Closed Juvenile Court Proceedings

By Sheri McMahon
Contributing Writer

Some 10 years ago, the state of Minnesota began an experiment to open juvenile proceedings—both delinquency and dependency (child welfare) proceedings—to the public. This initiative came about partly from recommendations made by a task force studying Minnesota’s foster care system. Clay County was among the counties where the proposal was piloted; subsequently open juvenile courts became the presumption in Minnesota.
In earlier years, journalists helped pave the way for openness. State Supreme Court decisions found that the public had an interest in allowing reporters access to hearings, but these decisions did not open the process to the general public.
Support for open proceedings also came from a 20-member task force within the state court system; most task force members were judges. A minority of the members—five—opposed open proceedings, fearing that children would become headlines and leading stories in the 6 o’clock news. This never happened.
In the early years of this century, a dozen or so states had open juvenile proceedings. Statutes varied; in at least one state there was no open court statute, but common practice had established the precedent.
As states began to open their courts, some concerns arose regarding confidentiality and federal requirements pertaining to child welfare in particular. Child welfare is subject to considerable federal regulation since child welfare includes some of the few uncapped federal means-tested entitlement programs in existence, and since states depend heavily on those funds. But in 2006, President Bush signed federal legislation including clarification of CAPTA (the Child Abuse Prevention and Treatment Act) to allow state child welfare proceedings to be open.
The National Association of Juvenile and Family Court Judges favors open juvenile proceedings through formal resolution. Judges and judicial organizations have observed that:
Child welfare proceedings are purportedly decided based on “community standards” to a significant degree, but it is difficult to support that claim when the “community” is excluded from proceedings
The primary beneficiaries of the “cloak of secrecy” are government institutions and the courts themselves—not children and certainly not parents
Accountability of government agencies and the courts is promoted by open courts
Fears some judges in closed systems have expressed regarding harm to children have simply not resulted, and many judges who were once reluctant say they would never return to a closed system
Cases most likely to involve notoriety typically involve criminal proceedings, which are open to the public, as are child custody cases, which sometimes capture public interest (e.g. the Gattuso case)
Judges retain the power to close hearings when circumstances demand it
North Dakota’s previous legislature found enough concerns emerging from testimony regarding child welfare to pass legislation calling for study of an ombudsman program. Although the committee conducting the study did not recommend legislation creating such a program (by a 10-6 vote), several legislators opposing the creation of another public agency nonetheless stated that something should be done to address the issues they had heard about. Opening the courts would not expand government, but it would allow an opportunity for an interested public (assuming such exists) to weigh for itself the very issues that were brought to the legislature.
North Dakota juvenile proceedings remain closed at this time. 
As journalists, I ask you to think about this issue and talk about it with your colleagues. I think you will certainly come to the conclusion I have—that we will all benefit if the veil shrouding North Dakota’s juvenile court system is lifted. We continue to have one of the highest rates of foster placement in the nation. We continue to have one of the highest rates of institutional placement of foster children in the nation. We continue to separate Native American children from their families and relatives—also at one of the highest rates for this particular population in the nation. At the same time, we—like every other state—continue to fail to meet national standards regarding our treatment of children at risk (consistent with recent Forum reports regarding child welfare monitoring in Region V). But we seem to almost never ask questions about WHAT we are actually doing or even what those national standards even happen to be, let alone “community standards.”
This summer, I attended the funeral of a woman whose children had been placed in foster care while she was dying of breast cancer. She was destitute. She was actually charged with felony neglect when she simply became too ill to take care of her children and had no phone or transportation at her disposal. She faced those charges for 4 months (they were eventually dropped), arriving at hearings via paratransit from her nursing home room (paying the $5 round-trip fare out of a disposable income less than $25 per month), with a hat covering her scalp, which was bald from cancer treatment. Yet the case “treatment plan” called for her to demonstrate the ability to keep a clean house, among other things. Social Services also tried to deny her the opportunity to spend her last Christmas alive with her children (after previously denying her Thanksgiving). Only her criminal court hearings were public. Since her passing, there is no way to find out what has happened to her children.
Here’s the text of the open court portion of the Minnesota statute regarding child welfare proceedings.

Absent exceptional circumstances, hearings under this chapter are presumed to be accessible to the public, however the court may close any hearing and the records related to any matter as provided in the Minnesota Rules of Juvenile Protection Procedure.
This needs to change. Talk to your legislators, tell them this is wrong. Let there be transparency in these hearings.

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