On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Stein, J.
The issue on this appeal is whether closure to the public of certain custody cases involving the Division of Youth and Family Services (DYFS or the Division) is mandated by Court Rules or statute. In this emergency-removal procedure instituted by DYFS, the trial court exercised its discretion in favor of admitting the press to the preliminary hearing. We granted the child's law guardian leave to appeal and now affirm.
Defendant's wife and infant child died in an automobile collision with a drunk driver. Defendant gained a degree of
publicity through his subsequent efforts to combat drunk driving. Defendant suffers from manic-depressive disorder as well as post-traumatic stress syndrome, conditions for which he receives medical and psychological treatment. According to his doctor, defendant's occasional failure to take regular dosages of the prescription drug lithium sulphate invariably leads to debilitating episodes of mental illness. When so afflicted, defendant has been known to leave his surviving three-year-old son in the care of neighbors or relatives.
In January 1990 an anonymous report alerted DYFS to the possibility that defendant's mental illness was seriously affecting his parenting ability. As a result of the ensuing investigation, DYFS removed defendant's child from his custody without court order, pursuant to N.J.S.A. 9:6-8.29. DYFS served defendant with a notice of emergency removal and advised him that an order to show cause and a verified complaint would be presented at a preliminary hearing on the following day. See N.J.S.A. 9:6-8.30 and -31. When defendant appeared in court to answer the complaint, he was accompanied by four members of the press who asked for permission to view the proceedings. DYFS opposed opening the proceedings. Defendant argued in favor of admitting the press. After extended argument from all parties, including the child's law guardian, the court ordered that the press would have access to the preliminary hearing.
In its ruling the trial court considered the question of press access based on the "best interests of the child" standard. See N.J.S.A. 30:4C-15(c). The court discounted the defendant's desire to have the press report on the proceeding. The court maintained that no per se rule could govern, that determinations must be made on a case-by-case basis:
I know the Division may very well feel sensitive in the sense that these are proceedings that shouldn't of their natural -- naturally be opened to the public because it may defeat the process of what the Division's policies are [and] the intent of the legislature. And I don't think any decision in this case would certainly be binding on any other case. The decision of this case would be certainly based upon the facts in this case.
The court then considered the possibility that the child might be harmed by press coverage of the hearing. The court considered the nature of the complaint made by DYFS and determined that the allegations did not involve "any type of sexual abuse or direct insult upon this child." Rather, the complaint concerned "the psychological and psychiatric well-being of the defendant and whether * * * he is capable to carry on his duties as a parent to nurture and care for the child * * *." The court specifically determined that nothing in the complaint would be an "embarrassment" to the child if it became public knowledge. The court therefore concluded that public disclosure of the content of the proceedings would be unlikely to have a detrimental effect on the child.
Although the trial court opened the hearing to the press, the trial court stated that it would close the proceedings at any time, if necessary to protect confidential information from disclosure. Thereafter, the court granted a stay to permit the filing of an interlocutory appeal. The Appellate Division denied the motion for leave to appeal, one member of the panel dissenting. The law guardian filed a motion with the trial court for an additional stay pending appeal to this Court. The trial court denied the petition. The Appellate Division affirmed that denial, as did this Court, thereby permitting the preliminary hearing to go forward. Simultaneously with our denial of the stay, we granted leave to appeal. N.J. (1990).
Under a subsequent court order, the child was returned to defendant's care, subject to DYFS' retention of legal custody. See N.J.S.A. 9:6-8.31c. In the trial court's view, that order obviated the need for the preliminary hearing.
The trial court order dispensing with the preliminary hearing makes it unnecessary for this Court to resolve the question whether the order permitting press access was error. We observe, however, that the issue of press access to civil hearings of this kind is one of considerable public importance
capable of repetition, yet evading review. In re Geraghty, 68 N.J. 209, 212, 343 A.2d 737 (1975); see Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310, 316 (1910). We therefore decide the issue presented.
In Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), the United States Supreme Court first addressed the question whether, consistent with the first amendment, judicial proceedings could be closed to the public. That case involved a murder trial from which the press as well as the general public had been excluded. The Court analyzed the issue in terms of the evolution of the criminal trial in Anglo-American justice, focusing on the fact that criminal trials historically have "been open to all who cared to observe." Id. at 564, 100 S. Ct. at 2821, 65 L. Ed. 2d at 982. The materials cited by the Court ...