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January 30, 2005

Open child abuse hearings go well

January 30, 2005 [Associated Press] By Katharine Webster

CONCORD, NH — A small ray of sunshine is creeping into one of the most secretive parts of the state court system: child abuse and neglect hearings.

Usually only the most horrific cases become public, when criminal charges are filed against an adult, because criminal cases are open under constitutional guarantees of a fair trial.

Those cases represent the tip of the iceberg. The majority of abuse and neglect cases are civil and so secretive that only the accused, the prosecutor and witnesses can attend — not foster parents, not grandparents.

Now, under a pilot project, family courts in Grafton and Rockingham counties let anyone attend child abuse and neglect hearings, although judges still may close all or part of them if there is a good reason. Also, those who attend are warned it is illegal to disclose information that could identify a child or parent.

Still, the pilot project could shed light on how well judges, police, court-appointed guardians, social workers and the state Division for Children, Youth and Families do their jobs and whether elected officials are providing enough money for child protection and services for families, advocates say.

"It puts some sunlight on the process and, as we all know, sunlight is the best disinfectant," said former state Sen. Ned Gordon, R-Bristol, a lawyer who handles family law cases.

"People are forbidden by law from commenting on the hearings and could be prosecuted if they criticize DCYF," Gordon said. "That's wrong."

Gordon introduced a bill in 2002 to open abuse and neglect cases and related hearings, such as those to terminate someone's parental rights. Instead, the Legislature set up the pilot project in Grafton County, then expanded it to Rockingham County last July.

The move follows a national trend toward greater openness in such cases, reversing a nationwide move decades earlier to close nearly all cases centered on children: juvenile delinquency cases, abuse and neglect hearings, and even divorce and child custody disputes in some states.

According to a July 2003 survey by the national Conference of Chief Justices, one state — Oregon — now requires that all abuse and neglect hearings be open; 13 states presume they are open but give judges the discretion to close them; and nine states presume they are closed but allow judges to open them.

Six states close them to the general public, but allow people with an interest in a particular case to attend, and 19 states (including New Hampshire) and the District of Columbia mandate complete closure. Ohio has no presumption of either openness or closure and Nevada is conducting a pilot project similar to New Hampshire's.

Steve Varnum is the public policy director of the Children's Alliance of New Hampshire. He supports more openness to educate the public about the division's work. At the same time, he thinks children's and parents' identities should be scrupulously protected.

"DCYF is not about yanking kids out of homes and putting them in foster care," said Varnum, who covered the agency for years as a Concord Monitor reporter.

"That represents a very small percentage, and even in most of those cases kids are going to return home, so it's about more than protecting kids — it's about making families whole, and that's hard to do in an atmosphere where everyone in a small town knows the horrible abuses that have gone on in a family," he said.

Warren Lindsey, an attorney for the division who has handled cases in Grafton County, said he asks judges to close hearings when they involve allegations a child has been sexually assaulted, but otherwise has no problem with them being open. At the same time, protecting the identity of children is critical, he said.

"We want people to know what we do," Lindsey said. "It's always a difficult balancing act. ... When people come forward, it's extremely traumatic for them."

Judge Edwin Kelly, chief justice of the state's district courts, believes the pilot project "has come very close to the ideal" in striking that balance.

In the pilot project, judges are supposed to close testimony involving a child's medical and psychological history and close hearings entirely when the child is present, although that's rare, Kelly said. All written records in civil abuse and neglect cases remain sealed, as does the docket.

That leads to some contradictory results, Kelly acknowledged. In cases that lead to criminal charges, earlier civil actions remain sealed, making it difficult to learn about any abuse complaints involving the same victim or perpetrator and how authorities responded.

And while reporters can attend abuse and neglect hearings at random, they cannot get the schedule of future hearings or records in a particular case from the court, making it hard for them to be watchdogs for the public.

Kelly, who advocates more openness, hopes the Legislature will reconcile the contradictions.

"I would advocate for the widest open procedures that we could have without disclosing intimate psychological, medical and other details," Kelly said. "Any bureaucracy has to be and ought to be held accountable for how it conducts its business."

He said there were no problems during the pilot project's first two years in Grafton County.

State Rep. Carolyn Gargasz, chairwoman of the legislative committee overseeing the project, is most concerned with making sure people accused of abuse or neglect are allowed to have friends or family members in the courtroom.

Gargasz, R-Hollis, wants to assess the effect of openness on families before deciding whether to open hearings statewide.

Closed hearings sometimes become public when one party or side goes public. That was the case last summer in a Massachusetts courtroom when a New Hampshire boy, Patrick Holland, sought to terminate the parental rights of his father, who had murdered Patrick's mother. The only person free to speak with the media, because he was not a party to the case, was Patrick's guardian, Ron Lazisky, of Sandown, N.H.

When The Associated Press challenged the case's closure, the judge said he would like to open it so reporters could hear all sides, but state law required him to close it.

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