In re MB

• Decision Date: 26 February 2003
• Citation: 819 A.2d 59,2003 PA Super 76
• Parties: In the Interest of: M.B., born 10/10/88 J.B., born 2/14/94. Appeal of: PG Publishing Company d/b/a The Pittsburgh Post-Gazette.
• Court: Pennsylvania Superior Court

819 A.2d 59

2003 PA Super 76

In the Interest of: M.B., born 10/10//14/94.

Appeal of: PG Publishing Company d/b/a The Pittsburgh Post-Gazette.

Superior Court of Pennsylvania.

Argued October 23, 2002.

Filed February 26, 2003.

Joseph T. Moran and Walter T. McGough, Pittsburgh, for appellant.

Karen L. Kiefer, Scottdale, for A.B., appellee.

John R. McCreary, Latrobe, for J.B., Sr., appellee.

James L. Liberto, New Kensington, for Guardian Ad Litem, appellee.

Leslie J. Uncapher, Vandergrift, for Guardian Ad Litem, appellee.

Mary A. Grec, Greensburg, for Westmoreland County Children and Youth Services, appellee.

Before: MUSMANNO, LALLY-GREEN and KLEIN, JJ.

KLEIN, J.

¶ 1 PG Publishing Company d/b/a The Pittsburgh Post-Gazette ("PG Publishing") appeals from the order of the Court of Common Pleas of Westmoreland County denying its motion to open juvenile dependency proceedings in the above-captioned case. This appeal presents an issue of first impression in this Commonwealth: whether juvenile dependency proceedings may be closed to the press and the general public. We hold that while there is a rebuttable constitutional presumption that juvenile dependency proceedings are open to the public, our courts possess an inherent power to control access to their proceedings and may deny access when appropriate. Once an interested party seeks access, however, the party seeking to keep the proceedings closed may rebut the presumption of openness by demonstrating that: (1) closure serves a compelling governmental interest, and (2) no less restrictive means to serve that interest exists. Because we find that the parties seeking closure in this case have demonstrated a compelling interest in protecting the privacy of the minor children and that no less restrictive means than total closure exists, we affirm.

¶ 2 On July 15, 2001, the 8-year-old sister of M.B. and J.B. was murdered. On August 7, 2001, M.B. and J.B., ages 12 and 7 at the time, were removed from their parents' custody and placed into foster care by the Westmoreland County Children's Bureau ("WCCB"). Soon thereafter, the WCCB filed a petition under 42 Pa.C.S.A. § 6302, alleging that the children were dependents because they lacked proper parental control or supervision and adequate physical, mental, or emotional care. A series of juvenile dependency hearings followed.

¶ 3 In the ensuing months, the local media published numerous articles about the homicide and the parents' battles in family court to regain custody of the children. Additionally, the media published reports about the parents' alleged theft from a funeral expense fund created for the deceased child and about a sexual relationship between the alleged perpetrator, 35-year-old Charles Koschalk, and M.B. that had led to an earlier criminal prosecution. In many of these reports, the children's names were used.

¶ 4 In the midst of the dependency hearings, PG Publishing filed a motion to intervene and a motion to open the proceedings to the press and the general public. PG Publishing argued that the dependency proceedings should be open pursuant to Article I, Section 11 of the Pennsylvania Constitution and Section 6336(d) of Pennsylvania's Juvenile Act, 42 Pa.C.S.A. §§ 6301 et seq. On October 1, 2001, following argument, the trial court granted the motion to intervene and held the motion to open under advisement. On May 13, 2002, the trial court denied PG Publishing's motion to open. This timely appeal followed.¹

¶ 5 On appeal, PG Publishing argues that the trial court abused its discretion in denying its motion to open the proceedings. While it agrees with the court's finding that the Pennsylvania Constitution supports a presumption of openness in juvenile dependency proceedings, PG Publishing challenges the court's application of the constitutional balancing test for determining when such proceedings may be closed. When an appeal challenges a trial court's decision to grant or deny access to judicial proceedings, we will reverse only if we find that the trial court abused its discretion. See Storms v. O'Malley, 779 A.2d 548, 569 (Pa.Super.2001), app. denied, 570 Pa. 688, 808 A.2d 573 (Pa.2002); R.W. v. Hampe, 426 Pa.Super. 305, 626 A.2d 1218, 1220 (1993). Because we find no such abuse of discretion in this case, we affirm.

