Coronavirus Raises Questions On How To Meet Court-Ordered Obligations

As the number of COVID-19 cases rises exponentially in the United States and millions of people are urged to stay home, those with court-ordered legal obligations are left wondering what to do. 

About 4.5 million people are involved in a community supervision program like probation or parole, meaning they are not incarcerated, but must still meet court-mandated requirements. Outside of the criminal justice sphere, many parents with children in foster care must also adhere to specific court mandates in order to get their children back. Many of these requirements involve leaving the home and being in group settings—the exact opposite of what public health officials are recommending in order to stop the spread of the novel coronavirus.

Probation and parole typically mandate, at minimum, regular office check-ins with supervising officers and random weekly or monthly drug tests. For those involved in drug courts, which are sometimes offered in lieu of time in jail or prison to people experiencing addiction, there are often requirements to complete intensive drug treatment alongside check-ins and testing. Under normal circumstances, failure to comply with these mandates can result in incarceration. 

Last week, the New York State Department of Corrections and Community Supervision suspended in-person parole reporting until April 17. Monitoring will continue through electronic means like text messages and phone calls. And high-risk cases—including sex offenders and people with mental health concerns—will continue to have in-person check-ins but with social distancing measures observed. 

New York City courts have also closed for all nonessential functions, a reality that is echoing in various federal, state, and county courts across the country as each locality scrambles to determine how it will respond to the pandemic. This means that while hearings and check-ins may be on hold, many of those who are already mandated to engage in monitoring and services are seeing no official changes. 

“As far as we know, from neither local or state government has there been an official suspending of those kinds of mandates, which is really troubling,” said Katie Schaffer, the director of organizing and advocacy at Center for Community Alternatives, a New York based advocacy group that works on securing alternatives to incarceration. “I think this will very much be decided on a case-by-case basis.”

Drug court participants are subject to similar variability. 

“Some drug courts in some states are canceling in-person activities, and some are reducing requirements … some are canceling all in-person drug testing, some are spacing them out more, and some are moving to sweat patches,” said David Lucas, clinical adviser at the Center for Court Innovation. “[The response] depends on the state, depends on the judge. It’s just kind of a microcosm of the drug court world, where you may not know from one to the next what kind of approach they will take but the focus right now appears to be on safety and not just strict compliance monitoring.”

In King County, Washington, where the most COVID-19 cases and deaths have been confirmed in the state, probation check-ins have been suspended until at least April 27. For the county’s drug court participants, many requirements have also been temporarily suspended. All hearings are now being conducted by phone, and sober support meeting requirements have been waived, but participants are being assigned homework instead. Sick participants are being advised to stay home and do not need a doctor’s note at this time.

There’s a lot of territory between Seattle and New York, however, and it’s unclear exactly how every jurisdiction will respond now that COVID-19 has spread across the nation. Anecdotal reports from people on probation around the country reflect the sentiment that responses are highly variable. While many say they are able to do check-ins with their case managers by phone or video conference, engagement with other requirements—such as urine drug testing or meetings—still appear to be expected, at least for now.

“During daily reporting you’re supposed to check-in in person once a week with an officer, but they … let us know they are not doing in person visits until further notice,” said Jessica Horn, who is on daily reporting, a form of probation, in Indiana. “They said if they wanted to drug test you they would call you and let you know and you would have to come up to the jail and they would do it in the parking lot because nobody is allowed in the building right now … I kind of feel a little bit lost as to what to do. I don’t feel like I’m being very monitored.”

For parents involved with the child welfare system, the situation looks grim. Those parents also have requirements like drug tests, classes and check-ins, but rather than facing penalties like incarceration, they face the termination of parental rights. 

Under the Adoption and Safe Families Act (ASFA), agencies are required to file for termination of parental rights after a child has been in foster care for 15 of the past 22 months. Some states have reduced that timeline to be as short as 12 months. ASFA allows for exceptions, but there are no specific guidelines on how to balance child permanency needs and the right to family integrity during a pandemic. 

“In Washington, the state is strict on moving on the ASFA timelines and moving toward termination of parental rights as quickly as possible,” said Tara Urs, special counsel for civil policy and practice at the King County Department of Public Defense. “[The coronavirus outbreak] seems like good cause not to move to [termination] because parents won’t have the full opportunity to engage with services.”

In both Seattle and New York, family court closures mean emergency removal hearings are still being held, but not much else. In Seattle, postponed hearings include those that could result in a child being returned home. In New York, advocates were able to push to include requests by parents to return their children under the emergency umbrella, but with significant delays on hearing dates. As court closures take place in other parts of the country, similar decisions are being made.

“As we are doing social distancing, we realize how hard it is to not be with the people we rely on for support and love and care,” Urs said. “I hope it’s a moment that creates some empathy for parents and children in the child welfare system, who have been going through that all along and have been experiencing extreme trauma, the trauma of family separation.”

The most significant change that has taken place over the past week for parents with children in foster care have been widespread suspension of in-person supervised visitations. Areas where these suspensions have taken place include major cities like Seattle, New York, and San Francisco, but also smaller jurisdictions like several counties in Colorado, Wisconsin, and Arkansas. 

“We are hearing about extensive closing of agencies and interruptions in visits, but we haven’t heard about how the agencies are able to facilitate any kind of online or telephone or video communication between parents and children,” said Anya Mukarji-Connolly, a supervising attorney for the family defense practice at Brooklyn Defender Services. “We are [also] hearing about a lot of the problems with this, parents and foster families who may not have the technology needed for that kind of communication. We certainly know about clients whose children are too young to benefit from that kind of communication.”

During termination trials, bonding between parents and children can be a crucial deciding factor—and any interruption in visits can potentially be cited as evidence of a deteriorated bond, regardless of cause.

In terms of service requirements, parent advocates are concerned, but uncertain. Although services are mandated by the court, they are usually overseen and administered by community agencies—so court closures won’t automatically affect whether a parent is able to attend addiction treatment, for example, and it won’t lengthen the time allotted to complete it, though parents can petition for such extensions when the courts reopen.