IN RE AISJAHA N.*
(SC 20612)
Supreme Court of Connecticut
Argued November 18, 2021—officially released June 20, 2022**
Robinson, C. J., and McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.
* In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
** June 20, 2022, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
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Syllabus
The respondent mother appealed from the decision of the trial court vesting permanent legal guardianship of the minor child, A, in her maternal grandmother. On the basis of the respondent mother‘s substance abuse, poor parenting, and unrelated mental health issues, the Department of Children and Families placed A in the home of her maternal grandmother. Thereafter, the petitioner, the Commissioner of Children and Families, filed a neglect petition, and the trial court adjudicated A neglected and ordered her committed to the care and custody of the petitioner. Subsequently, the petitioner filed a motion for permanent legal guardianship, requesting that the trial court vest permanent legal guardianship of A in her maternal grandmother, to which the respondent mother objected. A hearing on the motion was held remotely via the Microsoft Teams platform amid the COVID-19 pandemic. Prior to the start of the mother‘s testimony, which occurred after the parties’ closing arguments because the respondent mother indicated to her counsel at that point that she wanted “to be heard,” the petitioner‘s counsel noted, for the record, that the mother was on the phone but not on video. The court asked whether anyone had an objection to proceeding with the mother testifying via audio only. There was no objection, and the mother then briefly testified. On appeal from the trial court‘s decision vesting permanent legal guardianship of A in her maternal grandmother, held:
- The respondent mother‘s unpreserved claim that she was denied due process of law under the
fourteenth amendment to the United States constitution by virtue of the trial court‘s failure to ensure that she was present by two-way video technology was unavailing: the record was inadequate to review this claim insofar as the record was largely silent regarding the nature of the mother‘s participation in the virtual hearing, and, although the respondent mother relied on a statement by the petitioner‘s counsel indicating that, after the close of evidence, the mother appeared by audio and not video during her testimony, the record was silent as to whether she appeared by video at any point prior to that during the proceedings; moreover, because the record was silent as to what type of phone the mother used to participate in the hearing and whether the phone had video capability, this court could not determine whether the respondent mother simply chose to turn her video off or whether she was unable to participate via video as a result of inadequate technology; furthermore, the respondent mother waived any argument with respect to testifying via audio only when she, her counsel and her guardian ad litem failed to object, at the trial court‘s express invitation, to proceeding without video. - This court declined the respondent mother‘s invitation to invoke its supervisory authority over the administration of justice to adopt a rule requiring that a trial court, before conducting a virtual hearing or trial in a child protection case, ensure that the parties either appear by two-way videoconferencing technology or waive the right to do so, after a brief canvass: the respondent mother failed to demonstrate that the inability of parties to meaningfully participate in virtual child protection hearings or trials via two-way videoconferencing technology was a pervasive and significant problem that required this court‘s intervention; moreover, the record was not sufficiently robust to facilitate this court‘s exercise of its supervisory authority insofar as the record did not evеn indicate the manner in which the respondent mother appeared during the hearing, with the exception of during her testimony after closing arguments; furthermore, neither the respondent mother, her counsel, nor her guardian ad litem asked the trial court for technical accommodations, and the trial court was fully attentive to potential problems regarding the remote technology and took steps to ensure that the virtual format of the hearing did not negatively impact the respondent mother; nevertheless, although this court did not address whether a trial court may conduct virtual hearings or trials in circumstances other than during a pandemic, it did take the opportunity to emphasize the importance of ensuring equal access to justice and the proper functioning of technology when a trial court conducts a virtual hearing or trial and that equal access to justice was particularly significant in the сontext of virtual hearings and trials, given that certain groups, such as indigent litigants, communities of color, older people, and people with disabilities were more likely to lack access to reliable internet service and devices that are adequate to participate in remote court proceedings by videoconferencing technology.
