In evocatively describing the realities of the juvenile court world prior to the 1967 In re Gault decision, which created the right to counsel in bench trials for indigent youth, the Supreme Court observed that “The powers of the Star Chamber were a trifle in comparison to those of our juvenile courts. …” 387 U.S. 1, 18 (1967) (quoting Roscoe Pound, Foreword to Pauline V. Young, Social Treatment in Probation and Delinquency, at xxvii (1937)). The comparison to the oppressive and secretive court of English monarchs might seem extreme, but the harm done to youth in the name of treatment was palpable. We have made progress since the pre-Gault era in which youth received “neither the protections accorded to adults nor the solicitous care … postulated for children (id. at 28 (citing Kent v. United States, 383 U.S. 541, 566 (1966)), but we still have a long way to travel. Despite Gault’s admonition that “the child requires the guiding hand of counsel at every step of the proceedings against him (id. at 36), the case’s promise of due process remains aspirational as in most states the scope of due process is limited to the bench trial stage. Dramatic racial and ethnic disparities persist in juvenile and child welfare cases and the veil of secrecy of closed sessions limits understanding the nature and importance of cases heard in juvenile sessions.
This article argues that opening the doors to closed juvenile sessions serves the goals of promoting fundamental fairness, a synonym for due process, the public’s interest in understanding the complicated social and legal issues that affect children and families, and greater accountability for child-serving systems. Juvenile court is not “kiddy court.” Juvenile and family courts hear cases that determine whether youth can be tried as juveniles or adults. In Massachusetts’ youthful offender system, juvenile court judges can sentence youth up to life in state prison for certain offenses. Mass. Gen. Laws ch. 119, § 58(a). Dependency or abuse and neglect cases can result in the termination of parental rights, which is the functional equivalent of a civil death penalty. Few court systems are charged with more consequential responsibilities. The public has an interest in knowing what transpires behind closed doors in such cases, and children and families have the constitutional right to be heard and have their cases fairly adjudicated. Opening or closing sessions is not a binary or either-or proposition. We can have a degree of transparency while safeguarding privacy interests by crafting appropriate judicial orders that balance the public interest with privacy rights while precluding the collateral consequences of access to juvenile records, as a number of states have done.
Opening the doors, or at least creating a more robust opportunity to “peek in,” is hardly a radical proposal. In fact, the first juvenile court in the United States, established in Chicago, Illinois, was open to the public. Jennifer Flint, Comment, Who Should Hold the Key? An Analysis of Access and Confidentiality in Juvenile Dependency Courts, 28 J. Juv. L. 45, 47 (2007). “In 1920, all but 7 of the 45 states that established separate juvenile courts permitted publication of information about juvenile court proceedings. … By 1952, however, many states … had excluded the general public from juvenile court proceedings.” Charles Puzzancherra, Sarah Hockenberry & Melissa Sickmund, Youth and the Juvenile Justice System: 2022 National Report, ch. 4, at 93 (Nat’l Ctr. for Youth Just. Dec. 2022. “The rationale for this confidentiality was ‘to prevent the humiliation and demoralizing effect of publicity.’” Id. In child welfare cases, there were concerns that closed sessions were appropriate given sensitive family issues and privacy interests of third parties.
Historically, the question of access to juvenile and family court sessions has been left to the prerogative of child welfare systems. This landscape is contrasted by criminal practice, where the public and the press have a constitutional First Amendment right to access unless there is an an expressed overriding interest (see Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980)) because “the right to an open public trial is a shared right of accused and the public, the common concern being the assurance of fairness.” Press-Enterprise Co. v. Super. Ct. of Cal., 478 U.S. 1, 7 (1986) (Press-Enterprise II). The Supreme Court has repeatedly emphasized that one of the most important means of promoting fairness is to allow the process to be visible and open to neutral observers. Id. Generally, the right to public access to the courts and freedom of the press override a state’s interest in confidentiality. See Richmond Newspaper, 448 U.S. 555.
Juvenile cases are quasi-criminal in nature as, unlike Gideon v. Wainright, 372 U.S. 335 (1963), Gault did not incorporate all of the due process rights guaranteed by the 14th Amendment into juvenile proceedings. This reality complicates the analysis. See, e.g., Joshua M. Dalton, At the Crossroads of Richmond and Gault: Assessing Media Access to Juvenile Delinquency Proceedings Through a Functional Analysis, 28 Seton Hall L. Rev. 1155, 1160 (1998). In abuse and neglect cases in juvenile and family court, state intervention is involved as child protection agencies assert that a parent is unfit to adequately care for their child or children. To justify an order of permanent commitment or termination of parental rights to the child protection agency, the Supreme Court has required that the state prove current parental unfitness by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982). This model is quite different from custody disputes between private parties in family courts, where the burden of proof is a preponderance of the evidence and the sole focus is what is in the best interests of the child. These realities underline the need to promote polices that support more rigor in fact finding and greater scrutiny of court procedures and to understand how child protection systems operate.
