Editor’s note: This story is part of an occasional investigative series examining how children and families are impacted by problems in the Philadelphia foster care system, family court, and by insufficient legal representation.
Instead of protecting children as intended, closed-door proceedings in the Philadelphia Family Court do more to shield from the public eye those lawyers, social workers and judges who do their jobs poorly, court-watchers said.
Several officials and family law experts who spoke to The Legal said Philadelphia’s practice of holding non-public juvenile and dependency hearings—dealing with adoption, custody and foster care—does more harm than good: keeping incompetence hidden, encouraging delays in cases where children are in limbo, and stifling any hope for systemic improvement.
What’s more, the Philadelphia court system’s practice of excluding members of the press and public from these hearings by default, while the norm in many jurisdictions, is very much a choice and not a requirement. Allegheny County, home to Pennsylvania’s second largest city, Pittsburgh, has had an open family court system for nearly 15 years.
“Sunshine is good for children. Conversely, when you do it all in the dark, there is no way to ensure justice. Judges can abuse power, lawyers can do their job poorly or not at all, and there is no accountability,” said Richard Wexler, executive director of the National Coalition for Child Protection Reform.
Philadelphia court spokesman Martin O’Rourke said in an emailed statement that members of the press and public can request access to individual cases, pending approval by the judge handling the case and with input from the parties.
But the Philadelphia court system has no data on how many requests, if any, have been granted, according to O’Rourke.
Pennsylvania Supreme Court Justice Max Baer, formerly a family court judge in Allegheny County who oversaw reforms in that system, said, “The law on the subject is that courtrooms are presumptively open.”
He added, “Assume that the press appears and the courtroom is open; nothing precludes one of the other parties—the parent, the child advocate, the county solicitor—[from asking] to close the courtroom if that’s in the children’s best interest.”
Baer said in some cases in Allegheny County decades ago, delays and shoddy work in courtrooms led to disastrous results for children, including being left in foster care for up to 18 years as their cases worked through the system.
According to Allegheny County Department of Human Services director Marc Cherna, Pittsburgh’s family court system used to be known as a national disgrace.
Cherna, who has been at the department for 23 years, said collaborating with the family court, child advocates and county officials to open the courts led to several critical improvements to the beleaguered system.
First, the court hired hearing officers to bolster its scant complement of judges, thereby reducing the overall caseload and moving matters more efficiently. The county also opened satellite courtrooms outside of the Pittsburgh metro area.
“It’s much easier for clients because there are local offices and they don’t have to travel downtown,” Cherna said. “We saved money by reducing caseloads and it paid for itself.”
Secondly, the court approached the law firm of Reed Smith for pro bono work in adoption cases. The firm agreed, and handles over 100 cases per year. But most importantly, Cherna said, making the system open to public scrutiny encouraged everyone involved to do their best work.
The impetus for the reforms that ultimately opened up the system was a series of articles on juvenile justice written by former Pittsburgh Post-Gazette reporter Barbara White Stack, who covered the county’s Office of Children, Youth, and Families as well as the courts.
“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,” Cherna said.
In at least one instance, secrecy in Philadelphia Family Court has allowed a judge to run amok.
During her short time in the Family Court, Judge Lyris F. Younge amassed a record of rights violations for which she has been consistently chastised by appeals court panels.
Younge, who by the accounts of many of those who have appeared before her, treated her courtroom as her personal fiefdom, on several occasions denied parents the opportunity to speak in cases where their children were being taken from them. Additionally, the state Superior Court has come down on Younge for wrongly jailing a grandmother, holding a child in foster care to force a confession of alleged abuse from her parents, and refusing a sick mother re-entry into the courtroom after she left to vomit.
The judge was removed from the family court shortly after the publication of an April 2018 Legal Intelligencer article exposing her history of due process violations. She has since been reassigned to civil court and is currently the subject of an ongoing Judicial Conduct Board investigation.
