Ky. Sup. Ct. Order 2020-02

Supreme Court of Kentucky

2020-02

IN RE: Authorization for the Open Courts Pilot Project

ORDER

I. Introduction and Purpose

In 2016, the Kentucky General Assembly enacted SB 40 requesting that

the Supreme Court of Kentucky institute a pilot project to study the feasibility

and desirability of the opening or limited opening to the public of the following

court proceedings, except if related to sexual abuse: Dependency, Neglect, and

Abuse (DNA) proceedings under KRS Chapter 620 and Termination of Parental

Rights (TPR) proceedings under KRS Chapter 625. The pilot project may be

established in a minimum of three diverse judicial districts or circuits, or

division(s) thereof, chosen by the Chief Justice and must last for four years,

unless extended or limited by the General Assembly. The Open Courts Pilot

Project has been operating pursuant to Supreme Court Administrative Order

2018-05.

For calendar year 2020, Divisions 1, 2, 5, and 6 of the 22nd Circuit

Family Court (Fayette County) have been chosen by the Chief Justice to

participate in the Open Courts Pilot Project. This Order hereby authorizes the

courts referenced herein to open court proceedings related to DNA and TPR

(except if related to sexual abuse) to the public.

II. Implementing Legislation

Through 2016 SB 40, the Kentucky General Assembly enacted the

following legislation: KRS 21A.190, “Pilot project to study the feasibility and

desirability of conducting some open juvenile proceedings”; KRS 21A.192,

“Procedures for courts participating in pilot project authorized by KRS

21A.190”; and KRS 610.072, “Attendance of public at hearings in courts

participating in pilot project authorized by KRS 21A.190.”

III. Authority

This Order is entered under the authority granted to the Supreme Court

of Kentucky by:

A. Section 116 of the Kentucky Constitution to prescribe rules and issue

orders of practice and procedure for the Kentucky Court of Justice; and,

B. KRS 21A.190 to establish pilot projects in a minimum of three diverse

judicial districts or circuits, or division(s) thereof, chosen by the Chief

Justice for the purpose of studying the feasibility and desirability of

opening some DNA and TPR proceedings to the public.

IV. Observation and Evaluation

A. The observation period for the Open Courts Pilot Project for calendar year

2020 will last from January 27, 2020, to February 21, 2020 (Observation

Period).

B. During the Observation Period, the Administrative Office of the Courts

(AOC) will be present and observe the four divisions chosen to participate

in the Open Courts Pilot Project.

C. Following the Observation Period and pursuant to KRS 21A.190(3), the

AOC will evaluate the Open Courts Pilot Project to determine the

following:

1. Whether there are adverse effects resulting from the opening of

DNA and TPR proceedings;

2. Whether the Open Courts Pilot Project demonstrates a benefit to

the litigants, the public, or both;

3. Whether the Open Courts Pilot Project supports a determination

that DNA and TPR proceedings should be presumptively open or,

alternatively, whether they should be closed;

4. How open proceedings under the Open Courts Pilot Project impact

the child;

5. The parameters and limits of the Open Courts Pilot Project;

6. Suggestions for the operation and improvement of the Open Courts

Pilot Project;

7. Whether any Rules changes are needed if the Open Courts Pilot

Project is to be made permanent and expanded to all courts; and

8. Whether any statutory changes are recommended if the program is

to be made permanent and expanded to all courts.

V. Implementation

A. For calendar year 2020, the AOC will collect data as follows:

1. Court records will be gathered throughout the Observation Period.

2. Surveys and court observation tools will be completed daily during

the Observation Period.

3. Focus groups will be conducted in February or March of 2020.

B. All data collected from court records, surveys, court observation tools,

and focus groups will be evaluated to determine the impact and

effectiveness of the Open Courts Pilot Project.

C. In accordance with KRS 21A.190(4), the AOC will provide an annual

report to the Legislative Research Commission, the Interim Joint

Committee on Health and Welfare, and the Interim Joint Committee on

Judiciary with its statistics, findings, and recommendations on the Open

Courts Pilot Project by September 1, 2020. The AOC will make periodic

progress and statistical reports as deemed necessary by the Chief

Justice.

VI. Procedure

A. Courts chosen to participate in the Open Courts Pilot Project must:

1. Open all DNA and TPR proceedings (except if related to sexual

abuse) to the public during the Observation Period only.

2. Set parameters for members of the public related to attendance at

open proceedings and information obtained during the

proceedings;

3. Establish a procedure to require each member of the public

attending a proceeding not to disclose the name or personal

identifying information of any person who is a party to, or is

testifying at, the proceeding.

B. Courts chosen for the Open Courts Pilot Project may close the hearing or

any part thereof upon motion of a party or upon its own motion if the

court determines that closure is in the best interest of the child, the

public, or for other good cause shown. The party seeking closure will

have the burden of proof.

1. The court must give priority to the best interest of the child.

2. The court must consider all relevant circumstances of the case,

including but not limited to:

i.The nature of the allegations;

ii.The age and maturity level of the child;

iii.The benefit to the public of an open hearing;

iv. The effect of confidentiality on the fact-finding process;

v. The wishes of the parties, victims, and the parents of any

child involved in the case; and,

vi. Whether reasonable alternatives to closure are available.

3. When determining whether to close a proceeding, the court must

make written findings of fact and conclusions of law using form

AOC-DNA-OC-1,Order Granting Denying Closure of Hearing to the

Public Pursuant to KRS 21A.192. Any order of closure shall be no

broader than is necessary to protect the interests asserted by the

party seeking closure.

C. Courts chosen for the Open Courts Pilot Project shall not:

1. Release any record discussed during an open proceeding which is

made confidential pursuant to law;

2. Permit any audio, visual, or other recording of the proceeding by

any party to the proceeding or by any person who is attending or

testifying at the proceeding;

3. Permit any audio, visual, or other recording of the proceeding

made for official court purposes to be made a public record, copied,

or released to the public; or

4. Permit any member of the public who is not a party to or testifying

at the proceeding to disclose, outside the courtroom, the name or

personal identifying information of any party or person testifying at

the proceeding.

D. Taking notes and removing them from the courtroom is permitted

provided that no name or personal identifying information of any minor

who is a party to, or is testifying at, the proceeding shall be taken from

the courtroom. This does not apply to, and does not limit the use or

publication of, any information obtained by means other than attendance

at an open proceeding authorized by this Order.

VII. Limitations

A. The public shall not be permitted to attend DNA or TPR hearings:

1. In a court that is not participating in the Open Courts Pilot Project,

except as otherwise authorized by law;

2. If the case is related to sexual abuse; or

3. When the judge presiding over the case has determined that the

hearing or any portion thereof shall be closed.

VIII. Termination

The Open Courts Pilot Project will be governed by this Order and all

applicable statutes and rules not inconsistent with this Order.

This Order shall be effective upon entry, and until further Order of this Court.

Entered this 10th day of January 2020.

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CHIEF JUSTICE