The need for letting some sunlight into juvenile court proceedings was epitomized by the 2013 Kids for Cash film chronicling the sad saga of two juvenile court judges in Luzerne County, Pennsylvania, who were sentenced to federal prison for having induced large numbers of youth to waive counsel at arraignment and then sending them to a privatized detention facility in which they had a financial interest. The case serves as a sobering warning of what can more readily occur behind closed doors without public scrutiny. A National Juvenile Defender report noted that it “is an open secret that countless children accused of crimes are prosecuted and committed every day without ever seeing a lawyer.” Nat’l Juv. Def. Ctr. (now Gault Ctr.), Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel (May 2017). Even in the absence of overt misconduct, youth may face severe injustice if they lack proper representation.
The results of a 2022 survey by the ABA and youth advocacy organizations “raised serious concerns that the interests of many young people in juvenile court are significantly compromised, and that many children are literally left defenseless.” ABA Juv. Just. Ctr., Juv. Law Ctr. & Youth Law Ctr., A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2002). In Tennessee, a juvenile court judge has been accused of operating outside the law for more than 20 years. Her conduct includes allegations of employing a “filter system” to determine which children to hold to jailing children for crimes that do not exist under state law. In 2014, 48 percent of children in her court were jailed, while the statewide average was just 5 percent. Meribah Knight & Ken Armstrong, Black Children Were Jailed for a Crime That Doesn’t Exist, Almost Nothing Happened to the Adults in Charge, ProPublica (2021).
The pendulum has now begun to swing in the direction of letting some sunlight in, and this development has not been confined to juvenile justice cases. “Once a mainstay of juvenile court, confidentiality has given way to substantial openness in many states. … In 2019 there were 24 states with statutes allowing delinquency adjudication hearings to be open to the public.” (Puzzanchera, Hockenberry & Sickmund, supra, at 93. As of 2010, 38 states have permitted the public to attend certain hearings in delinquency matters. Id. Access to cases in which there has been a transfer to the criminal system for enumerated felonies has been an important part of this process. See, e.g., Mass. Gen. L. ch. 119, § 58. While the movement to open the doors began in juvenile justice, over 20 states have also opened their child welfare proceedings to some degree. John Diaz, Open Child Dependency Courts to the Media: Battle to Open Child Dependency Courts, SFGATE, Nov. 16, 2012. In 2005, the National Council of Juvenile and Family Court Judges (NCJFCJ) passed a resolution recommending that dependency cases be open to the public. The resolution states: “open court proceedings will increase public awareness of the critical problems faced by juvenile and family courts and by child welfare agencies in matters involving child protection, may enhance accountability in the conduct of these proceedings by lifting the veil of secrecy which surrounds the, and may ultimately increase public confidence in the work of the judges of the nation’s family courts.” NCJFCJ 68th Annual Conference, Resolution No. 9 (adopted July 20, 2005).
While hardly a tsunami, as noted, a number of states have opened dependency sessions in the belief that transparency can raise the level of practice of attorneys and judges while encouraging greater state agency and systemic accountability. In the context of child welfare cases, concerns have been raised about the wide discretion that has been afforded to child protection agencies and judges. In the aftermath of a child’s death, Los Angeles County Supervisor Michael Antonovich was quoted during hearings on opening dependency cases saying, “It is vital that we are allowed to review court decisions in child abuse and neglect cases heard in our dependency courts. . . If a public agency is hiding behind a wall of confidentiality, the safety of our children demands that the wall be torn down.” Cheryl Romo, Secrecy Battle over Dead Kids File Escalates—Mothers Protest, County Seeks Closure, L.A. Daily J., Nov. 24, 1999. In 2004, Judge Leonard P. Edwards addressed the issue of confidentiality in the context of family court proceedings. Judge Leonard P. Edwards, Confidentiality and the Juvenile and Family Courts, 55 Juv. & Fam. Ct. J., no. 1, January 2004, at 1. While acknowledging that strong policy reasons support both openness of family court proceedings and privacy considerations for family members, particularly children, Judge Edwards took the position that “the tension between these conflicting policies can be reduced if most family court proceedings are presumptively open, but judges are given the authority to place conditions on the information that can be revealed by observers outside the courtroom.” Id., abstract at 1. I second Judge Edwards’ emotion.
