The Supreme Court has not recognized a right of access to juvenile dependency proceedings or records, and in “abuse, neglect, dependency, and custody matters . . . courts have hesitated to extend a First-Amendment-based right of access.” Dienes, Levine & Lind, Newsgathering and the Law § 7.01 (3d Ed. 2005) (collecting cases).
Given that the Supreme Court has not recognized a right of access to juvenile dependency proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979).
Alabama law allows the parties, their counsel, witnesses, and other persons requested by a party to be admitted to dependency hearings. Ala. Code § 12-15-129 (2019). Other persons as the juvenile court finds to have a “proper interest” in the case or in the work of the juvenile court may be admitted by the juvenile court on condition that the persons refrain from divulging any information which would identify the child under the jurisdiction of the juvenile court or family involved. Id. The general public is specifically excluded from dependency hearings. Id.
Court proceedings “relating to dependent children, permanent guardianships and termination of parental rights are open to the public. A court proceeding relating to child abuse, abandonment or neglect that has resulted in a fatality or near fatality is open to the public, subject to the requirements of (E) of this rule and A.R.S. § 8-807.01.” Ariz. R. Juv. Ct. 41(A).
During the first hearing in a dependency, permanent guardianship or termination of parental rights, the court “shall ask the parties if there are any reasons the proceedings should be closed.” The court must evaluate:
- Whether doing so is in the child’s best interests.
- Whether an open proceeding would endanger the child’s physical or emotional well-being or the safety of any other person.
- The privacy rights of the child, the child’s siblings, parents, guardians and caregivers and any other person whose privacy rights the court determines need protection.
- Whether all parties have agreed to allow the proceeding to be open.
- If the child is at least twelve years of age and a party to the proceeding, the child’s wishes.
- Whether an open proceeding could case specific material harm to a criminal investigation.
Ariz. R. Juv. Ct. 41(E). Anyone who attends a hearing involving a minor is prohibited from disclosing personally identifiable information about the minor outside of the proceedings. Ariz. R. Juv. Ct. 41(F). Failure to abide by this rule shall be deemed contempt of court. Id.
If a proceeding has been closed to the public, an interested party may ask the court to reconsider its decision and open the proceedings. Ariz. R. Juv. Ct. 41(H).
Pursuant to Arizona Supreme Court 123(d)(1)(B), “[r]ecords of all juvenile adoption, dependency, severance and other related proceedings are closed to the public as provided by law unless opened by court order.”
All court records of Child Protective Act proceedings are exempt from disclosure. I.C.A.R. 32(g)(9)(A); see also I.C. § 16-1626 (court records of Child Protective Act proceedings “shall be available only to parties to the proceeding, persons having full or partial custody of the subject child and authorized agencies providing protective supervision or having legal custody of the child. Any other person may have access to the records only upon permission by the court and then only if it is shown that such access is in the best interests of the child; or for the purpose of legitimate research. If the records are released for research purposes, the person receiving them must agree not to disclose any information which could lead to the identification of the child.”). In addition, all proceedings under the Child Protective Act are closed to the public. I.C. § 16-1613(1) (“Proceedings under this chapter shall be dealt with by the court at hearings separate from those for adults and without a jury. The hearings shall be conducted in an informal manner and may be adjourned from time to time. The general public shall be excluded, and only such persons shall be admitted as are found by the court to have a direct interest in the case. The child may be excluded from hearings at any time at the discretion of the court. If the parent or guardian is without counsel, the court shall inform them of their right to be represented by counsel and to appeal from any disposition or order of the court.”).
Kansas statutes define a “child in need of care” as a person under 18 years of age who is “without adequate parental care, control or subsistence,” has been abused or abandoned or is otherwise at risk in specified ways. See K.S.A. 38-2202. The statutes provide for confidentiality of records related to a child in need of care. For example, in K.S.A. 38-2209, “pleadings, process, service of process, orders, writs and journal entries reflecting hearings held and judgments and decrees entered by the court” are contained in an “official file,” which is categorized as confidential. The statute requires that the official file “shall be kept separate from other records of the court.” Access to child-in-need-of-care files is limited to persons listed in K.S.A. 38-2211, although a court may authorize conditional access by “[a]ny other person.” According to K.S.A. 38-2212(b) and (c), officials involved in child-of-care cases may exchange information that is “reasonably necessary to carry out their lawful responsibilities, to maintain their personal safety and the personal safety of individuals in their care, or to educate, diagnose, treat, care for or protect a child alleged to be in need of care.” However, under K.S.A. 38-2212(d)(3):
Information from confidential reports or records of a child alleged or adjudicated to be a child in need of care may be disclosed to the public when:
(A) The individuals involved or their representatives have given express written consent; or
(B) the investigation of the abuse or neglect of the child or the filing of a petition alleging a child to be in need of care has become public knowledge, provided, however, that the agency shall limit disclosure to confirmation of procedural details relating to the handling of the case by professionals.
