12 ABA Juv. & Child Welfare L. Rep. 1 (1993-1994)

handle is hein.journals/chilawpt12 and id is 1 raw text is: -ABA
JUVENILit& CHILD WELFARE
JL(Reorter
VOLUME 12, NO. 1               March 1993

Confidentiality/Privilege,
Agency Records
State ex rel. Dugan v. Tiktin, 837
P.2d 959 (Or. 1992).
In sexual abuse prosecutions, the trial
court may not delegate to the district at-
torney its duty to review in camera con-
fidential agency records.
Two defendants were charged with sexu-
ally abusing children. The victims were in
the custody of the child welfare agency,
which maintained a file on each of them. De-
fendants' attorneys filed pretrial motions
seeking in camera reviews of the agency's
files by the trial court to determine what por-
tions were discoverable by defendants. The
trial court ordered the district attorney to re-
view the agency's files for discoverable evi-
dence and to provide such evidence to
defendants. Any part of the files not dis-
closed to defendants would then be re-
viewed in camera by the trial court, which
would provide any additional discoverable
evidence to defendants.
The district attorney moved for reconsid-
eration and the agency moved for a protec-
tive order. The trial court denied both
motions and ordered the district attorney to
comply with its order. The district attorney
and the agency then sought a writ of manda-
mus directing the trial court to vacate its or-
ders.
The Supreme Court of Oregon issued the
writ. By statute, the agency is authorized to
disclose child abuse reports and records to
the district attorney. The court pointed out,
however, that agency files often contain
various types of information on multiple cli-
ents. The files may involve people other
than the victims in these cases and include
confidential materials. The district attorney
is not authorized to have access to such in-
formation.
The court listed some examples of confi-
dential information that may appear in
agency files: juvenile court records and re-
ports, privileged materials such as medical
or psychological records, financial records
related to eligibility for services, and school
records. Since none of these constitute child

abuse reports and records, they are not dis-
closable to the district attorney.
The legislature intended that agency re-
cords be reviewed in camera by the trial
court, a neutral and detached arbiter, in
order to minimize the intrusion in the
confidences at stake as to the other infor-
mation in the [agency] file. Thus, the trial
court's duty to make such inspections is
not delegable to a party, like the district at-
torney, who would not otherwise have ac-
cess to the files. The court issued a
peremptory writ of mandamus directing
the trial court to vacate its orders delegat-
ing its duty to the district attorney.
Editor's Note: In A.J. v. Times Publish-
ing Company, 605 So.2d 160 (Fla. Dist. Ct.
App. 1992), deputies went to a school to
give a puppet show. Based on their observa-
tions, they filed incident reports with the
sheriff's office indicating they suspected the
children were being abused or neglected. A
newspaper filed a public records request for
all records in possession of the sheriff's of-
fice concerning alleged child maltreatment
at the school. While the sheriff did not ob-
ject to releasing these records, 30 students
and the school's operator were granted a
temporary injunction making the records
confidential. The appellate court held plain-
tiffs (noncustodians of the records) had
standing to enforce the public records law's
exemption from disclosure for child abuse
records. It also certified this question to the
state's supreme court.
Educational Neglect
In re C.IL, 604 So.2d 1079 (Miss. 1992).
Deaf child enrolled and progressing
well in public school's hearing-im-
paired program should not have been
deemed educationally neglected and
placed in school for the deaf, even if
she might be better off in such a school.
A 12-year-old deaf girl was found to be
abused based on allegations that her
mother's boyfriend had sexually abused her.
Legal custody was given to the child wel-
fare agency, but temporary physical custody
remained with the child's mother. The
mother barred her boyfriend, who lived out
of state, from the house pursuant to the trial
court's order that he have no contact with
the child.

Subsequent hearings were held at the
agency's request on the child's best inter-
ests. Friends and neighbors of the child's
family testified she and her siblings were
well cared for and happy. Her teachers and
other school officials testified the child was
enrolled and progressing well in the
school's hearing- impaired program. They
agreed the program and teaching staff were
excellent, and the student-teacher ratio was
very low. However, one teacher testified the
child could receive more vocational training
at the school for the deaf once she reached
high school age. Finally, a court-appointed
psychologist recommended that the child be
placed as a residential student at the Missis-
sippi School for the Deaf. The trial court
found the child was a victim of educational
neglect and ordered her placed in the school
for the deaf. The mother appealed.
The Supreme Court of Mississippi re-
versed. The court noted witnesses had
agreed on the high quality of the public
school's hearing-impaired program. Since
the child was enrolled in the best public
school situation available to her in her local
community, she could not be deemed edu-
cationally neglected. Before a child could be
found educationally neglected, the trial
court should have determined her environ-
ment was deficient.
The court found there was nothing
wrong with the child's home environment,
pointing out the mother had done everything
asked of her to remedy the sexual abuse alle-
gation and other complaints against her. The
fact the child had been left in her mother's
physical custody for so long, and was still in
her mother's custody on weekends and holi-
days from school, further supported the ar-
gument that she was not neglected there.
Also in this issue:
Supreme Court News       ..10
Court Upholds INS
Regulations
Legal Analysis    ...... .11
Standards of Practice
for Guardians Ad
Litem
American Bar Association

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