Sunday, September 23, 2001
By Barbara White Stack, Post-Gazette Staff Writer
In a secret hearing three years ago, a Beaver County judge terminated the custody rights of a 19-year-old Allegheny County woman so that her baby could be adopted by a pharmacist and his wife, a lawyer who had shared a law office with the judge's wife.
The young mother objected to the secrecy. She wanted the whole world to know what had happened -- that her baby had been given away without her consent to a couple who refused to return him.
Her attorney, Jean Lupariello of Carnegie, knew juvenile court hearings were closed in Pennsylvania, and she'd simply accepted it. But she began to question the practice.
"There is no reason to hide things under a shadow," Lupariello says now.
Lupariello is among those in Pennsylvania who want to pry open the doors to juvenile courts. If they succeed, Pennsylvania would be in the forefront of a nationwide movement toward open juvenile court hearings.
Over the past 20 years, states have begun opening juvenile courts, and over the next 20, the trend is likely to continue. That's because constitutional protections and changes in federal legislation may make it increasingly difficult for any state to keep the public out.
As a result of laws passed in the 1990s, virtually every state now permits the public into trials for juveniles charged with serious crimes. Victims of those crimes, some of whom were denied access to the trials or sentencing of the youths who hurt them, were among those who pushed to open the hearings.
Now states are beginning to unseal the doors to the other side of juvenile court -- the hearings at which judges determine whether to remove children from parents accused of abuse or neglect. Twelve states now routinely admit the press or public to such hearings.
Oregon was among the first, opening the doors to all delinquency and abuse hearings in 1980. Eight years later, Michigan followed, then New York four years ago.
Proponents of open abuse and neglect proceedings find themselves in an underdog position, arguing not just against tradition but also the first-blush perception that the bloody laundry of abusive parents shouldn't be aired in public.
Still, they've begun to convert policy makers with their contention that closed hearings are dangerous in a democracy and that the primary beneficiaries of secrecy are child welfare agencies whose actions and inactions are shielded from public scrutiny.
Florida legislators were persuaded by those arguments in 1994 and opened all hearings except those for termination of custody. Minnesota opened abuse and neglect hearings in 12 counties in a three-year experiment in 1998. The following year, officials in Alaska recommended open hearings. Within the past year, Arizona, Maine and Kansas began researching opening hearings in abuse and neglect cases. A bill that would open hearings at the request of parents is before the legislature in Washington.
In Maryland, some judges let the public in; others don't. The same is true in Ohio, where doors were partially opened by challenges to the law closing hearings.
Lawsuits similar to those in Ohio could hasten the pace of states opening abuse and neglect deliberations. A Florida couple has asked the U.S. Supreme Court to strike down as unconstitutional closed termination of custody hearings.
In addition, court challenges are possible in states with constitutions guaranteeing open hearings. Twenty-two states that routinely close abuse and neglect hearings, including Pennsylvania, grant constitutional protection against secret tribunals. The hearings in Oregon were opened after just such a challenge.
When Amanda Kolle, the young mother whose custody rights were terminated in that secret Beaver County hearing, learned of Pennsylvania's constitutional guarantee, which simply states, "All courts shall be open," she wondered how in the world the proceedings against her were closed. "They should be open. It says they should be open. It is plain English. I do not know why they are not."
Shielding one side
Long before Beaver County Judge Robert C. Reed terminated Kolle's parental rights, she tried to find out who had her baby so she could try to get him back. The way she saw it, her baby, whom she'd left in the care of a family friend while she sought treatment for depression, had been kidnapped.
When Kolle's attorney got hold of court records naming the couple who had the child, Reed clearly was unhappy that she had information he considered privileged. That set up the classic debate over secrecy. Opponents of secrecy contend that closed-door hearings can protect inept and corrupt judges, lawyers and child welfare officials. Kolle believes that she ultimately won her child back partly because she went to the very open court of public opinion with her case.
Supporters of secrecy believe it protects children such as Kolle's son from unwarranted and damaging publicity. Because Kolle took the case public, they contend, her son will never escape a past that includes his name and picture plastered on newspaper pages and television screens. They believe Kolle had no right to put him in that position.
Among the foremost proponents of secrecy is Esther Wattenberg, director of the Center for Advanced Studies in Child Welfare at the University of Minnesota. Wattenberg, who has taught social work for more than three decades, bitterly protested Minnesota's open hearing experiment.
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| About the author . . .Barbara White Stack, 46, is a reporter who focuses on child welfare and delinquency.
A native of Bucks County and a graduate of Penn State University, Stack joined the Post-Gazette in 1979. Her most recent project was "Is This Justice?" a spring 2001 series about flaws in Pennsylvania's law sending more teens to criminal court and prison instead of juvenile court and reform school. Research for "Open Justice" was aided by a grant from the University of Maryland's Journalism Fellowships in Child and Family Policy. Stack can be reached atbwhitestack@post-gazette.com
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She believes that parents accused of abuse or neglect and their child victims have an absolute right to privacy. Permitting the public into hearings where intimate details of their lives are discussed, including psychological evaluations and drug test results, violates that right, she contends. She fears careless reporters will sensationalize family secrets and prying neighbors will spread cruel gossip.
In addition, she says, unlocking the doors would lay bare the private lives of the poor who populate juvenile courthouses. Middle class families would escape such exposure because the support systems they can afford mean they are rarely seen in juvenile court, Wattenberg says.
Among her philosophical companions is Dr. Bennett L. Leventhal, professor of psychiatry and pediatrics at the University of Chicago. His voice rises in anger when he discusses coverage of juvenile court cases.
