A San Diego Superior Court judge smacked down the state’s main child welfare agency for writing regulations that short-circuited a 5-year-old law meant to increase public access to information about kids who died while under its supervision.

Judge Judith F. Hayes’ December 28 court order said the Department of Social Services had subverted Senate Bill 39, passed in 2007, which clearly intended to “maximize public access to juvenile case files in cases where a child fatality occurs as a result of child abuse or neglect.” The bill’s accompanying analysis noted that its author and proponents believed the changes “will spur reform and save the lives of children.”

But the judge said regulations introduced under the direction of former department Director John Wagner subverted that instruction by limiting access to information to cases that involved children deaths at the hands of parents, guardians or foster parents. That would exclude cases where other relatives, friends, babysitters, caregivers or social services employees were implicated.

The regulation also precluded investigations of child suicides and limited the release of case file information if the district attorney objected.

“The restrictions lead to under reporting or inconsistencies in the reporting of the child abuse cases involving fatalities,” the judge wrote.  

Current Director Will Lightbourne, hired two years ago, supported the regulation and hasn’t indicated whether his department will appeal the ruling.

Despite the regulation’s limiting effect, the law has facilitated investigations by the media of suspect child deaths and institutional shortcomings.      

There has been significant resistance to the law. The National Center for Youth Law complained in 2011 that the Department of Social Services had misinterpreted the law, which requires redaction in certain instances, and issued an errant regulation that empowered police to require redaction of names in investigations. The center said the department admitted it had erred but wasn’t making an effort to correct it. 

–Ken Broder

To Learn More:

Judge Rebukes Child Welfare Agency for Withholding Data on Deaths (by Garrett Therolf, Los Angeles Times)

CAI Executive Director, Prof. Robert Fellmeth Leads Victory for Children in SB 39 Litigation (University of San Diego School of Law)

Victory for Children in SB 39 Litigation (Children’s Advocacy Institute)

Senate Bill 39 Challenges Secrecy around Child Deaths, but Faces Obstacles (by Edward Option, National Center for Youth Law)