This week, I received word that many courts – including the juvenile court in which I practice – were closing. That is, for the indefinite future, my court would not be holding any hearings, other than emergency hearings, to address whether a child needs to be removed for their immediate safety.
So parents who have met the milestones to reunify with their children might have to wait because that is not deemed an emergency. Parents requesting more visits with their families during this time of crisis is not an emergency.
Children stuck in group homes or residential centers might not be able to get out, because the type of placement in which they call home during the pandemic is not the subject of what our courts would consider to be an emergency. Older youth might reach the age of majority without ever appearing before a judge, because the transition from childhood to adulthood while in the custody of the child welfare agency is not an emergency.
Undoubtedly, there was no way for juvenile court to anticipate and prepare for a crisis of this proportion. But the inability of many juvenile courts to at least continue some limited work reflects how far behind they lag in their attempts to modernize.
It should not take a pandemic or a series of devastating natural disasters as experienced in Louisiana, Puerto Rico and the United States Virgin Islands to expose the need for better preparation and the use of technology to keep children and families safe. But unfortunately, we find ourselves ill-equipped to respond.
Juvenile courts, in particular, have not incorporated the technological advances of the last 50 years. This is due in large part to the fact that juvenile courts have never been a priority with respect to court funding and other supports. The gravity of such misguided perceptions and lack of investment are now plainly in sight and have made vulnerable families even more vulnerable. Almost every key function requires these vulnerable families and their attorneys to show up at court. When they cannot, all grinds to an immediate halt.
For example, in this county, attorneys wishing to file written pleadings must appear in court to file it. If they want to look at the court file to prepare for the hearing, they must again travel to the courthouse to view the file. Even if all parties agree to the relief being requested, everyone still appears in court to simply place things on the record.
In fact, courts require in-person hearings to resolve every issue, even when a status conference by phone or videoconference could accomplish the same thing. And when attorneys show up to these hearings, they are handed important documents – like court reports, case service plans and evaluations – which could have easily been emailed to everyone ahead of time.
This is the practice we’ve gotten used to. Until now, when a crisis is preventing us from showing up at court. Thus, our work abruptly stops.
Let’s use this crisis as an opportunity to consider how to modernize the juvenile court. We must start by asking a key question – can professionals identify and resolve problems without actually appearing in court?
To move toward this world, here are some steps that must be taken to keep courts viable during this crisis.
First, courts must make all files and records available electronically to the individuals authorized by law to access them.
Second, courts must permit all filings – motions, witness lists, court reports, etc. – to be filed and served electronically. Federal courts and many state courts have been doing this for years. Our families deserve the same.
Third, courts should require all parties to try to resolve issues outside of court and present stipulated orders to judges that do not require an actual hearing. It makes little sense to require attorneys to show up to court to get an agreed upon order, or a new court date. What that often means in practice is that families might wait months for a reunification to occur or an adoption to be finalized – even though all parties agree it should happen – simply because a hearing has not taken place.
Finally, even when a court needs to hold a hearing, it should consider whether an in-person hearing is actually necessary. Would a brief phone conference suffice? Or perhaps a videoconference? Can a litigant or attorney participate electronically if appearing in person would not be convenient?
Some courts across the country are doing many of these things. We have examples of courts that are increasing access to justice and engagement of litigants through the use of remote video participation. We also have examples of courts that are effectively utilizing electronic filing systems and real time data exchanges that promote due process for all. The problem is that these are exceptions, and most are not. Juvenile courts continue to fear technology and have not embraced the many tools that are the norm in more advanced industries.
There are a number of low- or no-cost measures that juvenile courts can implement today, such as use of Skype and other online streaming services, or use of iPhones and FaceTime, and even land lines, if need be to continue to help keep children and families safe and ensure their health and well-being needs are met.
Some of these stopgap measures may prove valuable enough to incorporate into normal practice when normalcy returns. Larger systemic efforts are also required to make sure proper investments are made so that the next natural disaster or pandemic does not leave us sitting on our hands again.
One modest attempt to do so is a provision included in the current administration’s budget proposal that would double funding for the federal Court Improvement Program, with the specific intention of improving court use of technology and data sharing. For the proposal to go anywhere, a legislator must be courageous enough to fish it out of a budget and place it in a bill. At $30 million dollars, the proposal is modest at best, but would be a step in the right direction.
We don’t know how long this crisis will last. But juvenile courts cannot remain on hold indefinitely. Now is the time for judges and administrators to think deeply about how they can use technology to learn about and resolve disputes without requiring people to show up to court.
It’s also time to push elected official and budget decision makers to do the right thing and recognize the importance of juvenile courts in the lives of vulnerable children and families. Decisions regarding the lives of children and their families cannot wait forever.
And in any event, these decisions should not wait a single moment more than necessary when there are abundant ways in which they can be resolved.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School. Follow him on Twitter at @vivekssankaran.