Also, K.S.A. 38-2212(e) provides that, after in camera inspection, a court may order disclosure of certain confidential records “pursuant to a determination that the disclosure is in the best interests of the child who is the subject of the reports or that the records are necessary for the proceedings of the court. The court shall specify the terms of disclosure and impose appropriate limitations.” In addition, K.S.A. 38-2212(f) (1) provides that, under certain conditions, if child abuse or neglect results in a child fatality or near fatality, child-in-need-of care records become public.
In general, adjudicatory proceedings related to a child-of-care case are open. K.S.A. 38-2247 allows “attendance by any person unless the court determines that closed proceedings or the exclusion of that person would be in the best interests of the child or is necessary to protect the privacy rights of the parents.” K.S.A. 38-2247(a)(2) specifies that members of the news media who attend an adjudicatory proceeding must comply with Kansas Supreme Court Rule 1001 regarding use of cameras in courtrooms. See Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
However, under K.S.A. 38-2247(b), a proceeding that pertains specifically “to the disposition of a child adjudicated to be in need of care” must be closed except to “the parties, the guardian ad litem, interested parties and their attorneys, officers of the court, a court appointed special advocate and the custodian.” Additional persons may attend if a court determines that their presence during the proceeding “would be in the best interests of the child or the conduct of the proceedings.” K.S.A. 38-2247(b)(1).
In New Mexico, all abuse and neglect hearings are closed to the general public. NMSA 1978, § 32A-4-20. Accredited representatives of the news media may be present at closed hearings, conditioned on them refraining from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child. Id. This confidentiality duty survives despite extensive pre-hearing media coverage; thus, if the representatives cannot avoid divulging information that would identify the child, parent, guardian, or custodian, they enjoy no statutory right of access. Albuquerque Journal v. Jewell, 2001-NMSC-005, ¶ 4, 130 N.M. 64, 66, 17 P.3d 437, 439.
A child subject to an abuse and neglect proceeding that is present at a hearing may object to the presence of the media. NMSA 1978, § 32A-4-20. Further, the court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. Id. Absent a statutory right of access to the courtroom, it is within the trial court’s discretion under Section 32A-4-20(D) to decide whether to allow the media to attend proceedings. Albuquerque Journal, 2001-NMSC-005, ¶ 5, 130 N.M. at 65. The trial court judge exercises great discretion in this matter. See id.
Although “juvenile proceedings have traditionally been closed to the public in most jurisdictions,” the Pennsylvania Superior Court has held that the “constitutional presumption of openness applies to juvenile dependency matters.” In re M.B., 819 A.2d 59, 61 (Pa. Super. 2003). Nevertheless, Pennsylvania has a statute that provides detailed rules on when juvenile hearings and records may be closed, and, under that statute, dependency proceedings are generally closed. See 42 Pa. Cons. Stat. § 6336. In accordance with this statute, the Pennsylvania Superior Court has held that a juvenile dependency matter may be closed where the state can establish a compelling interest in protecting the privacy of the children involved, and no less restrictive means other than total closure are available. In re M.B., 819 A.2d at 66 (holding that dependency proceeding was properly closed even though identities of minors were publicized previously).
In addition, the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 477 Judicial Administration requires that certain information in judicial filings concerning minors be kept confidential. Such information includes a minor’s name, date of birth, and educational records. See 204 Pa. Code § 213.81.
See Wis. Stat. § 48.299(1):
(a) The general public shall be excluded from hearings under this chapter and from hearings by courts exercising jurisdiction under s. 48.16 [petitions for waiver of parental consent to a minor’s abortion] unless a public fact-finding hearing is demanded by a child through his or her counsel, by an expectant mother through her counsel, or by an unborn child’s guardian ad litem. However, the court shall refuse to grant the public hearing in a proceeding other than a proceeding under s. 48.375(7) [parental consent required prior to abortion], if a parent, guardian, expectant mother, or unborn child’s guardian ad litem objects.
(ag) In a proceeding other than a proceeding under s. 48.375(7), if a public hearing is not held, only the parties and their counsel or guardian ad litem, the court-appointed special advocate for the child, the child’s foster parent or other physical custodian described in s. 48.62(2), witnesses, and other persons requested by a party and approved by the court may be present, …. Except in a proceeding under s. 48.375(7), any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under 42 USC 629h, as determined by the director of state courts, may be admitted by the court.