comes to the court phase, a ghost in the machine dump such as the September 1rst case is being treated as if they are official “safe haven” case. They’re all lumped together for the judge hearing the case.

If even the judges hearing the cases can’t distinguish those that are ‘official’ vs. those that never met the Nebraska legal guidelines, then where are we?

In any case, Attorney General Bruning said the closed hearing didn’t come as a result of a DHHS motion:

Bruning said Tuesday that the HHS attorney, John Baker, did not make the motion to close the hearing.

As for keeping the public record intact, the World-Herald brings up an interesting recent Nebraska precedent:

In the other case, an HHS motion is pending to close a hearing and remove identifying information from court records in the case of a father who left his nine children.

Jodi Fenner, HHS chief legal counsel, argued in court documents that the children’s need for privacy outweighs the public’s interest.

The World-Herald argued that access serves an important function to provide information about the cases.

Baker of HHS also argued extensively in December against the release of juvenile court exhibits about Robert Hawkins, the 19-year-old who killed eight people and himself a year ago at the Von Maur department store.

Sarpy County Juvenile Court Judge Robert O’Neal released the records, compiled when Hawkins was a state ward to receive mental health services as a teen.

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