COURT HEARINGS WITH COVID

Matter of Haydee F. v. ACS-NY, NYLJ November 16, 2020, Date filed: 2020-10-28,     Court: Family Court, New York, Judge: Referee Pamela Scheininger,     Case Number: G-15246-19:

"This decision comes in response to three cases in which one or more parties has objected to participating in a contested virtual hearing in New York County Family Court. In compliance with New York State Governor Andrew Cuomo’s Executive Order and Administrative Orders from Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks, hearings in Family Court are currently taking place virtually, via Skype for Business and/or Microsoft Teams. In the instant case, an Article Ten petition was filed against respondent parents, Catherine D. and Martin F. on July 7, 2016 as to four subject children, including the two subject children at issue in the present case, Aracelis D. (dob 1/21/10) and Katalaya F. (dob 7/6/10). A fact finding order of neglect was entered against Catherine D. on January 24, 2017 based on her submission to the jurisdiction of the court pursuant to Family Court Act §1051(a) and on March 10, 2017, an order of disposition was entered against Ms. D. releasing the children to her care pursuant to Family Court Act §1054 on terms and conditions. With respect to Martin F., an order was issued adjourning his Article Ten case in contemplation of dismissal on March 28, 2017.

On September 7, 2017, the Commissioner of Social Services filed a petition alleging that Mr. F. had violated the terms of the adjournment in contemplation of dismissal. On March 1, 2018 the Commissioner filed a petition to modify the dispositional order and place the subject children in the care of the Commissioner. The children were subsequently placed with the Commissioner in two separate kinship foster homes.

On August 12, 2019, the permanency goal for Aracelis and Katalaya was changed from return to parent to placement with a fit and willing relative, On December 23, 2019, Jessica G. filed a kinship guardianship petition as to the child, Catalaya F. and Haydee F. filed a guardianship petition as to the child, Aracelis. Issue was joined on that case on February 26, 2020. The matter was set down for a hearing on May 6, 2020.

Due to the global COVID-19 pandemic, this guardianship case did not go forward on May 6, 2020 and it was not until August 26, 2020 that the case was held in Virtual Court for a permanency hearing. The guardianship hearing was scheduled for October 26, 2020. Counsel for Ms. D. and Mr. F. objected to holding the guardianship hearing virtually and each filed a motion for an adjournment until an in-person hearing could be held. The attorney for the petitioner, attorney for the Commissioner and attorney for the child each filed affirmations in opposition to the motions.

It goes without saying that these are unprecedented times. A global pandemic of this nature has not been experienced in over a century and none of us could have anticipated the extent and the length of the impact of COVID-19. Indeed, standing here today, we cannot know how long this pandemic will last and the full extent of its devastation.

Family Court carries a heavy burden. We are the court to which people turn when they are experiencing domestic violence, when they need financial support to ensure the health and wellbeing of their children, when the State must protect a child from abuse or neglect, when a parent is denied access to a child and when a child is in need of a permanent home and a forever family. Family Court jurists (and indeed, jurists in all of our courts) have been working steadily through this pandemic, initially through Virtual Parts limited to “essential matters” then also through Virtual Chambers, and finally through expanded Virtual Parts which provide greater capacity to hear matters beyond those which fall strictly within the category of “essential.”

Currently, in compliance with Family Court protocols and procedures, jurists are able to hear permanency hearings and custody and guardianship cases which commenced prior to March 2020. Matters which may be heard and the number of Virtual Parts available to hear such cases have increased steadily as the New York City Family Court operations expand. There is still no certainty as to when regular, daily in-person hearings will resume in New York City Family Court.

With respect to practices and protocols which have been communicated by Administrative Judge of the Family Court, Judge Jeannette Ruiz, or Supervising Judge of Manhattan Family Court, Judge Karen Lupuloff, those practices and protocols, though accurate at the time of their making, have been fluid and ever-changing. Every day, Family Court pushes itself to be more open and available to the people who need us and practices and protocols are under constant review and evolving in order to meet those needs.

With respect to the court’s authority to hear virtual cases, as stated by Judge Jeffery Sunshine in C.C. v. A.R., 2020 Slip Op 29245 at *6 (Sup Ct. Kings Co. 2020):

“Pursuant to New York Judiciary Law §2-b(3), the Court has the power ‘to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” This authority is vested in the Courts by the New York State Constitution which permits courts latitude to adopt procedures not specified in the statutes where such procedures are consistent with general practice as provided by the law. (NY Const Art VI, 30, see also People v. Ricardo, 73 NY2d 228, 232 [1989]).”

In his decision, Judge Sunshine cited People v. Wrotten, 14 NY3d, 33, 37 (2009) where the Court of Appeals “ruled that the Court “does not need the consent of the parties to fashion “innovative procedures” where “necessary” to effectuate the power and jurisdiction of the Court.” Id at *6. In People v. Wrotten, the Court of Appeals held that live televised testimony is to be used in “exceptional circumstances” as “necessary.” People v. Wrotten, 14 NY3d 33, (2009). Judge Sunshine further wrote that: “As the Court of Appeals has noted again and again, “in this imperfect world, the right of a defendant to a fair appeal, or for that matter, a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal.” (People v. Rivera, 39 NY2d 519, 523 [1976]; see also People v. Harris, 57 NY2d 335 [1982]; People v. Parris, 4 [*8] NY3d 41 [2004]).” Id at *7.

