A Gag Order In A Foster Death: When Child Welfare Secrecy Goes Too Far

After their 3-year-old son Fabian died from head injuries while in foster care, Sherri-Ann Garett and Juben Garcia went public.

In a Facebook post, Sheri-Ann wrote about Fabian and one of their two surviving children still in foster care, sharing their names. She identified the state social workers involved in the case and the foster parents.

Juben spoke to a television reporter, mentioning that his surviving children were still in foster care.

Five days later, the state Department of Human Services, which runs the state’s child welfare and foster care systems, went to court to block the parents from disclosing confidential information about the case.

A DHS social worker declared that Sherri-Ann had posted such information on Facebook. The worker wrote that she was concerned that the parents would keep releasing secret details unless the family court judge stopped them.

The judge granted the motion. Among other things, Garett and Garcia were ordered not to talk about the children being in foster care, the involvement of DHS, the foster parents or investigations into Fabian’s death.

Only when the parents’ lawyer objected, saying the order violated their First Amendment rights to free speech, did the judge scale it back. In the new order, Garett and Garcia were not to name their surviving children or release any records from the case.

The 2017 case is a raw example of the strict secrecy surrounding the child welfare system. To qualify for funding, the federal government requires the states to submit plans for preserving the confidentiality of child welfare records. All the states and the District of Columbia have passed such laws.

The most obvious reason is to protect the identities of children in foster care, as it reveals that there have been accusations of abuse or neglect by their biological parents.

“The real interest in terms of privacy and closed files is the impact it will have on children,” said Joanna Woolman, professor at Mitchell Hamline School of Law in Minnesota and the director of the Institute to Transform Child Protection. “We want to allow children to have privacy about horrible things that may have happened in their household.”

But how far should confidentiality laws go, especially when they infringe on other interests, such as parents’ free speech rights to talk about their cases or to criticize the government’s handling of them? Or the public’s ability to know how the child welfare system it pays for is functioning?

What if the government uses confidentiality to punish critics?

“The right to free speech, open access, accountability across the system – the weight of those things is pretty great,” Woolman said.

Protections, such as using children’s initials, can be used to avoid identifying particular children, she said.

“The rest of what’s happening in these cases should be open and available for people to understand,” she said, especially when things go wrong and there’s an opportunity to learn and improve.

Though all states have child welfare confidentiality laws, some take it further than others. Hawaii, for instance, is one of the states that closes family court proceedings to the public. Fourteen states, accounting for 43% of all children in foster care, have opened family court hearings to the press and public, according to a report by the National Coalition for Child Protection Reform in Virginia.

“Opening the courts is key to improving their functioning,” said Christine Gottlieb, director of the NYU School of Law Family Defense Clinic. “‘Sunlight is the best medicine’ certainly makes sense in this context.”

In the case of Fabian’s parents, the Hawaii Supreme Court found a year later that the family court judge had crossed a line. The state has no law preventing parents from publicly releasing the names of their children, the high court said. The judge failed to make findings that the parents’ actions posed a serious and imminent threat to the best interests of their children, or that the order had been narrowly drawn and that less restrictive options were not available.

And though Hawaii law prevents the release of records from child welfare cases, the Supreme Court found that DHS’s concerns that the parents might do it anyway was “too speculative.” Putting the prohibition in an injunction was “an extraordinary remedy which would subject Parents to contempt for failure to comply,” the court wrote.

“Quite simply,” the court said, “the family court did not engage in the required constitutional analysis before impinging on Parents’ right to free speech.”

The foster mother was acquitted in 2021 on charges of second-degree murder in Fabian’s death, but Garret and Garcia are suing her, the state and other parties in an ongoing civil case. Their other two children were returned to them from foster care several months after Fabian’s death.

“Imagine being hauled into court, days after the death of your child, and a judge telling you you can’t talk about it,” said Jeffrey Foster, the attorney for Fabian’s parents in the gag order case and their ensuing civil lawsuit. “And if you do talk about it you could go to jail. Imagine what that does to the healing process. You can’t even begin to heal if you cannot talk about your questions, your concerns, your hurt.”

But their ordeal led to one good thing, Foster said. “It’s provided folks going through this process with a precedent: Your constitutional right to free speech does not stop when you enter family court,” he said.

Parents do criticize the system without being subject to gag orders or retribution, said Frances Wong, a retired senior judge of Oahu’s Family Court,

“Do they have a right to talk? Yes, and they do, and they have all these years,” she said. “And if it doesn’t cause any ongoing harm, they don’t get shut down. They go to the Legislature, they go to reporters, they go to TV.”

The problem, she said, is that sometimes vocal parents can hurt their own cases.

“If you’re just saying what a horrible judge I am and there’s no life consequence, big deal, my job is to receive criticism,” she said. But if the criticism is directed, say, at relatives who are fostering the parents’ children, it could have the effect of alienating them and making reunification more difficult.

In such cases, as a judge Wong stopped short of ordering parents not to talk. But she would discuss it with them, encouraging them to consider the effects of their actions on other parties.

“If I can’t talk them into seeing how it’s against their interests, then they’re grownups, there are going to be consequences,” she said.

