T.R., In re

• Decision Date: 13 June 1990
• Docket Number: Nos. 89-1302,89-1303,s. 89-1302
• Parties: , 59 USLW 2087, 17 Media L. Rep. 2241 In re T.R., a Juvenile. The STATE, ex rel. DISPATCH PRINTING COMPANY, Appellee, v. SOLOVE, Judge, et al., Appellants.
• Court: Ohio Supreme Court

Page 6

52 Ohio St.3d 6

556 N.E.2d 439, 59 USLW 2087, 17 Media L. Rep. 2241

In re T.R., a Juvenile.

The STATE, ex rel. DISPATCH PRINTING COMPANY, Appellee, v. SOLOVE, Judge, et al., Appellants.

Nos. 89-1302, 89-1303.

Supreme Court of Ohio.

Submitted Feb. 21, 1990.

Decided June 13, 1990.

Syllabus by the Court

1. Interlocutory orders of a trial court restricting public access to pending litigation are not final, appealable orders, and may be challenged during the pendency of the litigation only through an action for a writ of prohibition. Members of the press and public who seek access to a closed court proceeding have standing to seek a writ of prohibition for this purpose. (State, ex rel. Dayton Newspapers, Inc., v. Phillips [1976], 46 Ohio St.2d 457, 75 O.O.2d 511, 351 N.E.2d 127, paragraphs one and two of the syllabus, applied and followed.)

2. The "open courts" provision of the Ohio Constitution, Section 16, Article I, creates no greater right of public access to court proceedings than that accorded by the Free Speech and Free Press Clauses of the First Amendment to the United States Constitution and the analogous provisions of Section 11, Article I of the Ohio Constitution. These provisions create a qualified right of public access to proceedings which have historically been open to 3. Proceedings in juvenile court to determine if a child is abused, neglected, or dependent, or to determine custody of a minor child, are neither presumptively open nor presumptively closed to the public. The juvenile court may restrict public access to these proceedings pursuant to Juv.R. 27 and R.C. 2151.35 if the court finds, after hearing evidence and argument on the issue, (1) that there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, and (2) the potential for harm outweighs the benefits of public access.

the public, and in which public access plays a significant positive role. (Press-Enterprise Co. v. Superior Court [1986], 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, followed; State, [556 N.E.2d 442] ex rel. The Repository, v. Unger [1986], 28 Ohio St.3d 418, 28 OBR 472, 504 N.E.2d 37, explained.)

These cases challenge a judgment of the court of appeals invalidating a court-closure order and a gag order entered in a consolidated dependency and custody action now pending in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. The court proceedings stem from a complex and unique set of facts surrounding the birth of a little girl, Tessa Annaleah Reams.

In 1982, Richard Reams utilized a firm known as the Association for Surrogate Parenting Services, Inc. to contact one Norma Lee Stotski, who agreed to act as a "surrogate mother" and bear Reams's child by artificial insemination in return for $10,000. As is customary in such arrangements, see In the Matter of Baby M (1988), 109 N.J. 396, 410, 537 A.2d 1227, 1234, Stotski agreed to surrender custody of the child to Reams at birth and consent to adoption by Reams's wife Beverly, n.k.a. Beverly Seymour.

Stotski gave birth to Tessa on January 12, 1985. Soon after, the Reamses took custody of Tessa. They failed to formalize Tessa's adoption by Seymour. Approximately one year later, Reams and Seymour divorced.

Reams, Seymour and Stotski each sought permanent custody of Tessa. During the next three years, the parties contested Tessa's parentage and custody in the courts of three different counties. Genetic tests performed during the litigation revealed that Tessa's biological father is Leslie Miner, a friend of Stotski's who agreed to act as a donor when attempts at artificial insemination with Reams's semen failed. The dispute over custody of Tessa was the subject of newspaper articles in the Delaware Gazette and the Columbus Dispatch, a newspaper published by relator-appellee, Dispatch Printing Company ("the Dispatch"), during 1987.

The action which gave rise to the instant case is pending in the juvenile court before respondent-appellant, Judge Ronald L. Solove. It is a consolidation of two cases: a custody only proceeding and a proceeding to have In January 1989, Seymour sent copies of a homemade press release, entitled "Mother in Fact ² Battles Surrogate for Child," to several newspapers and surrogate parenting groups. The release, which related Seymour's position on the merits of the dispute, included a photograph of Tessa and a plea for contributions to a "legal fund."

