Opinion: COVID-19 changed Michigan juvenile court hearings. They need consistent rules.
The COVID-19 pandemic forced Michigan courts, including juvenile courts, to hold most hearings online. Lessons learned: In child welfare cases, the right mix of in-person and online hearings promotes access to justice, cuts delays, saves costs, and protects both children and parents’ rights more effectively than either approach alone. Now that pandemic restrictions have been lifted, leaving the choice of in-person or virtual hearings up to individual judges, we urge the Michigan Supreme Court to adopt a consistent statewide approach, using the lessons learned from juvenile courts' experience.
While all courts faced difficulties with the leap to online proceedings, juvenile courts were under especially intense pressure. In-person hearings were suspended, but the courts could not simply shelve time-sensitive child welfare cases until the pandemic subsided. In addition to concerns about children’s safety and parents’ rights, federal funding for states’ child protection programs is tied to how well state courts meet federal statutory deadlines in child protection cases. And in a March 27, 2020 advisory, the U.S. Department of Health and Human Services Children’s Bureau made clear that the statutory time requirements could not be waived.
So — with no advance planning, no study groups, and no how-to manuals — juvenile courts nationwide made the seismic shift to holding hearings online. Difficulties quickly emerged: Many low-income and rural participants lacked internet access. Dropped calls, connectivity issues and inexperienced users complicated communications. Parties could not easily confer with their attorneys. Attorneys, used to a physical courtroom, found it challenging to be effective advocates online. Some judges felt that online proceedings did not allow them to really assess a witness’s credibility, especially in termination of parental rights hearings (commonly referred to as “the civil death penalty”).
But despite the challenges, juvenile courts reported significant benefits from online hearings. Parents, children, foster parents, attorneys, social workers and others could participate more easily, and communications among them improved. Attendance at court hearings also improved, because participants did not have to take time off work or travel to a courthouse. Children were less frightened, more engaged and more forthcoming online than in the unfamiliar atmosphere of a courtroom. Delays were reduced, wait times eliminated. Rural communities enjoyed greater access to legal representation by attorneys who could participate remotely. A national study by researchers Alicia Summers and Sophia Gatowski found the same benefits, with 78% of those surveyed — parents, court, and agency staff — favoring online hearings in child welfare cases.
Perhaps the most significant effect of the movement to online hearings: Courts abandoned the traditional “cattle call” docket, in which cases are all scheduled for the same time on a given day. In a “cattle call,” parties, witnesses, and attorneys must wait, sometimes for hours, to have their cases heard. The move to online hearings forced juvenile courts to schedule cases at specific times.
Now, three years after COVID compelled courts to take their proceedings online, we have learned much about what works — and what doesn’t — for courts conducting online hearings. At present, Michigan juvenile court judges determine which hearings will be held “live” and which will take place online — an approach that shows great confidence in Michigan’s judges, but makes it difficult for attorneys, parents and others to know what to expect. While many counties have retained the benefit of virtual hearings, other large jurisdictions have not, dragging families, lawyers and other professionals into court for short, perfunctory hearings that could easily be conducted on-line. Counties have done so even though many are struggling to find attorneys to represent children and parents, while others labor to retain other child protection professionals who burn out, in part because of time spent in needless hearings.
Here are three key recommendations for juvenile courts that the Michigan Supreme Court should consider:
Adopt specific rules for child protection cases. Children's cases merit special attention in the rule-making process — and that includes setting clear, consistent, statewide rules for which hearings will be conducted online. Arizona offers an excellent model: The most sensitive and difficult hearings, such as termination of parental rights hearings and other trials, take place in person, while online hearings are held for more routine, non-controversial matters. Judges, attorneys, parents, and others involved know which hearings will be online and which require their attendance in person.
Employ “technical bailiffs” to bridge the digital divide and promote access to justice. An innovation introduced by Texas judges, “technical bailiffs” schedule and set up online hearings, help litigants with technology issues, and communicate with participants so they can be better prepared for hearings.
Retain time-specific calendaring. Like scheduling a doctor’s appointment, court hearings, whether online or in-person, should be set for a specific date and time to appear; the hearing notice should also state the estimated duration of the hearing. Significantly, the National Council of Juvenile and Family Court Judges recommended this practice for over 20 years, but time-specific calendaring never really caught on — until the pandemic.
As former Michigan Supreme Court Chief Justice Bridget McCormack has said, “COVID was not the disruption we wanted, but it was the disruption we needed.” An unexpected silver lining of the pandemic, online hearings can, if used prudently, help juvenile courts deliver justice to the most vulnerable and helpless among us.
Hon. Maura D. Corrigan, a former Chief Justice of the Michigan Supreme Court, served as director of the Michigan Department of Human Services from 2011-2015. Prof. Vivek Sankaran, a clinical professor of law at the University of Michigan Law School, directs the law school’s Child Advocacy Clinic and the Child Welfare Appellate Clinic.
This article originally appeared on Detroit Free Press: Opinion: Michigan juvenile court hearings should mix online, in person