¶ 6 We begin by addressing the trial court's finding of a presumption of openness in juvenile dependency proceedings. Our courts have recognized a constitutional right of public access to judicial proceedings based on Article I, Section 11 of the Pennsylvania Constitution, which provides that "[a]ll Courts shall be open." Pa. Const. art. I, § 11; see Storms, 779 A.2d at 569 ("`In Pennsylvania, the common law, the first amendment to the United States Constitution, and the Pennsylvania Constitution, all support the principle of openness.'") (citations omitted). This constitutional provision has been referred to as a "mandate" for open and public trials, see Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578, 579 (1983) (plurality), and has been applied in both civil and criminal cases, see, e.g., Contakos, supra; Storms, supra.

¶ 7 As the trial court recognized, however, no reported Pennsylvania decision has addressed whether the constitutional presumption of openness applies to juvenile dependency cases. Unlike criminal or civil cases, juvenile proceedings have traditionally been closed to the public in most jurisdictions. See, e.g., United States v. A.D., 28 F.3d 1353, 1358 (3d Cir.1994) (noting that "[n]o centuries-old tradition of openness exists for juvenile proceedings"); Ernst v. Children & Youth Servs., No. Civ. A. 91-3735, 1993 WL 343375, at *32 (E.D.Pa. Sept.3, 1993) ("[J]uvenile proceedings do not have a tradition of open access to press and public...."), rev'd in part on other grounds, 108 F.3d 486 (3d Cir.1997); In re T.R., 52 Ohio St.3d 6, 556 N.E.2d 439, 449 (1990) ("The United States Supreme Court has repeatedly recognized that juvenile court proceedings have historically been closed to the public."). In addition, the purpose of dependency proceedings is to protect minor children and such proceedings are meant to be nonadversarial in nature. See In re Gault, 387 U.S. 1, 14-17, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile proceedings are neither adversarial nor criminal); In Interest of J.R., 436 Pa.Super. 416, 648 A.2d 28, 36 (1994) (throughout entire judicial process, "the juvenile is treated far differently than his or her adult counterpart"); San Bernardino County Dep't of Pub. Social Servs. v. Superior Ct., 232 Cal.App.3d 188, 198, 283 Cal.Rptr. 332 (Cal.App.1991) (juvenile hearings were meant "to be informal, nonadversarial and private," which was "more consistent with the rehabilitative goals of the juvenile court than were the traditional adversarial proceedings employed in the adult criminal court"); T.R., 556 N.E.2d at 448-49 (juvenile courts differ from courts of general jurisdiction in that "[h]earings are informal, and based on an inquisitorial model rather than an adversarial one").

¶ 8 Despite these differences, the trial court held that the presumption of openness should apply to juvenile proceedings in this Commonwealth because the plain language of our Constitution states unequivocally that "[a]ll courts shall be open," Pa. Const. art. I, § 11 (emphasis added), and because our courts have not distinguished among types of proceedings in interpreting this provision. See Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895, 897 (1976) (constitutional provisions should not "receive a technical or strained construction, but rather the words should be interpreted in their popular, natural and ordinary meaning"). We agree. We therefore hold that the constitutional presumption of openness applies to juvenile dependency matters.

¶ 9 Pennsylvania law provides both a constitutional and common law right of public access to judicial proceedings.² As even PG Publishing acknowledges, however, the right to an open and public trial is not absolute. See Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902, 906 (1976). We have recognized in many contexts that our courts have an inherent power to control access to their records and proceedings and may deny access when appropriate—for example, to protect the privacy rights of individuals or the integrity of ongoing criminal investigations. See, e.g., Commonwealth v. Stilley, 455 Pa.Super. 543, 689 A.2d 242, 252 (1997) (court may exclude public from trial "to prevent overcrowding, to maintain proper decorum, or where special circumstances warrant"); PG Publ'g Co. v. Commonwealth, 389 Pa.Super. 86, 566 A.2d 857, 862 (1989) (in determining whether to seal search warrant affidavits, court must balance presumption of openness against Commonwealth's need to keep information confidential so as not to jeopardize ongoing criminal investigation), aff'd, 532 Pa. 1, 614 A.2d 1106 (1992); In re Affidavit for Search Warrant for 4011 Wilson Ave., Bethlehem, Pa., 42 Pa. D. & C.3d 467, 473 (C.P. Northampton County 1986) ("Courts have an inherent power to control their records and proceedings, and may deny access when appropriate.") (citing Nixon v. Warner Comms., Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)).³

¶ 10 In Katz, for example, this Court held that while there is a common law right of public access to judicial proceedings, the press and the general public may be excluded from equitable distribution hearings "where such access may become a vehicle for harmful or improper purposes." 514 A.2d at 1377. This is so due to the intensely private matters involved in divorce proceedings and because divorce proceedings have traditionally "received protection against public scrutiny." Id. at 1379. The same is true of juvenile proceedings. See R.W., 626 A.2d at 1222 (recognizing that divorce and juvenile proceedings may be closed to public to prevent parties' embarrassment and protect privacy interests). As the late Judg...