Therolf v. Superior Court CA5

Filed 6/28/22 Therolf v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GARRETT THEROLF,
F082993
Petitioner,
(Super. Ct. Nos. MJP018547 &
v. MJP018664)

THE SUPERIOR COURT OF MADERA
COUNTY, OPINION
Respondent;

MADERA COUNTY DEPARTMENT OF
SOCIAL SERVICES/CHILD WELFARE
SERVICES,

Real Party in Interest.

ORIGINAL PROCEEDINGS; in mandate. Thomas L. Bender, Judge.
Munger, Tolles & Olson, Jordan D. Segall and Lloyd S. Marshall; University of
California at Irvine School of Law, Susan E. Seager and Jack Lerner for Petitioner.
No appearance for Respondent.
Regina A. Garza, County Counsel, and Christopher B. Dorian, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-

SEE CONCURRING OPINION
 Under Welfare and Institutions Code section 827, subdivision (a)(2)1 (hereafter
section 827(a)(2) or § 827(a)(2)), the juvenile court is required to release to the public the
“juvenile case files … that pertain to a deceased child who was within the jurisdiction of
the juvenile court pursuant to Section 300” unless the juvenile court finds by a
preponderance of the evidence that release of the files would be detrimental to “another
child who is directly or indirectly connected to the juvenile case that is the subject of the
petition.” (§ 827(a)(2)(A).) To obtain a deceased child’s juvenile case files, a petition
must be filed and interested parties afforded an opportunity to file objections. (Ibid.) If
objections are filed, the juvenile court “shall set the matter for hearing” and thereafter
“render its decision.” (§ 827(a)(2)(F).)
Petitioner Garrett Therolf, a journalist, petitioned to obtain records of two
deceased children, siblings T.S. and D.S. (collectively the children), whose parents have
been charged with T.S.’s murder. Although the Madera County Department of Social
Services/Child Welfare Services (department) filed objections to the disclosure of the
children’s juvenile case files, the juvenile court denied Therolf’s petitions without a
hearing.
Therolf contends the juvenile court committed several errors in ruling on his
petitions when it: (1) failed to hold a hearing; (2) considered impermissible factors when
deciding whether to release the children’s records; (3) found D.S. had no juvenile case
file because a dependency petition had not been filed on her behalf; and (4) failed to
make factual findings to support its denial of his requests. Therolf seeks a writ of
mandate or prohibition, or other appropriate relief, to compel the juvenile court to vacate
its orders denying the petitions and to either enter an order granting the petitions, or
remand for a hearing under the proper standards.

1 Undesignated statutory references are to the Welfare and Institutions Code.

2.
 We agree the juvenile court erred when it failed to hold a hearing on Therolf’s
petitions and considered impermissible factors in denying them. We reject the
department’s contention that the children were not within the juvenile court’s jurisdiction
when they died and affirm the decision in In re Elijah S. (2005) 125 Cal.App.4th 1532,
1538–1539, 1556 (Elijah S.), which held the juvenile court has exclusive authority to
order release of a deceased child’s juvenile records regardless of whether a dependency
petition has been filed and a prior jurisdictional finding has been made. The juvenile
court prejudicially erred when it failed to require the department to produce the full scope
of documents as set forth in Elijah S. We also reject Therolf’s contention that, contrary
to our decision in Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th
821, 831–834 (Pack), the juvenile court was required to make specific factual findings
when making a detriment finding. But we find the juvenile court’s failure to comply with
the other procedures set forth in Pack concerning in camera review of the records and
preserving those records for appellate review, also was prejudicial. We conclude the
failure to hold a hearing was prejudicial, especially in light of the juvenile court’s failure
to comply with Elijah S. and the Pack procedures, as we were deprived of an adequate
record to review the juvenile court’s orders.
Accordingly, we grant the petition for writ of mandate and direct the juvenile court
to vacate its orders, hold a hearing on Therolf’s petitions after ordering the department to
produce T.S.’s and D.S’s juvenile case files in accordance with Elijah S., review the
responsive documents in camera, and reconsider the petitions applying the appropriate
standards.
FACTUAL AND PROCEDURAL BACKGROUND
Four-month-old D.S. died on August 16, 2015, in Madera while in her parents’
custody, which led the department to file juvenile dependency petitions with respect to

3.
her siblings.2 Nearly five years later, on July 15, 2020, her two-year-old brother, T.S.
was reported missing; his burned corpse was found eight days later in a field outside
Madera. Thereafter, the department filed a mandatory report with the California Health
and Human Services Agency regarding T.S.’s death, which stated law enforcement and
the department investigated the death and the department determined the boy died of
abuse and neglect while in his parents’ care. T.S.’s surviving siblings later became
dependents of the juvenile court.3
On January 13, 2021, journalist Garrett Therolf filed two separate requests for
disclosure of each child’s juvenile case file using mandatory Judicial Council form
JV-570.4, 5 On the forms, Therolf checked the box that stated he believed each child
“died as a result of abuse or neglect.” Therolf stated the reason for the requests was
“[n]ews reporting,” and he needed the records “[t]o report on the child’s involvement
with child protective services.”
Therolf requested the complete juvenile case file of each child and referred to an
attachment to the petitions. In the attachment, Therolf, who was seeking the juvenile
case files pursuant to section 827(a)(2), asserted the case files included both juvenile

2 The department asserts in its return that D.S. died before any intervention by child
welfare services and no dependency proceedings were ever commenced as to her, although her
siblings were detained.
3 The department asserts in its return that while a dependency petition was filed naming
T.S., he was named as a precautionary measure pending confirmation of his death by the Madera
County Sheriff/Coroner and no jurisdictional finding was ever rendered in his case.
4 In his writ petition, Therolf states he is a journalist associated with the Investigative
Reporting Program at the University of California, Berkeley, where he reports on issues related
to California’s child welfare system, and over the past 15 years he has filed over 40 requests to
unseal the juvenile case files of deceased children pursuant to section 827(a)(2), all of which
were granted. Therolf asserts he filed the instant requests “as part of his ongoing effort to
promote public scrutiny and informed debate regarding the circumstances surrounding the deaths
of D.S. and T.S., and to promote reform to prevent future child deaths by abuse and neglect.”
5 Further reference to forms are to Judicial Council forms.

4.
court records and documents outside the court file, as well as “‘agency files where no
juvenile court proceedings ha[d] been instituted and the matter [was] handled
informally,’” citing Elijah S., supra, 125 Cal.App.4th at page 1552. Therolf requested
disclosure of 12 categories of documents, which he stated were the types of documents he
received as part of juvenile case files provided to him in response to several successful
JV-570 petitions he previously filed.6
The department filed objections to both requests on January 27, 2021. With
respect to D.S., the department asserted while dependency cases were commenced with
respect to her siblings after her death, she was never a dependent herself and no
dependency case existed for her. To the extent there were any juvenile court or
department records pertaining to D.S., they would have been “generated in relation to her
siblings.”
Both objections asserted release of the records could jeopardize the ongoing law
enforcement investigation into T.S.’s death and would violate section 10850.4,
subdivisions (c), (d) and (e)(1)(B), and any records on T.S. would include extensive
information on his surviving siblings who were under juvenile court jurisdiction. The

6 The requested documents are: (1) the California Law Enforcement Telecommunication
System (CLETS) history for the family; (2) the Child Abuse Central Index (CACI) history for
the family; (3) Madera County Social Services Agency records ref lecting public assistance for
the family, including cash assistance welfare benefits and food stamps; (4) the recordings or
transcripts of all child abuse hotline calls, including date and time; (5) the information and
narrative hotline workers wrote down memorializing hotline calls about any abuse of the
children; (6) the recommended response to the hotline call; (7) the response to the hotline call the
hotline supervisor approved; (8) any information forwarded to the emergency response child
maltreatment investigator following the hotline call; (9) recordings reflecting the agency’s
decisionmaking and interactions with the family following emergency response investigations,
including delivered service logs and emails; (10) recordings of calls to police tha t were
forwarded or summarized in reports to Children and Family Services; (11) all county email and
correspondence related to the handling of the children’s cases; and (12) all county
correspondence relating to former employee Sierra Lindman, to the exten t it concerned the
children’s cases or a group of cases including the children’s. Therolf asserts in his writ petition
that media reported Lindman was the subject of a Madera County District Attorney criminal
investigation for allegedly intentionally discarding hundreds of child abuse reports.

5.
department asserted Therolf’s stated purpose for obtaining the records—to report on the
children’s involvement with child protective services—served only Therolf’s self-interest
as he stood to gain financially from such reporting and did not serve a legitimate purpose
related to the well-being of the children or their surviving siblings. The department
further asserted release of the requested information could be detrimental to the safety,
protection, or emotional and physical well-being of the surviving siblings, and no purpose
had been articulated that outweighed their right to privacy and confidentiality. Finally,
the department asserted it was informed and believed Therolf had requested records
pertaining to child deaths/near deaths, which was denied except for disclosure of a
“SOC 826,” which was attached to both objections, and Therolf was seeking to
circumvent that denial with his requests.7
On February 26, 2021, the juvenile court filed an order on each petition using
mandatory form JV-573. On both orders, the court checked item 5, which states: “The
child is deceased and the court will conduct a review of the juvenile case file and any
filed objections.”
That same day, the juvenile court signed and filed an “Order After Judicial Review
on Petition for Access to Juvenile Case File” using mandatory form JV-574. On both
orders, the juvenile court checked the box next to item 2, which states: “After a review
of the juvenile case file and review of any filed objections … the court denies the
request.” As reasons for denying the request for D.S.’s juvenile case file, the court
checked the following boxes: (1) “Access is not in the child’s best interests”;
(2) “Petitioner has not shown by a preponderance of the evidence that the records

7 The “SOC 826 – CHILD FATALITY/NEAR FATALITY COUNTY STATEMENT OF
FINDINGS AND INFORMATION” form attached to both objections, which was completed on
July 30, 2020, states that a two-year-old male was living with his parents both at the time of the
abuse/neglect that led to the fatality and at the time of the fatality; an investigation was
conducted by law enforcement and “CWS/Probation”; and CWS/Probation determined the
fatality was due to abuse and neglect.