Procedural History
Petition by the Commissioner of Children and Families to adjudicate the respondents’ minor child neglected, brought to the Superior Court in the judicial district of Waterbury, Juvenile Matters, and tried to the court, Hon. John Turner, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment adjudicating the minor child neglected and ordering commitment to the custody of the petitioner, from which the respondent mother appealed to the Appellate Court, DiPentima, C. J., and Moll and Harper, Js., which affirmed the trial court‘s judgment; thereafter, this court denied the respondent mother‘s petition fоr certification to appeal; subsequently, the court, Hon. William T. Cremins, judge trial referee, granted the petitioner‘s motion for permanent legal guardianship and vested permanent legal guardianship of the minor child in her maternal grandmother, and the respondent mother appealed. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant (respondent mother).
Evan O‘Roark, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Andrei V. Tarutin, assistant attorney general, for the appellee (petitioner).
Douglas H. Butler, Giovanna Shay, Shelley White, Nilda R. Havrilla, Agata Raszczyk-Lawska, Raphael Podolsky and Janice J. Chiaretto filed a brief for the Greater Hartford Legal Aid et al. as amici curiae.
Opinion
McDONALD, J.
The record reveals the following relevant facts and procedural history. Jacqueline has a history of involvement with the Department of Children and Families as a result of her substance abuse, poor parenting, and untreated mental health issues, including schizophrenia and psychotic disorder. Relevant to this appeal, in 2018, the department became involved with Jacqueline due to her continued unstable mental health. Specifically, Jacqueline‘s adult
After a department social worker met with Jacqueline following her release from the hospital, the department placed Aisjaha in the home of her maternal grandmother, and the petitioner, the Commissioner of Children and Families, sought an order of temporary custody of Aisjaha. Thereafter, the trial court, Hon. Maurice B. Mosley, judge trial referee, issued the order vesting temporary custody of Aisjaha in the petitioner. At that time, the petitioner also filed a petition alleging that Aisjaha had been neglected. At the initial hearing on the nеglect petition, the trial court ordered Jacqueline to undergo a competency evaluation. She participated in that evaluation. The expert who evaluated her later testified that Jacqueline was not competent but could be restored to competency within sixty days if she engaged in mental health treatment, adhered to any prescribed medication, and abstained from smoking marijuana. Two months later, the trial court, Hon. William T. Cremins, judge trial referee, found that Jacqueline had not been cooperating with the entities providing her certain services and had not been restored to competency. The court appointed a guardian ad litem for Jacqueline and set the case down for trial on the neglect petition.
Jacqueline did not appear for the trial, and the trial court, Hon. John Turner, judge trial referee, proceeded with the trial in her absence, over the objections of Jacqueline‘s counsel and the guardian ad litem. Judge Turner thereafter adjudicated Aisjaha neglected and ordered her committed to the care and custody of the petitioner. The Appellate Court subsequently affirmed the judgment of the trial court. In re Aisjaha N., 199 Conn. App. 485, 498, 237 A.3d 52, cert. denied, 335 Conn. 943, 237 A.3d 2 (2020).
Approximately one year after the trial court committed Aisjaha to the petitioner‘s care, the petitioner filed a motion for permanent legal guardianship, requesting that the trial court vest permanent legal guardianship of Aisjaha in her maternal grandmother pursuant to
Relevant to this appeal, when the maternal grand-mother logged into the trial via Microsoft Teams, the trial court and all counsel could hear her but could not see her on video. Jacqueline‘s counsel objected to the maternal grandmother‘s testifying via audio only, and the court stated that, “if there is an objection to the witness testifying by audio only, and she can‘t get onto the call as a video, then we‘ll have to continue the [case] until we can either set it up as live оr get her access.” After Aisjaha‘s counsel raised an objection, the court reiterated: “[I]f there‘s any objection to proceeding this way, then we will have to continue the case. . . . [I]f there‘s any objection at all, [because] this is an unusual way to proceed, I‘m not going to go forward.” The parties ultimately agreed to allow the maternal grandmother to state certain facts for the record.
