Skip to content

Access Rules Implementation Committee Interim Report – Child Abuse and Neglect

September 12, 2011

Author’s Note:

Many folks have dropped me an email or posted questions regarding Gaining Access to Files in Child Abuse and Neglect cases. This article helps to clarify those inquiries. While this information  for the state of Maryland and is somewhat dated, I suspect that most, if not all, states follow similar guidelines when it comes to protecting the privacy of a minor. For current Rules on this matter, you may follow the links provided in the article.

Please drop me a line if you have any specific questions that I can either answer or research for you. Simply make a comment in contact format the end of the below article, and I will respond as soon as I can.

*****

 

July 11, 2005

Background

Court of Appeals Chief Judge Robert M. Bell appointed a representative group of judges, court staff, and data managers to prepare the Judiciary for the implementation of the new court rules on access to court records effective October 1, 2004. The committee held its first meeting on June 9, 2004.  The full committee has convened 11 times over the past 12 months.

The committee invited Judge Alan M. Wilner to a recent meeting to assist the committee in its deliberations.  His insight helped clarify issues that had been the subject of lengthy discussion. This committee has provided guidance to judges and court personnel through educational materials such as charts on access to the four types of records as defined by the new rules, and a list of frequently asked questions.

Issue

The application of Rule 16-1006(c) about the exemption from disclosure of records concerning child abuse or neglect has prompted questions from court clerks about what records are covered.  Subsequently, there is a lack of uniformity in interpretation that has been reported by the media (articles are attached) and clerks have been placed in a difficult position.

The committee recognized that cases originating from social service or law enforcement agencies are clearly covered by this Rule.  Questions arose about how to treat records containing allegations of child abuse and neglect in civil cases, e.g., divorce/custody actions.  Also, cases involving sexual offense of a minor were not being shielded.  The co-chairs asked David Durfee, the committee’s legal consultant, to prepare an analysis of the construction of Rule 16-1006(c).

This analysis (attached) did not deal with criminal matters, though. The committee considered that if the exemption was applied broadly, it would cover any domestic case where an allegation of child abuse and/or neglect was entered, including custody disputes.  It would likely exempt from disclosure cases involving domestic violence (allegations of mental abuse of a child are not uncommon).  Also, peace orders and almost any pleading could be exempt from disclosure.  At the same time, the committee recognized that defendants could be charged with multiple offenses, placing a burden on the clerks to sort out the charges to determine whether the case should be exempt from disclosure.

After much discussion, committee members were not certain what the Court intended in Rule 16-1006(c) so have been unable to provide guidance to clerks in its application.  The committee recognizes that its function is not to interpret the rules but to provide guidance to court personnel in the implementation of the rules.  Although there is no longer commentary on Rule 16-1006 (c), the committee considered that commentary in deciding what interpretation to apply.

All committee members agreed that it would be beneficial to have clarity regarding the intent, meaning and scope of this rule. The committee considered two different interpretations:

  1. In a vote of 6 to 3, the committee decided to adopt Mr. Durfee’s analysis (attached) and to ask that the comment from the “Wilner report” be restored, or that clarifying language be added to the effect that exempt from disclosure are records concerning child abuse and neglect “originating from social service or law enforcement agencies.”  Consequently, crimes under Criminal Law §3-601 would be covered but not offenses such as sexual offense in the second degree where the victim is a minor.
  2. The other interpretation the committee considered was that the Court did intend to broaden the scope of the exemption so that minor victims of sex crimes and other forms of abuse and neglect would be protected from further embarrassment or stigma, regardless of forum or relationship of the perpetrator to the victim.  The minority view is enclosed.

Recommendations:

Inspection of civil and criminal case records in paper and electronic form in accordance with Rule 16-1006(c) should be governed by the statutory definition of child abuse and neglect. Cases not meeting that definition are open to inspection, except when a motion or order to shield has been filed pursuant to Rule 16-1009. It would be helpful to restore the comment from the Wilner report, or to add clarifying language to the effect that exempt from disclosure are records concerning child abuse and neglect “originating from social service or law enforcement agencies.”

In the meantime, the committee will advise the clerks to apply the statutory definitions of child abuse and neglect in civil and criminal cases to determine whether inspection of the record should be denied.  Access to electronic records follows this interpretation as well.

Attachments

In pertinent part, Rule 16-1006, merely provides, “…Except as otherwise provided by law, the Rules in this Chapter, or court order, the custodian shall deny inspection of…(c) In any action or proceeding, a case record concerning child abuse or neglect

See also Rule 16-1001. Definitions,  (c) “Case Record”

(1) Except as otherwise provided in this Rule, “case record” means:

(A) a document, information, or other thing that is collected, received, or maintained by a court in connection with one or more specific judicial actions or proceedings;

(B) a copy of a marriage license issued and maintained by the court, including, after the license is issued, the application for the license;

(C) a miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.

