In re Vada V.

343 Conn. 730

275 A.3d 1172

IN RE VADA V. et al.^*

SC 20603, (SC 20604)

Supreme Court of Connecticut.

Argued November 18, 2021

Officially released June 20, 2022^**

Albert J. Oneto IV, assigned counsel, for the appellant in Docket No. SC 20603 (respondent father).

David E. Schneider, Jr., assigned counsel, for the appellant in Docket No. SC 20604 (respondent mother).

Seon Bagot, assistant attorney general, with whom were Evan O'Roark, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee in both appeals (petitioner).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

These appeals are companion cases to In re Annessa J. , 343 Conn. 642, ––– A.3d –––– (2022), and In re Aisjaha N. , 343 Conn. 709, ––– A.3d –––– (2022), which we also decide today. The respondents, Sebastian V. and Samantha C., appeal from the judgments of the trial court, which terminated their parental rights pursuant to General Statutes § 17a-112 (j). On appeal, the respondents raise three unpreserved constitutional claims relating to the virtual nature of the termination of parental rights trial. Specifically, the respondents contend that the trial court violated their rights under article first, § 10, and article fifth, § 1, of the Connecticut constitution by conducting the termination of parental rights trial virtually, via Microsoft Teams,¹ rather than in person. They also contend that they were denied the right to physically confront the witnesses against them at the virtual trial, in violation of the due process clause of the fourteenth amendment to the United States constitution. Finally, the respondents contend that their constitutional rights were violated when the state required them to participate in the virtual trial without providing them with an electronic device and internet connection that allowed them to appear before the trial court in the same manner as if they were in a courtroom. We affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. The Department of Children and Families first became involved with the respondents at the time of the birth of their daughter, Vada V., in August, 2017. The department received numerous referrals alleging that Samantha was abusing Xanax, opiates, and marijuana during her pregnancy, and that Sebastian was selling his prescribed medications of Xanax and Adderall. Shortly after being discharged from the hospital following her birth, Vada was readmitted to the hospital for suspected methadone toxicity while in the care of the respondents. On September 6, 2017, the petitioner, the Commissioner of Children and Families, filed a motion for an order of temporary custody and a neglect petition with respect to Vada. On September 22, 2017, the order of temporary custody was sustained by agreement of the respondents, and Vada was placed with her paternal aunt. On December 22, 2017, Vada was adjudicated neglected and committed to the care and custody of the petitioner. Due to the respondents’ continued mental health issues and drug abuse, Vada was not reunified with them.

Thereafter, in December, 2018, the respondents’ son, Sebastian V., Jr., was born. Both Samantha and Sebastian, Jr., tested positive for methadone and benzodiazepines. The petitioner filed a motion for an order of temporary custody and a neglect petition with respect to Sebastian, Jr., as the same issues that existed at the outset of the case regarding Vada continued to exist. On January 11, 2019, the order of temporary custody was sustained by agreement of the respondents, and Sebastian, Jr., was ultimately placed with Samantha's stepsister. Sebastian, Jr., was subsequently adjudicated neglected and committed to the care and custody of the petitioner on May 1, 2019. The trial court approved a permanency plan for both Vada and Sebastian, Jr., of termination of parental rights and adoption. On August 27, 2019, the petitioner filed petitions for termination of parental rights with respect to both Vada and Sebastian, Jr., on the ground that the respondents had failed to rehabilitate.²

In October and November, 2020, during the COVID-19 pandemic, a two day virtual trial was held, via Microsoft Teams, on the petitions for termination of the respondents’ parental rights. The respondents were represented by separate counsel and participated in the proceedings through audio and video means.³

On the first day of the virtual trial, the respondents, who had a history of arriving late to their court proceedings, were not present at the time trial was scheduled to begin. Before trial commenced, Samantha and Sebastian's respective counsel confirmed that they had provided their clients with the link to the trial, informed them of the time at which the proceedings would begin, and ensured that their clients had the technology needed to participate. The trial court subsequently asked that Samantha's counsel confirm, for the second time, that Samantha "acknowledged that [the respondents] had the technology to participate by [phone]." Samantha's counsel responded: "Yes. We were going over how we would be able to communicate during the trial, and [Samantha] said she had multiple devices, so she would be able to be on video and ... perhaps text me on another device."⁴ The trial court then commenced the trial in the respondents’ absence.

During the cross-examination of the petitioner's first witness, the respondents joined the trial via a shared cell phone, outside the proximity of their counsel. The cross-examination was paused, and the trial court offered to recess, so that the respondents’ counsel could have the opportunity to confer with their clients. Both attorneys declined the court's offer, and the cross-examination continued.

Following the first witness’ testimony, the trial court asked the respondents’ counsel how they planned to confer with their clients during trial. The court indicated that it was "willing to proceed in ... any way [the respondents’ counsel] would like" to ensure that they had adequate contact with their clients. Samantha's counsel stated that she had been communicating with Samantha through text messages and e-mail during trial.

Sebastian's counsel similarly indicated that Sebastian was communicating with him through a messaging application. The court then noted that, "if there's anything that the court needs to do in order to help you effectuate that communication, let me know ... and we'll do our best to accommodate." The court then stood in recess to allow the respondents’ counsel to confer with their clients.

The petitioner's counsel presented the testimony of four additional witnesses on the first day of trial. The respondents’ counsel cross-examined each of the witnesses, and, at the close of the examination of three of those witnesses, before each witness was released, the trial court asked the respondents’ counsel whether they needed an opportunity to confer with their clients to determine whether they should ask additional questions of the witness. The respondents’ counsel declined the court's offer to do so each time, and, on at least one occasion, Samantha's counsel explained that she had already been communicating with Samantha during the witness’ examination. Moreover, at the close of the examination of the final witness, the court asked whether the respondents’ counsel, after consulting with their clients, had any further questions for the witness.

On the second day of the virtual trial, the respondents timely appeared via video, although the trial court commented that their video was frozen. Presumably, the respondents then turned their video off, as the court inquired, "[d]id you want to have your video on? Because, at the moment, it is not—your camera is not on." Samantha responded that she turned the video off because "it was lagging a lot," and she thought that turning the video off would "help the connection ...." Samantha indicated that she could attempt to turn the video back on if the court wanted, to which the court responded: "No. Whatever way works best for you. We just want to make sure that you have full participation in the proceedings, that's all." Samantha responded that the audio only feature was the "clearest [the respondents could] hear [the court] at the moment" and that she "[could] try again." The court responded: "All right. That's fine." The court then proceeded with trial.

Both respondents testified at trial. At the start of her direct examination, Samantha participated by video, but, shortly after beginning to testify, her video froze. She then turned her video off, and the trial court indicated that it could hear her "much better." She proceeded to testify. At a later point during her testimony, however, the court paused the proceedings due to connectivity issues, and the respondents logged off of the virtual trial. Following a brief recess, the respondents "called in" and rejoined the proceedings. The court stated that the technical difficulties with the respondents’ connection had been resolved, and the direct examination of Samantha continued. The record does not indicate whether Samantha testified via audio only for the duration of her testimony or, alternatively, whether she was able to utilize video technology for any portion of the remainder of her testimony.

Sebastian appeared via video at the beginning of his testimony, although, initially, his image appeared upside down, and his speech was muffled. His testimony was also interrupted, shortly into his counsel's questioning, by connectivity issues. The remainder of Sebastian's testimony proceeded without significant technological difficulty. As with Samantha, however, the record does not indicate whether Sebastian continued to utilize video technology throughout his testimony, or whether he, at some point, switched to audio only.

In its memorandum of decision, the trial court, Marcus , J. ,...