6.
requested are necessary and have substantial relevance to the legitimate need of the
petitioner”; (3) “There are no responsive records”; and (4) “Other.” Under “Other” was
handwritten: “no records exist.” As reasons for denying the request for T.S.’s juvenile
case file, the court checked the following boxes: (1) “Access is not in the child’s best
interests”; (2) “The need for access does not outweigh the privacy rights of the child and
the policy considerations favoring confidentiality of the juvenile case file”; and
(3) “Petitioner has not shown by a preponderance of the evidence that the records
requested are necessary and have substantial relevance to the legitimate need of the
petitioner.”
On both orders the juvenile court also checked the box next to item five, which
states: “The child is deceased and the request is denied. The court finds by a
preponderance of the evidence that access to the juvenile case file or of any portion of it
is detrimental to the safety, protection, or physical or emotional well-being of another
child who is directly or indirectly connected to the juvenile case that is the subject of the
request.”
Therolf filed notices of appeal from the orders denying his petitions on April 23,
2021.8 On June 29, 2021, Therolf also filed this petition for extraordinary writ of
mandate or prohibition (the writ petition), which is authorized by section 827(a)(2)(F). 9
DISCUSSION
I. Release of a Deceased Child’s Juvenile Records
“Section 827 governs the granting of access to confidential juvenile records by
individuals and the public.” (Elijah S., supra, 125 Cal.App.4th at p. 1541.) In 1999,

8 The appeal from the order concerning T.S. is pending in case No. F082698, while the
appeal from the order concerning D.S. is pending in case No. F082701. An order denying a
petition for review of juvenile case records is appealable as a final judgment in a spe cial
proceeding. (Pack, supra, 89 Cal.App.4th at p. 826, fn. 4 (Pack).)
9 Section 827(a)(2)(F) provides that “[a]n order of the court shall be immediately
reviewable by petition to the appellate court for the issuance of an extraordinary writ.”

7.
prompted by the deaths of several dependent children, the Legislature decided to create
an inroad into the barrier of confidentiality protecting juvenile court records and open a
deceased child’s records to public scrutiny to “promote free investigation, uncover any
government culpability, and prompt necessary changes in the system of placing and
monitoring dependents.” (Pack, supra, 89 Cal.App.4th at p. 828.) To that end, the
Legislature amended section 827(a)(2) to provide the juvenile case files of a deceased
child “who was within the jurisdiction of the juvenile court pursuant to Section 300, shall
be released to the public pursuant to an order by the juvenile court after a petition has
been filed and interested parties have been afforded an opportunity to file an objection.”
(§ 827, former subd. (a)(2), as amended by Stats. 1999, ch. 996, § 22.3.)10
While the juvenile records of living children are entitled to a “veritable
presumption in favor of confidentiality,” when the child is deceased, section 827(a)(2),
created “a veritable presumption in favor of release.” (Pack, supra, 89 Cal.App.4th at
p. 829.) “Thus, unlike records pertaining to a living dependent, which must be
maintained as confidential unless some sufficient reason for disclosure is shown to exist,
records pertaining to a deceased dependent must be disclosed unless the statutory reasons
for confidentiality are shown to exist.” (Ibid.)

10 Section 827, former subdivision (a)(2), as amended, provided in its entirety:
“Notwithstanding any other law and subject to subparagraph (A) of paragraph (3), juvenile case
files, except those relating to matters within the jurisdiction of the court pursuant to Section 601
or 602, which pertain to a deceased child who was within the jurisdiction of the juvenile court
pursuant to section 300, shall be released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been afforded an opportunity to file an
objection. Any information relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the juvenile case file prior to
release, unless a specific order is made by the juvenile court to the contrary. Except as provided
in this paragraph, the presiding judge of the juvenile court may issue an order issuing an order
prohibiting or limiting access to the juvenile case file, or any portion thereof, of a deceased child
only upon a showing that release of the juvenile case file or any portion thereof is detrimental to
the safety, protection, or physical or emotional well-being of another child who is directly or
indirectly connected to the juvenile case that is the subject of the petition.” (§ 827, former
subd. (a)(2), as amended by Stats. 1999, ch. 996, § 22.3.)

8.
 A. The Pack Decision
Two years later, in 2001, this court addressed the construction and application of
section 827 (a)(2) in Pack. (Pack, supra, 89 Cal.App.4th at p. 825.) There, two
newspapers brought petitions for access to the juvenile case files of a dependent child
whose foster mother was charged with his murder. (Id. at pp. 825–826.) After a hearing
and review of the records in camera, the juvenile court denied the petitions, finding
release of any information from the files “‘would be detrimental to the safety, protection,
physical, or emotional well-being of another child who is directly or indirectly connected
to the juvenile case.’” (Id. at p. 826.)
On appeal, we rejected the newspapers’ contention that redaction was the only tool
available to protect other children and concluded, based on the statute’s language, the
juvenile court’s power to restrict or deny access to a deceased child’s records was an
alternative to redaction. (Pack, supra, 89 Cal.App.4th at pp. 827, 830–831.) We
explained the statute allows the juvenile court to redact information concerning living
children to maintain the confidentiality that pertains to them, but where redaction is
insufficient to protect the living child, the juvenile court may limit or prohibit access to
all or part of the records when disclosure would be detrimental to the living child. (Id. at
pp. 829–830.) Inasmuch as the statute manifests a legislative intent that information
about the deceased child is not to be excised even if the information relates to or
identifies another child, once the juvenile court redacts information pertaining solely to
the living child, the court may limit or prohibit the dissemination of information about the
deceased child if it concludes that information would “somehow tend to harm the other
child.” (Pack, supra, 89 Cal.App.4th at pp. 830–831, fn. omitted.)
We also rejected the newspapers’ assertion the juvenile court was required to
provide specific factual findings when finding release of the records would be detrimental
to a living child. (Pack, supra, 89 Cal.App.4th at pp. 831–832.) We concluded it was
sufficient for the juvenile court to recite the statute’s language, as “the statutory language

9.
describes a circumstance that is as concrete as it rationally can be, given the confidential
nature of the information about the other children.” (Id. at p. 833.) Moreover, a finding
of a detriment to a living child “recites a legitimate reason for retention and provides the
appellate court with a point on which to focus its evaluation of the record,” and reflects
an “implicit determination” that redaction “would not guard the interests of that child
because of the nature of the information pertinent to [the deceased child].” (Id. at
pp. 833–834.)11
We determined substantial evidence is the appropriate standard of review of a
juvenile court’s order withholding a deceased child’s records based on prejudice to an
involved child. (Pack, supra, 89 Cal.App.4th at p. 838.) Applying this standard to the
records the parties submitted to the juvenile court to review, we concluded substantial
evidence supported the court’s refusal to release the deceased child’s records. (Id. at
p. 841.)12 We explained that after reviewing the records, we understood why the juvenile
court found it “difficult to expound on its conclusions” without compromising the living
child’s interests and agreed the records’ contents justified the conclusion that “release of
any part of them would be highly detrimental to the well-being of another child.” (Pack,
supra, at p. 841.) The records showed the children were intimately linked in the
dependency proceeding, as the initial dependency petition named another child, the
subsequent documents and reports involved the other child, and the child welfare agency

11 In so holding, we were concerned that “any more specific standard would risk, on the one
hand, the exclusion of a case where the maintenance of confidentiality is appropriate and, on the
other, the disclosure of confidential information in an effort to support a decision intended to
protect that information.” (Pack, supra, 89 Cal.App.4th at p. 834.)
12 The parties had agreed the juvenile court would review the records in camera, which we
noted was an appropriate procedure that involved the parties presenting a general outline of their
respective positions supported by nonconfidential or nonprivileged evidence and identifying the
specific confidential or privileged evidence for in camera review, with the juvenile court
preserving the in camera records for later appellate review. (Pack, supra, 89 Cal.App.4th at
pp. 826, 837 & fn. 14.)

10.
closely supervised both children, which made it impossible to disclose information
relating to the deceased child without disclosing the identity of, or information prejudicial
to the interests of, the living child. We further found redaction was not a reasonable
remedy as little in the files related only to the living child and if only that child’s name
were excised, what remained would serve to identify that child and open to view
information that was relevant and prejudicial to that child. (Id. at pp. 841–842.)13
B. The Elijah S. Decision
Four years later, the First District Court of Appeal was presented with the issue of
“whether section 827 permits the disclosure of juvenile records in cases involving
deceased children where no formal jurisdictional petition had been filed in juvenile
court.” (Elijah S., supra, 125 Cal.App.4th at p. 1538.) There, two newspapers
conducting a journalistic investigation filed petitions for disclosure of child welfare
agency and juvenile court records pertaining to two deceased children who they alleged
were juvenile court dependents at the time of their deaths. (Id. at p. 1539.) At the
hearing on the petitions, a child welfare services supervisor testified the agency had not
filed a dependency petition with respect to either child, and there were no court records in
either case, although she acknowledged the agency generated records regarding any child
until the child reached 21 years old, which were maintained indefinitely, and did not
testify there were no agency records regarding the children. (Id. at p. 1540.) The
juvenile court granted the petitions for disclosure of the agency’s records, finding that
under section 827 and the case law interpreting it, it had authority to determine whether
to release juvenile records regardless of whether formal jurisdictional proceedings had
been initiated. (Elijah S., supra, at p. 1540.)