As noted, opening the doors to dependency, or abuse and neglect, cases was recommended in 2005 by the NCJFCJ, and over 20 states have followed this suggestion to some degree. Resolution No. 9 is discussed supra. Transparency can raise the level of practice of attorneys, jurists, and agency and systemic accountability. The Supreme Court has not recognized a right of access to juvenile and family court abuse or custody matters and courts have hesitated to extend First Amendment right of access. In the absence of a presumption of openness, access varies widely from state to state. The Reporters Committee for Freedom of the Press website provides an overview of state models on access to juvenile and child welfare cases. B. Dependency, Reporters Comm. for Freedom of the Press.
A recent Massachusetts child protection case illuminates critically important issues regarding our national approach to child protection and has implications for whether more transparency is needed in juvenile and family court practice. The death of a five-year-old child, Harmony Montgomery, following her placement by a juvenile court judge in 2019 after a finding of current fitness has generated a firestorm. The father has been charged with murdering Harmony in New Hampshire, and the case has fueled emotionally charged discussions regarding what happened in court, legal questions about the Interstate Compact on Children, and the role of Massachusetts and New Hampshire child protection agencies and has generated recommendations regarding dramatic systemic reform and procedural changes in juvenile court with the goal of preventing this kind of tragedy.
When Harmony was reported missing, the media and public raised questions regarding the judicial decision and the actions of Massachusetts and New Hampshire child protection systems. See, e.g., Editorial, Let Harmony Montgomery Be an Example: Children’s Needs Must Be Prioritized in Court Cases, Bos. Globe, Apr. 22, 2023. Although the public did not know what evidence was presented to the judge, reactive responses have included questioning his conduct as well as calls to abandon the state’s model of child client–directed advocacy, which has been endorsed by national experts. See, e.g., Recommendations of the UNLV Conference on Representing Children in Families: Child Advocacy and Justice Ten Years After Fordham, 6 Nev. L.J. 592 (2006). Although not a party in a care and protection case, one legislative recommendation would enable the Office of the Child Advocate to “intervene” at any stage of a care and protection proceeding. Mass. H. 156.
Massachusetts care and protection cases are closed to the public except for Do Not Resuscitate (DNR) cases. Mass. Gen. L. ch. 119, § 38. The exception was the result of statutory amendment after a child survived after being taken off life support. The rationale for the amendment was the public’s right to have access to information when a child’s death might be implicated. See Care and Protection of Sharlene, 445 Mass. 756 (2005); Sup. Jud. Ct. suggested amendment to Mass. Gen. L. ch. 119, § 38.
As Harvard historian Jill Lepore observed in her insightful examination of the child welfare system, Baby Doe: A Political History of Tragedy (New Yorker, Feb.1, 2016), in the aftermath of a child’s death, “The loss of a child is an unbearable grief, the murder of a child an unthinkable atrocity.” In her article, Lepore explores Massachusetts and national child protection issues by using the death of a child, Baby Bond, to develop her narrative. “Thinking the unthinkable tends to have dreadful consequences.”
Then as now in the Montgomery case, the tragedy was the subject of intense local and national media coverage. Lepore’s piece, a must-read for all legislators and anyone concerned with protecting children, notes that “Historically, crusades begun in response to the murders of children have had terrible results.” When you have a high-profile death of a child, the pendulum swings radically in the direction of what is known as “foster care panic”—the tendency to lean heavily on removing children from their homes in large numbers, assuming that is the way to prevent future deaths. Lepore’s article quotes Maria Mossaides, the Massachusetts’ Child Advocate: “Pull every kid” is what she suspects D.C.F. workers were being told after Baby Bond was found. This reactive tendency focuses on removing more poor children from poor families—a war on poverty versus a war on abuse, which Lepore characterizes as this nation’s historical lens of what is considered appropriate child rearing—a white middle-class model that is revealed in the extreme disparities of race and economic status of who are removed from their homes.
We are all concerned about permanence for children, but removing poor children from poor parents, as has occurred in this country according to Lepore since the Oliver Twist era, should not be our primary response to allegations of neglect. Poverty should not serve as a proxy for neglect.
Mossaides’ reports on what happened in the Montgomery case, as well as in the case of another child fatality, David Almond, have included recommendations about fundamental changes to the way juvenile courts hear care and protection cases. Given her role as the child advocate, Mossaides has been uniquely positioned to do what the public cannot—have statutory access to the court proceedings—and her narratives have understandably informed the public and legislative perceptions and recommendations. But should we dramatically change court practice to respond to the relatively few cases when a child dies, or should we adopt a public health model that encourages social workers to provide services and engage with families in their homes and communities? Massachusetts’ Department of Child and Welfare budget allots 90 percent of its funding to placement and only 10 percent to family support and stabilization. Courts are not designed to fix complicated social problems. By focusing on reactive responses, we are failing to participate in the important nationwide conversation regarding searing racial/ethnic/poverty disparities that have been the foundation of what we euphemistically call child protection.
