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:O~~;1IJH PLE,j,S COUP.T IN THE COURT OF COMMON PLEAS

IHi~R I 9 AM10: 3 i
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JUVENTI.-E DIVISION GEAUGA COUNTY, OIDO MATTER OF: .

CASE NO. ,12JDOOOI02 J.D. NO. 32872

L-~"I:';~ ~~

, ~D'I')I\;;!Qti

3U.,UGA CC\JtiTY. om-Oum

T.M.L.ill

) ) ) )

JUDGE TIMOTHY J, GRENDELL JUDGMENT ENTRY from courts of general jurisdiction.

Juvenile

courts

differ

significantly

The juvenile court's mission is to insure the welfare of children and provide social aod rehabilitation services, as well as protect the community. In re TR" 52 Ohio St.3d 6, 15, 556 N.E.2d 439 (1990). For those reasons, "Juvenile Court proceedings have historically been closed to the public." State Ex ReI. Plain Dealer Publishing Co, v. Geauga County Court of Common Pleas, Juv. Div., 90 Ohio St.3d 79, 83, 734 N.E.2d 1214 (2000). However, in this age of instant communications, maintaining the confidentiality of an alleged juvenile offender's identity is practically impossible. This Court has released the delinquency and paternity records pertaining to

T.M,L. HI on the basis of In 're T.R., 52 Ohio St.3d 6, 556 N.E.2d 439 (1990\
This Court bas provided the media organizations seeking access to various juvenile court records with the requisite due process with respect to those other requested
juvenile court records. State Ex ReI. Plain Dealer Publishing Co. v.. Geauga Coun

Court of Common Pleas, Juv. Div., 90 Ohio St.3d 79, 734 N.E.2d 1214 (2000); State REd Dispatch Printing Co. v. Geer, Judge, 114 Ohio St.3d 511, 2007-0hio-4643,

B!X

813

N.E.2d 314. This Court conducted an evidentiary hearing, gave the media organizations' a meaningful opportunity to

be heard
,

on the disclosure issues, and provided an in came

general overview/inventory of the juvenile court records, if any, to be excluded from me

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public domain to counsel for the parties. State Ex Ref. Dispatch Printing Co. v Lias, Judge, 68 Ohio St.3d 497, 628 N.E.2d 1368 (1994). After (i) reviewing the briefs filed on behalf of several media organizations, the Geauga County Prosecutor, and the Geauga County Jobs and Family Services (GCJFS);
(ii) considering the testimony of Tim Taylor, Director of GCJFS, presented at the hearing

on March 6, 2012; and (iii) conducting an in camera review of the records, this Court
makes the following findings and Orders:

Courtroom Photography or Filming Photography and filming in the courtroom is permitted without restriction during hearings in this case, except that photography of T.M.L. III while in restraints or protective vest in the juvenile court building or while entering or leaving that building is prohibited. Paternity Action The records of the paternity action relating to T.M.L. III are subject to public release after redaction of statutorily prohibited information. These records shall be released by the Clerk of the Geauga County Juvenile Court. Possible GC1FS Records Relating to T.M.L. III

Several media organizations have requested access to other records, if any,

maintained by the juvenile court relating to T.M.L. III. Counsel for T.M.L. III, on his behalf, initially objected to the release .of those records, but subsequently withdrew that objection. However, T.M.L. III has not executed a release or expressly waived his confidentiality rights with respect to those records. Parents, not their Children, are the parties charged in an abuse, neglect and dependency

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action. '"[A]n abused, neglected or dependent child is wholly innocent of wrongdoing". In re T.R., 52 Ohio St.3d at 16. The parents ofT.M.L. ill have not entered an appearance in this case and have not waived any confidentiality rights. Custody of T.M.L. III was previously granted to his maternal grandparents, who also have not waived any

confidentiality rights with respect to T.M.L. In in these proceedings. Counsel for GCJFS, on its behalf. has objected to the release of any GCJFS abuse, neglect and/or dependency proceedings records, if they exist, pertaining to T.M.L. III or his family on the grounds that (1) such records have historically been considered confidential; (2) GCJFS, itself, is statutorily prohibited from releasing those confidential records; and (3) the release of such confidential records, if in existence, would endanger the ability of GCJFS to protect children and families in Geauga County in pending or future unrelated abuse, neglect and dependency cases. The Court held an evidentiary hearing on this issue on March 6, 2012. Counsel for the Associated Press challenged the standing of GCJFS to object to the release of any such records, if they exist. '
ill

