Open or Closed:

A survey of the opinions and the realities of opening
Juvenile Court dependency proceedings.

Lynne Tucker
November 2000

Table of Contents

Open Courts Fact Sheet: Deprivation Proceedings	i
The arguments for and against opening proceedings	1
The federal position on confidentiality	5
The practical reality in states with open proceedings	6
Georgia's current position on confidentiality	9
Conclusion	10
Resources	11
Appendix A: California Senate Bill 1391	12
Appendix B: Georgia Code on confidentiality in juvenile proceedings and open records statute	15
Appendix C: Relevant Provisions from the Child Abuse Prevention and Treatment Act (CAPTA)	31
Chart A: Positions on Confidentiality in U.S. States and Territories	34

Across the United States, child welfare agencies and the court system are failing to keep all children safe from harm. The search for a way to mend the system has produced many ideas, among them the proposal to open juvenile court dependency proceedings to the public. ¹ Most of the literature on this topic supports opening dependency proceedings to the public. The most obvious reason for this bias in favor of an open system is that the courts have historically been closed; therefore those who would challenge the system are the ones speaking out. The other side of the argument, that dependency proceedings should remain closed, is often only addressed in opposition to a proposal recommending open courts.

The laws governing court confidentiality within the child abuse and neglect system are almost exclusively governed by state statutes. There are few federal requirements on the states regarding confidentiality and those requirements are tied directly to federal funding. This implies that any efforts made towards opening the system would be done through state government and not as a national initiative.

The majority of arguments advanced in either direction are not legal arguments per se, rather they are the opinions of parents, court personnel, and child advocates on how the system works or can be mended. These arguments will be examined along with the current federal position on confidentiality, the practical reality in a sampling of states with open proceedings, and Georgia's current position on confidentiality.

Arguments For and Against

The strictly legal argument against a system of closed courts is the constitutional argument that the First Amendment guarantees the public a right of access to dependency proceedings. ² This argument is based on several Supreme Court rulings that establish a public right of access to criminal trials, preliminary hearings, and jury selection based on the First Amendment speech and press clauses.³ Overall, the Court developed a two-part test that evaluated the historical tradition and societal benefits of access in establishing the public's right to view criminal proceedings. Legal scholars have argued that this right of access applies to dependency proceedings because the British predecessor of the modern United States dependency proceeding was partially open. Additionally, the societal benefits of opening dependency proceedings are numerous.⁴ The Supreme Court has not considered this argument directly, although two lower courts have addressed the issue and have rejected opening the courts.⁵ The Ohio Supreme Court rejected opening the courts based on both the historical and societal benefits analysis.⁶ The California Court of Appeal, however, rejected open courts and the argument that historically proceedings have been open, but acknowledged that open courts would be of substantial societal benefit.⁷

This Court of Appeal ruling in San Bernardino, while not providing a constitutional right, did provide California legislators with the freedom to explore their own methods of opening dependency proceedings. The result was recent California Senate Bill 1391. Many of the opinion-based arguments that have been formed on whether to open dependency proceedings are best presented in the context of this bill.

The Senate's deliberations on the bill considered the substantial California case law, which has found a right for the press to attend delinquency hearings⁸ and found that the courts have discretion in dependency hearings to admit the press.⁹ The California Senate passed SB 1391 providing for open dependency proceedings after conducting numerous hearings and accepting testimony from a wide variety of sources.¹⁰ The arguments presented are typical and representative of those heard in other states.

The most prevalent argument for opening the courts is that public scrutiny would force all parties working on the child's behalf to be more accountable for their actions. This argument is also the most contentious because those opposed to opening the courts maintain that public observation will not actually result in the needed reform. All parties seem to agree that judges and other court personnel need to be held responsible when they abuse their power or a child suffers because of their decisions. Actually determining whether the light of public scrutiny serves any benefit is difficult because few courts have experimented with the open model. Those opposed to open courts point to open jurisdictions, such as Minnesota, where one official noted that the public has not become more interested in dependency hearings since the opening of the court proceedings to the public. Officials in several jurisdictions have noted that the public and the press are only interested in notorious cases, therefore opening proceedings does not increase public scrutiny or accountability. This lack of interest, however, also has a positive angle. One of the main arguments against open courts is that allowing the public access would be too disruptive to the system. Comments from court personnel indicate that the public proceedings are actually not troublesome. Judge Pitt of Michigan admitted that before the juvenile system was opened she thought, "the sky would fall," but once it was opened, "it didn't."¹¹ There was a similar belief that the system would be "flooded" in Minnesota, but after some proceedings were opened, the public only seemed interested in high-profile cases.¹²

