California county courts must continue to hold hearings on cases where children are in foster care or have been placed in juvenile detention, and child welfare systems must try to facilitate in-person visits for separated families, according to new rules approved today by the California Judicial Council.
On a remote meeting broadcast on YouTube Live today, the council approved 11 new rules for the Superior Courts, to be applied for the duration of the state of emergency declared by Gov. Gavin Newsom (D) on March 4.
“We’re trying to balance access to justice with a safe court environment,” California Chief Justice Tani G. Cantil-Sakauye said during the remote meeting. “To say there’s no playbook for this is a gross understatement of the situation.”
On Monday, the council approved a rule that certain dependency court proceedings “need to occur” to ensure the safety of children, and that those hearings should be held on their normal timeline. These include hearings on the removal of a child into foster care; medical requests including use of psychotropic medications; attempts by former foster youth to re-enter the state’s extended foster care program; and certain motions to reunify families or terminate parents’ rights that “require and immediate response based on the health and and safety of a child.”
The council also said decisions of family visitation for foster youth must be made on a “case by case basis,” and take into account “whether in-person visitation may continue to be held safely.” This rule runs directly against blanket suspensions of in-person visitation by some county dependency courts already, including those in Los Angeles and Riverside.
“Family time is important for child and parent well-being, as well as for efforts towards reunification,” the council said in its rule. “Visitation may only be suspended if a detriment finding is made in a particular case based on the facts unique to that case.”
Council member Harold Hopp, a superior court judge in Riverside County, noted the discrepancy between the new rule and an order already issued by his presiding judge and county health director.
“I’d like to find some way we could accommodate” an overall suspension “for a period of time,” Hopp said, noting that Riverside is among the counties with the highest number of confirmed coronavirus cases. The rule passed by voice vote, and Hopp did not oppose it.
A letter sent by top child welfare officials in the Trump administration last week likely influenced the rules on hearings and visits. Jerry Milner, associate commissioner of the U.S. Children’s Bureau, made clear that courts would have to continue to assess cases in order to receive funds through Title IV-E, the multi-billion dollar federal entitlement for child welfare services.
Milner’s letter also encouraged courts and child welfare agencies to “Become familiar with ways in which in-person visitation may continue to be held safely.”
“When courts are unable to hold regular proceedings because of an emergency,” the council noted, “federal timelines do not stop.” The comment specifically cited Milner’s letter.
Advokids Deputy Director Jan Sherwood, whose organization advocates for the legal rights of youth in foster care, said the new rules bring a welcome consistency to child welfare policy amid the pandemic shutdown.
“Different counties were doing different things and whether there was visitation or not and whether there were hearings on anything except detentions or not, varied from county to county,” Sherwood said.
She said she was skeptical that the council’s instructions on in-person visitation had enough teeth because it largely left the case-by-case judgment to caseworkers.
“I am not persuaded that social workers are necessarily qualified to adequately assess health implications of starting or stopping in-person visits,” Sherwood said.
The council also approved a rule requiring that if a youth is arrested and placed into a detention center, the court must hold a detention hearing on its next business day to determine if they need to remain there. The rules provide small wiggle room for continuance in the situation where a youth is in detention, and both an in-person and remote appearance are not feasible.
The rule also instructed courts to “prioritize” juvenile hearings related to medical decisions and the use of psychotropic medications, and hearings related to warrants requested for a child.
The governor placed California into a state of emergency on March 4 and issued a statewide stay-at-home order on March 19. As the pandemic worsened, and social limits were tightened, courts in all of the state’s 58 counties scrambled to establish rules on the fly on which types of proceedings must be held, which could be delayed, and the extent to which court business could be conducted remotely.
The council’s rules will expire 90 days after Newsom lifts the state of emergency, unless the council repeals them sooner.
John Kelly can be reached at firstname.lastname@example.org.