13 Although not required, we also independently reviewed the deceased child’s records and
concluded their release would be “‘detrimental to the safety, protection, or physical, or emotional
well-being of another child’” directly connected to the deceased child’s case and redaction from
the case file of all information “pertaining solely to the other child is not a viable, less restrictive
alternative.” (Pack, supra, 89 Cal.App.4th at p. 842.)

11.
 The appellate court agreed, holding that in light of the statute and applicable case
law, “the juvenile court has exclusive authority to order release of juvenile records of
deceased minors who come within its jurisdiction pursuant to section 300,” regardless of
whether a juvenile dependency petition had been filed prior to or concurrently with the
filing of a petition for disclosure under section 827. (Elijah S., supra, 125 Cal.App.4th at
pp. 1538–1539; accord, id. at p. 1556.)
To reach this holding, the appellate court began with the only jurisdictional
requirement set out in section 827(a)(2) for the mandatory release of juvenile case files,
namely, that the files “‘pertain to a deceased child who was within the jurisdiction of the
juvenile court pursuant to Section 300.’” (Elijah S., supra, 125 Cal.App.4th at p. 1543.)
The appellate court noted under section 300, a child who has suffered or will likely suffer
specified physical or emotional neglect or abuse is within the juvenile court’s
jurisdiction, which may adjudge the child to be a dependent of the court, and section 300
does not require the filing of a dependency petition as a prerequisite to the exercise of
juvenile court jurisdiction. (Elijah S., supra, at pp. 1543–1544.) The appellate court
reasoned that since section 300 implies that a child may come within the juvenile court’s
jurisdiction before the juvenile court adjudges the child to be a dependent, “[b]y
extension, ‘a deceased child who was within the jurisdiction of the juvenile court
pursuant to Section 300’ for purposes of section 827, subdivision (a)(2) need not have
been the subject of any section 332 dependency petition for the juvenile court to have
jurisdiction to release his or her records.” (Elijah S., supra, at p. 1544.)
The appellate court concluded the petitioning party must make the threshold
jurisdictional showing the “deceased minor ‘was within the jurisdiction of the juvenile
court’ under section 300 by virtue of the fact said minor ‘comes within any of the …
descriptions’ set out in that statute.” (Elijah S., supra, 125 Cal.App.4th at p. 1544.)
Noting the juvenile court did not expressly find the deceased children came within its
jurisdiction pursuant to section 300, the appellate court pointed out the agency failed to

12.
contest the newspapers’ allegation the children came within dependency jurisdiction,
thereby effectively waiving any opposition to that allegation. (Elijah S., supra, at
p. 1545.) The appellate court concluded that in ordering disclosure of the records, the
juvenile court “made an implied determination that the deceased minors came within the
definitional descriptions enumerated in section 300, and were therefore within its
jurisdiction, and that there was sufficient evidence to support this determination.” (Id. at
pp. 1545–1546.)
The appellate court rejected the agency’s argument the juvenile court must have
entered a jurisdictional finding pursuant to a previously filed dependency petition as a
prerequisite to any juvenile court order permitting disclosure of juvenile case records.
(Elijah S., supra, 125 Cal.App.4th at pp. 1546, 1551.) The appellate court found the facts
that section 827(a)(2) did not refer to dependency petitions and section 827 did not
contain any language requiring the filing of a dependency petition before the juvenile
court may release juvenile records strongly supports the interpretation the filing of a
dependency petition is not a prerequisite for disclosure. (Elijah S., supra, at pp. 1546–
1547.) The appellate court determined this construction found support in “numerous
provisions of the Welfare and Institutions Code that assume a child may be ‘within the
jurisdiction of the juvenile court’ pursuant to section 300 in the absence of, or prior to,
the filing of a section 332 petition,” including sections 301, 302, subdivision (a), 305,
306, 307, 307.5, 329 and 331. (Elijah S., supra, at pp. 1547–1548.)
The appellate court further noted the juvenile court “bears ultimate supervisory
responsibility with respect to agency contacts with and actions taken regarding children
described by section 300 as ‘within the jurisdiction of the juvenile court,’” pursuant to
which the records of agency contacts with such children are necessarily under the
juvenile court’s authority and jurisdiction regardless of whether a dependency petition
has been filed. (Elijah S., supra, 125 Cal.App.4th at pp. 1548–1549.) While there were
no cases directly on point, the appellate court found decisional authority in several

13.
analogous cases supported the juvenile court’s jurisdictional authority to release records
relating to a deceased child under section 827(a)(2) despite the absence of a dependency
petition.14 The appellate court concluded that because nothing in the statute suggests the
juvenile court lacks authority or jurisdiction to release a deceased child’s juvenile case
files unless a dependency petition had been filed, the juvenile court has that authority and
jurisdiction, therefore “the juvenile court did not err in doing so in this case, pursuant to
its implied jurisdictional determination under section 300.” (Elijah S., supra, at p. 1551.)
The appellate court rejected the agency’s argument the statutory definition of
“‘juvenile case file’” found in section 827, subdivision (e)15 and the California Rules of
Court 16 shows the juvenile court is without jurisdiction to order disclosure of juvenile
records of deceased children in the absence of a dependency petition. (Elijah S., supra,
125 Cal.App.4th at p. 1551.) The appellate court noted: (1) the statutory definition
includes “written reports and documentation [that] are not always required to be filed

14 The appellate court cited to T.N.G. v. Superior Court (1971) 4 Cal.3d 767, Wescott v.
County of Yuba (1980) 104 Cal.App.3d 103, and Lorenza P. v. Superior Court (1988) 197
Cal.App.3d 607. As the court explained in Elijah S., in T.N.G. v. Superior Court, our Supreme
Court upheld the juvenile court’s authority and jurisdiction “to control the juvenile records of
minors who had been temporarily detained by juvenile court authorities and then released
without any further proceedings such as the filing of petitions for dependency or wardship.”
(Elijah S., supra, 125 Cal.App.4th at p. 1549.) Similarly, the appellate court in Wescott v.
County of Yuba “upheld the juvenile court’s authority and jurisdiction under section 827 to
control the release or disclosure of all records of juvenile arrests or detentions, even where no
juvenile petition had ever been filed and no juvenile court proceedings were pending.”
(Elijah S., supra, at pp. 1549–1550.) Finally, the Elijah S. court noted the appellate court in
Lorenza P. v. Superior Court reiterated that the juvenile court has exclusive jurisdiction to
determine the extent to which agency files may be released, even if juvenile court proceedings
are not instituted and the matter is handled informally. (Elijah S., supra, at p. 1550.)
15 Section 827, subdivision (e) provides: “For purposes of this section, a ‘juvenile case file’
means a petition filed in a juvenile court proceeding, reports of the probation officer, and all
other documents filed in that case or made available to the probation officer in making the
probation officer’s report, or to the judge, referee, or other hearing officer, and thereafter retained
by the probation officer, judge, referee, or other hearing officer.”
16 Further references to rules are to the California Rules of Court unless otherwise indicated.

14.
directly with the juvenile court, and are frequently under the control of the applicable
county agencies rather than in the possession of the juvenile court”; (2) section 827,
subdivision (e) does not specifically require the filing of a dependency petition as a
“precondition to a juvenile court’s having jurisdiction over these ‘juvenile case files’”;
and (3) there was no “indication that documents generated or maintained by social
workers, probation officers and public agency personnel with respect to suspected cases
of child neglect or abuse must be filed with the juvenile court before they may be
included in the definition of ‘juvenile case files’ subject to release under section 827,
subdivision (a)(2).” (Elijah S., supra, at p. 1552.) Accordingly, the appellate court
concluded “the term ‘juvenile case file,’ as defined and used in section 827, ‘covers a
wide range of records, including agency files where no juvenile court proceedings have
been instituted and the matter is handled informally. [Citations.]’” (Id. at p 1552,
quoting 87 Ops.Cal.Atty.Gen. 72, 75–76 (2004).)17
Finally, the appellate court determined the legislative history supported “the
conclusion that in enacting section 827, subdivision (a)(2), the Legislature intended to
significantly increase the public’s right of access to otherwise confidential juvenile
records concerning deceased children, by creating a presumption in favor of the release of
such records based on the premise that the child’s death had eliminated his or her legal
interest in the confidentiality of such records.” (Elijah S., supra, 125 Cal.App.4th at
p. 1555.) Thus, the Legislature’s intent was not to further limit the juvenile court’s
authority to order disclosure of this information, but rather to “require the juvenile court
to release the records unless the privacy rights of third parties were involved,” and the

17 Similarly, the appellate court found former rule 1423 (now rule 5.552(a)), which listed
documents included in the term “juvenile case file,” did not mention a requirement that a
dependency petition be filed before a juvenile court may order the release of juvenile case files
and included documents that may have been generated by investigations preceding the filing of
any dependency petition, none of which are contingent on a petition ever having been filed.
(Elijah S., supra, 125 Cal.App.4th at pp. 1552–1553.)

