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Writer Gains Hearing on Bid to See Slain Girl’s Records
Fifth District Says Court of Appeal Judge Erred in Blocking Access Without Awaiting Journalist’s Reply
to Agency’s Opposition, Without Ordering File, and Without in Camera Inspection
By a MetNews Staff Writer
A judge prejudicially erred when he denied an investigative journalist’s petition, without holding a hearing, to gain access to a welfare agency’s file on a 12-year-old girl who was murdered and tortured in 2014 by her adoptive mother, the Fifth District Court of Appeal declared yesterday.
Garrett Therolf, who was a reporter for the Los Angeles Times from 2006-16 and is now with the University of California at Berkeley’s Investigative Reporting Program, sought the records from the Madera County Department of Social Services/Child Welfare Services. Madera Superior Court Judge Thomas L. Bender denied a motion for access under Welfare and Institutions Code §827(a)(2) based on the agency’s opposition without awaiting Therolf’s reply or holding a hearing.
Justice Kathleen Meehan authored the opinion granting a writ of mandate directing the Juvenile Court to order the department to produce the records and to examine them in chambers to assess the appropriateness of disclosure. Justice Charles Poochigian wrote an opinion in which he expressed his agreement that Bender erred in declining to hold a hearing, as required by §827(a)(2)(F), but indicated his “doubt” as to the correctness of the First District Court of Appeal’s Jan 27, 2005 utterance in In re Elijah S.—cited favorably by Meehan—that §827 applies to dependent children over whom the court had not assumed jurisdiction.
News Reports
The records Therolf seeks relate to the child widely identified in news reports as Mariah Flores. A jury on Feb. 11, 2020, convicted Amy Chavoya of the first degree murder of Mariah, the torture of her and her brother Christopher, and two counts of felony child abuse.
The requirement of holding a hearing, Meehan said, “is clear from the statute.” She wrote, adding italics to quotations from the statute:
“ ‘The juvenile court shall set the matter for hearing’ within 60 days from the date the petition is served on the custodian of records and ‘shall render its decision within 30 days of the hearing.’…Moreover, the matter is to be decided solely on the petition, objection, reply, ‘and argument at hearing.’…The only exception to the hearing requirement is when no objection is filed.”
The jurist acknowledged that Mariah had not been adjudicated to be a dependent child and no dependency petition was pending, but noted that under Elijah S., neither was required. This is so, under that decision, notwithstanding that §827 refers to the release of case files “that pertain to a deceased child who was within the jurisdiction of the juvenile court pursuant to Section 300”—the dependency statute.
Repudiation Urged
The department, noted and urged that Elijah be repudiated. Declining, Meehan pointed out that the Legislature amended §827 two years after that decision was filed and did not choose to abrogate it.
She wrote:
“Given the Legislature’s failure to amend section 827(a)(2)(A) to require a prior dependency petition or jurisdictional finding, and the express intent to maximize public access to juvenile case files of deceased children, we decline to read the statute narrowly.”
The jurist found that Mariah was a person described in §300, explaining:
“[T]he department itself produced evidence, namely the newspaper article, that showed Mariah’s adoptive mother was convicted of her murder and torture, which occurred between July 1, 2010, and the day she was murdered, October 10, 2014. Since a child comes within section 300, subdivision (a) if the child has suffered ‘serious physical harm inflicted nonaccidentally upon the child by the child’s parent,’ and within section 300, subdivision (b)(1) if the child has suffered ‘serious physical harm ... as a result of the failure or inability of the child’s parent... to adequately supervise or protect the child,’ torture by one’s parent certainly falls within these definitions and would support a finding of jurisdiction.”
Accordingly, Meehan said, the department must produce Mariah’s case file. She instructed:
“[T]he juvenile court clearly must provide a record for us to review by identifying the documents from the juvenile case file it reviewed in camera and, if it decides to withhold any of the documents based on a finding of detriment to a connected child, it must identify the withheld documents while maintaining confidentiality.”
Poochigian’s Opinion
Poochigian said in his concurring opinion:
“If the Legislature had intended section 827, subdivision (a)(2)(A) to have the meaning Elijah S. ascribes to it, the use of the phrase ‘within the jurisdiction of the juvenile court’ risks confusion in light of the way ‘jurisdiction’ is typically used in the dependency context.
“Not only would this risk of confusion have been substantial, it would have been unnecessary. If the Legislature had meant to refer to any child who happened to be described by section 300, regardless of whether they had ever been under the active jurisdiction of a juvenile court, it had a far better phrase to use: a ‘child described by section 300.’ ”
Poochigian, a former state senator, observed:
“[T]he concept of legislative acquiescence has fallen into disfavor because it rests upon faulty assumptions….Our Supreme Court has repeatedly observed, including quite recently, that legislative acquiescence arguments ‘rarely do much to persuade.’ ”
Separate Section
He commented:
“It is important to note that a straightforward reading of section 827, subdivision (a)(2)(A) would not eliminate the ability of journalists to investigate or expose possible lapses or misconduct by social services agencies, foster parents, or others, in connection with the death of children. Section 10850.4 independently requires, without court order, the release of redacted documents concerning children who die under ‘a reasonable suspicion that the fatality was caused by abuse or neglect.’ ”
Poochigian added:
“Even if section 10850.4 were not enough, section 827, subdivision (a)(2)(A) merely sets forth a presumption in favor of release for certain records….The juvenile court may still release records not covered by section 827, subdivision (a)(2)(A).”
The case is Therolf v. Superior Court, F083561.
Therolf commented yesterday:
“When children die of abuse and neglect, government officials often circle the wagons and work to keep their involvement in their lives confidential. My hope is that this notable decision will be used by journalists to unearth hard truths about deadly failures of governance that would otherwise remain secret.”
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