The Court conducted an

camera conference with counsel for the media

organizations, GCJFS. T.M.t. III, and the Geauga County Prosecutor at which the Court provided counsel a general 6verview or inventory of possible records maintained by the court that could be responsive to the media's requests. The Courthas reviewed the Ohio Supreme Court's decisions regarding access to juvenile court records and is' aware of the test for closure outlined in State Ex Rei. Plain Dealer Publishing Co. v. Geauga County Court a/Common Pleas, Juv. Div., 90 Ohio st. 3d 79,85, 734 N.E.2d 1214 (2000):

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(1) There exists a reasonable and substantial basis for believing that public access could harm the child or

endanger the fairness of the adjudication, (2) the potential for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure.
1

Based on the application of that test, this Court publicly released the juvenile delinquency records and paternity records concerning T.M.L. III in this pending case. The Court is aware of Sup.R. 45 (E)(2) which, in part, reads: A court shall restrict public access to information in a case document or, if necessary, the entire document, if it finds

by clear and convincing evidence that the presumption of

allowing public access is outweighed by a higher interest after considering each of the following: (a) Whether public policy is served by restricting public access; (b) Whether any state, federal, or common law exempts the document or information from public access; (c) Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information,

public safety, and fairness of the adjudicatory process. This Court also is subject to Juv.R. 37(B), which states:

This test was originally pronounced in In re TR., 52 Ohio St.3d

4

6, 556 N.E.2d

439 (1990) (this test is

referred to in this Judgment Entry as the ''TR test").

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No public use shall be made of any person, including a party, of any juvenile court record, including the recording or a transcript of any juvenile court hearing, except in the course of an appeal or as authorized by order of the court or by statute. The Ohio Supreme Court has recognized that "[tjhe purpose of Juv.R. 37(B) is to keep confidential juvenile court records involving children, since their welfare is at stake." State Ex Rei. Plain Dealer Publishing Co. v, Floyd, Judge, 111 Ohio St.3d 56, 2006-0hio-4437, 855 N.E2d 35 ~51 (quoting State Ex ReI. Scripps Howard 73

Broadcasting Co. v. Cuyahoga County Court of Common Pleas, Juvenile Division, Ohio St3d 19,22,652 N.E.2d 179 (1995).

This Court notes that the Ohio Supreme Court has recognized the difference between a delinquency case and an abuse, neglect and dependency action, stating: The need for confidentiality is even more compelling in the case of a child who is abused, neglected, or dependent The delinquent child is at least partially responsible for the case being in court; an abused, neglected, or dependent child is wholly innocent of wrongdoing. While the public arguably has an interest in del~quency proceedings which is analogous to its interest in criminal proceedings, see

Repository, supra, 28 Ohio St.3d at 420, 28 OBR at 474, 504 N.E.2d at 39 (public has qualified right of access because "the public is a party to all criminal proceedings"),

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this

interest. is not

present

in

abuse,. neglect,

and

dependency proceedings. Additionally, the effectiveness of the statutes and rules mandating confidentiality of the

records of juvenile courts and children's services agencies would be destroyed if the public were allowed to access the proceedings generated.
In re T. R., 52 Obio St.3d 6, 16, 556 N.E.2d 439 (1990).

in which

the

confidential

records

were

This Court has found no Ohio Supreme Court decision that mandates or requires that the confidential records of prior abuse, neglect and/or dependency actions be released to the media. Even if abuse, neglect and dependency records were subject to

release under some circumstances, is be a significant difference between the question of

public access to a current delinquency or abuse, neglect and dependency hearing where the outcome of that hearing ~ay have some present time community impact and dredging up old records of long past events that have no present time impact on the community. In the latter situation, public release of those old records can only serve to "feed the public's appetite for tabloid journalism". In re NH, 63 Ohio Misc.2d 285, 297, 626 N.E.2d 697

(1992). In such instance, the potential for harm, not only to a juvenile involved in a current delinquency proceedfng, but also to any other juvenile and the juvenile's family who is not involved in an active delinquency action, greatly outweighs the benefits of

public access.

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This

Court notes that the TR test does not address the potential harm that release
court records could cause to other juveniles in a family

of abuse, neglect and dependency who

are not otherwise presently before the court,

The TR test also does not address the larger issue of the need for confidentiality of

abuse, neglect and dependency proceeding records for the benefit of the children who are
the protected individuals

in' abuse, neglect and dependency

proceedings

throughout

the

State of Ohio. The Ohio Legislature

personal enacting has recognized the need for maintaining' those sensitive

social and family history records in abuse, neglect, R.C. 5153,17, which proscribes that records

and dependency

cases by by public

of investigations

children's
confidential.

services

agencies

on abused,

neglected

and dependent

children

are

Judicial public release of those statutorily protected records after an abuse, neglect or dependency

case has been filed with or adjudicated by a juvenile court would render

the statutory prohibition of the release of such records

Every abuse, neglect

by

JFS totally meaningless.

and dependency
the records

action

requires a hearing. While the media could

could readily circumvent

not directly

obtain

from

JFS, the media

that

restriction by seeking access 'to the juvenile court's records. As the Ohio Supreme Court has correctly noted, "the effectiveness
of the records of juvenile
I

of the statutes and rules mandating

.

confidentiality

courts and children's

services agencies would be destroyed if in which the confidential records were

the public were allowed to access the proceedings

granted". (Emphasis added) In re T.R, ~52 Ohio St.3d 6, 16,556 N.E.2d 439 (1990).