However, according to a longtime family lawyer who spoke on condition of anonymity, delays caused by incompetence, tardiness and lack of preparation on behalf of some lawyers and social workers are more common—and a bigger problem—in Philadelphia family court than intemperate judges.
This leads to continuances being filed in cases, effectively extending the amount of time a child spends separated from family in foster care.
The situation was similar in New York City until the late 1990s when the state’s then-chief judge, Judith S. Kaye, opened the court system in an effort to shed light on problems such as the court’s massive caseload.
While still not a perfect system, Wexler said that New York’s dependency court proceedings have improved by leaps and bounds since becoming publicly accessible.
In Philadelphia, parents who cannot afford attorneys are offered court-appointed lawyers. Generally these lawyers handle oppressive caseloads and work for little pay. In other instances, parents enter the courtroom totally unrepresented and ignorant of their rights.
However, for families in New York, “instead of some grossly overwhelmed public defender, you get a lawyer, social worker and parent advocate” who acts as a counselor to the parent, Wexler said.
He added that opening New York’s courts also addressed the more pressing issue of a high rate of child removal from parents’ homes.
“They have not gotten bad parents off, but they’ve gotten the child welfare agency to think more closely about whether removing children is necessary,” Wexler said.
Currently, Philadelphia has the second highest rate of removal in the nation (behind Maricopa County, Arizona) and the highest of any major U.S. city, according to Community Legal Services of Philadelphia, which also noted that as of 2016, there were 6,100 children in DHS custody.
No Tracking, No Change
The Administrative Office of Pennsylvania Courts, which oversees all county courts in the state, does not analyze the impact of excessive continuances filed in the juvenile cases beyond keeping raw numbers.
That lack of analysis is part of the problem, according to attorneys Frank Cervone and Marguerite Gualtieri of the Support Center for Child Advocates in Philadelphia.
The raw numbers for 2017 and 2018 combined show that nearly 6,000 new dependency cases were filed in Philadelphia. Also during that timeframe, 10,750 continuances were filed, some of which stemmed from cases filed prior to 2017.
Many continuances are filed for valid reasons, like a lawyer being ill, for instance. But Philadelphia Family Court does not record the reasons for continuances on the docket, making the identification of problems in the system difficult.
“What gets measured gets improved,” Cervone said. “So if they wanted to improve their continuance rate they’d measure it. We think too many cases are being continued for the wrong reasons.”
“It shouldn’t be this hard,” Cervone added, “for a system interested in achieving quality and fair practices.”
And even though court clerks record proceedings on transcripts, Gualtieri said those documents are rarely sought by officials.
“While transcripts are being recorded, they are not readily available and those transcripts are not regularly pulled” by court leadership, Gualtieri said.
However, O’Rourke, the court spokesperson, said the court makes every effort to reduce delay in dependency cases.
“Philadelphia Family Court has no control over the number of dependent petitions filed by DHS on an annual basis,” O’Rourke said in the court’s statement. “Despite the volume of petitions filed, Family Court adheres to the statutory timeframes regarding the requisite timing of all stages of the dependency proceedings, such as shelter care hearings and adjudicatory hearings.”
He added, “The leadership of Family Court engage in a multitude of collaborative efforts with DHS, Community Behavioral Health, the school district, and all system partners to adopt measures to enhance our local case processing and expedite permanency for dependent youth and their families. Effective case monitoring by the court has resulted in an increase in the number of cases that have been resolved or terminated from court supervision, including cases involving reunification, adoption or permanent legal custodianship.”
Yet problems remain in the system, according to retired Superior Court Judge Cheryl Lynn Allen, formerly a Pittsburgh juvenile court judge from 1992 to 2004. Allen said the reason is that no one challenges the status quo of closed courtrooms despite case law that calls for transparency.
“The law is there,” Allen said. “There have been Pennsylvania Supreme Court decisions in the past that have never been enforced. Someone has to challenge it.”
She noted, however, that “sometimes politics supersedes legal precedent in some jurisdictions.”