In re the Adoption of Doe

OPINION OF THE COURT

ERJ, respondent in a proceeding to vacate her adoption of John Doe, a four-year-old Cambodian orphan, has moved to close the courtroom during a hearing on foreign law.1 LMB, movant in the underlying proceeding, opposes the motion.2

The focus of the hearing is narrow: do the essentially identical “Adoption Permission Certificates” issued by the Cambodian government to LMB on June 23, 2004, and to ERJ on October 11, 2005, constitute a completed adoption, as ERJ claimed in her petition for the readoption of John Doe,3 or merely a permission to adopt in a foreign country, as she claims now? Determination of this limited issue may avoid the necessity of a further hearing on more personal matters relating to the challenged *716adoption. In addition, the issue is of considerable general interest, as well as of particular interest to persons who have obtained and relied upon similar certificates to establish the adoptive status of their Cambodian children.

Constitutional, Judicial and Legislative Affirmation of Public

Trials

Public trials are a hallmark of our judicial system (see Richmond Newspapers, Inc. v Virginia, 448 US 555 [1980]). The rationale is set forth in an oft-cited quote by Justice Holmes:

“It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” (Cowley v Pulsifer, 137 Mass 392, 394 [1884].)

The First Amendment right of access to criminal trials applies equally to civil trials (e.g. Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1, 6-7 [1st Dept 2000]). In addition to the general reasons propounded by Justice Holmes, open trials “enhance the integrity and quality of what takes place” (Richmond Newspapers, Inc. v Virginia, 448 US 555, 578, supra [1980]), and make it more likely that witnesses will testify truthfully.4

The presumption of an open trial is codified in the Judiciary Law:

“The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bast*717ardy[5] or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.” (Judiciary Law § 4 [emphasis added].) 6

In the realm of family law, the Legislature has carved out additional exceptions to those found in the Judiciary Law, namely: custody proceedings (Domestic Relations Law § 235 [2]), support proceedings (Family Ct Act § 433 [a]), paternity proceedings (Family Ct Act § 531), proceedings concerning whether a person is in need of supervision (Family Ct Act § 741 [b]), and child protective proceedings (Family Ct Act § 1043).7 In addition, a more limited exception has been created in adult *718guardianship cases (Mental Hygiene Law § 81.14).8 Neither Judiciary Law § 4 nor any other provision of the Domestic Relations Law or the Family Court Act provides judicial discretion for excluding the public from adoption proceedings.

Accordingly, it is questionable whether it is even permissible to exclude the public from an adoption proceeding, despite the almost uniform practice by which this has become an “unofficial rule.” The parties have cited no “closure” case involving adoptions,9 nor, in the limited time since this motion was submitted on March 16, has the court found any such case.10

It also is questionable whether Uniform Rules for Family Court § 205.4 (b) — containing guidelines for a court to consider in exercising its “inherent” and statutory discretion to exclude the public from a courtroom — has application in a proceeding to vacate an adoption. That is: can an administrative rule create an exception to section 4 of the Judiciary Law?

The court need not reach that potentially constitutional question. Even under Uniform Rules for Family Court § 205.4 (b)— which the parties agree applies11 —respondent fails to overcome the strong presumption of an open court.

Section 205.4 (b) of the Uniform Rules for Family Court provides:

“(b) The general public or any person may be excluded from a courtroom only if the judge presiding in the courtroom determines, on a case-by-case basis based upon supporting evidence, that such exclusion is warranted in that case. In exercising *719this inherent and statutory discretion, the judge may consider, among other factors, whether:

“(1) the person is causing or is likely to cause a disruption in the proceedings;

“(2) the presence of the person is objected to by one of the parties, including the law guardian, for a compelling reason;

“(3) the orderly and sound administration of justice, including the nature of the proceeding, the privacy interests of individuals before the court, and the need for protection of the litigants, in particular, children, from harm, requires that some or all observers be excluded from the courtroom;

“(4) less restrictive alternatives to exclusion are unavailable or inappropriate to the circumstances of the particular case.”