After the petitioner‘s counsel called her last witness, Jacqueline‘s counsel asked the trial court for a recess, so that she could “call [Jacqueline] to confer with her about whether . . . she still wishes to be heard.” The court agreed. Following the recess, Jacqueline‘s counsel stated that “[Jacqueline] does not wish to testify.” Thereafter, during her closing argument, Aisjaha‘s counsel argued in favor of vesting permanent legal guardianship of Aisjaha in her maternal grandmother, stating that, “since the beginning of the case, Aisjaha has been very clear that she wants to continue living with . . . her grandmother.” After the closing arguments of the petitioner‘s counsel and Jacqueline‘s counsel,
In its memorandum of decision, the trial court noted that Jacqueline had been represented by counsel and that she and her guardian ad litem “were present” for trial on the petitioner‘s motion for permanent legal guardianship. The court found that the petitioner had satisfied her burden of proving each element for the establishment of a permanent legal guardianship. Accordingly, the trial court granted the petitioner‘s motion for permanent legal guardianship and vested permanent legal guardianship of Aisjaha in her maternal grandmother. This appeal followed.3
On appeal, Jacqueline raises two claims. First, she claims that she was denied due process of law when the trial court failed to ensure that she appeared by two-way video technology at a virtual trial, conducted via Microsoft Teams, on the motion for permanent legal guardianship. Alternatively, Jacqueline asks this court to reverse the decision of the trial court pursuant to our supervisory authority over the administration of justice. Specifically, she asks this court to adopt a procedural rule requiring that a trial court, before conducting a virtual trial in a child protection case, ensure that the parties either appear by two-way videoconferencing technology or waive the right to do so, aftеr a brief canvass. We address each claim in turn.
I
We begin with Jacqueline‘s unpreserved claim that she was denied due process of law under the
The petitioner contends that Jacqueline “was not absent or excluded from trial, as she suggests,” and “[t]he fact that [she] appeared by audio only during her testimony in no way deprived her of due process.” The petitioner notes that this court and the United States Supreme Court have previously held that “testifying by audio means only . . . does not offend the due process rights of a respondent parent.” Finally, the petitioner contends that the record is not adequate to review this claim, “given how few details it contains about how [Jacqueline] participated in the trial and whether she could have appeared by video had she wanted to.” We agree with the petitioner that the record is inadequate to review this unpreserved claim. With respect to Jacqueline‘s testimony, we also conclude that she waived any argument with respect to tеstifying via audio only when she, her counsel and her guardian ad litem failed to object, at the trial court‘s express invitation, to proceeding without video.
Jacqueline concedes that she did not raise this claim before the trial court and, therefore, seeks review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Pursuant to Golding, “a [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; footnote omitted.) State v. Golding, supra, 239–40; see also In re Yasiel R., supra, 781 (modifying third prong of Golding). “The first two steps in the Golding analysis address the reviewability of the claim, [whereas] the last two steps involve the merits of the claim.” (Internal quotation marks omitted.) In re Azareon Y., 309 Conn. 626, 634–35, 72 A.3d 1074 (2013).
As we have explained, under Golding, an appellant “may raise . . . a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review. The reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred. Thus, as we stated in Golding, we will not address an unpreserved constitutional claim [i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred . . . . It is well established . . . that parties must affirmatively seek to prevail under . . . Golding . . . and bear the burden
Jacqueline contends that the record is adequate to review her claim because “[t]he trial transcripts reflect that [she] did not appear by two-way video . . . in this [case].” In support of this contention, however, she points to only one instance in the January 25, 2021 trial transcript indicating that the trial court could not see her. Specifically, prior to Jacqueline‘s testimony, after the close of evidence, the petitioner‘s counsel noted that Jacqueline “is currently just on the phone; she‘s not on video.” (Emphasis added.) There is no other indication in the record regarding whether Jacqueline participated in the trial by audio or video. The statement by the petitioner‘s counsel indicates only that Jacqueline appeared by audio and not by video during her testimony but says nothing about whether she appeared by video at any point prior to that during the proceedings. The record is also silent about what type of phone Jacqueline used to participate in the proceeding and whether the phone had video capability. Appellate counsel also could not provide this court with additional information about the manner of Jacqueline‘s participation. As a result, the record is silent about whether Jacqueline simply chose to turn her video off or whether she was unable to participate via video as a result of inadequate technology.5 Beсause the record is silent as to the exact nature of the device she used, we also do not know whether Jacqueline had the ability to see the video of the proceedings. Because Jacqueline did not raise this issue at trial, the trial court was unable to assess any potential problems with Jacqueline‘s ability to participate via video and had no occasion to consider alternative means for her to participate via video or to continue the trial until it could be held in person. As this court repeatedly has observed, “[o]ur role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant‘s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). Because the record is largely silent regarding the nature of Jacqueline‘s participation in the virtual trial, we conclude that the record is inadequate to review this unpreserved claim.
