Office of the Juvenile Defender COVID News
- COVID-19 is unlikely to affect the health of children, but will affect the health of adults
- COVID-19 is going to affect the availability of foster and kinship placements
- COVID-19 is going to affect the availability of resources that our clients depend on – DCF resources, visitation resources, treatment resources, etc.
- The courts are likely to inappropriately deny clients access to important legal remedies during this crisis
- We need to be particularly vigilant about protecting our client’s basic constitutional rights to family integrity and to document and object when our clients are unable to access services and remedies due to the pandemic
- If you have questions about a particular issue, call us at (802) 828-3168. We will try to help you figure out how best to pursue your issue(s). There will have to be some creative litigation here.
COVID-19 and the Juvenile System
The good news about all of this is that young people are at low risk of suffering from COVID-19. Even in the hardest-hit countries (South Korea and Italy, China’s statistics are totally unreliable), there have been no COVID-19 deaths of people under age 29. But the fact that they don’t display symptoms of the disease does not mean that they cannot carry the disease. In South Korea, where testing is widespread and does not depend on displaying symptoms, they found that a large number of 12-29 year-olds tested positive for COVID-19, even though they were not displaying any symptoms.
What that means is that we don’t need to be very worried that youth will be directly harmed by contracting COVID-19, but we do need to be worried about young people catching it and passing it on to others. This is a major concern for youth who are in facilities that also serve adults of vulnerable age (like the Retreat) and for youth who are in facilities where the staff is vulnerable to the virus (pretty much every residential facility). For that reason, we’ve seen programs refusing new admissions, stopping visits, and limiting contact by outsiders - that is frustrating for youth who were looking forward to a visit or who need services that are not being provided, but it is the only effective way that most programs will be able to protect the health of older residents and staff. So we expect that our clients in residential placements will be impacted, but these programs are (mostly) professionally-run, well-staffed operations that are likely to keep functioning throughout this situation.
We are a lot less confident in the resilience of the foster care system. A lot of foster parents and kin-placements are older adults who are particularly vulnerable to COVID-19. It is likely that this virus will affect a large number of older adults in Vermont, and many of them are likely to require significant medical intervention. We are expecting that as this virus spreads, we will see many foster placements become unavailable and that the supply of new foster placements will dry up. Additionally, the closure of schools will impact foster parents significantly. As anyone with school-age childen knows, having your children home from school is only fun for a little while. We expect that as the school closure drags on and children are in their homes all day every day, foster placements will become stressed and eventually fail.
The COVID Response
Everyone has certainly seen that the courts are cancelling all non-emergency hearings and encouraging participation by phone. This is a work in progress - keep in mind that this dynamic is new to everyone including DCF, judges, clerks, and prosecutors. Everyone is trying to figure out how to implement inconsistent and unclear directives and they’re going to mess it up at times. The current public health crisis does not strip our clients of constitutional rights. So if you have clients who are being denied visitation, reunification, or meaningful input into major decisions about their kids’ lives because of the court’s COVID response, you should be pushing back. If you have questions, call us – we can help with some creative litigation strategies like using habeas petitions and petitions for extraordinary relief or mandamus where the courts are not acting.
One of the most important things to consider is how COVID-19 will affect courts’ decision making in these cases. Decisions in CHINS and dispositional delinquency cases are always balancing acts and COVID is going to change the balance. Where it is appropriate, we should be advocating for aggressive reunification. While it is often seen as best practice to reunify families by slowly increasing visitation over a long period of time, that may be inappropriate in this context. In those cases, you can argue that there will be less harm done by accelerating the transition than by delaying it or trying to make it compatible with the practical limitations on visitation that we are likely to see.
While we want all of you fighting to preserve our clients’ rights throughout this pandemic, it is inevitable that there will be problems. Families will almost certainly be denied visits inappropriately, denied services that would help with reunification, and denied opportunities to pursue timely legal remedies. Where we can’t remedy the denial, the next best thing will be to document, object, and preserve. If DCF denies your client a visit because of COVID, make sure that you get that in the record; if your client cannot access treatment resources (I’ve heard of a lot of AA and NA meetings cancelled indefinitely), make sure that’s well-reflected in the record; and if your client had a good argument for discharge of custody or reunification that could not be heard by the court, make sure that you do what it takes to object to the denial (potentially an interlocutory appeal). The idea is to ensure that your clients are not held responsible for things outside of their control.
COVID-19 and You
I've already had a LOT of questions about how to balance the needs of our clients against the need to protect ourselves against the spread of COVID-19. I want to be clear about this: you are no good to your clients if you are incapacitated or dead. Keeping yourself healthy and available to fight the fight is more important to your clients than any individual court appearance or facility visit. How you protect yourself depends on your particular situation, including your own risk of developing serious symptoms as a result of the virus. You should be aware of your risk factors and think hard about whether any particular in-person interaction is actually necessary. There is a good resource from Oregon on ethical considerations during the COVID-19 pandemic, it is on the COVID resources page.