15.
Legislature wanted to open “the workings of the entire juvenile court and child protective
system” to public view “for the purpose of exposing deficiencies therein, and thereby
enabling their correction.” (Ibid.) The appellate court concluded this purpose “would not
be advanced by limiting disclosure of juvenile records to only those generated and
maintained by the juvenile court after a minor had already been declared a dependent,”
and restricting the juvenile court’s power “would effectively make it impossible to
investigate the kinds of errors or negligence that might lead to the death of a minor before
the responsible agency had filed a dependency petition with the juvenile court.” (Id. at
p. 1556.) Instead, these deficiencies could be exposed only “if the juvenile court
maintains authority to order the release of such documentation regardless of whether or
not a juvenile dependency petition had previously been filed.” (Ibid.)
C. The 2007 Statutory Amendments
Thereafter, concerns were raised that the procedure established in section 827,
former subdivision (a)(2) for “accessing files of children who died as a result of abuse or
neglect has proven to be difficult and too costly to use because the courts lack clear
guidance, resulting in delays as well as inconsistencies between counties on what
information is required to be disclosed,” thereby frustrating “the ability to review these
cases of child death promptly and to advocate for changes to prevent any other child from
suffering the same fate.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 39 (2007–
2008 Reg. Sess.) as amended Apr. 19, 2007, pp. 2–3; see Stats. 2007 (2007–2008 Reg.
Sess.) ch. 468, § 1(d) (Senate Bill 39 or Sen. Bill 39).)18 The Legislature became

18 We previously informed the parties we may take judicial notice, on our own motion, of
certain legislative history materials related to the 2007 amendments to section 827, and now
conclude judicial notice is proper. (See Evid. Code, §§ 452, 455, subd (a), 459 subd. (c); Doe v.
City of Los Angeles (2007) 42 Cal.4th 534, 544, fn. 4; Hensel Phelps Construction Co. v.
Superior Court (2020) 44 Cal.App.5th 595, 611, fn. 4.) Therefore, we will take judicial notice of
the material identified in the text above, as well as the following: (1) Assembly Committee on
the Judiciary, Analysis of Senate Bill 39 (2007–2008 Reg. Sess.) as amended June 12, 2007; and

16.
concerned the standards for disclosure were vague and provided the juvenile court judge
so much discretion that counties that wanted “to avoid public scrutiny of their operations
when children die on their watch” could find “an abundance of grounds for generating
litigation,” which “thwart[s] one of the aims of public disclosure,” namely, to prevent
future deaths, and creates litigation costs that effectively block nonprofits from seeking
documents. (Sen. Com. on Judiciary, Analysis of Sen. Bill 39, supra, as amended
Apr. 19, 2007, pp. 5–6.)
To address these concerns, in 2007 the Legislature established an expedited
process for the release of specific information in county welfare agency records that
relate to the death of a child and to clarify the presumption of disclosure in existing law,
subject to the statutory grounds limiting or prohibiting disclosure. (Sen. Com. on
Judiciary, Analysis of Sen. Bill 39, supra, as amended Apr. 19, 2007, p. 3.) The process
consists of a “three-part approach to increasing public access to information surrounding
the death of a child from abuse or neglect”: (1) an informational announcement is made
about the death, which provides limited information regarding the deceased child where
there is a reasonable suspicion the death is the result of abuse or neglect; (2) specified
documents in a county welfare agency’s juvenile case file related to the child’s death may
be provided without court review when the child’s death is substantiated to be from abuse
or neglect; and (3) the court procedure for access to other documents not provided under
the first two categories is expedited, with additional legislative guidance given to courts
in reviewing section 827(a)(2) petitions for disclosure of a deceased child’s records.
(Sen. Com. on Judiciary, Analysis of Sen. Bill 39, as amended Apr. 19, 2007, pp. 1, 5;
Assem. Com. on Judiciary, Analysis of Sen. Bill 39 (2007–2008 Reg.. Sess.) as amended
June 12, 2007, p. 4.)

(2) Senate Rules Committee, Office of Senate Floor Analyses, Unfinished Business, Analysis of
Senate Bill 39 (2007–2008 Reg. Sess.) as amended June 28, 2007.

17.
 In establishing this process, the Legislature expressly declared its intent to
“maximize public access to juvenile case files in cases where a child fatality occurs as a
result of child abuse or neglect by both providing for an administrative release of certain
documents without the filing of a legal petition pursuant to” section 827(a)(2), and “by
enacting reforms to the current process of filing a petition pursuant to” section 827(a)(2)
“that will offer clarifying guidance to juvenile courts of the legal standards that apply to
those petitions and an expedited process for their disposition.” (Sen. Bill 39, § 1(e).) The
Legislature further declared that “[i]n petitions governed by” section 827(a)(2), “the
Legislature has concluded that when a dependent child dies within the jurisdiction of the
juvenile court, the presumption of confidentiality for juvenile case files evaporates and
the requirement of an expedited decision becomes manifest, because community reaction
to the child’s death may abate with the passage of time and, without a prompt
investigation and assessment, the opportunity to effect positive change may be lost.”
(Sen. Bill 39, § 1(f).)
To enact these changes, the Legislature added sections 826.7 and 10850.4 to the
Welfare and Institutions Code and amended section 827(a)(2). (Sen. Bill 39, §§ 2–4.)
Section 826.7 provides: “Juvenile case files that pertain to a child who died as the result
of abuse or neglect shall be released by the custodian of records of the county welfare
department or agency to the public pursuant to Section 10850.4 or an order issued
pursuant to paragraph (2) of subdivision (a) of Section 827.” (Sen. Bill 39, § 2.)
Section 10850.4 contains the first two parts of the disclosure requirements. First,
section 10850.4, subdivision (a), requires the county welfare agency’s custodian of
records to release certain information upon request within five business days of learning a
child fatality has occurred in the county and “there is a reasonable suspicion that the
fatality was caused by abuse or neglect.” The following information is required to be
released: (1) the child’s age and gender; (2) the date of death; (3) whether the child was
in foster care or the home of his or her parent or guardian at the time of death; and

18.
(4) whether a law enforcement agency or county child welfare agency is conducting an
investigation. (Id., subd. (a)(1)–(4).)
When the child abuse or neglect investigation into the child’s death is completed
and abuse or neglect is determined to have led to the child’s death, as shown by either a
county child protective services agency substantiating the abuse or neglect, a law
enforcement investigation concluding abuse or neglect occurred, or a coroner or medical
examiner concluding the child suffered abuse or neglect, the custodian of records must
release certain “documents from the juvenile case file” upon request, subject to
redactions set forth in section 10850.4, subdivision (e). (Id., subds. (b) & (c).)19 Prior to
releasing the documents, the custodian of records is required to redact: (1) identifying
information of any person or institution mentioned in the documents, other than the
county or the State Department of Social Services; (2) “[a]ny information that would,

19 The “documents from the juvenile case file” that must be released differ depending on
whether the child was living with a parent or guardian or was in foster care when the child’s
death occurred. (§ 10850.4, subd. (c)(2) & (c)(3).) As pertinent here, the documents required to
be released when the child was living with a parent or guardian, as amended by the Legislature in
2016, are “all previous referrals of abuse or neglect of the deceased child while living with that
parent or guardian” (id., subd. (c)(2)) and the following documents: “(A) The emergency
response referral information form and the emergency response notice of referral disposition
form completed by the county child welfare agency relating to the abuse or neglect that caused
the death of the child. [¶] (B) Any cross reports completed by the county child welfare services
agency to law enforcement relating to the deceased child. [¶] (C) All risk and safety assessments
by the county child welfare services agency to law enforcement relating to the deceased child . [¶]
(D) All health care records of the deceased child, excluding mental health records, related to the
child’s death and previous injuries reflective of a pattern of abuse or neglect. [¶] (E) Copies of
police reports about the person whom the child abuse or neglect was substantiated. [¶] (F) A
description of child protective or other services provided and actions taken by the child welfare
agency, and juvenile court if applicable, relating to the deceased child, addressing any services
and actions that are not otherwise disclosed within other documents required for release pursuant
to this section, including the date and a written description of any such service or action taken.”
(Id., subd. (c)(2)(A)–(F); accord, Legis. Counsel’s Dig., Assem. Bill No. 1625 (2015–2016 Reg.
Sess.) Stats. 2016, ch. 320, § 3, pp. 4–5.) The statute defines the terms “juvenile case files” or
“case files” to “include[] any juvenile court files, as defined in Rule 5.552 …, and any county
child welfare department or agency or State Department of Social Services records regardless of
whether they are maintained electronically or in paper form.” (§ 10850.4, subd. (k)(3).)

19.
after consultation with the district attorney, jeopardize a criminal investigation or
proceeding”; and (3) “[a]ny information that is privileged, confidential, or not subject to
disclosure pursuant to any other state or federal law.” (§ 10850.4, subd. (e)(1).)
When the custodian of records receives a request for documents, the custodian is
required to “notify and provide a copy of the request upon counsel for any child who is
directly or indirectly connected to the juvenile case file.” (§ 10850.4, subd. (f).) If
counsel for a child, including the deceased child or any sibling of the deceased child,
objects to the documents’ release, “they may petition the juvenile court for relief to
prevent the release of any document or part of a document requested pursuant to”
section 827(a)(2). (§ 10850.4, subd. (f).) “Juvenile case records that are not subject to
disclosure pursuant to this section shall only be disclosed upon an order by the juvenile
court pursuant to Section 827.” (Id., subd. (g).)
The Legislature amended section 827, former subdivision (a)(2) to clarify the
judicial procedure for release of the juvenile case files of a deceased child. That
subdivision was renumbered subdivision (a)(2)(A) and amended to clarify that where a
presiding judge is considering limiting or prohibiting access to a juvenile case file, a
showing that release of the information is detrimental to the well-being of another child
must be made by a preponderance of the evidence. 20 (Sen. Com. on Judiciary, Analysis

20 Section 827(a)(2)(A) now provides: “Notwithstanding any other law and subject to
subparagraph (A) of paragraph (3), juvenile case files, except those relating to matters within the
jurisdiction of the court pursuant to Section 601 or 602, that pertain to a deceased child who was
within the jurisdiction of the juvenile court pursuant to Section 300, shall be released to the
public pursuant to an order by the juvenile court after a petition has been filed and interested
parties have been afforded an opportunity to file an objection. Any information relating to
another child or that could identify another child, except for information about the deceased,
shall be redacted from the juvenile case file prior to release, unless a specific order is made by
the juvenile court to the contrary. Except as provided in this paragraph, the presiding judge of
the juvenile court may issue an order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing by a preponderance of evidence
that release of the juvenile case file or any portion thereof is detrimental to the safety, protection,