Moreover, with respect to Jacqueline‘s testimony, Jacqueline‘s counsel asked the trial court to allow Jacqueline to testify after the close of evidence. Moments
II
Jacqueline also asks this court to reverse the decision of the trial court pursuant
The petitioner contends that we should not adopt the rule proposed by Jacqueline because doing so would be tantamount to overruling In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 446 A.2d 808 (1982). In that case, this court held that telephonic testimony adequately protected the due process rights of the respondent father. See id., 435–41. The petitioner notes that, since In re Juvenile Appeal (Docket No. 10155), the Superior Court has “relied [on] that decision and the procedure of allowing respondent parents to participate in child protection hearings via telephone.” The petitioner cites to numerous cases in which the trial court followed that procedure and contends that, for many parents, “telephone is . . . the only means by which they can participate in their case.” As “long as the respondent parent‘s testimony is audible to the court and all parties,” the petitioner contends, “there is nothing unconstitutional about telephonic testimony.” We decline Jacqueline‘s invitation to exercise our supervisory authority in this case.
Supervisory authority is an extraordinary remedy that should be used “sparingly. . . .” (Citation omitted.) State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012). “Although [a]ppellate courts possess an inherent supervisory authority over the administration of justice . . . [that] authority . . . is not a form of free-floating justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when cirсumstances are such that the issue at hand, [although] not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the [litigant] and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts.” (Emphasis in original; internal quotation marks omitted.) State v. Wade, 297 Conn. 262, 296, 998 A.2d 1114 (2010). Overall, “the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 439, 773 A.2d 287 (2001). Thus, we are more likely to invoke our supervisory powers when there is a “pervasive and significant problem“; State v. Hill, 307 Conn. 689, 706, 59 A.3d 196 (2013); or when the conduct or violation at issuе is “offensive to the sound administration of justice . . . .” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 239–40, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).
“[T]hree criteria must be met before we will consider invoking our supervisory authority. . . . First, the record must be adequate for review. . . . Second, all parties must be afforded an opportunity to be heard on the issue. . . . Third, an unpreserved issue will not be considered [when] its review would prejudice a party.” (Citations omitted.) In re Yasiel R., supra, 317 Conn. 790.
In this case, Jacqueline has not demonstrated that the inability of parties to
We also note that, although trial courts have аn obligation to ensure that parties have the ability to meaningfully participate, neither Jacqueline, her counsel, nor her guardian ad litem asked for technical assistance or accommodations from the trial court. Nonetheless, the trial court was fully attentive to potential problems regarding the remote technology and took steps to ensure that the virtual format of the trial did not negatively impact Jacqueline. For example, the court paused the proceedings several times to allow Jacqueline to confer with her counsel, asked if any party objected to Jacqueline‘s testifying via audio only, paused the proceedings when it could not hear Jacqueline, paused the proceedings to allow Jacqueline‘s counsel to confer with Jacqueline‘s guardian ad litem, and repeatedly noted that it would continue the case if the parties did not agree to the maternal grandmother‘s testifying via audio only. See, e.g., People ex rel. R.J.B., 482 P.3d 519, 525 (Colo. App. 2021) (noting importance of trial court‘s taking steps to remedy technological issues during virtual termination of parental rights trial), cert. denied, Colorado Supreme Court, Docket No. 21SC115 (March 15, 2021); In re M.M., Docket No. 21A-JT-840, 2021 WL 4839067, *3 (Ind. App. October 18, 2021) (decision without published opinion, 176 N.E.3d 589) (explaining that trial court rectified any technological issues during virtual termination of parental rights hearing and respondent mother was able to meaningfully participate). We therefore decline Jacqueline‘s invitation to invoke our supervisory authority to create a rule requiring that a trial court, before conducting a virtual trial in a child protection case, ensure that the parties either appear by two-way videoconferencing technology or waive the right to do so, after a brief canvass.