These issues are directly related to confronting the reality of the cradle-to-prison pipeline, or what Lepore describes as a birth-to-prison pipeline. In describing how involvement with child protection often leads to children later becoming involved in our juvenile and criminal justice systems, Lepore cites research indicating that between 2010 and 2012, 72 percent of youth in the Department of Youth Service in Massachusetts had involvement with D.C.F. Of this number, over 55 percent were younger than five and most were children of color, contributing to what Lepore characterizes as a child version of the carceral state. This topic implicates important issues of class and race and is national in scope. This terrain is the subject of Andrea Elliott’s Pulitzer Prize–winning book,l Invisible Child: Poverty, Survival and Hope in an American City (Random House 2022), which chronicles efforts of a family in New York City to stay together and their interaction with the Administration for Children’s Services (ACS) and the court system.
Reasonable people can reasonably disagree, but we have to have access to the same sources of information to promote productive dialogue. There are circumstances when the public’s right to know may trump state conferred confidentiality. This is especially so in those rare circumstances when a child dies and when calls are made for fundamentally changing the way juvenile court state intervention cases are heard. In lieu of waiting for amending the state confidentiality statute, advocates have filed motions seeking access to the court file. Recommendations for change in Massachusetts have included expanding mandatory reporting, which already disproportionately affects the poor and Black and Brown families in allegations of neglect. D.C.F. is also considering the use of empirically based risk assessment tools, which may not be race neutral and pose the real threat of making poverty a reason to lose custody of your children, as noted by Dorothy Roberts and many others. See, e.g., Dorothy Roberts, TORN APART: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World (Basic Books 2022). Instead of focusing on court process and reporting, why are we not exploring proactive public health models to provide resources to support children and families to avoid state intervention?
My perceptions regarding greater access to juvenile court proceedings have been informed by having been a public defender in juvenile and criminal court for 20 years and almost 24 years as a juvenile court judge. I have been advocating and writing about this issue for many years as I believe that opening the doors is consistent with promoting greater due process and accountability in our juvenile and family courts. See, e.g., Judge Jay D. Blitzman, Gault’s Promise, 9 Barry L. Rev. 67, 96–97 (2007). As noted, some states have started to rethink the orthodoxy of closed juvenile session. Oregon has opened child welfare cases pursuant to its constitution, stating that “[n]o court shall be secret, but justice shall be administered, openly and without delay.” Flint, supra. England allows access while precluding access to court records and the publishing of children’s names. These approaches allow for eliminating the collateral consequences of dissemination of juvenile records while crafting relief, balancing the public’s right to know with the privacy interests of children and others.
Changing or challenging legal culture is not easy, but it is often necessary. New York provides an interesting example of encountering entrenched attitudes. In 1997, Chief Appeals Court Judge Judith Kaye ordered that New York State’s Family Court be open to the public. N.Y. Comp. Codes R. & Regs. tit. 22, § 205.4, provides that family court sessions are presumptively open but allows a judge to craft appropriate relief or limitations to access upon request of a party or if justice so requires. On its face this formulation is aligned with Judge Edward’s recommendation, the path taken by other states, and the NCJFCJ resolution adopted in 2005. This approach allows for nuance and flexibility as well as the input of families who are directly affected by court involvement.
However, despite the 1997 change to the law, a 2011 New York Times article noted that “14 years later, the Family Court remains essentially, almost defiantly, closed to the general public.” William Glaberson, New York Family Courts Say Keep Out, Despite Order, N.Y. Times, Nov. 17, 2011. In the article, Leah A. Hill, a Fordham Law School professor who had written about and practiced in N.Y. Family Court, stated that “the courts were largely as unaccountable today as they had ever been, even though they can hold a central place in the lives of poor New Yorkers.” Id. The concluding chapter of Invisible Child features Dasani, one of the children of an extended family which had been in A.C.S. custody, eloquently sharing her lived experience and feelings in a New York Family Court hearing. Her testimony serves as an example of the power and importance of client-directed advocacy as well as, perhaps, a sign that New York is enforcing the mandate to open sessions.
Opening juvenile court sessions will help the public understand the much broader scope of the actual issues facing children and families. As an attorney, I have learned the importance of youth being seen and heard, and as a jurist I have heard countless numbers of juvenile and child welfare cases and state intervention cases. Opening the doors is necessary to afford an understanding of the complexity of the proceedings and the larger frames and systems that affect children, their families, and the public.
Supreme Court Justice Louis Brandeis’s maxim that sunlight is the greatest disinfectant is apt. From his lips to legislators’ ears.