Similarly, in Ciccone v. One 64th St., Inc., 2020 Slip Op 20220 (Sup. Ct. NY Co. 2020), Judge Gerald Lebovits held that “the Court of Appeals and the Appellate Division, First Department, have repeatedly held that one such [innovative] procedure that courts may employ, albeit in exceptional circumstances, is the use of video testimony…” Ciccone at *2

Judge Lebovits further noted that:

“The federal trial courts considering the issue have acknowledged that “[c]onducting a trial by videconference is certainly not the same as conducting a trial where witnesses testify in the same room as the factfinder,” and that “[c]ertain features of testimony useful to evaluating credibility and persuasiveness, such as the immediacy of a living person can be lost be video technology.” Matter of RFC & RESCAP Liquidating Trust Action (444 F Supp 3d 967, 970 [D Minn. Mar 13,2020] [internal quotation marks omitted].) At the same time, these courts have found that given “advances in technology,” “the near instantaneous transmission of video testimony” permits the court “to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.” (Id. [internal quotation marks and alteration omitted] ; accord Gould Elec. Inc.v. Livingston County Rd. Commn. (2020 WL 3717792, at 6 [ED Mich June 30, 2020 [same]; United States v. Donziger (2020 WL 5152162, at *3 n 4 [SD NY Aug. 31, 2020].” Id at *3-4.
He added that:

“Federal court have also found that given the “unprecedented nature of the circumstances faced by our society at present” due to the COVID-19 pandemic, compelling reasons exist to conduct trials virtually. (Flores v. Town of Islip (2020 WL5211052 at *2 [ED NY Sept. 1,2020]; accord RFC, 444 F Supp 3d at 972 [concluding that COVID-19's unexpected natures, rapid spread, and potential risk establish good cause for remote testimony"].) And given the court closures required by the pandemic, “the months’ long delay that has resulted” and the continuing lack of clarity about when it will be safe to resume normal in-person operations, the courts have concluded that “it is ‘absolutely preferable’ to conduct the bench trial via such ‘contemporaneous transmission’…rather than to delay the trial indefinitely.” (Argonaut Ins. Co. v. Manetta Enters., Inc. (2020 WL 3104033, at *2 [ED NY June 11, 2020], quoting RFC, 44 Supp 3d at 927.)” Id at *4.

Specifically, in the context of a virtual custody hearing, Justice Tandra L. Dawson ruled that a custody trial would proceed virtually over the objections of counsel stating:

“While the court is cognizant of the limitations and inherent difficulty involved in conducting virtual hearings, counsels’ objection do not set forth a prejudicial basis to further delay the hearing. Given the unpredictable nature of the COVID-19 pandemic it is unknown when court operations will return to normal in-person procedures, particularly given a resurgence is anticipated, if not already occurring, with multiple travel bans and advisories in effect. The court is mindful that compelling in-person attendance, in a courtroom, could subject vulnerable individuals to an increased risk of harm. Virtual technology would remove that risk.” A.S. v. N.S., 2020 NY Slip Op 20161 (Sup Ct, NY Co. 2020).
In addressing this issue, it bears mention that there are New York statutes which expressly allow for testimony by telephone, audio-visual or other electronic means. For example, under the Uniform Interstate Family Support Act (UIFSA), “In any proceeding under this article, the court may permit a party or a witness to be deposed or to testify by telephone, audio-visual means, or other electronic means at a designated family court or other location.” See N. Y. Fam Ct Act §531-a (1). Also, under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), “A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony and the procedures to be followed by the persons taking such deposition or testimony. Any such testimony or deposition shall be recorded and preserved for transcription.” See N.Y. Domestic Relations Law §75-j(2). Long before the exceptional circumstances created by COVID-19, considerations of time and money led the New York State Legislature to adopt electronic testimony (including telephone testimony) as a reliable and competent means of conducting a hearing.

According to the Pew Research Center, as of February 7, 2019, 96 percent of all Americans owned a cell phone with 81 percent of all Americans owning a smart phone. 

https://www.pewresearch.org/internet/fact-sheet/mobile/. 

Though this study demonstrated variability based on race, gender, age, income and rural vs. urban dwellers, no group dropped below 91 percent in cell phone ownership or 71 percent in smart phone ownership (other than those over 65 years of age and those who had not yet graduated high school which both reported at 53 percent in smart phone ownership). Id. Simply put, as of 2019, almost all Americans owned cell phones and the vast majority of them owned smart phones. The technologies being employed to conduct virtual hearings in Family Court are accessible via phone or smartphone and are readily available to anyone who owns either a cell phone or smart phone.

