by Teri Deal
Vol. 106 No. 2 (2022) | Losing faith? | Download PDF Version of Article
When physical distancing measures required courts to quickly adapt operations, the National Center for State Courts (NCSC) saw an opportunity to examine the experience of families and child welfare court professionals in virtual hearings. Most families who come to the attention of the child welfare system have experienced trauma, and, for many, the court experience exacerbates trauma. Many jurisdictions have moved in recent years to implement trauma-informed practices for in-person hearings, including environmental changes and judicial engagement strategies. But early in the pandemic, how those practices would translate to the virtual environment was unclear.
With support from Annie E. Casey Foundation Inc. and Casey Family Programs, NCSC began a study that aimed to describe how families and court professionals experienced online court proceedings through the lenses of procedural fairness, access, and judicial engagement. Sixteen jurisdictions in five states welcomed NCSC into their virtual courtrooms to observe more than 400 child welfare hearings in early 2021. NCSC supplemented hearing observations with interviews and surveys of judges, parents, older youth, attorneys, and case workers.
A key takeaway from the study is that no two sites conducted virtual hearings in the same way — even courtrooms within the same state or courthouse. When courts began facilitating virtual hearings, there was little guidance available and immense pressure to become operational quickly. Most courts simply took in-person practices and transitioned them online with limited time to consider how the virtual courtroom impacted effective communication, access to justice, and meaningful engagement.
For example, camera use in videoconferencing sessions varied widely across hearing participants. Very few courts in the study articulated clear expectations on this issue. Individuals joining hearings by video have the benefit of seeing all participants and observing nonverbal cues, while those joining by phone only are often unaware of who is present and may not know how and when to contribute. These limitations make an already difficult situation even more stressful, can contribute to feelings of mistrust, and impede an individual’s ability to meaningfully engage in a hearing — all experiences that can trigger a trauma response.
While the pandemic forced courts to quickly adopt technological solutions, it also created an opportunity for courts to expand access to justice for families and a responsibility to learn how to do so in an effective, fair, and trauma-responsive way. NCSC’s study of virtual child welfare hearings identified several practices to improve the quality of virtual hearings, and many of these practices align with the key principles of the Substance Abuse and Mental Health Services Administration’s trauma-informed approach. Some crucial practices of trauma-informed virtual hearings are described here; see the NCSC’s full report for more practices and details.
Virtual (video) hearings present different challenges for ensuring physical and emotional safety for hearing participants. The virtual courtroom may be less intimidating for some; however, it creates the possibility that participants may join from a public location or a place that may otherwise inhibit meaningful engagement. One way to be trauma-responsive and support feelings of safety for hearing participants is to ask them where they are physically and whether they feel safe and able to meaningfully participate from that location. In the study of virtual child welfare hearings, it was extremely rare for judges to ask individuals where they were, though this simple act can help determine whether a parent or child is able to meaningfully engage in the virtual hearing.
Trauma-responsive virtual hearings require courts to communicate expectations and processes clearly, starting with the hearing notice. Courts can demonstrate transparency and build trust by providing instructions on how to access the hearing, how to use the platform, and how clients can privately interact with their attorney, as well as the court’s expectations around camera use, before the hearing. Most parents surveyed said they received a link for the hearing from their attorney, and youth often received the link from their caseworker. Courts can develop and disseminate clear instructions for accessing hearings for court professionals like these to share with clients so that everyone receives the same information.
As requirements for physical distancing wane, many states are deciding to keep virtual hearings in child welfare cases, and several have given careful thought to which hearing types and situations are best for virtual hearings. Ideally, courts will offer families a choice as to how they access a hearing. Giving families a choice embodies the trauma-responsive principle of empowerment, voice, and choice. With intentional preparation, it is possible for virtual hearings to be responsive to trauma. While virtual hearings may not be ideal for all families or all hearings, they do have benefits. Through careful consideration of technology, open and clear communication, and realistic expectations, child welfare courts can facilitate virtual hearings that not only respond to impacts of past traumas experienced by families involved in the child welfare system, but also avoid creating new traumatic experiences.
