Sunday, January 1, 2012

Barahona judge’s efforts to ferret out leaks detailed

Court records released to The Herald document a judge’s efforts to identify lawyers or child welfare administrators she suspected of leaking secret material to the newspaper.

By Carol Marbin Miller and Diana Moskovitz

“Exceedingly chagrined” that a newspaper had published details about a controversial child custody hearing that she had wanted to keep secret, Miami-Dade Circuit Judge Maria Sampedro-Iglesia calendared a court hearing for Aug. 26 to ferret out who leaked.

But a day before the scheduled proceeding, an attorney for the Miami-Dade court system told The Miami Herald’s lawyers there would be no hearing. Their presence wasn’t needed.

What court administrators didn’t say: All the courtroom participants under suspicion of talking were going to be in court anyway that morning — at a conference the public was forbidden to attend. And Sampedro-Iglesia had another plan. She was going to require all of them to sign sworn statements that they had not betrayed her trust.

“Where, as here, confidential information is leaked, the Court is vested with the authority to take additional measures to ensure the children are protected and the Court’s orders are followed,” she wrote.

The fight over courtroom access and records concerned the fate of 10-year-old Victor Barahona, who was found Feb. 14 by a road ranger on the side of Interstate 95 in West Palm Beach, convulsing and drenched with chemicals inside his adoptive father Jorge Barahona’s pickup truck.

Jorge Barahona was nearby, on the ground, also ill. The decomposing body of Victor’s twin sister, Nubia, was later found soaked in chemicals and shoved inside a trash bag in the truck..
Police and prosecutors later said the twins had been “tortured” for months inside the Barahonas’ Miami-Dade home.

The case has come to symbolize the longstanding tensions between the rights of abused children to keep private the details of their suffering — versus the public’s desire to hold its government accountable. In the months following Nubia’s death, The Miami Herald went to court four times seeking to compel the release of records or fight efforts to close to the public hearings about the Barahona children. The details surrounding the efforts of Sampedro-Iglesia and State Attorney Katherine Fernandez Rundle to identify leakers are contained in court records the newspaper obtained this week after filing suit for their release.

“One of the greatest privileges our Constitution provides is free press afforded by the First Amendment; however, the children in this case deserve their right to privacy, and it is this Court’s responsibility to protect these children,” Sampedro-Iglesia wrote in an order.

But Carole Shauffer, executive director of the Youth Law Center, who is helping Florida’s Department of Children & Families improve foster care under a private grant, said privacy concerns often have been used to shield public officials from scrutiny. “Agencies act,” she said, “as if the privacy is there to protect them. It is not. It is supposed to protect the child.”

In the weeks following the twins’ discovery, The Herald published a series of stories documenting critical lapses in the state’s supervision of the former foster children.
The Barahonas had been allowed by the state to adopt the twins in 2009 even though “the red flag of caution and warning was raised many times” by people around the family, including a principal and a volunteer guardian , according to the report done by a panel that investigated how the system failed. Even as Nubia’s body was discovered, two reports to the state’s abuse hotline had gone unheeded.

Amid such controversy, Sampedro-Iglesia closed all future court proceedings regarding the three surviving Barahona children, including Victor, to the public in an order dated July 21.
Under Florida law, hearings in which the state seeks to terminate a parent’s right to his or her children are closed to the public. The Herald’s attorney argued that the custody dispute, and other matters, were not part of such termination efforts, as both Barahona parents, now awaiting trial for murder and aggravated child abuse, had surrendered their rights. The judge disagreed.
A month later, at the request of prosecutors, Sampedro-Iglesia ordered Victor brought back to Miami from the home of his birth uncle in Texas for a hearing to determine who would continue to raise him.

Child welfare administrators wanted Victor to remain in Texas, but prosecutors were seeking his return to foster care in Miami.

On Aug. 19, The Herald reported that Victor had become the subject of a “judicial tug of war,” and that many child welfare experts felt that the hearing never should have been held. Victor himself had testified he wished to remain “with Tio and Tia” in Texas.

The Herald was forced to rely on anonymous sources for the story because its reporters had been kept out of the courtroom.

Insisting that children should never be returned to foster care when a qualified relative wished to adopt them, the head of the University of Miami Law School’s Children & Youth Law Clinic, Bernard Perlmutter, said at the time: “It seems like some kooky things have occurred here.”
The day the story appeared, Sampedro-Iglesia filed an order that Victor be allowed to live with his relatives in Texas.

Six days later, on Aug. 25, Sampedro-Iglesia signed a “gag order” once again forbidding parties to the dispute from discussing it. “Audaciously with the highest degree of impertinence,” she wrote, a courtroom observer even leaked the date of her court hearing to determine the identity of leakers.

“The cumulative effect of the media coverage and statements made by various persons, if allowed to continue, would contravene the basic principles set forth” in state child welfare law, she wrote.

Whoever spoke with the newspaper, she wrote, betrayed “not only the trust of the Court, but, most importantly, the trust of the minor child who is relying upon the good graces of adults to protect him from further sensationalistic intrusion into his private life.”

Sampedro later cancelled the hearing. But, records show, she instructed parties to the Barahona case to go into her chambers following an Aug. 26 status conference, and had her judicial assistant give them all copies of an affidavit stating they had not divulged confidential information.

Of 33 people asked to sign them, only one did not. Former DCF Regional Administrator Jacqui Colyer, who had retired from the agency, was banned by Sampedro-Iglesia from appearing in her court for any other proceedings involving Victor.

“Colyer has apparently decided to refrain from providing the Affidavit and has offered no explanation to the Court regarding such decision,” Sampedro-Iglesia wrote in a Sept. 22 order.
Sampedro also wrote two orders limiting the number of people who can attend future Barahona hearings, and, having concluded that she had “appropriately addressed the breach of confidentiality,” denied a request from State Attorney Katherine Fernandez Rundle to hold further proceedings to identify the leakers. Fernandez Rundle, she wrote, had authority to investigate the matter herself.

Richard Gelles, dean of the School of Social Policy and Practice at the University of Pennsylvania, a well-regarded children’s advocate who followed the case closely, said it was the state that failed the boy and his sister.

“Government,” Gelles said, “ought to be held as accountable as they hold parents when involved in a maltreatment proceeding. What this judge is saying is, no, she is beyond accountability. That is contrary to law and common sense.”

“Every judge who has had a hand in this case, every agent of state government, has to be accountable. They are part of the legal parentage of this boy.”


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