20.
of Sen. Bill 39, supra, as amended Apr. 19, 2007, p. 10.) Subdivision (a)(2)(B) and
(a)(2)(C) were added to section 827 to affirm, respectively, there is “a presumption in
favor of the release of documents when a child is deceased unless the statutory reasons
for confidentiality are shown to exist,”21 and “[i]f a child whose records are sought has
died, and documents are sought pursuant to this paragraph, no weighing or balancing of
the interests of those other than a child is permitted.” (§ 827, subd. (a)(2)(B) &
(a)(2)(C).)22
Finally, subdivisions (a)(2)(D) through (F) were added to section 827 to establish
the procedure for a court petition to obtain other records not available through
administrative release. (Sen. Com. on Judiciary, Analysis of Sen. Bill 39, supra, as
amended Apr. 19, 2007, p. 10.) The petitioner serves the petition on interested parties
whose identities and addresses are known to the petitioner and on the custodian of
records, who in turn must serve a copy of the petition on all interested parties the
petitioner did not serve. (§ 827(a)(2)(D).) An interested party, including the custodian of
records, may object to the petition and “shall file and serve the objection on the

or physical or emotional well-being of another child who is directly or indirectly connected to
the juvenile case that is the subject of the petition.”
21 In adding subdivision (a)(2)(B) to section 827, the Legislature stated it was affirming the
presumption “in favor of the release of information when a child is deceased unless statutory
grounds for non- or partial disclosure or redaction of information exist.” (Sen. Com. on
Judiciary, Analysis of Sen. Bill 39, supra, as amended Apr. 19, 2007, p. 3; Sen. Rules Com., 3d
reading of Sen. Bill 39 (2007–2008 Reg. Sess.) as amended May 1, 2007, p. 2.) The Legislature
noted that “[e]xisting case law provides that a deceased child is ‘within the jurisdiction of the
juvenile court’ if the court may adjudge that child to be a dependent of the court under § 300,
even where no juvenile petition has been filed,” citing Elijah S., supra, 125 Cal.App.4th 1532.
(Sen. Rules Com. on Judiciary, Analysis of Sen. Bill 39, supra, as amended May 1, 2007, p. 2;
Sen. Com. on Judiciary, Analysis of Sen. Bill 39, supra, as amended Apr. 19, 2007, p. 3.)
22 In adding subdivision (a)(2)(C) to section 827, the Legislature stated it was affirming the
holding in Pack, supra, 89 Cal.App.4th 821, “that where the child whose records are sought has
died, no balancing or weighing of interests is required except where the interests of another child
are involved.” (Sen. Com. on Judiciary, Analysis of Sen. Bill 39, supra, as amended Apr. 19,
2007, p. 3; Sen. Rules Com., 3d reading of Sen. Bill 39, supra, as amended May 1, 2007, p. 2.)

21.
petitioning party no later than 15 calendar days after service of the petition.” (Id.,
subd. (a)(2)(E).) The petitioning party “shall have 10 calendar days to file a reply.” (Id.,
subd. (a)(2)(F).) “The juvenile court shall set the matter for hearing no more than
60 calendar days from the date the petition is served on the custodian of records,” and
“render its decision within 30 days of the hearing.” (Ibid.) The juvenile court is required
to decide the matter solely upon the basis of the petition, objection, reply, and argument
at the hearing, and the court may order the appearance of witnesses on its own motion.
(Ibid.) If an objection is not filed, the juvenile court “shall review the petition and issue
its decision within 10 calendar days of the final day for filing the objection.” (Ibid.)23
II. The Juvenile Court Committed Prejudicial Error
Against this backdrop, Therolf sought to obtain the children’s juvenile case files
by filing petitions pursuant to section 827(a)(2). Therolf contends the juvenile court
prejudicially erred when it denied his petitions without holding a hearing and consid ered
impermissible factors when deciding whether to release the children’s records. We agree.
A. The Hearing Requirement
Under section 827(a)(2)(F) the juvenile court is required to hold a hearing if an
interested party opposes a request for the release of a deceased child’s case file.24 This is

23 Section 827(a)(2)(F) provides: “The petitioning party shall have 10 calendar days to file
a reply. The juvenile court shall set the matter for hearing no more than 60 calendar days from
the date the petition is served on the custodian of records. The court shall render its decision
within 30 days of the hearing. The matter shall be decided solely upon the basis of the petition
and supporting exhibits and declarations, if any, the objection and any supporting exhibits or
declarations, if any, and the reply and any supporting declarations or exhibits thereto, and
argument at hearing. The court may, solely upon its own motion, order the appearance of
witnesses. If an objection is not filed to the petition, the court shall review the petition and issue
its decision within 10 calendar days of the final day for filing the objection. An order of the
court shall be immediately reviewable by petition to the appellate court for the issuance of an
extraordinary writ.”
24 We note when interpreting section 827(a)(2), we apply the de novo standard of review.
(Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986–987; see County of
Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1314 [trial court does not have discretion to ignore
a statute’s clear language]; Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255 [when the trial

22.
clear from the statute, which states “[t]he juvenile court shall set the matter for hearing”
within 60 days from the date the petition is served on the custodian of records and “shall
render its decision within 30 days of the hearing.” (§ 827(a)(2)(F), italics added.)
Moreover, the matter is to be decided solely on the petition, objection, reply, “and
argument at hearing.” (Ibid., italics added.) The only exception to the hearing
requirement is when an objection is not filed: “If an objection is not filed to the petition,
the court shall review the petition and issue its decision within 10 calendar days of the
final day for filing the objection.” (Ibid.)25
The department does not dispute the juvenile court was required to hold a hearing.
We agree with Therolf that inasmuch as the department filed objections to Therolf’s
petitions, the juvenile court was required to hold a hearing and consider not only the
petition and objection, but also the arguments made at the hearing, before ruling on the
petitions. Accordingly, its failure to hold a hearing was error.

court’s decision is based solely on an interpretation of a statute, appellate court reviews the
matter as a question of law].)
25 Form JV-573 lists six findings and orders the juvenile court may make on a petition for
access to juvenile case files. Item 4 provides: “The child is deceased and the court sets a hearing
on the request,” while item 5, which the juvenile court selected here, provides: “The child is
deceased and the court will conduct a review of the juvenile case file and any filed objections.”
Item 5, however, conflicts with section 827(a)(2)(F), which requires a hearing when objections
are filed; in that situation, the juvenile court has no discretion to conduct an in camera review
without holding a hearing. We note rule 5.552(d), which sets out the procedure for obtaining the
juvenile case files of living children, grants the juvenile court discretion over whether to hold a
hearing, as it permits the juvenile court to summarily deny a petition that does not show good
cause and provides the juvenile court “may set a hearing” if good cause is shown. (Id., (d)(1) &
(d)(2), italics added.) Rule 5.553(1), however, provides: “When the juvenile case file of a
deceased child is sought, the court must proceed … [u]nder section 827(a)(2) if the request is
made by a member of the public .…” Since section 827(a)(2)(F) requires a hearing when an
objection is filed, the juvenile court does not have the discretion to conduct review of the
juvenile case file and any objections, as stated in item 5 on form JV-573, without first holding a
hearing.

23.
 B. The Juvenile Court Made Findings Based on Impermissible Factors
It is apparent from the juvenile court’s orders that it misapprehended the standards
it was to apply in determining whether to release the children’s juvenile case files. The
juvenile court was required to release the case files unless it found, by a preponderance of
the evidence, that releasing them would be detrimental to “the safety, protection, or
physical or emotional well-being of another child who is directly or indirectly connected
to the juvenile case that is the subject of the petition” considering only the interests of a
surviving child. (§ 827(a)(2)(A) & (a)(2)(C).) There is a presumption in favor of release
of a deceased child’s juvenile case file and the juvenile court “has no discretion and must
release all the records of the deceased child in the absence of proof (1) that there exists
‘another child who is directly or indirectly connected to the juvenile case,’ and (2) that
release of all or a portion of the deceased child’s records is ‘detrimental to the safety,
protection, or physical, or emotional well-being’ of the other child.” (Pack, supra, 89
Cal.App.4th at p. 838.)
The juvenile court denied access to the children’s juvenile case files based on
findings that pertain to a petition seeking disclosure of the juvenile case files of living
children that apply a presumption in favor of confidentiality. (Pack, supra, 89
Cal.App.4th at p. 829.) In deciding whether to authorize the inspection or release of the
juvenile case files of living children, “the court must balance the interests of the child and
other parties to the juvenile court proceedings, the interests of the petitioner, and the
interests of the public,” and if it grants the petition, it “must find that the need for
discovery outweighs the policy considerations favoring confidentiality of juvenile case
files.” (Rule 5.552(d)(4) & (d)(5).) Moreover, “[t]he court may permit disclosure of
juvenile case files only insofar as is necessary, and only if petitioner shows by a
preponderance of the evidence that the records requested are necessary and have
substantial relevance to the legitimate need of the petitioner.” (Id., (d)(6).)

