Obtaining "Confidential" Child Abuse Records (Part 2)

As I mentioned in part 1 of this brief series, attorneys, service providers, and journalists often need access to DFCS and other child abuse records otherwise made confidential by federal and state law.  Last time, we covered how to get those records through a motion for in-camera inspection and a subpoena.  But what do you do when you don't have a case pending and therefore don't have a court with which to file a motion?

Depending on the circumstances, here are three methods that I'd try:

First, if the child abuse records cover a child who suffered a fatality or "near fatality," federal and state law require those records to be released to the public, with some redactions allowed.  Media outlets regularly request and are provided these records in child death with some information omitted, such as (1) information provided by law enforcement regarding a pending investigation or prosecution, (2) information about the person reporting the abuse, which is always confidential; and (3) information about innocent family members such as surviving siblings. 

Near fatalities are a bit trickier.  What's a "near fatality," you ask?  It's helpfully defined in federal law as “an act that places a child in serious or critical condition as certified by a physician."  But what about situations where a child has been missing for months or years, such as the case of Harmony Montgomery in New Hampshire?  And whose physician gets to certify the "serious or critical condition"?  Those issues remain up in the air and, one hopes, will be resolved through future court decisions.

Second, in Georgia the legal guardian or parent of a child, or the child when he or she turns 18, can request his or her child abuse records "concerning a report of child abuse allegedly committed against him or her which are in the custody of a child advocacy center, the department, or other state or local agency" if attestation is made that those records are needed for a potential damages action.  Pursuant to the case of J.J. v. Ledbetter, a parent or guardian of a child involved with a child protection case can also obtain a significant amount of DFCS records, including contact narratives, photos, case plans, and court filings.

Finally, many people don't realize that juvenile court dependency actions are presumed open to the public and can be closed only if the court finds good cause to do so and enters a detailed order to that effect.  The public is entitled to access court records from juvenile dependency hearings that were open to the public.

Here at Taylor English, we take the steps necessary to assist our clients in obtaining those child protection agency records that they need, whether that need is for a specific case, to better understand a potential cause of action or prepare a better defense, or because the public needs to know what happened to a child.