Court secrecy in Tennessee hides officials’ abuse of families

By Robert Franklin

Tennessee courts and laws are shielding the activities of child welfare workers from public view in a case that fairly screams ‘negligence’ on their part. Almost invariably, what child welfare authorities do or don’t do in individual cases remains unknown to the press and the public due to laws requiring confidentiality. But in this case as in so many others, what’s being protected is the malfeasance of CPS workers and others, not the best interests of children (Memphis Commercial Appeal, 7/31/15).

What we know of this case is what’s been gleaned by reporters acting on the margins of permissible investigation. The good news is that apparently justice has been done before any harm came to the children. The bad news is that, well, we don’t know if that’s true. We don’t know because we can’t know.

Last year, four children became orphans one night when their parents were shot to death while the kids slept. In the turmoil that followed, a distant cousin, Tracey Whitaker showed up at the murder scene and was given temporary custody of the children.

In the weeks that followed, a Juvenile Court Magistrate, Sheldon McCall, gave Whitaker custody of all four children who were ages three to seven at the time. That process involved the appointment of a guardian ad litem who was supposed to look out for the children’s interests. That GAL was Sharon Lichliter; she approved the permanent placement of the children with Whitaker.

Sex offender in the mix

Other relatives were appalled.

“I felt let down, like the system failed us,” said [the children’s aunt, Ivana] Tate, victim Danielle Alexander’s youngest sister. “They are supposed to protect children. It was neglect. ”

That’s because, at the time of the placement, Whitaker was living with her boyfriend, a convicted violent sex offender. Here’s what court records reveal about him.

The judge said the cousin didn’t seem to recognize the potential risks posed by her boyfriend, who’s temper landed him in jail and prison for everything from breaking into his estranged wife’s apartment and beating and raping her to shooting a man left paralyzed from the waist down. And, according to court records, a former girlfriend accused him of stabbing her dog in the back with an ice pick after it tried to come to her defense as he beat her during an argument that started over her children not cleaning up around the house.

That’s all information that is a matter of public record, but Lichliter, whose job it was to protect the children’s interests in court, failed to obtain those records and signed off on the placement with Whitaker.

Grandparents awarded children

Fortunately, other relatives cared more about the children’s welfare and sought to overturn McCall’s order. After a lengthy hearing, Circuit Court Judge Felicia Corbin-Johnson did exactly that, giving custody to the children’s maternal grandparents, George and Dujuna England, and restricting Whitaker to supervised visitation only. The Englands and the children’s paternal grandfather teamed up to appeal the ruling.

“You wouldn’t want any of your family members being in a situation like that,” Tate said. “It just screams danger to me. All we could do was fight.”

Meanwhile, the Commercial Appeal makes the salient point.

Custody battles in Tennessee are closed to the public to protect the privacy of minors. Yet those protections also shield the actions of child custody workers, attorneys appointed to protect children and judges from scrutiny.

Just so. And I would add one more thing – those very laws requiring confidentiality endanger children. They do so by ensuring that whatever malfeasance occurs in the handling of a case, whether by child protective workers, judges, GALs, etc., will never see the light of day. That in turn means all those people act secure in the knowledge that their behavior will never be questioned except by those who are already part of the child welfare system. Sadly, that’s a recipe for bad work when it comes to protecting children.

Everyone involved in this case, except the grandparents, hid behind the veil of secrecy.

Janice Holder, a retired state Supreme Court justice, sat as special judge in Juvenile Court during a new trial and decided to leave the children with Whitaker. Her reasons remained locked away in a case that is sealed, along with other dependency and neglect and child custody cases…

Neither McCall nor his boss, Juvenile Court Judge Dan Michael returned calls seeking comment. Larry Scroggs, the court’s chief counsel, sent an email citing state Supreme Court rules barring the public or media from access to court proceedings or records in dependency and neglect cases involving minors.

Holder, reached by phone, also referenced the confidentiality statute, saying: “That’s for the benefit of the children. It’s their privacy.”

“I cannot comment and those files are sealed,” Holder said. “Anybody who does comment really is doing so at their own peril.”

In Juvenile Court, McCall threatened to jail any of the children’s relatives who discussed the case. As a result, none commented about court developments for this story.

The Circuit Court trial also was closed to reporters.

Secret recording pierces veil

So how is it, with all the secrecy surrounding this case, that we know anything about it at all?

Reporters were not allowed to attend the trial or any court hearings, but the newspaper obtained audio recordings of the four hearings overseen by McCall.

Hmm, “audio recordings.” Could those have been made by the court reporter? Court reporters usually record proceedings so they can check their typed copy for possible errors. But I don’t believe for an instant that the court reporter violated the laws on secrecy to provide the audio recordings to the press. No, my strong belief is that a member of the family secretly recorded the proceedings and turned them over to the Commercial Appeal. Why would a person do such a thing, particularly since doing so may jeopardize them legally? It seems likely that the person didn’t trust the court to do the right thing and made the recordings as the best possible defense against caseworker/GAL/judge incompetence.

What we know for certain is that the Department of Children’s Services approved a placement that, as Ivana Tate so accurately said, “just screams danger.” We also know that Sharon Lichliter failed to do even minimal due diligence to protect the children in her charge. We also know that Whitaker failed to inform any court that she was living with a violent felon.

All that of course is malfeasance enough, but is it all? Is it possible that the facts we happen to know are 100% of the wrongdoing in this case? That’s dubious at best. I’d bet good money that, if the files were opened, we’d learn about more failures, more oversights, more negligence on the part of officials whom the public pays to protect children at risk.

Now, as I said at the outset, the good news is that the children have been taken out of Whitaker’s care by Judge Corbin-Johnson. And, as far as we know, they haven’t been harmed while living with Whitaker and her boyfriend. So, as one attorney in the case said, “justice has been done.” Good.

But we’ll never know what went on behind the closed doors of DCS. We’ll never know how so many could have gotten so much so wrong. That’s because, of course, Judge Corbin-Johnson’s hearing transcript and order are, like everything else in this case, secret.

Let’s be clear. As I’ve said many times before, secrecy in child welfare cases is always defended as being in the child’s interests, but it actually shields the malfeasance of public employees from public view. As such, that secrecy places children in greater danger than they would be if their cases were open to the public. Child protective workers shouldn’t have their actions hidden away from public view. More than perhaps any other public agencies, CPS files should be public.

Robert Franklin is a board members of National Parents Organization.