A civil rights group appears to have notched an early win in its effort to monitor Durham’s often-secretive abuse, neglect, and dependency court.
Civil Rights Corps, a legal advocacy organization based in Washington, D.C., sued Durham County Judge Doretta Walker and Sheriff Clarence Birkhead last year, alleging that they had repeatedly interfered with the group’s constitutional right to “observe judicial proceedings relating to one of the most profound exercises of state power—the forcible separation of children from their parents.”
The state’s dependency courts decide what will happen to children whose parents have been accused of abuse or neglect. Due to the sensitive nature of these cases, records are sealed, and state law gives judges broad discretion to close hearings to the public—which they routinely do.
But Civil Rights Corps (CRC), which had been investigating Durham’s child welfare court since 2023, accused Walker of ejecting its observers without making “specific, on-the-record findings demonstrating that closure is essential,” which it argued that the U.S. Supreme Court required in a 1984 ruling. (CRC sued Birkhead because his deputies enforce Walker’s orders.)
The organization argued that Walker had violated the public’s right to access the courtroom. It said “presumptively” closing courtrooms does not “promote children’s safety, but instead [shields] government officials from accountability.” Walker, a Democrat who ran unopposed in 2022, is up for reelection next year.
The judge featured prominently in an investigation of North Carolina’s foster care system by The Assembly and WBTV in late 2023. The investigation found that the nearly 1,200 North Carolina parents whose rights are terminated each year are disproportionately Black and overwhelmingly poor—and most alleged “neglect” cases were rooted in parents’ poverty.
It also found that once children enter foster care in North Carolina, and especially in Durham County, the deck is stacked against their parents. “It’s almost impossible to get the court to give the child back,” Wendy Sotolongo, then the leader of the Office of the Parent Defender for the state’s Indigent Defense Services, told The Assembly and WBTV.
Three months after The Assembly published its investigation, Durham County’s court system forbade anyone involved in dependency cases—including parents—from sharing information with the media, threatening to jail them for doing so.
CRC asked a federal judge to rule that Walker could only close hearings after giving the people being kicked out an opportunity to be heard and making a written ruling detailing why the public should not be allowed to see what transpires in her courtroom.
In February, Walker—represented by the North Carolina Attorney General’s Office—sought to dismiss the CLC’s lawsuit. Walker argued that federal courts lacked jurisdiction and that she was immune from such claims. Walker also said that while the U.S. Supreme Court has recognized the public’s right to access court hearings, it has never applied that specifically to dependency cases, where “public oversight is not as critical as in other contexts.”
“Confidentiality helps protect the privacy and dignity of the parties involved and fosters the integrity of the judicial process,” Walker argued.
In addition, she said CRC’s demands would “disrupt” her courtroom and “create an unworkable cycle of delay,” which would “prolong uncertainty for children and families.” (Durham’s dependency court already has a long backlog.)
On October 30, U.S. Magistrate Judge Joe Webster recommended that U.S. District Judge William Osteen Jr. allow CRC’s lawsuit to continue. While Webster’s 49-page opinion isn’t binding—the parties have until Friday to lodge objections, though none had as of Thursday morning—it’s an indication that the weighty constitutional issues at stake will get an airing.
“Here, CRC claims a qualified right to access dependency hearings,” Webster wrote. “Judge Walker claims CRC has no such right and has denied CRC the access it seeks. No other court has decided, or is in the process of deciding, whether CRC or Judge Walker is correct.”
For his part, Webster said he found the CRC’s claims “plausible.”
At the same time, Webster recommended against granting the CRC’s request for a preliminary injunction—an immediate order prohibiting Walker from presumptively closing her courtroom—because the CRC “has not shown likely success on the merits of its First Amendment claim.”
A key point of contention in the legal filings is whether dependency courts have “a history of openness,” as Webster put it. The CRC’s evidence that they were “remains insufficiently detailed at this juncture … to say that CRC’s ultimate success is likely,” he said.
It’s unclear when Osteen will rule.