Although we do not address whether a trial court may conduct virtual trials in circumstances othеr than during a pandemic, we take this opportunity to emphasize the importance of ensuring equal access to justice when a court undertakes a virtual trial. Equal access to justice is particularly significant in the context of virtual hearings and trials given the digital
Some jurisdictions have addressed the digital divide “in a novel and competent way by creating a number of remote public sites . . . that provide a safe and private location, a computer and conneсtivity.” M. Spekter, Moving Courts Online: The Advantages Have Been Proven, and Online Court Proceedings Are Here To Stay, Law Practice Magazine, July 1, 2021, available at https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2021/ja21/spekter/ (last visited June 15, 2022). We note that the Connecticut Judicial Branch has created the Connecticut Guide to Remote Hearings for Attorneys and Self-Represented Parties to “assist anyone who is preparing to participate in a remote court hearing through Connecticut‘s ‘Remote Justice Virtual Courtroom.’ This includes counsel, self-represented parties, and other necessary hearing participants, such as witnesses.” Connecticut Judicial Branch, Connecticut Guide to Remote Hearings for Attorneys and Self-Represented Parties (November 23, 2021) p. 4, available at https://jud.ct.gov/HomePDFs/ConnecticutGuideRemoteHearings.pdf (last visited June 15, 2022) (Connecticut Guide to Remote Hearings). The Connecticut Guide to Remote Hearings provides that, “[i]f you do not have a phone or device to videoconference or access to the [I]nternet, let the court know as soon as possible. The court may be able to help you find a way to participate, or your hearing may be postponed until everyone can participate.” Id., p. 5. The Quick Reference Guide for Remote Court Proceedings that accompanies the Connecticut Guide to Remote Hearings provides that “[s]ome courts have space in
It is also important that trial courts, when undertaking virtual proceedings, ensure the proper functioning of technology. If the technology is not functioning properly, the court must take corrective measures then to remedy the technological problem, or continue the case until either it can be conducted in person or the technology problem can be resolved. See, e.g., Diaz v. Commonwealth, 487 Mass. 336, 342, 167 N.E.3d 822 (2021) (“We . . . urge judges to pay careful attention to the technology. If the technology does not function as described, it is crucial that the court suspend the hearing, rather than risk sacrificing certain of the defendant‘s constitutional rights.“).
The decision of the trial court granting the petitioner‘s motion for permanent legal guardianship is affirmed.
In this opinion the other justices concurred.
Notes
“(6) Prior to issuing an order for permanent legal guardianship, the court shall provide notice to each parent that the parent may not file a motion to terminate the permanent legal guardianship, or the court shall indicate on the record why such notice could not be provided, and the court shall find by clear and convincing evidence that the permanent legal guardianship is in the best interests of the child or youth and that the following have been proven by clear and convincing evidence:
“(A) One of the statutory grounds for termination of parental rights exists, as set forth in subsection (j) of section 17a-112, or the parents have voluntarily consented to the estаblishment of the permanent legal guardianship;
“(B) Adoption of the child or youth is not possible or appropriate;
“(C) (i) If the child or youth is at least twelve years of age, such child or youth consents to the proposed permanent legal guardianship, or (ii) if the child or youth is under twelve years of age, the proposed permanent legal guardian is: (I) A relative, (II) a caregiver, or (III) already serving as the permanent legal guardian of at least one of the child‘s siblings, if any;
“(D) The child or youth has resided with the proposed permanent legal guardian for at least a year; and
“(E) The proposed permanent legal guardian is (i) a suitable and worthy person, and (ii) committed to remaining the permanent legal guardian and assuming the right and responsibilities for the child or youth until the child or youth attains the age of majority . . . .”