Are Secret Courts in the Best Interest of the Child?

From the Winter 2001 issue of The News Media & The Law, page 15.

By Ashley Gauthier

Anamarie Martinez-Regino, 3 years old, weighs 120 pounds. She is dangerously overweight. The New Mexico Department of Children, Youth and Families took her away from her parents and placed her in foster care on Aug. 25. She was returned to her parents on Nov. 10.

The parents wanted to speak to the media about their child’s case, claiming that their daughter was unfairly taken from them. Judge Tommy Jewell issued a gag order, silencing the parents against their will. The state argued removing the child from her parents was necessary to save her life. The public and the press were barred from all hearings in the case, despite a New Mexico statute that provides a presumption of openness in child protection hearings.

Was this in Anamarie’s best interest?

Choosing a course of action

On one hand, some experts claim that children are traumatized by media coverage. An affidavit of a young abuse victim (copied here complete with spelling and grammatical errors) demonstrates the potential for harm:

On the other hand, children can be harmed if the public is denied access to information about certain cases. The “Katelyn” case from Alexandria, Va., and the Brianna Blackmond case from Washington, D.C., are recent instances where children died, allegedly from abuse, but gag orders and closed courtrooms prevented the exchange of information that could have helped keep the children in safe, non-abusive environments. Three-year-old Katelyn died in December a few months after returning to her biological mother’s home from foster care. No charges have been filed in the case. One year ago, Blackmond died from blows to the head shortly after returning to her mother’s care. Charrisise Blackmond, the mother, and Angela O’Brien, the godmother, face criminal charges.

With compelling arguments on each side, what is the best course of action?

State rules vary on openness

Rules on media access to child protection hearings vary from state to state.

Minnesota and Michigan are two states that allow access to child protection hearings. More than 20 years ago, Michigan decided that, as a matter of policy, an open system protected children and provided the greatest possible flow of information between courts, experts and the public. In 1998, Minnesota began a pilot project, still in effect, that allowed 12 counties to open child protection hearings to the public. Judge Heidi Schellhas, who handles juvenile court cases, has praised the Minnesota project.

She wrote in the William Mitchell Law Review, “(m)y experiences suggested that such secrecy did not protect the children, but rather served only to protect stakeholders in the system and parents accused of child abuse or neglect. Such parents could use closed courtroom proceedings to exclude any relatives, friends or neighbors who had information about or were interested in the child’s welfare. Later, parents could depict (child protection agencies), the court and other stakeholders as the oppressors.”

Schellhas also said that court secrecy prevented the media from reporting about abusive conditions and prevented relatives or others from coming forward with information that may have helped protect the children.

Other states close child protection hearings under all circumstances, though many states permit the judge some discretion to determine whether the proceedings should be closed.

In New Mexico, the governing statute presumptively allows media access to child protection hearings, but it also states that the media must promise not to identify the child or family. This prerequisite placed the media in an uncomfortable situation in the Anamarie Martinez-Regino case.

The child’s name had been released to the public long before the custody hearing, and the media could not ignore that the public already knew her name. The Supreme Court of New Mexico, interpreting the statute, ruled that the media can be excluded from the hearing if the child’s name had already been disclosed to the public. As a practical matter, such a ruling would allow a court or any party to circumvent the presumptive openness of child protection hearings merely by leaking the child’s name to any media outlet.

Marty Esquivel, the attorney for the media entities in Anamarie’s case, questioned how the court could rule that closure was appropriate when the statute presumptively allowed access.

“I don’t see how they can take a statute that says the ‘media shall be allowed’ and turn it into a discretionary decision by a judge on a case- by-case basis. The fact that the media obtained the names voluntarily through the parents should not allow a court to punish the media for simply doing its job.” Esquivel noted that appellate courts in at least four other jurisdictions have issued opinions contradicting the New Mexico ruling.

Opponents of Openness

William Patton, a professor at Whittier Law School, testified before the California Senate in 1999 when it considered reforming the access laws to children’s court. Patton argued it is more efficient to keep the hearings closed because child abusers will generally admit to the abuse if they are not subject to public embarrassment. Abusers will contest the charges against them if there is public access to the proceedings. As a result, Patton argued, it will cost the court a substantial amount of time and money.