Judicial exegesis, especially after the ringing reaffirmation of our courts’ commitment to open proceedings in the 1997 amendment to section 205.4, has made clear that the presumption of an open courtroom is not easily overcome, even when “protection of children” is invoked, lest the exception swallow the rule (see Anonymous v Anonymous, 263 AD2d 341, 342 [1st Dept 2000], supra).

The Presumption of an Open Courtroom and the Compelling

Interest Test

It is well settled that, because judicial proceedings are presumptively open, closure requires compelling circumstances (e.g. Matter of Herald Co. v Weisenberg, 89 AD2d 224, 226 [4th Dept 1982]). This is equally true in the various domestic relations proceedings governed by section 205.4. (See e.g. Matter of Kent v Kent, 29 AD3d 123, 135 [1st Dept 2006] [in which the Court stated: “This fundamental rule of public access to judicial proceedings applies equally to matters heard in Family Court (see 22 NYCRR 205.4 [a])”].) However, “this right is not absolute and may be limited upon a finding that compelling interests justify closure or partial closure.” (Matter of Kent v Kent, 29 AD3d 123, 135-136 [1st Dept 2006], supra; accord Anonymous v Anonymous, 263 AD2d 341, 342 [1st Dept 2000], supra.)

A court presented with a request for closure under section 205.4 must therefore balance the heavy interests of the public, press, and society generally in an open trial against the harm *720that an open courtroom may cause to children. A court may find against the presumption only when evidence of that harm, or potential harm, is compelling. This in turn requires examination both of the severity of the harm and the quantum of evidence that is real, concrete and specific. It is in this light that respondent’s allegations must be considered.

In addition, and as discussed infra, the weight of public, as opposed to merely private or prurient, interest in the trial must also be placed on the scale to determine whether closure should be permitted.

Respondent’s Contentions

In her affidavit in support of this motion, respondent requests closure12 for two reasons: First, she argues that because she, and to a lesser extent, LMB, have some notoriety, it is likely the media might report on the facts and testimony adduced at the hearing, or, as she writes, “the likelihood that sensitive information would be reported about the case in general — and about [John Doe] in particular — would be very strong.” Second, she writes, “[m]y request ... is prompted by my deep concern about the emotional harm I believe [John Doe] could sustain as a result of publicity attending this case” (emphasis added), noting that “the nature of the developmental and psychological risks an open courtroom would pose to [John Doe] are elaborated in [an] accompanying affirmation of Dr. Rodrigo Pizarro, a child psychiatrist.” She goes on to state that “[m]ost urgently, I am concerned that [John Doe] not learn that he was adopted from the media or third parties.”

Dr. Pizarro, a board certified child psychiatrist with a private and forensic practice, has submitted a lengthy affidavit, filled with general views about identity formation, the need of children to form coherent self-narratives, the risks, especially for abandoned and adopted children of insecure attachment, and the greater vulnerability of adoptive children to psychological stress, problems and disorders.13 Notably, however, he admits that he has never met or even observed John Doe, or any of the *721parties, and that he has formed an opinion that publicity from this case might be harmful based entirely on a hypothetical.14 His affirmation is therefore couched, appropriately under the circumstances, in “coulds,” “mights,” or “is likelys.”15

The Nature and Severity of the Harm

Respondent’s concerns, while understandable and no doubt heartfelt, fall far short of the standard set by case law under section 205.4.

With one exception,16 the cases cited by the parties in which appellate courts have permitted or required closure were Family Court child protective proceedings. They involved children who were the victims of abuse, harm or violence,17 usually by parents,18 such that, in their particular circumstances, publicity about the facts of the case would almost certainly cause them to *722be “re-victimized” (Matter of Ruben R., 219 AD2d 117, 128 [1st Dept 1996], supra), with all of the attendant harm that would entail. In those cases, the public’s (and the press’) right to access was insufficient to trump the compelling interest of the state “in protecting children from the possible harmful effects of disclosing to the public allegations and evidence of parental abuse and neglect.” (Matter of Katherine B., 189 AD2d 443, 450 [2d Dept 1993], supra.) Unlike the traumatic circumstances of those cases, John Doe is not alleged to have suffered any harm to date, nor are there any allegations of abuse or neglect in this proceeding. The hearing that respondent seeks to close is limited solely to an issue of foreign law.

Matter of P.B. v C.C. (223 AD2d 294 [1st Dept 1996], supra), the decision relied upon most heavily by respondent, is entirely distinguishable based upon the alleged harm, as well as on a number of additional grounds discussed below.19 In that case, the Appellate Division closed the courtroom in a custody trial *723pursuant to Domestic Relations Law § 235 and section 205.4.20 Six children were involved in their parents’ highly publicized divorce proceeding, two of whom were well-known child actors. All parties sought closure for the children’s protection, and extensive evidence of past and future harm was offered. The Appellate Division analogized the situation, in which “[njumerous . press reports concerning this case have already revealed allegations of alcohol and drug abuse and domestic violence,” to two proceedings — Matter of Ruben R. (219 AD2d 117 [1st Dept 1996], supra) and Matter of Katherine B. (189 AD2d 443 [2d Dept 1993], supra) — in determining that the custody proceeding should be shielded from the press. (Matter of P.B. v C.C. at 296.) Significantly, the Court found that, “[a]s in both Ruben R. and Katherine B., the emotional and educational harm which has already occurred has been explicitly documented” (id. at 296-297 [emphasis added]). And, the Court noted, based on the extensive, specific, concrete proof submitted, “we deal here not with the children’s ‘privacy’, but with the protection and preservation of their health and welfare” (id. at 298).

By contrast, the potential harm alleged in this case is far more like that in the ordinary contested custody case, which the Appellate Division has firmly rejected as a basis for closure under Domestic Relations Law § 235 (2).21 The claim that publicity and exposure of intimate family details may be harmful to children in a celebrity divorce case prompted now Presiding Justice Tom, writing for the Court, to note:

“If a custody trial can be closed to the public on the *724showing made here[22] then closure of the courtroom would be the rule, not the exception, in custody cases. The argument can always be made — in any case — that it is in the child’s best interest to shield her life from public gaze. Neither Domestic Relations Law § 235 (2) nor Uniform Rules for Trial Courts § 205.4 contemplates such a result.” (Anonymous v Anonymous, 263 AD2d 341, 344 [1st Dept 2000], supra; accord Merrick v Merrick, 154 Misc 2d 559 [Sup Ct, NY County 1992] [declining to close courtroom in celebrity divorce case despite allegations that publicity could be harmful to parties’ older daughter and two younger adoptive children]; Sprecher v Sprecher, NYLJ, June 21, 1988, at 21, col 6, affd sub nom. Anonymous v Anonymous, 158 AD2d 296 [1st Dept 1990] [affirming trial court’s refusal to close the courtroom in a highly publicized custody trial where, it was alleged, teachers, other children and parents were treating the child differently as a result of the publicity that she was being raised by Sullivanians, and modifying only to the extent of requiring an “anonymous” caption]; cf. Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept 2006] [in “child custody (cases) such relief (use of anonymous captions) should be granted only in the rare case, where, in considering the best interests of the children, there is a finding that their health and welfare would be protected, not their ‘privacy’ ” (citations omitted)]).

Respondent’s expressed fear — that John Doe may learn of his adoptive status from someone other than herself23 —is not the kind of “damaging information” about abuse and/or violence *725from which the court may act to protect children. The fact of adoption is hardly stigmatizing in this day and age24 especially in cosmopolitan New York City where, in particular, the adoption of Asian children has become commonplace.25

Four-year-old John Doe is presumably unable to read any press coverage that might ensue. While respondent points out that he attends preschool with 19 other children and a staff of five adults, there is neither certainty that those individuals will learn about the trial, nor, if they do, that they will communicate their knowledge to John Doe.26 It is also likely that John Doe, a Cambodian child who speaks Khmer to his Cambodian nanny and English to the rest of the members of his household, already has some knowledge of his difference, if not his precise status. Finally, it is wholly within respondent’s power to share this information with John Doe in lieu of the possibility that he might learn it from others.27 Proof of Harm

In addition to the severity or kind of harm that might result from an open courtroom, the courts also have carefully scrutinized the kind of proof offered to demonstrate such harm, eschewing allegations that are speculative and/or not concretely grounded in personal (and often professional) observation of the child’s situation and response to prior publicity (see Merrick v Merrick, 154 Misc 2d 559 [Sup Ct, NY County 1992], supra).

In each of the cases in which closure of the courtroom was granted, the court took note of and accepted the direct clinical

*726evidence offered by mental health professionals and social workers of severe trauma and damage to the mental health of the children. (E.g., Matter of S./B./B./R. Children, 12 Misc 3d 1172[A], 2006 NY Slip Op 51160CU], *6-7 [2006] [court received affidavits from law guardian’s social worker, two psychologists treating two of the children, and other professionals]; Matter of Ruben R., 219 AD2d 117, 127 [1996] [affidavits were provided by the children’s psychologist and social worker, both of whom had “spent a great deal of time interacting with the two oldest children,” and both of whom came to the same conclusion that “dissemination to the public of explicit details of the allegations made by the children would place them at even greater emotional risk than their present fragile state and would have a profound negative impact on their current and future therapeutic treatment”]; Matter of Katherine B., 189 AD2d 443, 447 [1993] [evidence of the need for closure was provided by the affidavit of a psychologist who twice interviewed the child in one-on-one sessions, observed a supervised visit between the child and her mother, and had reviewed the case record]; Matter of P.B. v C.C., 223 AD2d 294, 297 [1996] [noting that emotional and educational harm was “explicitly documented” in five detailed affidavits from a school principal, private tutor, school psychological consultant, independent psychologist, and attorney, who had all “been involved with the children for a number of years”].)

By contrast, the speculative opinion of the psychiatrist who has never met or observed John Doe carries less weight than the evidence adduced in Anonymous v Anonymous (263 AD2d 341, 344 [1st Dept 2000], supra), in which the Court noted: “The possibility of some unspecified future harm does not constitute a compelling interest justifying closure. The questions at issue in this custody dispute are fairly common and stand in stark contrast to the expected ‘damaging information’ justifying closure in Matter of P. B. v C. C. (223 AD2d 294, 297, supra).” (Anonymous v Anonymous, 263 AD2d 341, 344 [1st Dept 2000], supra.)

Public Interest

Besides the general public interest in open trials, independent interests28 are implicated by the issues to be determined in this trial on Cambodian law. First, determination of the meaning of *727the adoption permission certificates under Cambodian law may affect the many families who, in bringing Cambodian children to this country, have relied on the certificates they obtained to establish their children’s adoptive status. According to papers submitted by LMB, while some parents of Cambodian children have commenced “re-adoption” proceedings in this and other states, many other parents have assumed that they obtained completed adoptions in Cambodia which ensure their children’s immigration and citizenship status.29 Thus, the very legal issue to be determined — based upon the testimony of experts on Cambodian law, including government officials — is a matter of significant public concern to the community of parents who are raising Cambodian children in this country.

The fact that ERJ’s witness list includes two Cambodian government officials, Samheng Boros and Mao Sovadei, Chief of Cabinet, and Director, Child Welfare Department, respectively, of the Ministry of Social Affairs, Veterans and Youth Rehabilitation, Kingdom of Cambodia,30 is also significant.31 The United States Government has been scrutinizing Cambodian adoption laws and procedures as it considers whether to lift the December 2001 ban on Cambodian visas imposed by the Bureau of Citizenship and Immigration Services in the Department of Homeland Security. The ban, which has been the subject of great public interest,32 was prompted by “very serious concerns about baby-selling and rampant document fraud” (Catherine Barry, Deputy *728Assistant Sec’y for Overseas Citizens Servs, Bur of Consular Aff, Remarks Before Subcomm on E Asian & Pac Aff, Senate Comm on Foreign Relations, Washington, D.C., June 8, 2006).

While the foreign law hearing in this case does not directly implicate the ban, the testimony of officials who are primarily responsible for adoptions in Cambodia could well have an impact on United States policy in the future. As such, deeply grounded First Amendment interests, far beyond those in an ordinary civil or criminal proceeding, must be included in the balancing test required by section 205.4, and require that the motion for closure be denied.