Nonetheless, proponents of the open model say that the public access is necessary to give the public confidence in the court process. Proponents assert that as taxpayers, the public is entitled to see what their money is used for and can act accordingly if they disagree with that usage. With closed courts, the only parties who know enough about the system to promote change are often those with the most to lose when mistakes are revealed. The public, in the role of concerned citizen, could possibly serve as a less partisan critic of flaws in the system. Opponents of the open court system contend that public scrutiny only encourages judges and other personnel to spend more time worrying about how to protect themselves politically than worrying about how to protect children. Furthermore, the public will continue to be confused about the judicial process because the only cases that will receive attention are high-profile cases that may represent the exception rather than the rule.

The most prevalent argument against open courts is that children would be further traumatized by open proceedings. In those cases that gain notoriety, a child's face and personal information could end up on the evening news. While this type of exposure may bring the public's attention to an administrative gaffe, it also can cause further psychological harm to the child. Advocates of open court counter that if public attention will in any way harm a child, closure is still an option. In all proposals for open courts, there is a provision that allows the judge discretion to close the proceedings. The language typically used is "in the best interests of the child," which can be interpreted widely. Many states do not define "best interests" either in statute or in case law, however, some states have made it clear how the phrase is to be interpreted. In California, the "best interests" standard was established by the San Bernardino case, which directs courts to consider such factors as the child's age, the nature of the allegations, and the effect of publicity, if any, on family reunification when determining if closure is in the child's best interests. Even in some open proceedings, judges maintain strict rules about the use of a child's picture and name by the news media. In Michigan, the media must obtain permission to use cameras at least 48 hours in advance.¹³

Opponents of an open system also contend that the final placement of a child will be delayed because of the resulting increase in contested cases. Since the accused parent or guardian will now be subject to public exposure, there is a possibility that more parents will contest the actions alleged against them than if they could admit to the actions in a closed proceeding. As an alternative, parties could file for closure of the proceeding, which would be an additional delay. Proponents of open courts challenge this argument with the assertion that, despite the new public attention, few cases would be contested because a significant number of parents have no substantial interest in the disposition of their child. If the parents do have an interest in the case, their interest can be channeled into participation in a mediation or family conferencing session as an alternative to contesting charges. Furthermore, the delay would not be substantial because a motion for closure can often be considered as soon as it is made and upheld or dismissed based on state statutory procedure.

The Federal Position

The current federal position on confidentiality in dependency proceedings is largely dictated by the 1996 amendments to The Child Abuse Prevention and Treatment Act (CAPTA).¹⁴ If states wish to continue receiving federal monies under CAPTA, they must abide by its requirement of complete record confidentiality. The records may only be released to serve a legitimate state purpose or to those who need the information as part of their legal obligation to protect children from abuse and neglect. Those persons authorized to review the records are subject to the same confidentiality requirements as the releasing agency. The records must be available to the public when a child in care dies or suffers near-death injuries. CAPTA does not require proceedings to be confidential. The statutory silence on the issue has allowed many states to continue receiving federal funding while conducting open hearings.

Further federal law is contained in The Adoption Assistance and Child Welfare Act (AACWA).¹⁵ AACWA establishes programs of child welfare and adoption support under Title IV-E and Title IV-B of the Social Security Act. The AACWA restricts the use of information about children who receive Title IV-E and Title IV-B assistance and agencies that receive funding under this Act must keep their records on children confidential with few administrative exceptions. Those states wishing to forgo federal monies can avoid these confidentiality restrictions altogether.

It is not likely that any state would find it financially feasible to relinquish their federal funding as these monies usually comprise a substantial part of the state's operating budget for the child welfare system. This reliance on federal funding is substantiated by provisions such as those in California SB 1391, which declare the legislation inoperative in so far as the U.S. Department of Health and Human Services finds the legislation in conflict with provisions of Title IV-E or Title IV-B.

The Children's Bureau has determined that open hearings are in conflict with CAPTA requirements and the Social Security Act. A main concern is that, while the law is silent on open proceedings, restricted records are read or available during these open proceedings, thus violating the federal confidentiality restrictions. To address these issues, the Children's Bureau formed a discussion group involving judges and child welfare administrators. The group met for two days in March 1999 and concluded open court hearings "do not necessarily negatively affect children's privacy rights and can positively affect the handling of child welfare cases."¹⁶ The Conference of Chief Justices (CJJ) also supports open courts, but disagrees with the Children's Bureau that CAPTA's silence presents a conflict. Since CAPTA is due for reauthorization in 2001, CJJ plans to ask Congress to amend the CAPTA provisions in support of open court proceedings.