Patton also argued that the press is not really interested in helping to save children from deplorable living conditions. Instead, he said, the media’s true motive is to exploit children in sensational cases to increase ratings and profits.

The jurisdictions that forbid media access generally express a disdain for media coverage, believing that the media’s goal is not to educate or inform, but only to manipulate and exploit victims to the media’s benefit.

Karl Robe, director of public relations for the Alliance for Children & Families, a national organization based in Milwaukee, stated that the members of his organization generally oppose media access to proceedings involving children. Robe revealed that one member of the Alliance said, “I know I would not want my wife or daughter exploited like that.”

Other commentators have criticized the media for having an interest only in the most high-profile, sensational cases. Critics contend the media fails to do true, ongoing, in-depth coverage of how the system works. Patton testified, “In two states which have been experimenting with open dependency hearings, Minnesota and Michigan, the press has covered only high-profile abuse cases, and neither experiment has generated the kind of investigative reporting promised by the media.”

Patton also cited statistics showing that reports of child abuse are rising, but only a minority of reports can be substantiated. Sometimes, the alleged “abuse” does not meet the statutory definition of abuse. Sometimes, the report is merely an overreaction to a misleading possibility that a child might be abused. Some reports are malicious or retaliatory. But the largest group of cases of unsubstantiated claims of abuse involve cases where there is not enough evidence that the child has been abused.

Patton dismissed the notion that openness could help close the gap between the number of abuse cases that are reported and the number that are unsubstantiated. Patton also dismissed the beliefs of those who have been most harmed by secrecy: he noted that “some of the most vociferous citizens who are demanding that the veil of secrecy in dependency proceedings be lifted are ‘parents and other family members of children who have been killed or abused while in the (child) welfare system,'” but he continually denied that openness could improve the system.

Benefits of Openness

Courts have cited certain benefits to having the press at child dependency hearings. Specifically, courts have recognized that media presence discourages perjury, encourages witnesses to come forward, allows for more accurate fact-finding, checks judicial abuse, provides an outlet for community concern, and educates the public on how the system works. (San Bernardino County Dept. of Public Soc. Serv. v. Superior Court)

More importantly, however, is the fact that there is no evidence that children are harmed by public access to juvenile protection hearings in states that allow virtually unfettered access.

Jack Kresnak, a reporter at the Detroit Free Press, has covered child protection hearings in Michigan for 13 years. He said court openness let him write stories that genuinely help and make a difference. For example, in 1996, Kresnak wrote a five-part series on a child custody case in which a father was falsely accused of molesting his daughters.

Kresnak said the press has been responsible and restrained in the use of names, but even when names have been used, it has not caused any long-term problems for the children.

“It’s not often that a name or picture comes out, but when it does happen, I have yet to see any kind of negative effect on the child,” though Kresnak acknowledges that “It’s hard to prove a negative like that. Maybe I just don’t see it.”

Nevertheless, Kresnak indicated that the community understands the positive role the press can play in protecting children from abuse. As an example, he said a source once gave him information illegally on an abuse case. “They trusted me not only to protect them but to do a story that was fair and accurate and respected the children involved so that they weren’t exploited again.”

With respect to Patton’s criticism that the press only cares about the high-profile cases, Kresnak admitted that there is an “element of truth in that criticism.” He blamed the lack of constant in-depth reporting and the lack of staff. “You need someone on it full time to make it work.”

Nonetheless, the veteran reporter said, overall, the coverage of child abuse cases is inspired by the desire to make the system more accountable and to help the community, not for glory or money. “When (Michigan) opened up the (children’s) courts in ’88, I saw it as the chance to do something new. People who cover the children’s beat do it because they care about kids, not because they want success.”

However, Kresnak also noted that the media must win the trust and faith of the public and its leadership if they wish to preserve, or in some cases obtain, a right of access to proceedings involving children.

Courts may fear that press coverage will harm them, but access may actually help. The press will not ignore a child abuse case merely because it does not have full access to the proceedings, but coverage would be improved if access were granted. “You try to be fair and accurate, but if you get the information, then you can be fair and be accurate,” Kresnak said.