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Moreover, as testified in court by Tim Taylor, Director of GeJFS, judicial release of abuse, neglect and dependency records filed by GCJFS would (a) undermine the very purpose the Legislature entrusted such agencies 'With their authority to act - - the critical issue of protecting the safety of children and keeping them in their own homes; and (b) break the all-important "trust" between families struggling through difficult personal problems and the local family services agency, which often is the last lifeline available to that family- As evident by the testimony of Director Taylor, the overriding public policy concern reflected in the statutory prohibition against release of family services records is that the public release of those records through GCJFS or the Juvenile Court will result in the loss of anonymity for everyone involved. TIlls loss of anonymity, in turn, will stop people from using GCJFS, resulting in a loss of critical services to dysfunctional families to the detriment of the community at large. Why would anyone openly share their worst personal weaknesses, voluntarily confess to substance abuse, submit to mental or substance abuse counseling or therapy, and disclose their most intimate personal secrets to GCJFS personnel or other

professionals brought in by GCJFS in an abuse, neglect or dependency case if such intimate personal details could be published in the future on the. front page of a newspaper or revealed on the six o'clock news? Without such personal candor and the concurrent expectation of confidentiality, the statutory process for correcting parental deficiencies in a dysfunctional family and reuniting those families would be rendered woefully ineffective. Open-ended public access of sensitive personal information also would

contravene the purpose ofR.C. 2151.01 (A). which is "to provide for the care, protection

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and mental and physical development of children . . . whenever possible in a family environment." This potential for harm to the JFS statutorily mandated abuse, neglect and

dependency process, while not limited to the T.M.L. III case, overwhelmingly outweighs .
any benefit that public access could have to such records, if any, relating to T.M.L. Ill.

Such overwhelming destruc~on of the integrity of the JFS abuse, neglect and dependency
process has not been directly addressed in any decision of the Ohio Supreme Court or Eleventh District Court of Appeals to date. As Director Taylor further testified, medical records in a GCJFS case file, if in existence, also would be subject to restrictions on release contained in the federal HIP AA law. This Court also is cognizant of its duty to prevent public access to the juvenile records that could "endanger the fairness of the adjudication." Based on this Court's in camera evidentiary review of certain records that the Court has generally described to the attorneys for the media organizations and other counsel in this case, this Court finds that there exists a reasonable and substantial basis for believing that public access to such information could endanger the fairness of the current T.M.L. III adjudication by potentially skewing a possible jury pool should this case be bound over to the General Division of the Geauga County Common Pleas Court. For these reasons and based on the testimony of Director Taylor and the Court's
I

in camera evidentiary document review, this Court finds that: 1. There exists a reasonable and substantial basis for believing that public ac~ess to the GCJFS records, if any, relating to

T.M.L. III could endanger the fairness of this adjudication;

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2. Any potential harm caused by such public release is not

outweighed

by the benefits of public access; and

3. There are no reasonable alternatives to denying access to such records if they, in fact, exist.' Therefore, this Co~ pursuant to its authority under Juv.R, 37(B), Sup.R. 45, and

Ohio law, rules that the requests by the media organizations for any GCJFS abuse, neglect and dependency records relating to TM.L. III, if in existence, are denied.

The Clerk of the Geauga County Juvenile Court is hereby ordered and directed not to

publicly release such records, if they exist. Juvenile Records, if any, of the Purported Victims Some media organizations also have requested copies of juvenile records, if any,

held by the Clerk of the Geauga County Juvenile Court relating to the six purported
victims of the charges pending in this action against

T.M.L. III.

This Court previously indicated that it would conduct a further hearing on this issue after the families of those individuals were provided notice and an opportunity to be heard. Upon further consideration, the Court has decided that such hearing is not necessary and the issue should be addressed in this Judgment Entry. It is one thing to conclude, as the Ohio Supreme Court did in TR, that a juvenile who commits a serious violation of the law invites public scrutiny of his juvenile delinquency proceedings.

