Judge Grants Access to Child Protection Records After Teen’s Tragic Death
August 8, 2006
David C. Borucke- Tampa
The tragic death of a 13-year-old Florida girl, allegedly at the hands of her stepfather, may have been prevented through more effective state intervention, according to records obtained by a newspaper after a judge ordered a state contractor to make the documents public.
On June 16, 2006, a Fort Myers, Florida, judge granted the petition of the News-Press, Gannett’s Southwest Florida newspaper, seeking access to documents of The Children’s Advocacy Center of Southwest Florida’s Child Protection Team, relating to the death of Michelle Fontanez. Michelle was sexually assaulted and beaten to death in her home. Her stepfather is in jail on charges in connection with the incident. He has pleaded not guilty.
Child Protection Teams have been established throughout Florida under the auspices of the state’s Department of Health. A team is comprised of lawyers, medical doctors and therapists who provide support to local law enforcement and to state Department of Children and Family Services. Obtaining records maintained by a Child Protection Team raises at least two unique challenges. First, a state statute specifically exempts these records from public disclosure. See § 39.202(6), Florida Statutes (2006). While the statute provides that the records may be disclosed “by order of the court,” it does not set forth any criteria for the court’s consideration. The second obstacle arises from the independent confidentiality that attaches to the work-product of Child Protection Team professionals. Florida law ordinarily protects the work-product of lawyers, doctors and psychotherapists. A judge must also address these concerns, in addition to the statute, before records can be released.
In the case of young Michelle’s records, Judge Hugh E. Starnes considered the newspaper’s arguments at a hearing on June 9 in Fort Myers. The newspaper argued that the statute’s core purpose is to protect the interests of the child and, thus, upon Michelle’s death, this statutory purpose was no longer at issue. Further, the newspaper argued that the interests of third-parties, including family members and Child Protection Team professionals were de minimis in relation to the substantial public interest in disclosure.
The judge agreed. Applying a “good cause” standard, he determined that the public interest in these documents trumped any privacy interests at stake. Specifically, the judge found “[b]ecause Michelle Fontanez has died, the privacy interests that would normally attach to these records has dissipated. Additionally, the Court determines that there are no privacy interests of third-parties.” He therefore ordered the records released to the public.
Underlying these legal considerations is a tragic story. In this case, Michelle came to the attention of state officials when she received medical treatment for purposefully cutting her own arms. She told investigators that her stepfather had been sexually abusing her. Child Protection Team members determined that there was medical evidence to support these claims. Nonetheless, and apparently despite the conclusions reached by the team, the state returned Michelle to her home, and while officials instructed the stepfather to move out of the home, he merely moved across the street. On February 20, 2006, the stepfather allegedly returned to the home and assaulted and strangled the girl, who died a few days later.
The News-Press has done extensive reporting on this story, making good use of the documents it obtained through the public records lawsuit.
Holland & Knight represented the News-Press in this matter.
For more information, e-mail David C. Borucke at david.borucke@hklaw.com or call toll free, 1-888-688-8500.