(2) “Case record” does not include a document or information described in subsection (a)(3) of this Rule [(a)(3) defines “Administrative record”).

COMAR (MD ADC) 07.02.07.02 (2005) (Definitions) provides

(7) “Child abuse” means one or more of the following by a parent, caretaker, or household or family member:

(a) Physical injury, not necessarily visible, or mental injury of a child, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed; or (b) Sexual abuse of a child, regardless of whether the child has physical injuries.

(8) “Child neglect” means one or more of the following by a parent or caretaker: (a) A failure to provide proper care and attention to a child, including leaving a child unattended, under circumstances that indicate that the child’s health or welfare is harmed or placed at substantial risk of harm; or (b) Mental injury or a substantial risk of mental injury of a child that is caused by the failure to provide proper care and attention to a child…

MD Code, Family Law, § 5-701, provides…

(b) “Abuse” means:

(1) the physical or mental injury of a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed; or

(2) sexual abuse of a child, whether physical injuries are sustained or not…

(q) “Mental injury” means the observable, identifiable, and substantial  impairment of a child’s mental or psychological ability to function…

(r) “Neglect” means the leaving of a child unattended or other failure to give proper care and attention to a child by …

Minority View

A reading of Rule 16-1006 (c)1 does not expressly set forth the basis for the Committee’s interpretation of the rule; nor is there any comment applicable to Rule 16-1006 (c) that explains, provides the basis for, or supports the Committee’s interpretation of the Rule. There is no guidance for judges, attorneys, clerks of the various courts and members of the public specified anywhere in the rule or the comments thereto, all of whom should be provided clarity regarding the intent, meaning and scope of this important rule—-if the intent, meaning and scope is to be something other that the plain meaning of the current wording of the rule. It is respectfully submitted that the Committee is not implementing the rule as written, but rather appears to be rewriting the rule of the Court.

Child abuse and neglect are words and phrases used extensively in Maryland law. See COMAR (MD ADC) 07.02.07.02 (2005).

MD Code, Family Law, § 5-701

MD Code, any parent or other person who has permanent or temporary care or custody or responsibility for supervision of the child under circumstances that indicate:

(1) that the child’s health or welfare is harmed or placed at substantial risk of harm; or

(2) mental injury to the child or a substantial risk of mental injury…

(w) (1) “Sexual abuse” means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.

(2) “Sexual abuse” includes:

(i) incest, rape, or sexual offense in any degree;

(ii) sodomy; and

(iii) unnatural or perverted sexual practices…

MD Code, Criminal Law, § 3-602, provides…

(4)(i) “Sexual abuse” means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.

(ii) “Sexual abuse” includes:

1. incest;

2. rape;

3. sexual offense in any degree;

4. sodomy; and

5. unnatural or perverted sexual practices…

Visit the following websites to view the Petition for Protection from Domestic Violence, Child Abuse, Vulnerable Adult Abuse and Petition for Peace Order forms respectively:

Criminal Law, §3-602 and, see also MD Code, Criminal Procedure, §11-303 that applies to the testimony of minors in cases of “abuse of a child” under Title 5, Subtitle 7 of the Family Law Article or §3-601 or §3-602 of the Criminal Law Article.

In the case of  Wildermuth v. State, 310 Md. 496, 516-520, 530 A.2d. 275 (1987), the court concluded that compelling government interests, in both protecting minor victims of sex crimes from further embarrassment and obtaining reliable testimony from a child in sexual abuse trials, is sufficient to justify  denial of defendant’s ordinary right to have the witness see him during trial, so long as statutory requirement of specific finding by trial court, that testimony by a child in open court would result in “serious emotional distress such that the child cannot reasonably communicate” is met, and other elements of reliability exist.

It is a frequent, if not daily, occurrence in District Court practice that a parent or guardian will file either type of petition “on behalf of” (obo) a minor child alleging child neglect or child abuse—be it physical, sexual, or mental.

While such petitions do not originate from action taken by local social services agencies, law enforcement agencies that investigate suspected child abuse or neglect, or, from other agencies that are responsible for maintaining the confidentiality of records or reports of child abuse or neglect, such agencies frequently, and many times improperly, refer such litigants to the District  Court rather than pursue such matters in civil court.

Visit the following website: http://www.courtaccess.org/modelpolicy/18Oct2002FinalReport.pdf for the final report on model Guidelines for Public Access to Court Records.