24.
 The juvenile court denied access to the children’s juvenile case files based on a
finding in T.S.’s case that “[t]he need for access does not outweigh the privacy rights of
the child and the policy considerations favoring confidentiality of the juvenile case file,”
and findings in both cases that Therolf “has not shown by a preponderance of the
evidence that the records requested are necessary and have substantial relevance to the
legitimate need of the petitioner.” (See Rule 5.552(d)(4) & (d)(5).) But these findings
pertain only to the juvenile case files of living children. In making these findings, it did
not specify which child’s privacy rights it was considering and placed the burden on
Therolf to justify his need for the case files and to show that need outweighed the privacy
rights of “the child” and “policy considerations favoring confidentiality.” The orders also
do not state which child the juvenile court was considering when it also found “[a]ccess
is not in the child’s best interests.”
In addition, D.S.’s order is conflicting; while the order states both “[t]here are no
responsive records” and “no records exist,” it also denies access on the ground disclosure
would be detrimental to another child’s well-being, thereby implying that records do
indeed exist. Therolf asserts this shows the juvenile court endorsed the department’s
representation that no juvenile case files existed for D.S. because she was never a
dependent and concluded section 827 requires a dependency petition to establish the
existence of a juvenile case file, in contravention of the holding in Elijah S. that the filing
of a dependency petition is not required to establish a deceased child came within the
jurisdiction of the juvenile court under section 300, as set out in section 827(a)(2)(A).
(Elijah S., supra, 125 Cal.App.4th at p. 1556.) It is impossible to tell from the orders,
however, whether the juvenile court followed Elijah S. or departed from it.
The orders are hopelessly confusing and make it uncertain the juvenile court
understood the statute’s terms and the presumption in favor of release. (See Pack, supra,
89 Cal.App.4th at p. 841, fn. 15 [noting the record established “the juvenile court
understood the terms of the statute, including the presumption in favor of release”].) It

25.
appears the juvenile court failed to apply a presumption in favor of release, and instead
applied an impermissible presumption in favor of confidentiality. Moreover, since the
order does not specify which “child” is being referred to with respect to the various
findings, it is impossible to know whether the juvenile court impermissibly considered
the interests of the deceased child, which are irrelevant to determining whether the
release of the juvenile case file is detrimental to another child who is connected to the
juvenile case.
The juvenile court abused its discretion when it based its decision on
impermissible factors. (People v. Knoller (2007) 41 Cal.4th 139, 156 [an abuse of
discretion arises when a trial court bases “its decision on impermissible factors” or “an
incorrect legal standard”]; Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 862 [trial
court abuses its discretion when its action “‘transgresses the confines of the applicable
principles of law’”].)
C. Elijah S. Controls
We recognize, as the department points out, the juvenile court also denied
Therolf’s petitions on a permissible ground, namely it found by a preponderance of the
evidence that access to the children’s juvenile case files would be detrimental to another
child connected to their cases. To determine whether we could affirm the juvenile court’s
orders based on this finding, we ordered the juvenile court to provide us with the
documents it reviewed, under seal.
In D.S.’s case, we were not provided with any documents and were informed no
file was received at an in camera hearing held on February 26, 2021. Thus, it appears the
juvenile court did not review any documents, which supports its finding that no records
exist and suggests the juvenile court may have accepted the department’s argument that
no juvenile case files existed because D.S. was never a dependent. In T.S.’s case we
were provided with documents from a juvenile dependency case that was commenced
when he went missing, in which he and his siblings were alleged to come within the

26.
juvenile court’s jurisdiction under section 300. The documents show that after T.S.’s
body was discovered and identified, his dependency case was dismissed prior to any
jurisdictional finding made with respect to him.
It is undisputed that when D.S. died, there was no dependency petition pending in
the juvenile court concerning her and the juvenile court had not found she was “within
the jurisdiction of the juvenile court pursuant to Section 300” as required under
section 827(a)(2)(A), while in T.S.’s case, a juvenile dependency case was commenced
but it was dismissed before a jurisdictional finding was made with respect to him.
Under Elijah S., however, neither the filing of a dependency petition nor a prior
jurisdictional finding is required for section 827(a)(2) to apply. Rather, the juvenile court
has exclusive authority to order release of a deceased child’s juvenile records regardless
of whether a dependency petition has been filed and a prior jurisdictional finding has
been made. (Elijah S., supra, 125 Cal.App.4th at pp. 1538–1539, 1556.) Thus, a party
seeking the juvenile case file of a deceased child may obtain those records if that party
can show that child “‘was within the jurisdiction of the juvenile court’” under section 300
when the child died. (Elijah S., supra, at pp. 1544–1545.)
The department argues Elijah S. is wrongly decided and urges us not to follow it.
We rejected this argument, however, in the related case of Therolf v. Superior Court
(June 27, 2022, F083561) ___ Cal.App.5th ___ [2022 Cal.App. Lexis 556], in which
Therolf unsuccessfully sought to obtain the juvenile case files of a deceased child whose
adoptive mother was convicted of her murder. There, we declined the department’s
invitation to depart from Elijah S., in part because the Legislature was aware of the
holding in Elijah S., yet it did not disapprove of the case or amend the statute to require a
dependency petition or a prior jurisdictional finding. (Therolf v. Superior Court, supra,
at p. ___ [2022 Cal.App. Lexis 556, *31].)
Since neither the filing of a dependency petition nor a prior jurisdictional finding
is required for section 827(a)(2) to apply, Therolf may seek the juvenile case files

27.
concerning the children by petitions pursuant to that section if he can show the children
were within the jurisdiction of the juvenile court under section 300. The department
argues that because Therolf did not allege any facts to support a jurisdictional finding in
his petitions or refer to evidence he would have presented at a hearing on the petitions
that would be dispositive of the issue, the juvenile court correctly denied the petitions
because section 827(a)(2) does not apply.
Therolf responds the circumstances surrounding the children’s deaths
“incontrovertibly establish” they were at substantial risk of abuse or neglect by their
parents, as required for a jurisdictional finding under section 300. Therolf asserts D.S.
came within the juvenile court’s jurisdiction under section 300 because dependency
proceedings were instituted with respect to her surviving siblings following her death and
her mother has since been charged with causing her death. 26 Similarly, Therolf asserts
T.S. came within the juvenile court’s jurisdiction because he suffered fatal abuse at the
hands of his parents, who are charged with his murder.
It is not clear from the juvenile court’s orders whether it found the children came
within its jurisdiction under section 300 despite the absence of prior jurisdictional
findings. The evidence before the juvenile court, however, establishes the children were
within its jurisdiction at the time of their deaths. As Therolf points out, D.S. allegedly
was killed by her mother, while T.S. allegedly was killed by both parents. Moreover,
T.S.’s juvenile case file contains evidence concerning the treatment of D.S. and T.S. prior
to their deaths, which establishes they came within the provisions of section 300,
subdivision (b)(1), as they were at risk of physical harm or illness due to the willful or
negligent failure of their parents to adequately supervise or protect them. Because the

26 The department filed a request for judicial notice, asking us to take judicial notice of an
amended complaint filed in Madera Superior Court, which shows T.S.’s parents have been
charged with his murder and assault causing his death, and mother has been charged with D.S.’s
August 16, 2015, murder and assault causing her death. We deferred ruling on this request,
which we now grant.

28.
children were within the juvenile court’s jurisdiction under section 300 when they died,
the department must produce their juvenile case files within the meaning of
section 827(a)(2)(A) and Elijah S.27
D. Pack Controls
1. Factual Findings Are Not Required
Therolf contends that contrary to our opinion in Pack, the department was required
to present evidence of detriment and the juvenile court was required to make factual
findings to support its detriment finding. Therolf asks us to revisit the Pack decision, but
we decline to do so as we see no reason to deviate from it in this case.
As we explained in Therolf v. Superior Court, supra, ___ Cal.App.5th at page ___
[2022 Cal.App. Lexis 556, *37–40], in which we rejected this argument in a related case,
a juvenile court is not required to make specific factual findings when it denies access to
a deceased child’s juvenile case file based on a finding of detriment to a connected child
because requiring such findings could result in the disclosure of confidential information,
which is also a concern when a party objects to the release of a deceased child’s juvenile
case file on that basis. (Id. at p. ___ [2022 Cal.App. Lexis 556, *37].) Given the need to

27 We note many of the documents Therolf seeks are documents listed in section 10850.4,
subdivision (c)(1) and (c)(2), which he is entitled to obtain without a court order if abuse or
neglect led to the children’s deaths. (§ 10850.4, subds. (b) & (c).) While nothing prevents
Therolf from obtaining these documents through a petition under section 827(a)(2) (Therolf v.
Superior Court, supra, ___Cal.App.5th at p. ___ [2022 Cal.App. Lexis 556, *34], the department
asserted in its objections that it believed Therolf previously submitted a request for these
documents and was provided with only the “SOC 826” form concerning T.S.’s death,
presumably because the remaining documents were withheld on the ground they contained
“information that would, after consultation with the district attorney, jeopardize a crimina l
investigation or proceeding.” (§ 10850.4, subd. (e)(1)(B).) As we explained in Therolf v.
Superior Court, supra, at page ___ [2022 Cal.App. Lexis 556, *35–36], Therolf is entitled to
release of the documents in the categories listed under section 10850.4, subdivision (c)(1) and
(c)(2) subject to the redactions mandated by section 10850.4, subdivision (e)(1), which includes
that their release would jeopardize a criminal investigation or proceeding, and subject to the
juvenile court prohibiting or limiting access if release of the documents would be detrimental to
a connected child’s safety, protection, or physical or emotional well-being.