Few Answers In Foster Case

For the past year, in writing about Hawaii’s child welfare system, Civil Beat has repeatedly run up against the state’s confidentiality laws and regulations, or at least officials’ interpretations of them.

In November, for instance, Civil Beat detailed the story of a Big Island foster mother, Yvonne Caitano, who took in at least 10 foster children before being convicted and sentenced to five years in prison for her role in a prescription drug ring. One of the foster children was even forced to take part in the operation, according to the prosecution, counting out pills to put in an envelope, which she handed over to customers who drove by the house in return for cash.

DHS refused to answer several questions about the case, citing laws and statutes that it says require confidentiality of foster parent records. The department would not say how long Yvonne and Paul Caitano had been licensed as foster parents, how much money the state had paid them, whether there had been earlier reports of abuse or how often the children had been visited by a state social worker.

Advocates for child welfare reform say there’s no reason many records regarding foster parents or the government’s actions in a case should not be public. Foster parents, they say, are essentially providing a service to the state, and don’t have the same interest in confidentiality, or the right to make decisions regarding children’s privacy, as do legal parents.

“It’s not that we don’t appreciate what they do,” Gottlieb said. “But they’re not on an equal footing. They’re not signing up for parental rights.”

And once the names are known to the public, Gottlieb said it was “disingenuous” for a state agency to continue to withhold information.

Foster licensing – how people are approved and monitored – is at the heart of a state regulatory system that the public clearly has an interest in knowing about, said Robert Fellmeth, a professor at the University of San Diego School of Law and executive director of the Children’s Advocacy Institute.

Told about the questions the state declined to answer in the Caitano case, Fellmeth said, “That’s ridiculous. There’s no privacy interest at all in someone providing a state service like that.”

In another story in November, Civil Beat wrote about the performance of attorneys who have contracts with the state Judiciary to represent parents in child welfare cases. Civil Beat analyzed cases that went to the Intermediate Court of Appeals after a decision in family court.

Unlike family court proceedings, ICA decisions are public, and the names of the lawyers who represent parents are listed. Normally, the same attorney would have handled the case both in family court and appeal, but since family court proceedings are closed, Civil Beat asked the Judiciary to confirm that.

The Judiciary refused, saying state confidentiality laws prohibited the release of the lawyers’ names.

“I can’t see any reason for that at all,” Woolman said.

Whose Privacy Is Being Protected?

Child welfare reformers argue that more transparency is key to exposing failures and making the system work better. Too often, they say, child protection agencies and family courts use confidentiality to block such scrutiny.

“They do a terrible job and they don’t want anyone to know,” Fellmeth said. “It’s like every other government agency – if they can operate in secrecy, they certainly will.”

Often, Gottlieb said, it’s the parents whom confidentiality laws are supposed to protect who want to speak openly.

“It’s the powers-that-be that are trying to squelch openness,” she said.

One Big Island grandmother lost her fight to adopt her grandson largely because she had spoken out about the case and promised to do so in the future.

Civil Beat wrote about Deborah Goodwin’s case in June. After her daughter died in a car accident, Goodwin tried in vain to foster and then adopt her grandson. Family Court Judge Mahilani Hiatt, in her decision granting adoption to the grandson’s foster parents instead of Goodwin, cited her vocal advocacy for her cause – and her criticism of child welfare officials.

Goodwin had come to Civil Beat about her case years earlier, leading to a 2019 story. She told a court-appointed custody evaluator that she was thinking of writing a book about her case and that if she couldn’t adopt her grandson, planned to reveal what she saw as a corrupt system.

Goodwin also filed a lawsuit against DHS.

Judge Hiatt found that these and other actions “appear to confirm that she is prone to put her own needs in front of” her grandson’s.

Woolman said she is careful to advise clients that want to speak publicly about their cases that it could lead to severe consequences.

“This kind of thing happens all the time,” she said. “It’s just punitive. It’s a total political and punitive view of the world.”

Talking publicly about a case or filing a lawsuit against the state has no bearing on one’s capacity to parent, she said, calling the idea “crazy.”

Wong, the retired judge, while not commenting directly on Goodwin’s case, said that in general judges should not retaliate against critics and are generally open to criticism and advice from outsides, such as researchers.

“Family court is not in the business of protecting ourselves,” she said. “If we were, we wouldn’t let in observers, we wouldn’t let them have data. We’re not defensive about it, it’s stuff we have to know … If we don’t do a good job, and a better job, we’re failing the kids and the families.”

Child welfare reformers argue that family court proceedings would be improved by opening them to the public, as has been done in more than a dozen states, including some of the largest.

NCCPR, in its report, said that even some of the critics who warned against opening up the family courts came to see it as a positive change. Only one state – Connecticut – reversed course because it was a limited pilot program that ended.

There are benefits beyond transparency, Fellmeth said – it might even help chronically underfunded child welfare agencies get the support they need.

“It’s just smart,” he said. “If you want to be properly funded, the only way you can do that is let the legislature and the public know what’s going on so they can respond.”

DHS did not respond to a request for an interview for this story.

This project is supported by the Fund for Investigative Journalism.