Circuit [Juvenile] Courts as CINA cases. As CINA cases, such matters would not be subject to public disclosure. More importantly, such petitions clearly represent case records “concerning child abuse or neglect”. In fact many, if not most, such petitions exclusively concern “…child abuse or neglect…

It is of interest to note that the National Center for State Courts Model Guidelines for Public Access to Court Records, by Section 4.60 at page 45, provided for the protection of such information as follows:

Section 4.60 – Court Records Excluded From Public Access. The following information in a court record is not accessible to the public:

(a) Information that is not  to be accessible to the public pursuant to federal law;

(b) Information that is not to be accessible to the public pursuant to state law, court rule [in the context of this matter, MD 16-1000 (c)] or case law as follows:

A member of the public may request the court to allow access to information excluded under this provision as provided for in section 4.70(b) [See the current MD 16-1009].

In the comments to the above section of the Model Access Policy, the following categories or types of information to which public access could be considered for restriction:

(1) Information that may not be accessible to the public pursuant to state law, whether in a statute or rule of court, generally falls into two categories. First are case types where the entire court record is generally not publicly accessible. Examples include: ƒ

  • Juvenile dependency (abuse and neglect) proceedings…

(2) Second are documents, parts of the court  record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access. Examples include:

  • ƒ Name, address, telephone number, e-mail, or places of employment of a victim, particularly in a sexual assault case, stalking or domestic violence case;
  • ƒ Name, address or telephone number of witnesses (other than law enforcement personnel) in criminal  or domestic violence protective order cases…
  • ƒ Child custody evaluations in family law or juvenile dependency (abuse and neglect) actions…

Additional categories of information to which a state or individual court might also consider restricting general public access include:

  • ƒ Names and addresses of children in a juvenile dependency proceeding;
  • ƒ Names and addresses of children  in a dissolution, guardianship, domestic violence, sexual assault, harassment, or protective order proceeding…
  • ƒ Photographs depicting violence, death, or children subjected to abuse;
  • ƒ Certain exhibits in trials such as photographs depicting violence, death, children subjected to abuse or depictions of medical information…

Given the present reading of the rule, it is difficult to understand how an action, be it civil or criminal in nature, involving a sexual act with a minor would not be protected from disclosure under Rule 16-1006 (c). The Court is urged not to narrowly interpret the scope of Rule 16-1006.

(c). The Court has been offered yet another opportunity to protect minor victims of sex crimes and other forms of abuse and neglect, regardless of forum or relationship of the perpetrator to the victim, from further embarrassment and stigma associated with the current strain of salacious voyeurism clearly evident in our society. If a “compelling government interest” is found sufficient to alter a criminal defendant’s constitutional trial rights, surely an equally compelling interest can be found to support the broadened intent, meaning and scope expressed by the plain meaning of the current wording of Rule 16-1006 (c). The Court is respectfully urged not to adopt the narrow interpretation of the Rule approved by the majority vote of the Access Rules Implementation Committee.

Unfortunately, at the committee’s last meeting, we did not have a chance to ask Judge Wilner for his construction of the subsection.

Administrative Office of the Courts

Legal Affairs Department

Memorandum

To: Sally Rankin

From: David Durfee

Subject:   Rule 16-1006(c): case records of child abuse or neglect

Date:    April 20, 2005

You have asked me for my construction of Rule 16-1006(c) of the new Court Access rules. That provision makes confidential, except as otherwise provided by law, court rule, or court order, the following category of documents:

(c) In any action or proceeding, a case record concerning child abuse or neglect.

It is my view that despite the broadness of the language, it is only meant to cover case records concerning child abuse or neglect that originate from local social services agencies or law enforcement agencies which investigate suspected child abuse or neglect, which are then filed in court.  This would also include any other agency that has the responsibility to maintain the confidentiality of a record or report of child abuse or neglect.    See  76  Opinions of the Attorney General 220 (1991)(school system’s internal investigation into child abuse or neglect also subject to confidentiality); 82 Opinions of the Attorney General 72 (1997) (law enforcement records).  See also, Opinions of the Attorney General (2004) (independent juvenile justice monitor must maintain privacy of information  in its reports by not identifying or disclosing information that invades the privacy of a child, the child’s family, the individual who reported the abuse, or the individual who reported the suspected abuse to the authorities).

In the final Attorney General’s opinion, one issue was whether the disclosure restrictions imposed by Article 88A, §  6(b), depend upon which agency is the source of particular information. DJS’s independent monitor, in assessing a DJS response to allegations of child abuse and neglect,  The Independent Monitor relies on information and reports from a variety of agencies and other sources, in addition to its own staff. The Attorney General concluded:

The applicability of Article 88A, §  6(b), to the investigative findings of agencies other than a department of social services has been discussed in several prior opinions of the Attorney General. Those opinions indicate that the statute must be construed to protect the privacy of the persons involved in an abuse or neglect.