29.
maintain confidentiality of juvenile records, we see no reason to depart from Pack and
require factual findings.
2. The In Camera and Record Preservation Procedures
As we explained in Therolf v. Superior Court, “the appropriate procedure when
determining whether to release records pursuant to a petition under section 827(a)(2) is to
have ‘the parties present a general outline of their respective positions supported by
nonconfidential or nonprivileged evidence’ and ‘identify the specific confidential or
privileged evidence for in camera review.’” (Therolf v. Superior Court, supra, ___
Cal.App.5th at p. ___ [2022 Cal.App. Lexis 556, *40].) The department, as the custodian
of records, produces the responsive documents for the juvenile court to review and the
juvenile court, in conducting its in camera review of the documents, is required to
determine whether, after information that solely concerns a connected child is redacted,
release of the documents would be detrimental to the connected child, and preserve the in
camera record for appellate review. (Id at p. ___ [2022 Cal.App. Lexis 556, *40–41].)
While the juvenile court is not required to make specific factual findings if it
withholds documents based on a finding of detriment to a connected child, it should make
a record of its findings adequate for review of its ruling. (Therolf v. Superior Court,
supra, ___ Cal.App.5th at p. ___ [2022 Cal.App. Lexis 556, *41–42].) This includes
identifying the documents from the juvenile case file it reviewed in camera and, if it
withholds any documents based on a finding of detriment to a connected child,
identifying the withheld documents while maintaining confidentiality. (Id. at p. ___
[2022 Cal.App. Lexis 556, *42].)
None of that occurred here, except for the juvenile court’s review of T.S.’s
dependency case file. We reviewed T.S.’s dependency case file, and while it appears
information concerning T.S.’s siblings could be redacted on some documents without
impacting information concerning T.S., the file contains documents that are discoverable
under section 10850.4, subdivision (c)(2), but may qualify for redaction under

30.
section 10850.4, subdivision (e)(1)(B), as containing information that could jeopardize a
criminal investigation or proceeding. With respect to D.S., the juvenile court could not
have found release of the juvenile case file would be detrimental to a connected child
without reviewing documents that comprise the juvenile case file—it cannot make that
finding in the abstract. Accordingly, there is no evidence to support the juvenile court’s
denial of the petition on that ground.
In addition, it does not appear the juvenile court was provided with all responsive
documents. Under Elijah S., the term “‘juvenile case file’” as used in section 827
“‘covers a wide range of records, including agency files where no juvenile court
proceedings have been instituted and the matter is handled informally. [Citations.]’”
(Elijah S., supra, 125 Cal.App.4th at p. 1552, quoting 87 Ops.Cal.Atty.Gen., 75–76
(2004); see § 827, subd. (e) [“‘juvenile case file’” includes documents “made available to
the probation officer in making the probation officer’s report”]; § 10850.4, subd. (k)(3)
[for purposes of § 10850.4, “‘[j]uvenile case files’ or ‘case files’ includes any juvenile
court files, as defined in Rule 5.552 …, and any county child welfare department or
agency or State Department of Social Services records”].) It appears the juvenile court
reviewed only documents filed in T.S.’s juvenile dependency case, rather than documents
that were within the department’s possession. Moreover, to the extent it may have
reviewed such records, it did not preserve them for our review.
E. The Errors Were Prejudicial
As we have explained, the juvenile court committed several errors in denying the
petitions by: (1) failing to hold a hearing; (2) relying on impermissible factors;
(3) finding detriment without reviewing the documents that comprise the children’s
juvenile case files consistent with Elijah S.; and (4) failure to preserve a reviewable
record in accordance with Pack. Even where a juvenile court has erred, however, we will
reverse only if the error was prejudicial, i.e., “‘“‘it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the

31.
error.’”’” (In re Adam H. (2019) 43 Cal.App.5th 27, 32, quoting In re Abram L. (2013)
219 Cal.App.4th 452, 463.)
It was patently prejudicial not to follow Elijah S. and require the department to
provide the children’s juvenile case files consistent with that opinion, as these failures
may have deprived Therolf of documents to which he is entitled. The juvenile court’s
failure to preserve a record adequate for any meaningful review also was prejudicial.
Given these errors we cannot say the failure to hold a hearing, at which these matters
would have been fleshed out, was harmless. If a hearing had been held, we would have
the benefit of what the juvenile court considered and some understanding of its order and
reasoning. Instead, in D.S.’s case, we are left with the juvenile court’s decision to
withhold documents based on detriment to a connected child without any documents to
support that decision and its apparently conflicting finding that no records exist, but
without any assurance the juvenile court inquired whether the department possessed
documents pertaining to D.S. consistent with Elijah S. Similarly, with respect to T.S.,
while the juvenile court reviewed some responsive documents, there is nothing to suggest
the juvenile court asked the department whether it possessed other responsive documents.
Because we cannot affirm on any ground the juvenile court relied on to deny the
petitions, and we cannot determine whether the juvenile court was provided with all
responsive documents with respect to both children and whether T.S.’s dependency case
file contains documents that may be withheld under section 10850.4, subdivision (e), we
must vacate the juvenile court’s orders and remand for a hearing on the petitions. The
juvenile court must (1) order the department to produce the children’s juvenile case files
in accordance with Elijah S., (2) review the juvenile case files in camera to determine
whether, after information that is solely about any connected children is redacted, it can
find by a preponderance of the evidence, that release of the remaining information would
be detrimental to a connected child’s safety, protection, or physical or emotional well-
being, and (3) make a reviewable record by preserving the in camera record for appellate

32.
review.28 In conducting its review, the juvenile court must apply the appropriate
standards, namely, that there is a presumption in favor of release of a deceased child’s
juvenile case file unless the statutory reasons for confidentiality are shown to exist, and
the only interests that may be weighed or balanced are those of a child. (§ 827(a)(2)(B)
& (a)(2)(C).)
DISPOSITION
We grant Therolf’s petition. Let a peremptory writ of mandate issue directing the
juvenile court to vacate its February 26, 2021, orders issued on forms JV-573 and JV-574
and hold a hearing on Therolf’s requests for disclosure of the juvenile case files of T.S.
and D.S. consistent with this opinion. Therolf shall recover his costs incurred in this
proceeding.

MEEHAN, J.
I CONCUR:

LEVY, Acting P. J.

28 Therolf filed two requests for judicial notice, which we deferred ruling on, asking us to
take judicial notice of the following: (1) two Fresno Bee articles that disclose information
concerning the children, their parents, and their siblings, which Therolf asserts is relevant
because the articles demonstrate information about the family is in the public domain and
possibly known by the surviving siblings; and (2) Therolf’s request for disclosure of the juvenile
case file of another deceased child who is unrelated to this family, which he filed in Madera
Superior Court, along with the department’s objection and two juvenile court orders denying the
request, which he asserts are relevant because they show the juvenile court continues to violate
the mandates of section 827(a)(2). We deny both requests for judicial notice since the
documents are not relevant to our disposition of this matter.

33.
POOCHIGIAN, J., Concurring.
I concur with the majority’s holding that a writ should issue since the court erred
in failing to hold a hearing. (See Welf. & Inst., § 827, subd. (a)(2)(F).)1 However, I
write separately to express doubt regarding the interpretation of section 827,
subdivision (a)(2)(A) set forth in In re Elijah S. (2005) 125 Cal.App.4th 1532, 1543
(Elijah S.).
Statutory Interpretation
Elijah S. reads the phrase “within the jurisdiction of the juvenile court pursuant to
Section 300” (§ 827, subd. (a)(2)(A)) to include any child described by section 300,
regardless of whether a dependency court had “taken jurisdiction” over the child or not.
There are several problems with this reading.
The word “jurisdiction” in the dependency context is most often used in
connection with the well-known and integral part of the dependency process known as
“taking jurisdiction” over a child at the “jurisdictional hearing.” (See In re Austin P.
(2004) 118 Cal.App.4th 1124, 1129; see also § 355, subd. (a).) Specifically, the juvenile
court “takes jurisdiction over the child” by making a factual finding that the child is
described by section 300. (In re Austin P., supra, at p. 1129; see §§ 355, subd. (a); 356.)
Thus, under its most natural reading in the dependency context, subdivision (a)(2)(A)’s
phrase “child who was within the jurisdiction of the juvenile court pursuant to Section
300” (§ 827, subd. (a)(2)(A)) means a child over whom the juvenile court had taken
jurisdiction by finding them to be a person described by section 300. In other words, a
child as to whom jurisdictional findings (§ 356) had been affirmatively made.
Indeed, references to the “jurisdiction” of the juvenile court often mean the formal,
active jurisdiction of the juvenile court during a dependency case. (See §§ 366,

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
subd. (a)(1)(D) & (F)(i); 366.1, subds. (g)(1), (h); 391, subd. (b)(5)(B); see also § 391,
subd. (d)(2); but see, e.g., § 301, subd. (a).) If the Legislature had intended section 827,
subdivision (a)(2)(A) to have the meaning Elijah S. ascribes to it, the use of the phrase
“within the jurisdiction of the juvenile court” risks confusion in light of the way
“jurisdiction” is typically used in the dependency context.
Not only would this risk of confusion have been substantial, it would have been
unnecessary. If the Legislature had meant to refer to any child who happened to be
described by section 300, regardless of whether they had ever been under the active
jurisdiction of a juvenile court, it had a far better phrase to use: a “child described by
section 300.” Indeed, this and similar phrasing is found throughout the dependency
statutes. (See, e.g., §§ 305, subd. (a); 328; 340, subd. (b)(1).)
Additionally, section 827, subdivision (a)(2)(A) itself seems to presuppose that a
petition to release records will be tied to a specific juvenile case. The last sentence of the
provision reads: “Except as provided in this paragraph, the presiding judge of the
juvenile court may issue an order prohibiting or limiting access to the juvenile case file,
or any portion thereof, of a deceased child only upon a showing by a preponderance of
evidence that release of the juvenile case file or any portion thereof is detrimental to the
safety, protection, or physical or emotional well-being of another child who is directly or
indirectly connected to the juvenile case that is the subject of the petition.” (§ 827,
subd. (a)(2)(A), italics added.) If subdivision (a)(2)(A) encompasses records of deceased
children who were never the subject of a dependency case, it is unclear what the phrase
“the juvenile case that is the subject of the petition” refers to. Yet, if subdivision
(a)(2)(A) refers only to deceased children over whom the juvenile court had taken
jurisdiction in a dependency case, the meaning of that phrase is clear.
Legislative Acquiescence
Petitioner emphasizes that section 827 has been amended since Elijah S. was decided, yet

no alterations were made to the wording about a deceased child who was “within the jurisdiction

2.
of the juvenile court.” And, indeed, it is clear the Legislature was aware of the Elijah S.

decision, because legislative analyses for the subsequent amendments reference the case and its

holding.