TR., supra, at 16; 556 N.E.2d 439_ To say that purported

victims of such alleged unlawful behavior invite such subsequent scrutiny of any possible

Any effort to redact confidential or personally sensitive information from any JFS records would leave little more than black marks and is simply not feasible. Such redaction also has the potential of making any redacted released information misleading to the public, potentially endangering the fairness of the adjudication.
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past juvenile indiscretions by the victims or family-related proceedings involving the victims is ludicrous. Public release of such information, if in existence, would only serve to further victimize the alleged victims and their families. The Ohio Supreme Court's TR test for juvenile records bas been applied to currently pending proceedings. That test simply is not functional when applied to a purported juvenile victim of a subsequent juvenile honUcide.3 For example, public access will not directly harm or endanger such alleged juvenile victim in the sense of the pending action because the victim is deceased. But, the release of the records of an old juvenile' proceeding or abuse, neglect or dependency case, if any, could cause unwarranted and unnecessary embarrassment to the reputation of the victim who cannot defend himself The TR test does not even

contemplate the question as to how a court should weigh the harm to such deceased juvenile's reputation or the harm that such public access could have on the families of such victims. To make those families stop their grieving and hire attorneys and experts to testify as to the harm caused by public access to possible prior juvenile records in response to a media inquisition is inhumane and unsupported
by any direct Ohio case

law. This Court is not aware of any decision by the Ohio Supreme Court or Eleventh District Court of Appeals that mandates public disclosure to the media of the past juvenile court records, if any; of purported victims of subsequent juvenile offenders. Indeed. as asserted by the Prosecutor on the fourth page of the State's Motion to

Deny Media Access to Victims' Records, if such records exist

Justice Pfeiffer, in his dissent in a 2000 Geauga County juvenile case, raised a legitimate concern about the ability of parents of a juvenile offender "to afford the psychologist and social worker the maj ority seems to require" in a juvenile records disclosure case. That concern pales in comparison to the concern raised by requiring parents who recently lost their child as the result of an alleged juvenile offense to hire experts to testify as to the harm caused by publicizing that deceased child's past. State Ex ReI. Plain Dealer Publishing Co., 90 Ohio St.3d 79, 90, 734 N.E.2d 1214 (2000) (pfeiffer, J., dissenting).
3

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[The TR) test anticipates use for only currently pending cases, as it requires the court to consider the effect on the adjudication of the juvenile .. The court cannot fairly

conduct a hearing to consider these factors when the case has already been filed, beard, and concluded. In cases where the Ohio Supreme Court has determined access should have been granted, the charges dealt 'With serious and heinous crimes that made the news prior to the filing of charges. They were not cases where the media or other members of the public just wanted to see what was out there on a specific juvenile. To use this erroneouslyapplied test to grant media access to records from a prior, closed case would deprive the actual parties, the alleged

victims, from having the ability to defend against such

requests. Their cases, if they exist, are completed, and no requests for access to those proceedings or records were made while the case was moving through court. The time period for seeking access to those cases has passed. In addition, it should be noted that application for the alleged victims' potential records cannot be made in this case. The alleged victims are not parties to the case of In re

TML. 111and cannot defend against such requests. There is

no basis or standing for the request of records pertaining to

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the potential cases of In re D.P., In re D.H.. In re R.K, In re JR., or In re N W, by filing requests in the case of In re

T.ML.IIl.

Moreover, the overriding purposes of juvenile delinquency proceedings are to hold an offender accountable for the offender's actions and rehabilitate the offender. R.e. 2152.01 (A). The juvenile justice process is designed by the Legislature to "protect children from the public stigma of criminal prosecution." In re Anderson, 92 Ohio St.3d 63, 65, 748 N.E.2d 67 (2001). If any such prior records exist as to an alleged juvenile victim of a homicide, protecting such victim posthumously is equally consistent with that statutory purpose .. This Court has also conducted an in camera evidentiary review of such records, to the extent such records exist, and has provided a general description thereof to the attorneys for the media, State, and T.M.L. III. Based on that evidentiary review, the Court
finds that:

1. There exists a reasonable and substantial basis for believing

that public access to the juvenile records of the alleged . victims, to the extent any such records exist, could cause harm to those individuals, families and could their reputations, the fairness and their of this

endanger

adjudication;"

The attorneys for T.M.L. III have' a means for their possible access to any such records, if in existence, through proper discovery in the pending action.

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2. Any such potential harm caused by such public release is not outweighed by the benefits of public access; and 3. There are no reasonable alternatives to denying access to such records if they, in fact, exist.
Pursuant

to Ju'V.R. 37(B), this Court rules that the requests by the media for

. juvenile court records, if any, of the purported victims in this action are denied. The Clerk of the Geauga County Juvenile Court is hereby ordered and directed not to release such records, if they exist. IT IS SO ORDERED.

cc:

Prosecutor Burling Prosecutor Swenson GCJFS Robert Farinacci Mark LaVelle Theresa Tolson David Marburger Steven Friedman Kevin Shook Maureen Tracey Probation

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