When Governor Greg Abbott declared a state of disaster with respect to COVID-19 in March 2020, courts across Texas were impacted in innumerable ways. Thereafter, the Supreme Court of Texas issued over two dozen emergency orders in response to changing demands on the judiciary. With regard to child welfare cases, the language included in the most recent order signed on September 18, 2020 regarding the extension of the initial dismissal date is as follows, in relevant part:
a. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than December 1, 2020.
b. in all proceedings under Subtitle E, Title 5 of the Family Code:
(i) extend the initial dismissal date as calculated under Section 263.401(a) only as provided by Section 263.401(b) or (b-1);
(ii) for any case previously retained on the court’s docket pursuant to Section 263.401(b) or (b-1), or for any case whose dismissal date was previously modified under an Emergency Order of this Court related to COVID-19, extend the dismissal for an additional period not to exceed 180 days from the date of this Order.
Under this current framework, the initial dismissal deadline of a case can only be extended through a finding of the existence of extraordinary circumstances as required under the Texas Family Code. If a case has already been extended and cannot proceed to trial prior to the dismissal deadline, the September 18, 2020 Emergency Order allows for an additional extension of the dismissal deadline up to March 17, 2021. While the December and March dates could change if future orders are entered by the Supreme Court and the extensions are permissible, courts nonetheless have a duty to maintain urgency around achieving permanency for children and youth in DFPS conservatorship.
After seven months in a state of disaster, courts must use the multiple tools at their disposal to resolve cases in anticipation that the Emergency Orders will eventually cease to provide opportunities to extend cases. These tools include prioritizing certain cases, maximizing judicial resources by implementing advanced planning and creative flexibility, and resolving cases through alternative means.
It cannot be overstated that courts should prioritize adversary hearings and final hearings. Whenever appropriate, other matters should be resolved through alternative means, freeing up the court’s time to address priority cases. While each case and appearance before the court in a child welfare case is important, courts should consider prioritizing contested final hearings where the court is at risk of losing jurisdiction for lack of timeliness. In-person and virtual jury trials are complex endeavors under the circumstances, but courts should identify which children have been in temporary managing conservatorship for more than 12 months and address these cases without delay. While the Emergency Orders allow for deadlines to be extended up to 180 days past the date of the order, courts are not required to extend the deadline any further than is necessary to allow the case to proceed to trial. Courts are encouraged to develop criteria to evaluate which cases are most ripe for disposition and adjust extensions accordingly for those cases.
In light of the burden on the courts to resolve final hearings, it will be critical for courts to carefully plan for dedicated time to be spent on contested matters. Important considerations include increased preparation time and scheduling availability of the attorneys and advocates required for lengthy contested matters.
DFPS regional attorneys, prosecutors, attorneys for parents and children, guardians ad litem, and CASA volunteers are adapting to virtual or hybrid courtroom environments. There are some efficiencies to be gained from virtual appearances including a reduction in travel time and the ability for attorneys to divide their time more effectively between nearby jurisdictions. For docket management, it is important for courts to schedule hearings with these factors in mind. If dockets are still overwhelmed, visiting judges could be recruited from a pool of experienced retired judges to handle contested matters.
For cases that must be resolved through jury trial, the 26th Emergency Order provides courts with the option to conduct virtual jury trials and in-person jury trials if the county develops a plan to conduct these proceedings that is consistent with the Emergency Order and OCA guidelines and approved by the local administrative district judge and regional Presiding Judge. Child Protection Court associate judges are encouraged to contact their local administrative judge in each county they serve to ensure they are included in the county’s plan to conduct jury trials and can secure dates for scheduling them. Courts and attorneys representing parties should also consider the use of six person juries as authorized by Texas Government Code Section 62.201. Smaller jury size could reduce the technical, logistical, and safety challenges which may result in a more efficient proceeding. Questionnaires that identify individual juror’s technology barriers from the outset may help streamline the process.
One alternative method to resolve cases is through mediation, either safely in an in-person setting, in a virtual setting, or through a hybrid option of the two. Virtual mediation offers access to mediators who practice outside a court’s jurisdiction and helps eliminate transportation barriers for parties who have reliable internet available. Moreover, using the mediation process early in a case helps identify creative solutions, placement options, and other opportunities for reunification long before dismissal deadlines approach.
Although technology has expanded opportunities for children, youth, and families to participate in court proceedings, access to internet and hardware may be a challenge for parties as well as attorneys and jurors. Creative solutions such as Zoom rooms, making hot spots available, and technology support may support the full realization of the positive aspects of virtual hearings.
Courts across the state have risen to the challenges presented by COVID-19 and have continued to work diligently to ensure safety, permanency, and well-being for Texas children. The deadline requirements under the Family Code remain intact and it is therefore critical for courts to maintain a sense of urgency as they strive to manage their dockets to prevent overwhelming backlogs. Courts focused on achieving prompt and positive permanency can ensure justice is served for each family involved in a child welfare case.