In this memorandum I refer to the “Wilner Committee Report” which is shorthand for the “Recommendations to the Court of Appeals Court Committee Designated to Develop Rules Regarding Public Access to Court Records.”  The recommendations were submitted on November 17, 2003, and contained invaluable guidance on the meaning of and the reasons for each of the access rules.

Sometimes the text of those recommendations did not make it into the new rules, but they nonetheless bear close attention because that text was before the Court of Appeals  when it considered the rules.

An incident, regardless of whether information about the incident was reported by personnel of the local department of social services or other agency investigators.

Opinions of the Attorney General 220, 231- 32 (1991) (information gathered by school systems, in response to allegations of child abuse by school personnel, is subject to confidentiality requirements of Article 88A, §  6(b)); 82 Opinions of the Attorney General 72 (1997) ( Article 88A, §  6(b), proscriptions are applicable to law enforcement records). The Independent Monitor has the same obligation to maintain the confidentiality of protected information under Article 88A, §  6(b), as does DJS, a local department of social services, or a law enforcement agency that provided information to the Independent Monitor.

The confidentiality requirements associated with child abuse investigations are based on the nature  of the information, not the agency that conducted the investigation. The same  guidelines set out above apply to all information arising from a child abuse or neglect investigation, regardless of the original source of the information.

In order for the confidentiality restrictions to apply, then, the information must stem from (1) agency and (2) be from an investigation that the agency is responsible by law for performing of suspected child abuse or neglect.

To extend the confidentiality provisions beyond those boundaries would be to place requirements on parties in divorce actions or petitioners in domestic violence actions where no such requirements exist.  Thus, Rule 16-1006(c) does not apply to domestic actions where the allegation of child abuse or neglect originates from the pleadings, or attachments of the parties.

Child abuse or neglect may be an issue in several types of proceedings  where the evidence would not necessarily originate from a social services agency or other unit of government governed by the confidentiality requirements in the law: e.g., custody or visitation proceedings, see Family Law (“FL”) §§9-101 and 9-101.1, domestic violence cases, see FL §§ 4-504 et seq., and child abuse (and child sexual abuse),  see Criminal Law (“CL”) §§ 3-601 et seq.      

To  the extent that the allegations have not gone through the investigative process by an agency responsible for performing such an investigation, the restrictions would not apply. The best source for the intent of the new access rules is the parenthetical commentary of the “Wilner Committee Report.”

Regarding the meaning of Rule 16-1004(c), the Report stated:

SOURCE: Md. Code, Art. 88A, § 6 (b), 6A; Fam. Law Art. , §5-707.      Art.  88A, §6 (b) provides that, except as otherwise provided in that section, §6A, or Title 5, Subtitle 7 of the Family Law Article, all records and reports concerning child abuse or neglect are confidential, and their unauthorized disclosure is a criminal offense. The balance of §6 (b) provides for authorized disclosures by court order, order of administrative agency, or on request to certain persons and agencies.

Section 6A permits disclosures by the Secretary of Human Resources or the local director of social services. FL §5-707 requires the Social Services Administration to protect the confidentiality of records and reports of child abuse or neglect.

Whether these statutes were intended to apply to case records in court is not entirely clear. A fair argument can be made that they were intended to apply only to records in the possession of social service agencies and not to court records. These kinds of records, when filed with a court, will probably be found most often either in CINA, adoption, or guardianship proceedings or in criminal actions. If filed in a CINA, adoption, or guardianship action, they will be shielded by the exceptions pertaining to those kinds of proceedings (until admitted into evidence). If filed in other kinds of actions, the question arises whether the statutory shield should continue to apply. This is a policy issue for the Court. If the court  concludes that there should be no blanket exception for these records once they become case records, it should, in some way, make clear that the statutes do not apply, in order to protect custodians from the criminal sanctions in Art. 88A for disclosing the records.

The leap taken by the Court in Rule 16-1004(c) was in stating that the confidentiality protections of Article 88A and the Family Law Article applied to  court records as well as agency records.  However, in discussing “these kinds of records,” the Wilner report was only referring to records originally in the custody and control of a social services agency, or a like agency, that have  confidentiality requirements with respect to the records.    The Court was not also carving out a new exception from disclosure  for material in cases, such as divorce cases, that have been open to the public traditionally where there has not been a backdrop of confidentiality.

Finally, I have to admit ignorance on the procedures that are followed with respect to the filing of case records by social services agencies, etc., that contain protected information on child abuse and neglect.   It does seem to me, however, that an agency with information that it believes should be shielded should be familiar with the provisions of Rule 16-1010 and inform the custodian whenever it believes that the records are protected under Rule 16-1006(c).   This is one more area where there may need to be some education on the new access rules.

Public is denied access to some court records.

by Rebecca McClay

Staff Writer

Advertisements

Comments are closed.

%d bloggers like this: