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First Amendment
Judge to decide whether to open or close custody hearing

Saturday, July 27, 2002

By Barbara White Stack, Post-Gazette Staff Writer

Indiana County Common Pleas Judge William Martin gave no indication yesterday how he will rule on a request to open a hearing at which he will decide whether William Shane Stein will regain custody of his 14-year-old son, who was stabbed in the head two years ago.

For more background on Pennsylvania's current open records and open government laws visit our First Amendment Forum.

As soon as Stein of Blairsville was acquitted last month of charges that he attacked the boy, the father said he wanted his son returned to his custody immediately.

Martin listened for about an hour to arguments from W. Thomas McGough Jr., representing the Pittsburgh Post-Gazette, who said the hearing should be open, and five attorneys representing Stein, his parents and Indiana County's Office of Children and Youth Services, who all objected to permitting the press or public in the custody hearing.

After an assailant plunged a steak knife into Shayne Stein's skull on the night of July 26, 2000, the boy, remained in a coma for nearly two months. When he awoke, police said, he indicated that his father had assaulted him. The boy was placed in foster care after he left the hospital, and his mother and sister were permitted to visit, but not his father. William Stein said that should change after he was found not guilty last month.

An Indiana County Common Pleas judge is expected to conduct a hearing on whether to send the boy home within the next two months. The Post-Gazette filed a request with the court in June to attend that and future hearings regarding the child's custody.

The newspaper argued, as it had when it previously requested open hearings in similar cases in Cambria, Westmoreland and Allegheny counties, that the Pennsylvania Constitution mandates public access to hearings because it states, "All courts shall be open." In addition, the juvenile act says judges may choose to admit reporters to hearings.

The judge in Cambria County disagreed and kept closed hearings regarding the four children of Darlene and Michael Ference of Johnstown who pled guilty to abuse over a decade, including denying food and water.

The Westmoreland County judge agreed with the Post-Gazette's basic position that the constitution requires open hearings, but she decided keeping the custody hearings closed would be in the best interest of John and Marcia Bright. A family friend is charged with killing their 8-year-old sister, Annette Bright, near their home in Monessen last July. Police have said they believe it was in retaliation for Marcia, 13, ending a relationship with the man.

The Post-Gazette is appealing both judges' decisions, and in contrast to those, two Allegheny County judges recently decided to keep custody hearings open in high profile cases.

Cheryl Allen, supervising judge for juvenile court, decided to permit reporters to remain in a hearing regarding the custody of Triston Smathers, who was stolen along with his mother's car when she left it unlocked and idling at a grocery store two weeks ago. Triston was unharmed, but police found heroin in the car and his mother tested positive for morphine, so the baby was placed in foster care.

The following week, Eugene F. Scanlon Jr., administrative judge for the Family Division, permitted reporters to cover a hearing at which he decided the custody of a toddler found wandering alone in Knoxville.

In both Allegheny County cases, the judges decided to open the hearings despite pleas for closed sessions from the attorneys for the child welfare agency, the children and the parents.

McGough pointed out in his arguments yesterday that publicity about the Stein case will continue whether the hearing is opened or not, but if reporters can attend, they will be able to explain to the public reasons for a judge's decision to return the boy or keep him in foster care. "There is nothing the court or media can to do undo what has happened already to this child," he said.

John P Merlo, representing CYS agreed but added, "we should not continue to do harm" by permitting open hearings. He said a child victim's right to privacy prevails over the public's right to know. "Confidentiality is still something sacred in this commonwealth," he said.

McGough said if attorneys could prove that information to be presented would harm the child, that portion of the hearing could be closed without sealing the entire procedure.

Typical of the secrecy surrounding hearings regarding abused and neglected children, one attorney for Shayne Stein refused to give his name to a reporter. Donald L. McKee, whose name was mentioned repeatedly during the open arguments, refused afterward to talk to reporters, saying the public wasn't even supposed to know that hearings regarding the child's custody existed, let alone who represented the boy.

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