With respect to arguments by counsel for Ms. D. that electronic testimony is unreliable or prejudicial, we note that the studies cited in support of such an argument are all at least ten years old, with some dated as early as the 1980′s. It goes without saying that the electronic testimony that was available in 2010 and earlier is not the electronic testimony that is available today. During COVID-19, courts across this country have become virtual, as have businesses, law firms, doctor’s offices, schools and universities. People are relying on platforms such as Zoom, Skype for Business and Microsoft Teams to conduct multi-billion dollar deals, educate students, conduct hearings and save lives. We are able to rely on these platforms because they are easy to access and they work.

Given these considerations and the fact that electronic testimony has long been utilized in Family Court, this Court find arguments by counsel for the parents that electronic testimony is unreliable and/or prejudicial to be unpersuasive. The court is no less able to make credibility findings in hearings which are conducted virtually than in hearings conducted in person.

With respect to the interest of the State in conducting these hearing in a timely manner, it must be noted that the hearings in question here are all related to Article Ten proceedings and being sought in an effort to achieve permanency for the children involved. The court and the State are seeking to conduct these virtual hearings because without a determination as to the permanency hearings, custody and guardianship cases, these children will continue to languish in a state of uncertainly and instability. The Adoption and Safe Families Act states: ”(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.” Public Law 105-80, 105th Congress, Section 101. We are acutely aware of the deleterious impact of delayed permanency on the psychological and emotional health of children in foster care. “Paramount in the lives of these children is their need for continuity with their primary attachment figures and a sense of permanence that is enhanced when placement is stable.” Pediatrics November 2000, 106 (5) 1145-1150; DOI: https://doi.org/10.1542/peds.106.5.1145. Moreover, “[c]hildren who have experienced abuse or neglect have a heightened need for permanency, security, and emotional constancy and are, therefore, at great risk because of the inconsistencies in their lives and the foster care system. Every effort should be made to rapidly establish a permanent placement for the child.” Id.

Unless and until a child is adopted, returned to a parent or placed in a permanent home with a fit and willing relative through a final order of custody or guardianship, permanency has not been achieved. Foster care agencies will continue to conduct home visits and interview these children, court ordered visits with parents will continue to take place at the foster care agencies or other locations, and the home will continue to be under the stress associated with frequent court appearances. Moreover, in the cases before us, the parties are engaged in litigation over what the permanency plan should be for the children. Without a hearing and determination of these matters, it is impossible to know what these children’s future looks like or to make any assurances. These children are struggling with insecurity and uncertainty and suffering from the associated social, emotional and psychological stressors that this insecurity and uncertainty brings. Arguments that a parent’s right to the trial of their choosing outweighs a child’s right to permanency in their lives is not persuasive.

Similarly, the arguments made by counsel for the parents as to ineffective assistance of counsel are unpersuasive. The attorneys in these cases would have ample opportunity to meet with their clients in person, masked and socially distanced or via phone or teleconference. Attorneys are able to participate fully in virtual hearings, directing and cross-examining witnesses and making objections and applications as appropriate. If there is a problem with the technology and a witness or attorney cannot hear or be heard, the hearing can be stopped until the issue is addressed. If the issue cannot be addressed that day, another hearing date can be chosen. During the hearing, attorneys and clients can communicate via text or email, they can ask for breaks and/or to go off the record in order to consult further. Adjournments can be granted between direct and cross examination and after each party has rested in order to allow for further consultation.

While it is true that a party may be more comfortable sitting next to their attorney and better able to participate in the process, our world has moved online and people have adapted, continuing to attend classes, see doctors and therapists, and visit with family and friends. Nothing takes the place of in-person contact but in these unprecedented times, Family Court must continue to meet the needs of its families. As stated by Judge Sunshine, a litigant has the right to a fair trial not a perfect trial. With the protections listed above put into place, fair trials occur.

This having all been said, in the instant matter, the court does find that in this contested virtual guardianship hearing, the witnesses must testify via video rather than telephone. Counsel have made valid arguments to the Court as to the potential unreliability of telephone testimony, including the inability to know whether a witness is reading from notes or another source, and whether the witness is in the presence of someone who is coaching them or preventing them from testifying truthfully. Further, counsel for the parents are persuasive in their arguments that it is challenging to make accurate credibility findings when one cannot see a witness’s face and facial expressions and that testimony via telephone would place a hindrance on an attorney’s ability to engage in fully effective advocacy.
Accordingly, parties are directed to provide the court and counsel with witness lists within two weeks with information as to whether each witness will be able to testify via video, and if not, an explanation as to why not. The court can then make inquiry and issue orders to address challenges with internet access and video capability. We are mindful that in the cases before us, it is likely that while agency personnel may have ready access to computers and internet, parents and foster parents may not. Given the availability of foster care agencies and their resources, there are any number of ways to ensure that all parties may appear via video. These hearing will then proceed via Skype for Business and/or Microsoft Teams. An application for a limited number of participants to appear virtually, from a monitor specifically set up for such person in our courthouse, while others appear virtually from law offices and other locations, may also be made for this Court’s consideration.

This matter is adjourned to November 9, 2020 at 2:00 p.m. in Part 43 for a virtual court appearance via Microsoft Teams."