Inside Juvenile Court

Abuse and neglect hearings should be open to the public

Editors' Note: This is a followup to a piece that Stack wrote on juvenile court in the March/April 2002 issue of CJR, "Opening Juvenile Court."

When a Pennsylvania appellate panel declared that juvenile court hearings are presumptively open, it was a victory not just for us in the Keystone state but also for the press and public nationwide.

That's because the Pennsylvania decision, paired with a similar one issued earlier by the Oregon Supreme Court, creates a powerful precedent for overturning legislation in seventeen other states that close juvenile court hearings and which, like Pennsylvania and Oregon, have constitutions that specifically guarantee open hearings. Most provisions read like Pennsylvania's: "All courts shall be open." This is language not contained in the U.S. Constitution. (Of the remaining thirty-one states, fifteen have open juvenile courts or are moving in that direction with pilot programs, another fifteen are closed and have no constitutional provision, and one, Ohio, is in judicial limbo after conflicting appeals court decisions.)

My paper, The Pittsburgh Post-Gazette, and The Oregonian used their state constitutional protections to pry open juvenile courtroom doors that had been improperly shut with legislation for a quarter century. Media in the seventeen other states with similar constitutional provisions should act now. They can't wait until they want to cover specific hearings because appeals take years.

The New York Daily News learned that lesson in 1995 when six-year-old Elisa Izquierdo was murdered by her mother. The paper covered the funeral for the little girl who'd charmed Prince Michael of Greece into becoming her preschool benefactor. And it covered criminal court hearings for the child's crack-addicted mother. But reporters couldn't get into the juvenile court hearings to find out how the child welfare system had failed the family. The Daily News appealed for openness in this case and several others while railing for access on its editorial page. Ultimately, the state's top judge, Judith S. Kaye, declared the court open. But that was in 1997, two years after the Izquierdo hearings.

Papers in New Jersey faced the same situation this year when they tried to cover juvenile court hearings for children who lived in a Newark apartment for months with the mummified body of seven-year-old Faheem Williams. Hearings are closed in New Jersey, and a judge denied media requests for access. The papers may appeal, but they'll miss the hearings in the meantime.

The Post-Gazette took preemptive action. It asked judges in three counties for access. When all three said no, the paper appealed. In February, the appeals panel ruled that hearings concerning abused and neglected children must be presumed open because of Pennsylvania's constitutional protection. Like the Oregon decision twenty-three years earlier, the Pennsylvania ruling says a hearing may be closed if the person asking for a secret proceeding can prove that privacy would serve a compelling governmental interest, and there would be no other way to serve that interest than completely closing the hearing. But that puts the burden on those who want secrecy rather than the reporter who wants access.

In addition to the Pennsylvania and Oregon decisions, the media received help in the struggle for openness when Congress passed the "Keeping Children and Families Safe Act" in March, with a provision specifying that the law does not restrict states' rights to determine whether abuse and neglect hearings are open to the public. It prevents the U.S. Department of Health and Human Services from cutting funds to states that open their courts.

This is not an unreasonable fear. Based on a federal demand that all child welfare information be kept private, HHS threatened to cut funding to Minnesota in 1998 when the state launched a pilot project opening some juvenile courts. Though HHS backed off in that case and has never withheld funds because of open courts, the threat has been cited repeatedly by state officials as a reason to keep courts closed.

Petitions for openness also are bolstered by the fact that states are rapidly moving in that direction. This year, Washington opened all abuse and neglect hearings, and Utah, Nevada, and Arizona all opened some juvenile hearings.

With that trend, the change in federal law, and the Pennsylvania and Oregon precedents, the media is in a strong position to demand openness in this important court. The seventeen states with open court constitutional protections but hearings closed by legislation are: Alabama, Connecticut, Delaware, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, West Virginia, and Wyoming.

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