                Tessa declared a dependent child. 1  Reams, Seymour, Stotski and Miner are parties to this consolidated action.  It appears that Reams and Seymour are sharing custody of Tessa pending resolution of the underlying custody and dependency cases
                

The release generated media interest. The New York Times and the Dispatch ran extensive articles accompanied by photos. A six-page story appeared in People magazine. A weekly tabloid newspaper, Star, ran a full-page feature entitled "Who Owns Baby Tessa?" which described the child as "legally nobody's." It was accompanied by a sidebar inviting readers to submit proposed solutions "in less than 50 words" to what the article described as "a cruel tangle of love with an innocent child in the middle." Seymour was interviewed by a reporter and camera crew from Fox Television. She was also scheduled to appear on the syndicated "Geraldo" talk show.

Apparently in response to Seymour's media contacts, Tessa's guardian ad litem and counsel for Tessa moved for a so-called "gag order" enjoining the parties from communicating with the press and public concerning Tessa or the consolidated action. ³ Seymour was the only party to oppose the motion. The Fox Television camera crew, which had interviewed Seymour, was permitted to photograph the hearing. A representative of Fox made a statement in opposition to the motion. A Dispatch reporter also attended the hearing, but did not participate.

Seymour testified that her purpose in contacting the media was to use public opinion to influence the outcome. "I am doing everything I can as her mother to strengthen my position," she said. In her opinion, increased Dr. Jo Ann King, a licensed clinical psychologist, testified to the effects of media attention on children involved in custody disputes. Dr. King did not meet with or evaluate Tessa or any of the other parties. She based her opinion on professional experience. According to Dr. King, a child who is the subject of a custody dispute is already in a difficult position and faces a "[h]igh probability" of emotional harm. Substantial publicity about the custody dispute would increase the probability of harm. She concluded that substantial publicity is always contrary to the best interests of the child involved.

public attention would benefit Tessa. The court also heard testimony from Stotski that she, too, was considering an appearance on "Geraldo."

After hearing testimony, Judge Solove entered identical orders in each of the consolidated cases. The orders enjoin the adult parties, their attorneys, and agents from "disseminating any information about this pending cause or about the minor child Tessa Reams to any and all persons * * * including, but not limited to, representatives of both the broadcast and print media; and * * * from appearing on any and all radio and television broadcasts regarding these causes or the minor child herein; and * * * from otherwise providing any information regarding these causes or said child either directly or indirectly in any fashion whatsoever."

The guardian ad litem and Tessa's counsel also filed a motion seeking, inter alia, to close the courtroom to the press and public and to seal the record of the case. Counsel for the Dispatch participated in the hearing on this motion and presented testimony, though the Dispatch was not formally joined as a party.

Tessa's counsel called Jamie Schmerbeck, a social worker assigned to Tessa's case, as an expert witness. Schmerbeck testified that media coverage of the court proceedings would not be in Tessa's best interest because it would increase the chance that Tessa could be exposed to "negative allegations" concerning Reams's or Seymour's fitness as a parent. Counsel for Tessa argued that the presence of the news media would place him and Tessa's guardian ad litem in "an untenable position" because they might be required to either withhold sensitive evidence from the court or risk psychological harm to Tessa from its disclosure.

David Ferguson, managing editor of the Dispatch, testified on the benefits of press access to the proceedings.

In a written opinion, Judge Solove found that "the interests in protecting Tessa Reams and in a full judicial exploration of all relevant evidence bearing on her best interest in the custody dispute are overriding and the presumption in favor of openness is overcome in this case. * * *" He ordered that "the trial and all other proceedings in this matter shall be closed to all news media and members of the public, except parties, witnesses * * *, counsel, and necessary court personnel. * * *" Access to the case file was similarly restricted.

The Dispatch appealed both the gag order and the closure order to the Court of Appeals for Franklin County. The Dispatch also sought a writ of prohibition in the same court, seeking to prevent Judge Solove from enforcing the orders. The guardian ad litem intervened as a respondent in the prohibition action.

The court below held that the Dispatch had standing to appeal the closure order (which the court determined to be a final, appealable order) Tessa's guardian ad litem and Judge Solove filed an appeal as of right from the writ of prohibition as case No. 89-1303. In addition, the guardian filed a motion to certify the record in the appeal from the closure order as case No. 89-1302. We granted this motion, In re T.R. (1989), 46 Ohio St.3d 716, 546 N.E.2d 1334, and consolidated the cases.

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