Practical Effects in Open Systems

Currently, there are twelve states operating with some form of open court. Ten more states are operating with their courts presumably closed, but with discretion to open.¹⁷ State positions on confidentiality in dependency proceedings vary widely, so it is important to examine a number of states comparatively. Among those states that have made a move towards open court, the extent to which the system is open has varied as have the methods of achieving the open status. The following discussion on the states of Oregon, Florida, New York, Michigan, and Minnesota will highlight some of the similarities and differences of open court proceedings among states.

Oregon maintains the most open system of child abuse and neglect proceedings in the country, allowing public access for all cases. The provision that authorized this broad access is from the state constitution, which declares in Article I, "No court shall be secret, but justice shall be administered, openly and without purchase."¹⁸ The judge maintains the ability to restrict access to the courtroom if there is overcrowding or if a person is interfering with the proceedings, otherwise the right of access cannot be waived or compromised.¹⁹ Court records remain closed except the public may learn the name and date of birth of the child, the basis for the court's jurisdiction over the child, and the date, time, and place of any juvenile court proceeding in which the child is involved.²⁰

Florida currently operates open juvenile proceedings under state "sunshine" statutes. The Florida statutes are fairly non-restrictive in terms of confidentiality, allowing for open proceedings and partially open records. Proceedings are to be open to the public at all times, unless the judge determines that closure is in the public interest or the best interests of the child.²¹ Only termination of parental rights cases and adoption matters are to be held in private. The open proceedings may be published with limited exceptions.²² All court records are confidential, except that they may be inspected by a range of "interested parties," excluding the public.²³ Furthermore, the records are kept for seven years or until a child is eighteen, whichever comes first, at which point they are destroyed. The only records that are maintained and admissible in later court proceedings are those that indicate a termination of parental rights.²⁴

New York State has similar statutes that govern confidentiality within the juvenile court system. New York's laws are significantly more permissive than Florida's laws in that the court retains discretion on whether to allow open records in each case. The only restriction is that records not be available for "indiscriminate public inspection."²⁵ Agency records remain confidential. The actual proceedings are fully open to the public according to state statute. Under the law, the judge may still close the courtroom on personal discretion, but there are statutory constraints. Before excluding a person from court, the judge may consider whether the person is causing or likely to cause a disruption, the presence of a person is objected to by a party for a compelling reason, the sound administration of justice, the privacy interests of parties, and the need for protection of the litigants, particularly children, requires the closure, and less restrictive alternatives to exclusion are unavailable or inappropriate. ²⁶ The statute appears to indicate that the exclusion process should take place during the proceeding in question and therefore not result in the time delay that would occur if the process received its own hearing.

Despite these inclusive laws, New York's courtrooms often remain closed. Unlike Florida, court personnel and news reports indicate that the statutes are largely ignored in practice. Personnel suggest that, especially in New York City, the heavy caseload, small courtrooms, and security concerns of the court make open courtrooms impractical. One worker also stated that she believes records to be closed.²⁷

In contrast to New York, Michigan's confidentiality practices are even less restrictive. Court rules provide that all proceedings are open to the public as are court records.²⁸ The press and family members often visit the record room to review case files, but records are only available after confidential portions have been removed.²⁹ Similar to New York, the judge may only close the proceedings after considering several issues dictated by statute. Court personnel indicate, however, that sometimes the openness of the proceedings is constrained by the size of the courtroom and judges often bar cameras from the courtroom.³⁰ Records in dependency proceedings are expunged twenty-five years after the court's jurisdiction over the last child in the family ends.

Minnesota is the most unique of the open states in that not all of the state's courtrooms currently follow the same confidentiality procedures. Twelve of Minnesota's eighty-seven counties are currently operating under a Minnesota Supreme Court pilot project to test open dependency proceedings.³¹ The project is operated under Supreme Court mandate with no involvement from the legislature. It began in January 1998 and has a life-span of three years. During that time an independent audit is being conducted to assess the effectiveness of the open court system. Based upon the results of the pilot project, the Minnesota Supreme Court can decide whether to renew, expand, or dismantle the project at the end of its' term.

