What New York’s youth and family courts might keep after the pandemic
Since last March, judges and lawyers in youth and family courts across New York state have been scrambling, like judicial officers around the country, to keep their cases moving along on virtual platforms. With courthouses shuttered to prevent the spread of COVID-19, kids facing criminal charges, parents up against allegations of abuse and neglect, and couples settling custody orders have called in, logged in, and been patched into proceedings that determine their fates.
New York state court professionals interviewed by The Imprint say trials and substantive hearings need to begin again in-person — and for justice’s sake, as soon as possible. In some cases, online hearings have been “a disaster,” one upstate district attorney said.
Yet as the one-year mark of virtual court approaches, there’s been a surprising upside to the pandemic’s impact. In New York, there is considerable agreement that many brief, routine court proceedings have worked well over video conference platforms, and they should keep functioning that way even after court buildings reopen, say judges, county and district attorneys, public defenders, and private attorneys for parents and children.
Ten justice system professionals said in interviews in the last few weeks that pre-trial conferences to work out case schedules, hearings that don’t involve testimony, and initial arraignments may never again need to be conducted in person.
“I believe we should not be requiring parents to come to court unnecessarily,” said Judge Jane Pearl, a family court judge in Manhattan.
That could make a world of difference for impoverished clients, who make up the vast majority of those who end up in family court and the youth part of adult courts. Mark Funk, conflict defender for Monroe County, home to Rochester, said virtual hearings have benefited many of his clients, who typically struggle to pay for public transportation to the courthouse and have difficulty finding child care and taking time off work.
When they do arrive, they often end up at a hearing that lasts mere minutes, said Funk, whose office represents parents in family court and young people referred to youth court.
Going virtual has offered another lesson to the beleaguered court system, still others say. As courts went online, some judges began scheduling cases in more precise time slots, a welcome departure from waiting around for hours for a case to be called. Tina Sodhi, alternate public defender for Albany County, said that’s saved a lot of time for attorneys and the parents and young people her office represents.
And in rural Lewis County in the northwestern part of the state, going online has meant defense attorneys can take on more cases in a single day because there’s no travel time, said Assistant County Attorney Matthew Goettel, who represents the county in most cases involving parents and children.
Still, any matter involving testimony should stay in-person after the pandemic, everyone
For juvenile offenders, county and district attorneys say being in a somber courtroom — seeing a judge seated before them in robes and attorneys assembled on both sides — can help youth who made a bad decision understand the gravity of their misdeeds. The power of that scene doesn’t always translate for a child staring into a computer monitor or getting on the phone.
“I think it’s less real to some of the respondents, the kids. It’s just a phone call,” Goettel said. “They can roll out of bed, grab the phone and be like, ‘Oh yeah, I have to talk to the judge.’”
In 2015, the Illinois Juvenile Justice Commission unanimously underscored the notion that in-person hearings are critical, concluding, “the use of video conference technology is inappropriate in juvenile court hearings.”
The commission noted several elements of virtual proceedings that make just outcomes near impossible. In video hearings, youth can’t talk with their lawyers privately and have to go through the proceedings in isolation. Camera angles or screen sizes can distort perceptions and create bias. Judges lose the chance to clearly explain the legal process in person, which is critical to kids’ perceptions that they were treated fairly.
The commission recommended that the only hearings that should happen over video, and then only on a case-by-case basis, are routine case status hearings.
In family court, too, online hearings are leaving some parents wondering whether justice was served. Stephen Riebling, a White Plains attorney who represents parents in child welfare and other family court cases, said some of his clients leave confused about what happened and dismayed they weren’t able to see the reactions of other people involved in the case.
“I’ve had clients say to me, ‘I wish we could have actually been in court. Maybe that would have made a difference,’” he said. “That’s their perception.”
During the COVID-19 pandemic, one of the key hurdles to virtual justice has been unreliable connections.
Stacey Romeo, supervising judge for Monroe County’s family court, which covers both child welfare and juvenile delinquency cases, said she was holding a video hearing late last month when she lost one of the attorneys to an internet outage. After 10 minutes of texting, the attorney called in and they restarted the hearing, only to have the attorney for the child’s internet go out. A few minutes later, the judge lost her connection, and they never finished the hearing.
“We just work through it,” Romeo said.
Christopher Shambo, who practices family law in Saratoga County and serves as part-time district attorney for Hamilton County, said hearings in their rural area have been “horrible” because of the shaky web connections.
A recent custody case in Saratoga County that he was involved with included three lawyers, two parents, the judge, and two guardians ad litem — eight parties in all. With the slow speeds available to some participants, “people are talking over each other, and it’s a disaster,” he said.
And everything is taking longer. Paul DiCola, an assistant public defender in Allegany County, remembered a removal hearing that should have taken two to three hours but went all day because it took so long each time an attorney wanted to submit a new document into evidence. The new record had to be sent to all the parties over email, and the court had to mark it as an exhibit, which meant recessing for an hour. The county’s judges soon fixed that by requiring attorneys to submit documents several days early.
These are among many video workplace hazards that have made it all the more challenging to represent the state’s most vulnerable children and families. In Funk’s Monroe County office, attorneys report that it’s far harder to gain the trust of clients virtually or over the phone, so it takes longer to prepare a case. It’s also more cumbersome for attorneys to negotiate deals because they don’t run into each other informally in courthouses, he said.
Yet from the hassles of online court, solutions have also emerged. At least some juvenile and family courts have found creative ways to ensure that low-income clients without reliable internet and devices can attend virtually.
In Monroe County, Judge Romeo said in one case she arranged to have a parent use a social worker’s office to log into a child welfare proceeding. And in Albany County, the family court has set up kiosks in the building’s lower level for people who can’t get online from home.
Some parts of the state may see lasting improvements in court connections for those who can’t afford tech tools. New York’s 5th Judicial District, which covers six counties, has an “access to justice” committee working on setting up safe spaces with tech equipment in houses of worship that people can use to get into virtual court, said Linda Gehron, executive director of the Hiscock Legal Aid Society in Syracuse.
And in November, New York state Chief Judge Janet DiFiore announced the initial rollout of “court access community centers” across New York City: “safe, secure and convenient locations in underserved communities where unrepresented litigants can utilize technology to receive remote legal services, prepare and e-file court papers and fully participate in court proceedings.”
The state court system will ultimately decide what changes might stick after COVID-19 is crushed and some semblance of normal life resumes in public spaces. It would be premature to speculate what those will be, Lucian Chalfen, spokesperson for the state’s Office of Court Administration wrote in an email to The Imprint: “There will be extensive after-action discussions as to what worked and what didn’t.”