In re Maliyah M.

216 Conn.App. 702

285 A.3d 1185

IN RE MALIYAH M.

In re Octavia D.

In re Edgar S. et al.

AC 45183, (AC 45199), (AC 45369)

Appellate Court of Connecticut.

Argued September 8, 2022

Officially Released November 22, 2022^**

James P. Sexton, Hartford, assigned counsel, with whom, on the brief, was Albert J. Oneto IV, assigned counsel, for the appellants in Docket Nos. AC 45183 and AC 45199 (respondent fathers).

Matthew C. Eagan, assigned counsel, for the appellant in Docket No. AC 45369 (respondent mother).

Evan O'Roark, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Nisa Khan, assistant attorney general, for the appellee in each case (petitioner).

Bright, C. J., and Alvord and Elgo, Js.

PER CURIAM.

These three appeals present the same legal claim and involve similar, though unrelated, factual and procedural histories. In each appeal, the respondent parent appeals from the judgment of the trial court terminating his or her parental rights. On appeal, each respondent asserts the same claim—that the court "denied the respondent the due process of law under the fourteenth amendment to the United States constitution" when it conducted the termination of parental rights trial, either in whole or in part, virtually, via Microsoft Teams,¹ without first holding an evidentiary hearing to determine whether there was a compelling need for virtual testimony.

After the respondents filed their principal briefs in each appeal, this court granted the unopposed motions filed by the petitioner, the Commissioner of Children and Families, requesting that her brief be due thirty days after our Supreme Court issued its decisions in In re Annessa J ., 343 Conn. 642, 284 A.3d 562 (2022), and its companion cases, In re Vada V ., 343 Conn. 730, 275 A.3d 1172 (2022), and In re Aisjaha N ., 343 Conn. 709, 275 A.3d 1181 (2022), which involved claims similar to the claim in the present cases. Our Supreme Court issued those decisions on June 20, 2022, and we now conclude that In re Annessa J . is dispositive of the issue in the present appeals. Accordingly, we affirm the judgments of the trial courts.

In Docket No. AC 45183, the respondent father, Hector R.-B., appeals from the judgment of the court terminating his parental rights as to Maliyah M. on the ground of failure to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i).² In his brief, he represents that the termination of parental rights trial was a " ‘hybrid’ virtual proceeding, in which the respondent was present with counsel and a Spanish speaking interpreter in the courtroom, but all other participants except [the] child's counsel appeared virtually." On appeal, he claims "that he was denied the due process of law under [the] fourteenth amendment to the United States constitution at the partially virtual parental rights termination trial when the trial court dispensed with his right of physical confrontation without first holding an evidentiary hearing to determine by clear and convincing evidence that there was a compelling need for the petitioner's last four witnesses to testify against him virtually."

In Docket No. AC 45199, the respondent father, Jason D., appeals from the judgment of the court terminating his parental rights as to his minor child, Octavia D., on the grounds of failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i) and (E).³

On appeal, he claims "that he was denied the due process of law under [the] fourteenth amendment to the United States constitution at the virtual parental rights termination trial when the trial court dispensed with his right of physical confrontation without first holding an evidentiary hearing to determine by clear and convincing evidence that there was a compelling need for the petitioner's witnesses to testify against him virtually."

In Docket No. AC 45369, the respondent mother, Lymari O., appeals from the judgments of the court terminating her parental rights as to her four minor children, Edgar S., Jaden A., Jeomarye A., and Josue G., on the ground of failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i). She claims "that she was denied the due process of law under [the] fourteenth amendment to the United States constitution at the virtual parental rights termination trial when the trial court dispensed with her right of physical confrontation without first holding an evidentiary hearing to determine by clear and convincing evidence that there was a compelling need for the petitioner's witnesses to testify against her virtually."

Each respondent concedes that their claim is unpreserved and seeks review pursuant to 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. ... [S]ee In re Yasiel R. , [supra, at 781, 120 A.3d 1188 ] (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." (Emphasis in original; internal quotation marks omitted.) In re Annessa J ., supra, 343 Conn. at 656–57, 284 A.3d 562.

In In re Annessa J ., the respondent mother, Valerie H., appealed from the judgment of the trial court terminating her parental rights. Id., at 650, 284 A.3d 562. Due to the COVID-19 pandemic, the trial had been conducted virtually, via Microsoft Teams, and, on appeal to this court, the respondent mother claimed, inter alia, that the trial court "violated her right to due process of law by precluding her from confronting witnesses in court and in person ...." Id. She conceded that her claim was unpreserved and sought review pursuant to Golding . Id., at 661, 284 A.3d 562. This court determined that, "because Valerie did not ask the trial court to hold an evidentiary hearing on the need for a virtual trial, the record was inadequate to review Valerie's unpreserved federal due process claim." Id., at 651, 284 A.3d 562.

After granting the respondent mother certification to appeal, our Supreme Court agreed with this court that the record was inadequate to review her unpreserved claim. The court explained that, "[u]nlike her state constitutional claim, which did not require any factual predicates because she claimed an unqualified right to an in person trial, Valerie's federal constitutional claim is not based on an alleged unqualified right to confront the petitioner's witnesses in person under the fourteenth amendment to the United States constitution. Rather, Valerie claims that she had the right to do so ‘in the absence of evidence demonstrating the existence of a compelling governmental interest sufficient to curtail the right.’ Valerie thus acknowledges that there are certain countervailing governmental interests that may be sufficient to justify curtailing any constitutional right to in person confrontation. Indeed, to address the merits of Valerie's claim, this court would apply the three part test set forth in Mathews v. Eldridge , 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The third part of that test requires us to consider the governmental interests at stake. ... [T]he trial court explained that, ‘[d]ue to the COVID-19 ... pandemic, the trial [on the termination of parental rights petition] was conducted virtually.’ As a result, we would need to consider the specific factual circumstances surrounding the trial and the COVID-19 pandemic to properly evaluate Valerie's claim. As Valerie concedes, ‘[a]lthough the trial court referenced the COVID-19 public emergency as the reason for conducting the trial virtually, there was no actual evidence before the court that [SARS-CoV-2, the virus that causes COVID-19], threatened the health or safety of any of the persons involved in this particular case.’ It is for this reason that the record is inadequate to review Valerie's unpreserved federal due process claim. Even if this court were to assume that Valerie had a right to in person confrontation in the absence of compelling countervailing interests, this court has no factual record or factual findings on which to base a determination of whether that right was violated or whether the trial court correctly concluded that the government's interests were sufficiently great to warrant conducting the trial virtually." (Citation omitted.) Id., at 661–62, 284 A.3d 562. The court also rejected the respondent mother's contention that the lack of evidence in the record was not her burden to overcome under the first prong of Golding . Id., at 662–63, 284 A.3d 562.

Similarly, in In re Vada V ., supra, 343 Conn. at 738, 275 A.3d 1172, the respondent parents appealed from the judgments of the trial court terminating their parental rights after a trial held virtually, via Microsoft Teams, during the COVID-19 pandemic. The respondents asserted an unpreserved claim that "the trial court denied them the right to physically confront and cross-examine the witnesses against them at the virtual trial, thereby violating their right to due process ...." Id. Our Supreme Court again concluded that the record was inadequate to review the unpreserved due process claim, reiterating that, "even if [it] were to assume that there is a constitutional right to in person confrontation,...