Under Minnesota's pilot project, all proceedings are open to the public. Court records are also open with exceptions for documents such as mental health or other medical records, which are redacted. Interviews with court personnel indicate that this system is working as intended, although the project is so new, some remain uneasy and unclear about long-term effects on children. The provisions on use of records after a child turns 18 and rules on expunging records have not been tested.³²

Despite the differences that exist between the laws and realities of each state, there are some issues that court personnel indicate are consistent among all states with open courts. While the advocates of open courts vary, sometimes including judges, lawmakers, or concerned citizens, the main critics of the open court system are consistently the public defenders. Interviews with public defenders indicate their primary concerns are with the privacy issues and how juvenile records will affect their clients in later years.³³ Also consistent among states are certain confidentiality provisions. Each open state has a provision to close the courtroom when necessary and each state requires that closure be determined by the welfare of the child. Each state also maintains closed social services files, despite whether their court records are opened or remain closed. Finally, most states have provisions for expunging records, although the time periods vary widely.³⁴

Georgia's position

Georgia currently maintains closed dependency proceedings and records. The only exception to this law is for child support cases or legitimation actions.³⁵ Records can only be inspected by interested parties as defined by statute.³⁶ Records of children in the care of or known by the Department of Family and Children Services at the time they die or are not confidential and may be released to the public, as dictated by CAPTA. ³⁷

Although it is not indicated in the Georgia legislation, all states, including Georgia, receiving CAPTA funding must comply with CAPTA requirements. This includes having a provision that allows for records to be publicly disclosed only when a "case of child abuse or neglect which has resulted in a child fatality or near fatality." ³⁸ Currently Georgia law does not have a provision to address the records of children that suffer near-fatal injuries.

Georgia does not have extensive case law on confidentiality in juvenile proceedings. One ruling, Florida Publishing Company v. Morgan, 253 Ga. 467 (1984), continues to define Georgia's position on confidential proceedings.³⁹ This ruling was cited for support in the landmark San Bernardino case because despite the court's outright rejection of the constitutional right of access, the court holds that absolute closure is also unconstitutional. Morgan places the burden of requesting an open proceeding on the public who must present evidence demonstrating that the public's right to attend overrides the juvenile's interest in a closed proceeding. Additionally the court imposes a standard for the review of the request, stating that "the juvenile court's ruling on this question must be composed of findings in writing articulate enough for appellate review."⁴⁰

Conclusion

It is evident that both sides of the open court debate have very legitimate concerns about the role of confidentiality in the dependency process. While everyone agrees that the system needs to be mended, there is not enough data to suggest whether opening the courts is in fact as effective as proponents argue. There is only one thing that both sides can agree on -- the best interests of the child must be considered above all else. To this end, many methods of repairing flaws in the system must be explored. It is essential that open court pilot programs be allowed to operate long enough for both sides to assess the effectiveness of loosened confidentiality on the system and the children.

The information contained in this report is based upon the annotated code of each open state, interviews with court personnel, and the following resources:

Bussiere, English, et al., Sharing Information: A Guide to Federal Laws on Confidentiality and Disclosure of Information to Child Welfare Agencies (The American Bar Association Center on Children & the Law, 1997).

Donna S. Hershkowitz, Bill Analysis, Senate Bill 1391, Senate Rules Committee: Office of Senate Floor Analyses (CA 2000). < http://www.senate.ca.gov >.

Kay Farley, The Washington Review, 14 The Ct. Manager 39 (1999).

Alan Finder, Chief Judge in New York Tells Family Courts to Admit Public, N.Y. Times, June 19, 1997, at A1.

Mary McDevitt Goffen, The Right of Access to Child Custody and Dependency Cases, 62 U. Chi. L. Rev. 857 (1995).

Mark Hollis, High Court Takes Up Privacy, Orlando Sentinel Tribune, May 11, 2000, at D1.

James Rainey, Senate Backs Dependency Court Access, L.A. Times, June 1, 2000, at A3.

Samuel Bernard Sokol, Trying Dependency Cases in Public: A First Amendment Inquiry, 45 U.C.L.A. L. Rev. 881 (1998).

Peegy Soule, Keep Family Court Open to All, The Coalition Voice, June 27, 2000, < http://nysccc.org/Voice/w94/Soule.html >.

John Wilkens and Jim Okerblom, Secrecy Hides the System's Errors, San-Diego Union Tribune, December 10, 1991, at A1.

Steven Zak, For Children's Sake, the Dependency Courts Must Be Accountable, L.A. Daily J., Aug. 12, 1996, at 6.

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