However, the concept of legislative acquiescence has fallen into disfavor because it rests

upon faulty assumptions. (See Brown, Tradition and Insight (1993) 103 Yale L.J. 177, 199–

200.) Courts have concluded that “legislative acquiescence is an exceedingly poor indicator of

legislative intent.” (Donajkowski v. Alpena Power Co. (1999) 460 Mich. 243, 258.) Our

Supreme Court has repeatedly observed, including quite recently, that legislative acquiescence

arguments “rarely do much to persuade.” (Naranjo v. Spectrum Security Services, Inc. (2022) 13

Cal.5th 93, 116; Scher v. Burke (2017) 3 Cal.5th 136, 147.)

There are several reasons for this. First and foremost, statutory interpretation centers on

the enacting legislature’s intent. The inaction of a subsequent legislature does not speak to that

intent.

Moreover, while the subsequent legislature’s inaction could be the result of acquiescence

in the status quo, it could just as likely be the result of disagreement on how to alter the status

quo, indifference to the status quo, or a failure to appreciate or focus on the consequences of not

changing the status quo in a bill addressing other issues. Consequently, it is impossible to assert

with any degree of assurance that the Legislature’s inaction represents its affirmative approval of

an appellate court’s statutory interpretation. (See Patterson v. McLean Credit Union (1989) 491

U.S. 164, 175, fn. 1 (McLean) superseded by statute as noted in CBOCS West, Inc. v. Humphries

(2008) 553 U.S. 442, 450, 454.)

Additionally, even if a majority of legislators had subsequently come to personally

approve of a judicial interpretation contrary to the enacting legislature’s intent, that approval can

only have legal effect upon the passage of a law implementing it. (Cal. Const., art. IV,

§ 8(b)(1).) Legislative silence is no substitute for a bicameral vote upon the text of a law.

(McLean, supra, 491 U.S. at p. 175, fn 1; see Cal. Const., art. IV, § 8(b)(1); see also Thompson v.

Thompson (1988) 484 U.S. 174, 191–192 (conc. opn. of Scalia, J.).)

3.
 Finally, even if a subsequent legislature’s understanding of the legal status quo were

pertinent, that conclusion would not inure solely to petitioner’s benefit here. Senate Bill No. 39,

which enacted the 2007 amendments underlying petitioner’s argument, observed that

subdivision (a)(2) reflects the Legislature’s conclusion “that when a dependent child dies within

the jurisdiction of the juvenile court, the presumption of confidentiality for juvenile case files

evaporates and the requirement of an expedited decision becomes manifest.…”2 (Sen. Bill

No. 39, § 1(f), italics added.) (2007–2008 Reg. Sess.) (Senate Bill 39.) Unlike the references to

Elijah S. which appear solely in legislative history documents, this description of subdivision

(a)(2) as addressing dependent children was part of a finding actually enacted by the Legislature

in Senate Bill 39.
Practical Considerations
When a court determines whether to take jurisdiction (i.e., whether the child is a
person described by § 300), it usually does so after a contested evidentiary hearing with
well-developed rules of evidence. (§ 355.) Under Elijah S., in order for a court to
determine whether a deceased child for whom there were no prior jurisdictional findings
qualifies as a “child who was within the jurisdiction of the juvenile court pursuant to

2 A court can make jurisdictional findings and dispositional orders at the same hearing.
(§ 358, subd. (a).) In that circumstance, the child can be taken under the jurisdiction of the
juvenile court and become a dependent on the same day. This is likely why Senate Bill 39
section 1(f) refers to “a dependent child” while subdivision (a)(2) refers to a child “within the
jurisdiction of the juvenile court.”
However, it is true that a “dependent child” and a child over whom the court has taken
“jurisdiction” are not always synonymous. Because while the juvenile court can address
disposition at the same time as jurisdictional findings (§ 358, subd. (a)), the disposition hearing
can also be continued 10 to 30 days from the jurisdiction hearing. (§ 358, subd. (a)(1)–(3).) In
practice, the delays are often longer.
During the gap between jurisdictional findings and dispositional orders, the court has
taken jurisdiction over the child, but the child is not yet “a dependent child.” Given the very
short statutory timeframe that a child would be under the jurisdiction of the court, yet not a
dependent of the court, and given that there is no shorthand way to refer to such children, Senate
Bill 39’s use of the phrase “dependent child” is unsurprising. Moreover, whate ver mild friction
there is between my reading of subdivision (a)(2) and Senate Bill 39’s reference to “dependent
child[ren],” it pales in comparison to its incompatibility with Elijah S.’s interpretation.

4.
Section 300,” (§ 827, subd. (a)(2)(A)), it would often – if not always – be necessary to
conduct a factfinding inquiry similar to the one performed at a jurisdictional hearing.
Legislative Policy
Elijah S. held the Legislature “was interested in opening up to public view the
workings of the entire juvenile court and child protective system for the purpose of
exposing deficiencies therein, and thereby enabling their correction.” (Elijah S., supra,
125 Cal.App.4th at p. 1555; see maj. opn at pp. 15–16, ante.) The opinion concluded that
this legislative purpose “would not be advanced by limiting disclosure of juvenile records
to only those generated and maintained by the juvenile court after a minor had already
been declared a dependent.” (Id. at p. 1556.)
This type of reasoning, once widely employed, has also been rejected due to its
faulty assumptions. “ ‘[N]o legislation pursues its purposes at all costs.’ ” (CTS Corp. v.
Waldburger (2014) 573 U.S. 1, 12; American Exp. Co. v. Italian Colors Restaurant
(2013) 570 U.S. 228, 234; Rodriguez v. United States (1987) 480 U.S. 522, 525–526;
City of Selma v. Fresno County Local Agency Formation Com. (2016) 1 Cal.App.5th 573,
584; County of Sonoma v. Cohen (2015) 235 Cal.App.4th 42, 48.) Accordingly, courts
have roundly rejected the approach of assuming that “whatever furthers the statute’s
primary objective must be the law.” (Cyan, Inc. v. Beaver County Employees Retirement
Fund (2018) ___ U.S. ___ [138 S.Ct. 1061, 1073].) That is because “statutes have
stopping points as well as general objectives, and how far to go in pursuit of those
objectives is integral to the legislative choice.” (N.L.R.B. v. HH3 Trucking, Inc. (7th Cir.
2014) 755 F.3d 468, 471.) In other words, “the textual limitations upon a law’s scope are
no less a part of its ‘purpose’ than its substantive authorizations.” (Rapanos v. United
States (2006) 547 U.S. 715, 752.)
Here, as in many areas of legislative activity, there are various goals being
balanced against one another. “Opening up the workings of the child welfare system” is
certainly one of those goals, but only to a certain extent. On the other hand, it remains

5.
the case that juvenile court records, in general, should be kept confidential. (§ 827,
subd. (b)(1).)
Similarly, Senate Bill 39 itself embodied dual legislative intents that needed to be
balanced against one another. With that enactment, the Legislature expressly intended
“to maximize public access to juvenile case files in cases where a child fatality occurs as
a result of child abuse or neglect … while also ensuring that basic privacy protections are
consistently afforded.” (Sen. Bill 39, § 1(e), italics added.) (2007–2008 Reg. Sess.)
It is not for us to decide how far to pursue public access at the expense of privacy
protections. We must avoid the presumption that whatever statutory interpretation
furthers public access must be the law, regardless of how it affects privacy interests or
other competing policies. Instead, we must adhere to the statutory text itself to identify
where the Legislature chose to stop in its pursuit of the statute’s “general objectives.”
(N.L.R.B. v. HH3 Trucking, Inc., supra, 755 F.3d at p. 471.) Put simply, the Legislature
wrote the statute it wrote – “meaning, a statute going so far and no further.” (Michigan v.
Bay Mills Indian Community (2014) 572 U.S. 782, 794.)
It is important to note that a straightforward reading of section 827,
subdivision (a)(2)(A) would not eliminate the ability of journalists to investigate or
expose possible lapses or misconduct by social services agencies, foster parents, or
others, in connection with the death of children. Section 10850.4 independently requires,
without court order, the release of redacted documents concerning children who die under
“a reasonable suspicion that the fatality was caused by abuse or neglect.” (§ 10850.4,
subd. (a).)
Even if section 10850.4 were not enough, section 827, subdivision (a)(2)(A)
merely sets forth a presumption in favor of release for certain records. (§ 827,
subd. (a)(2)(B).) The juvenile court may still release records not covered by section 827,
subdivision (a)(2)(A). (§ 827, subd. (a)(1)(Q); Cal. Rules of Court, rule 5.552(d).) While
there is no presumption in favor of release for such records, the court may still order

6.
release after it “engage[s] in a careful balancing of … competing interests,” including
those of the child, parties, petitioner, and the public. (J.E. v. Superior Court (2014)
223 Cal.App.4th 1329, 1337–1338.)
It seems eminently reasonable to establish a presumption in favor of the release of
documents pertaining to children who die while under the active jurisdiction/supervision
of a government system designed to protect children. It also seems reasonable to decline
to extend that presumption to records regarding other children, while still allowing for
their release after a balancing of interests, including those of the petitioner and the public.
While I do not endorse Elijah S.’s reading of section 827, subdivision (a)(2)(A), I
respectfully concur with the majority as to the issuance of a writ directing the juvenile
court to vacate its prior ruling and to hold a hearing.

POOCHIGIAN, J.

7.