Domestic Relations Law § 114 Does Not Require Closure

Respondent argues that because adoption records are sealed as a matter of law, court proceedings involving adoption should similarly be subject to secrecy33 and/or that section 205.4 should be construed to effectuate the policies that underlie the sealing statute, Domestic Relations Law § 114. While, at first blush, the argument has some appeal, it ignores the very different interests served by sealing adoption records, as demonstrated by history34 and settled case law, which interests are notably absent here. *729Those interests are: (1) Protecting the identity of birth parents (see, e.g. Matter of Linda F. M., 52 NY2d 236, 239 [1981], supra [“confidentiality . . . provides the natural parents with an anonymity that they may consider vital”]; Golan v Louise Wise Servs., 69 NY2d 343, 347 [1987] [“(confidentiality ensures) the privacy of (the adoption) process for those men and women who are confronted with the circumstances of an unwanted pregnancy or inability to provide the necessary care for their children” (citation omitted)]). (2) Protecting the privacy of adoptive parents and their newly formed family (see e.g. Matter of Linda F. M., 52 NY2d 236, 239 [1981], supra [“confidentiality . . . permits the adoptive parents to develop a close relationship with the child free from interference or distraction,” including protection against possible blackmail]). (3) Protecting the child from knowledge of his/her illegitimacy35 (see e.g. Matter of Linda F. M., 52 NY2d 236, 239 [1981], supra [“confidentiality . . . shields the adopted child from possibly disturbing facts surrounding his or her birth and parentage”];36 Matter of Anonymous, 89 Misc 2d 132, 133-134 [Sur Ct, Queens County 1976, Laurino, S.] [confidentiality “protects adopted children who are illegitimate from any possible stigma they might otherwise have to bear because of their birth”]).

It is those interests that coincide with the “State’s interest in fostering an orderly and supervised system of adoptions” (Matter of Linda F. M., 52 NY2d 236, 239 [1981], supra). Because *730John Doe is an orphan whose parentage is unknown,37 none of the policy considerations furthered by Domestic Relations Law § 114 are present in the instant case.

Sealing of Documents

Besides sealing the courtroom, respondent seeks an order directing that all papers in the proceeding, including all orders, motion papers, exhibits, and transcripts of the hearing, be kept under seal. The court has previously ruled by decision dated August 17, 2006 that the court records underlying LMB’s motion to vacate John Doe’s adoption shall be sealed.

In deciding whether to permit the sealing of exhibits admitted in the course of the hearing on Cambodian law and/or the transcript of the hearing, 22 NYCRR 216.1 applies. Section 216.1 provides that, in the absence of a statute or rule to the contrary, a court may not seal records, in whole or in part, except upon a particularized finding of good cause. To determine whether good cause exists, the court is required to weigh the interests of the public against those of the parties. As the rule makes clear, court records, like the hearing itself, are presumed open to the public, thus placing the burden on respondent to establish that the particular circumstances of this case justify sealing.

With respect to exhibits admitted at trial, to the extent those exhibits contain information that would otherwise be protected from disclosure under the provisions of Domestic Relations Law § 114, which mandates the sealing of all papers in adoption proceedings, they will remain under seal. To the extent such exhibits contain information that would not typically appear in an adoption file but would nevertheless, if made public, implicate the policy concerns protected under Domestic Relations Law § 114, as discussed above, that information will also remain under seal. Inasmuch as the parties have yet to disclose the exhibits they intend to introduce at trial, it is impossible to render a more exacting determination at this time. The decision whether to seal any exhibit admitted into evidence will be made on an individualized basis.

*731With respect to respondent’s request to seal the trial transcript, public access to the transcript is equivalent to the public’s right to attend the hearing itself. Accordingly, this request is denied.

Furthermore, respondent’s request that the decisions and orders of this court be filed under seal is denied. Such decisions and orders have been and will continue to be issued under the “Baby Doe” caption.

While respondent has not made a separate request to seal John Doe’s medical records, such records are clearly confidential (CPLR 4504 [a]) and, to the extent they may be relevant to this proceeding, will remain under seal. (See Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677[U] [Sup Ct, NY County 2006], supra.)

Conclusion

For the above reasons, the application for an order closing the courtroom during the trial on Cambodian lawr is denied, and the application for an order permitting documents in the proceeding to be filed under seal is granted in part and denied in part.