Most of it, he says, panders to prurient interests. Also, the media have no right to turn a child into a celebrity, even to discuss a public policy issue, he says, asking, "Is it Sally's job, at age 4, to protect all other children?"
Another loud supporter of closed hearings is William W. Patton, a professor at the Whittier Law School in California whose testimony helped defeat an open court proposal in California last year. Patton says reporters shouldn't be allowed in juvenile court because media coverage of criminal and civil hearings has resulted in a skewed view of the legal process.
Also, he says, open hearings will add insult to injured children by allowing the media to use names and pictures, which facilitate taunting.
The secret usually gets out
What Patton and other critics overlook is that exposure of children to the public often occurs anyway at hearings that aren't closed. Though Reed refused to open any hearings concerning Kolle and her son, the appeals proceedings, where Kolle ultimately won her child back, were open to the press and public.
Similarly, Kolle has informed the Beaver County couple who had her son that she intends to sue them, and those hearings will be open.
In addition, had criminal charges been filed in the case, as they are when parents are accused of incest, aggravated assault or murder, the trial would have been open to the press and public. The U.S. Supreme Court has prohibited automatically closing sexual assault trials, even those involving children.
At open criminal hearings, testimony reveals the same sorts of intimate details about families that are now concealed in juvenile court. Children's names are available. Pictures may be snapped in courtroom hallways. A parent may use a psychological evaluation as part of an insanity plea. All of which makes it unclear why juvenile court hearings are treated differently.
And at the outset, they were not.
The world's first juvenile court, born in Chicago in 1899, was open to the press and public. Those that followed in other states, including Pennsylvania, were too.
The court in Illinois remained completely open until 1965, when lawmakers banned ordinary citizens but allowed reporters to remain.
Pennsylvania lawmakers did not seal juvenile courtroom doors until 1972, except in Allegheny County, for which the Legislature passed a special, separate law in 1933 that closed its juvenile court. Similarly, other states did not close their courts until after the National Conference of Commissioners on Uniform State Laws recommended it in 1968. Pennsylvania, and numerous other states, adopted that uniform closure language virtually word for word.
Part of the reason early social reformers in Chicago failed to get closed hearings was that the city's newspapers objected. David Tanenhaus, a professor of history at the University of Nevada, says the papers pointed out that judges could do anything in closed hearings, and the public would have no way to find out.
For example, the papers said, a judge could essentially sell a child into slavery by assigning custody to a nonprofit association that would hand him over to a factory to use as an unpaid laborer. Though child labor laws prohibit that now, those statutes hadn't passed in 1899, and children then routinely worked in factories at shockingly low ages and wages.
The Chicago activists turned that defeat to their advantage, encouraging reporters, photographers and sketch artists to cover what they believed were the good deeds of the nascent court after critics questioned the legitimacy of a separate tribunal for children.
Now, at least two states -- Michigan and Florida -- routinely permit both reporters and cameras in juvenile court hearings. And three Indiana judges have allowed TV cameras into their courtrooms for television reports on abuse and neglect.
Many legislators and judges in open states enthusiastically support the concept of public hearings.
Judges in Illinois, Iowa and Oregon say open abuse and neglect hearings now are just as routine and uncontroversial as open criminal trials. "It is an accepted part of our way of doing things," Oregon Circuit Court Judge Daniel Murphy says.
He says openness aids fairness. It means people can watch cases that precede and follow theirs and see whether they're treated essentially the same. "The appearance of being treated fairly is compromised when things are done in secret," he says. "People are suspicious of anything done secretly."
In Florida, former state Rep. Steven Wise says open hearings let the public see how the courts decide policy issues, such as whether to remove children from parents who spank them or help a homeless mother find an apartment, or just take the kids.
Wise, a conservative Republican from Jacksonville who, with a liberal Democrat, co-sponsored the law that opened court there, says the people most hurt by secrecy are those who Wattenberg says she is trying to protect with closed hearings -- poor people. Wise says: "The people they hose the best are poor people without legal representation behind closed doors."
Let the states decide
In protesting closed juvenile court hearings, Kolle's small cry from Carnegie is joined by some powerful voices in Washington, D.C. The National Council of Juvenile and Family Court Judges has announced its support of open hearings, and a consortium of nonprofit organizations, the National Child Abuse Coalition, is lobbying Congress to specifically permit states to hold open hearings.
Some groups in the consortium don't support or oppose openness, but want states to decide for themselves and are working to change federal law to ensure that can happen.
Right now, what the law requires is a matter of dispute. Officially, the U.S. Department of Health and Human Services says open hearings violate federal confidentiality requirements, and states permitting them risk loss of federal funds.
Unofficially, HHS agreed not to withhold funds after it discovered just how many states were conducting open hearings. It asked open court proponents, who contend federal law does not require closed hearings, to help resolve the situation by getting a waiver for open court written into federal legislation.
The National Child Abuse Coalition has proposed that waiver to Congress, and Tom Birch, spokesman for the group, says he expects it to be adopted before year's end without controversy. "I think this is a states' rights issue," he said, "And there is a states' rights precedent."
Though Congress could give states the ability to open hearings, some might not do it unless pushed. That shove could come from appeals courts that may be faced with deciding cases such as the Florida couple's challenge of closed termination hearings as well as lawsuits based on state constitutional guarantees of open court.
Kolle says she's eager for a challenge in Pennsylvania. She believes the injustice that occurred to her in Beaver County could only have happened behind closed doors: "I am sure if a reporter had been there to hear all that stuff, Judge Reed would not have acted the way he did."
Her lawyer believes secrecy in Pennsylvania is ripe for appeal. "I think," she says, "It will be challenged."
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