It is common in child protection hearings for parties to engage in dialogue about personal and sensitive matters, such as medical information or records, behavioral health or addiction issues, medications, family violence, and serious abuse of a child. Currently, all Texas courts are permitted to hold only essential hearings in person and must refrain from conducting non-essential proceedings in person if contrary to local, state, or national directives (whichever is most restrictive) regarding maximum group size. Many courts are conducting hearings virtually through Zoom, which is video technology provided to every district court, county court at law, child protection court, and Title IV-D child support court through the Texas Office of Court Administration (OCA).
Recently, the security of Zoom has come under scrutiny. The Zoom licenses provided to courts through OCA are programmed to be private events, and security settings are locked. Zoom provides a waiting room feature which prevents “Zoom-bombing,” and allows the blocking of susceptible file-types that may present viruses and malware. As long as the judge shares the Zoom hearing Meeting ID only with parties to the case, and “admits” only those persons and parties having a legitimate reason to be involved in the case (parties, children, attorneys, and witnesses), the danger that an outsider can disrupt the proceedings or infect the participants’ computers is significantly decreased.
To comply with the Texas open courts doctrine and ensure public access, Zoom is paired with YouTube to allow the public to observe through the court’s linked YouTube channel livestream. However, some circumstances may require a judge to restrict public access to the proceedings.
Limiting public access may be necessary to consider extremely sensitive, confidential documentary or testimonial evidence that is protected by state or federal law or to protect the confidentiality of a child’s identity.
Options for limiting public access to protect extremely sensitive, confidential, or protected evidence or information that do not necessitate findings by the court include
:
- Reducing testimony to affidavit form in lieu of live testimony. Reducing testimony to affidavit form in lieu of live testimony is specifically authorized by Supreme Court of Texas First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9042. Linked here: https://www.txcourts.gov/media/1446056/209042.pdf
- Prohibiting screen sharing of evidence presented. It is within the court’s prerogative whether to permit screen sharing. Also, many courts are requiring all evidence to be submitted to the court, the court reporter, and parties or their attorneys via email prior to a hearing, thus eliminating the need to present evidence through screen share.
- Conducting an in chambers interview of a child in a Zoom breakout room. Conducting an in chambers interview of a child by a judge is authorized by Section 153.009 of the Texas Family Code.
Options for limiting public access to protect extremely sensitive, confidential, or protected evidence or information that necessitate judicial findings include
:
- Using a Zoom breakout room to consider the confidential or protected evidence or information;
- Temporarily disabling the video for one or more persons participating in the hearing, and permitting only the audio to continue; or
- Temporarily interrupting the livestream of the hearing.
Suggested judicial findings include, but are not limited to
:
- Noting on the record whether a request to limit public access is on the court’s own motion or upon motion by a party, prior to the admission of the extremely sensitive or confidential evidence;
- Ensuring the evidence in question is properly identified;
- Obtaining agreement on the record to limit public access of all counsel and self-represented litigants;
- Finding that there is an overriding interest that will be prejudiced if the evidence is shared with the public, if an objection to limiting public access is raised; and
- Articulating the overriding interest; that the specific testimony or evidence is extremely sensitive and/or confidential under a federal or state statute or rule; that there no less restrictive means available; and that it is reasonable to limit the public’s access to the information, testimony, or evidence.
Creating a Zoom Breakout Room:
Creating a Zoom breakout room is simple and provides a confidential environment. No person outside the breakout room will be able to see or hear any discussion or view any documentary evidence exchanged. With the Zoom hearing underway, the judge simply creates the breakout room and invites the necessary parties, attorneys, and the court reporter to the breakout room with the judge thereby removing these persons from the virtual courtroom and the livestream while the Zoom hearing is in progress. The livestream will continue, but persons viewing it will not be able to view or hear any discussion or testimony, or view any documents exchanged, in the breakout room. Persons viewing the livestream will view a blank screen until the judge and parties return to the virtual courtroom. At the conclusion of the testimony or discussion, the judge terminates the breakout room and returns everyone who was in the breakout room to the virtual courtroom, and thus to the livestream.
Disabling the YouTube Livestream
. Although not a best practice, a judge may also turn off the livestream or completely close the hearing thereby fully limiting the public’s access while sensitive or confidential matters are discussed and turn the livestream back on at the conclusion of that discussion. Please note that the Zoom livestream is delayed by approximately 20 seconds. Therefore, judges using this approach should announce that the livestream will be terminated and wait 20 seconds before doing so. The public will see a black / blank screen until the judge restarts the livestream. Turning off the livestream and turning it back on again creates two video files. Once the judge restarts the livestream, the Court’s YouTube channel should indicate to viewers that the livestream is in progress. The viewer may have to refresh their page to see the “live” video indicator. Please note, all streams under 12 hours long will immediately archive to the court’s YouTube channel and will be available for viewing and sharing until it is removed.
Deleting YouTube Videos
. It is a best practice to delete videos that are archived on the court’s YouTube page.
To delete a video:
- Log in to your YouTube channel and remain logged in in order to access the YouTube settings throughout the duration of the docket.
- Click “YouTube Studio” at the upper right.
- Click “Videos” from the left panel.
- Click “Live.”
- Hover over the video you wish to delete, and three dots will appear. Click the three dots.
- Click “Delete Forever.”
- Check the box which says “I understand that deleting is permanent and can’t be undone.”
- Click “Delete Forever.”
Changing the Visibility of YouTube Videos.
Another option is to change the visibility of the YouTube video that becomes archived immediately upon terminating the virtual hearing’s livestream. This setting prevents the video from being viewed by the public until the judge or court staff can delete the hearing from the YouTube archive.
To change YouTube video visibility settings:
- Log in to your YouTube channel and remain logged in in order to access the YouTube settings through the duration of the docket.
- Click “YouTube Studio” at the upper right.
- Click “Videos” from the left panel.
- Click “Live.”
- Identify the video for which you wish to change the visibility.
- Click the dropdown under visibility options listed to the right of the video.
- Select “Private.”
- Click “Save.”
- Delete the recording as soon as practical.
On Monday, April 6, 2020, OCA sent an email to all Texas judges, clerks, and court staff relating the legal standards for the public’s right to access remote hearings as well as a bench card to assist judges in fully or partially closing or restricting public access to hearings. Links to these materials as well as tips on holding Zoom virtual hearings are below:
