In re Takie O. ( 2022 )

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IN RE TAKIE O.*
(AC 44992)
Alvord, Elgo and Seeley, Js.
Syllabus
The petitioner, the Commissioner of Children and Families, sought to termi-
nate the respondents’ parental rights with respect to their minor child.
Due to the COVID-19 pandemic, the trial on the termination petition
was held remotely via Microsoft Teams. The respondent father was
represented by counsel and participated in the proceedings through
audio and video means. The respondent mother consented to termina-
tion. At the conclusion of the trial, the trial court rendered judgment
terminating the respondents’ parental rights. On the respondent father’s
appeal, held that the record was inadequate to review the father’s claim
that he was denied the right to confront the witnesses against him at
the virtual trial in violation of the due process clause of the fourteenth
amendment to the United States constitution: the father conceded that
his claim was unpreserved because he did not raise it before the trial
court; moreover, there was no factual record or factual finding on which
this court could have based a determination of whether the father’s
right to confront the petitioner’s witnesses was violated by the virtual
format of the trial or whether the trial court correctly concluded that
the government’s interests were sufficiently great to warrant conducting
the trial virtually; accordingly, the situation was analogous to those set
forth in In re Annessa J. (343 Conn. 642), and In re Vada V. (343
Conn. 730), in which our Supreme Court recently determined that the
respective respondents’ claims failed to satisfy the first prong of the
test for review of unpreserved constitutional claims set forth in State
v. Golding (213 Conn. 233).
Argued September 6—officially released October 4, 2022**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Hartford, Juvenile Mat-
ters, where the respondent mother consented to the
termination of her parental rights; thereafter, the matter
was tried to the court, Hon. Stephen F. Frazzini, judge
trial referee; judgment terminating the respondents’
parental rights, from which the respondent father
appealed to this court. Affirmed.
Matthew C. Eagan, assigned counsel, with whom, on
the brief, was Albert J. Oneto IV, assigned counsel, for
the appellant (respondent father).
Nisa Khan, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Evan O’Roark, assistant attorney general, for the appel-
lee (petitioner).
Opinion
PER CURIAM. The respondent father, Takie O., Sr.,
appeals from the judgment of the trial court terminating
his parental rights with respect to his minor child, Takie
O. (child).1 On appeal, the respondent claims that he
was denied the right to physically confront the wit-
nesses against him at the virtual trial, conducted via
Microsoft Teams,2 in violation of the due process clause
of the fourteenth amendment to the United States con-
stitution.3 We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. On May 4, 2017, the respondent and
Lisa S. were arrested following an incident in which
East Hartford police officers observed the child, who
was six years old, sitting without a seat belt in the front
seat of a vehicle being driven by the respondent. The
police found nineteen bags of marijuana packaged for
sale in Lisa S.’s purse and ninety-three bags of marijuana
inside the child’s bookbag, which also contained his
school homework. The respondent also was found with
two bags of marijuana in his pocket. The police notified
the Department of Children and Families (department).
When the department investigator spoke with the
respondent that same day at a basketball court, the
respondent appeared ‘‘to be impaired by marijuana’’
and acknowledged that he was unable to care for the
child due to substance abuse issues.
On May 12, 2017, the petitioner, the Commissioner
of Children and Families, filed an ex parte motion for
an order of temporary custody, which was issued, and
a neglect petition. On May 19, 2017, the order of tempo-
rary custody was sustained by agreement of the respon-
dent and Lisa S. On August 8, 2017, the respondent and
Lisa S. entered nolo contendere pleas to the neglect
petition, and the child was adjudicated neglected and
committed to the care and custody of the petitioner.
The respondent and Lisa S. were given specific steps
to facilitate reunification with the child. On December
26, 2019, the trial court approved a permanency plan
of termination of parental rights and adoption. In Febru-
ary, 2020, the petitioner filed a petition seeking to termi-
nate the parental rights of the respondent and Lisa S.
as to the child on the ground that they had failed to
rehabilitate. Subsequently, Lisa S. consented to the ter-
mination of her parental rights, and the petition was
amended as to Lisa S. to allege consent as the sole
ground for terminating her parental rights.
The trial court set forth the following procedural
history. ‘‘The first hearing on the [petition] was initially
scheduled for March 26, 2020, but was not held on that
date because of the public shutdown caused by the
COVID-19 pandemic. In June, 2020, before the next
court date, the parents applied for and were appointed
counsel for the [termination] proceeding. In late Decem-
ber, 2020, a new date for the initial [termination] hearing
was scheduled for February 3, 2021. The court on that
day confirmed that both parents had been served with
orders of notice to appear that day, but since neither
one was present the court scheduled a default trial for
the following month. A default trial never did occur,
however, and the court file reflects that counsel for
the parents subsequently participated in a case status
conference and two court hearings in March and April
[2021]. The matter was subsequently assigned for trial
before [the Honorable Stephen F. Frazzini, judge trial
referee] to begin on June [25], 2021.’’
The trial on the petition was conducted virtually using
Microsoft Teams over two days, June 25 and 29, 2021,
with the respondent appearing with his counsel on both
days. On the first day of trial, the respondent joined
the proceeding by telephone. All parties then identified
themselves for the record, including the respondent. At
some point during the first day of trial, the respondent
appeared by video.4
When the petitioner’s first witness experienced tech-
nical difficulties joining the proceeding, the petitioner’s
counsel remarked: ‘‘I will be relieved when . . . we’re
back in person.’’ The court commented: ‘‘Well, I think
that’s going to happen pretty quickly. Apparently, the—
I’ve been told that the Chief Administrative Judge has
indicated [that termination of parental rights] trials
should go in person ASAP.’’ The court commented: ‘‘I
don’t know whether that’s—we haven’t gotten—we
didn’t get the email yet today, but it—I think it’s—from
my understanding it’s imminent.’’
The petitioner presented the testimony of six wit-
nesses and introduced exhibits into evidence, and the
respondent’s counsel cross-examined the petitioner’s
witnesses. The respondent’s counsel periodically con-
ferred with her client, including through text message.
Specifically, counsel conferred with the respondent
during cross-examination of the petitioner’s witnesses,5
before informing the court that the respondent elected
not to testify, and during closing argument.6
In its memorandum of decision issued on July 27,
2021, the court terminated the parental rights of the
respondent and Lisa S. The court found that the depart-
ment had made reasonable efforts to reunify the respon-
dent with the child. It found by clear and convincing
evidence that the respondent had failed to rehabilitate.
After making the seven findings required by General
Statutes § 17a-112 (k), the court found by clear and
convincing evidence that termination of the respon-
dent’s parental rights was in the child’s best interest.
This appeal followed.
On appeal, the respondent claims that ‘‘he was denied
the right to confront and cross-examine personally
adverse witnesses against him at the virtual trial, in
violation of the due process clause of the fourteenth
amendment to the United States constitution.’’7 The
respondent concedes that he 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, 213
Conn. 239–40; see also In re Yasiel R., supra, 317 Conn.
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 omit-
ted.) In re Aisjaha N., 343 Conn. 709, 719, 275 A.3d
1181 (2022).
On June 20, 2022, our Supreme Court released its
decision in In re Annessa J., 343 Conn. 642, A.3d
(2022), and its companion cases, In re Vada V., 343
Conn. 730, 275 A.3d 1172 (2022), and In re Aisjaha N.,
supra, 343 Conn. 709.8 In re Annessa J. and In re Vada
V. are controlling of the issue raised in the present
appeal. Accordingly, we begin with a discussion of
those cases.
In In re Annessa J., supra, 343 Conn. 649–50, the trial
court terminated the parental rights of the respondent
mother, Valerie H., after a trial held virtually, via Micro-
soft Teams. Valerie’s counsel joined in the respondent
father’s objection ‘‘to the trial court’s conducting the
trial via Microsoft Teams instead of in person . . . .’’
Id., 653. The basis for the objection was the suggestions
by the respondents’ attorneys that the court would be
unable to see the parties and witnesses and would have
difficulty making assessments regarding their demeanor
and truthfulness. Id. The court denied the respondents’
oral motion objecting to the virtual format, explaining
that it had ‘‘talked to the chief administrative judge
for juvenile [matters], and she confirmed that there is
nothing precluding the court from going forward. And,
in fact, the court has been directed by the chief court
administrator’s office to proceed, whenever possible,
to go forward with matters that are necessary,
important, and appropriate. I do believe that the matter
can be conducted appropriately virtually. We do have
the Connecticut Guide to Remote Hearings [for Attor-
neys and Self-Represented Parties] that was promul-
gated by the Judicial Branch. I intend to follow it.’’
(Footnote omitted; internal quotation marks omitted.)
Id., 654. The court rejected the respondents’ contention
that it would not be able to properly weigh the evidence.
Id. The virtual trial proceeded, during which Valerie,
through counsel, entered nine exhibits into evidence,
and presented the testimony of three witnesses. Id.,
655. Valerie also testified on her own behalf. Id. The
court took corrective measures to address technical
issues that arose during the trial, and the court ‘‘regu-
larly paused the proceedings so that the parties could
confer with their counsel.’’ Id.On appeal, Valerie claimed, inter alia, that the trial
court ‘‘violated her right to due process of law by pre-
cluding her from confronting witnesses in court and in
person when it conducted proceedings over the Micro-
soft Teams platform . . . .’’ (Internal quotation marks
omitted.) Id., 650–51. This court concluded that the
record was inadequate to review her unpreserved fed-
eral due process claim. Id., 651. Following certification
to appeal, our Supreme Court agreed with this court.
Id., 661.
Our Supreme Court explained: ‘‘Unlike her state con-
stitutional claim, which did not require any factual pred-
icates 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 cer-
tain 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. Id. . . . [T]he trial court explained
that, ‘[d]ue to the COVID-19 . . . pandemic, the trial
[on the termination of parental rights petition] was con-
ducted virtually.’ As a result, we would need to consider
the specific factual circumstances surrounding the trial
and the COVID-19 pandemic to properly evaluate Valer-
ie’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 war-
rant conducting the trial virtually.’’ In re Annessa J.,
supra, 343 Conn. 661–62.
Our Supreme Court further rejected Valerie’s con-
tention that ‘‘the lack of evidence in the record regard-
ing ‘whether there was a compelling reason to curtail
her right [to] physical confrontation was not her burden
to overcome under the first prong of . . . Golding.’ ’’
Id., 662. Our Supreme Court explained that, because
the petitioner and trial court had not been put on notice
that Valerie objected to the virtual format of the trial
on the basis of a violation of her right to confront
the petitioner’s witnesses, the trial court ‘‘did not have
occasion to make findings of fact regarding the threat
posed by the COVID-19 pandemic and whether that
threat was sufficiently compelling to curtail any consti-
tutional right to in person confrontation.’’ Id., 662–63.
Thus, the petitioner bore no responsibility for the evi-
dentiary lacunae, and it would be unfair to the petitioner
for our Supreme Court to reach the merits of Valerie’s
claim ‘‘ ‘upon a mere assumption that [the factual predi-
cate to her claim has been met].’ ’’ Id., 663. Accordingly,
our Supreme Court agreed with the Appellate Court that
the record was inadequate to review Valerie’s claim.
Id., 664.
In In re Vada V., supra, 343 Conn. 732, 734, the court
terminated the parental rights of the respondents after
a trial held virtually, via Microsoft Teams, in October
and November, 2020, during the COVID-19 pandemic.
‘‘The respondents were represented by separate coun-
sel and participated in the proceedings through audio
and video means.’’ Id., 734. The respondent mother’s
counsel confirmed that she had been communicating
with her client through text messages and email, and
the respondent father’s counsel indicated that he was
communicating with his client through a messaging
application. Id., 735–36. Although they experienced
some connectivity issues, both respondents testified at
trial. Id., 737.
On appeal, the respondents in In re Vada V. raised
an unpreserved claim 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 con-
stitution.’’ Id., 733. Our Supreme Court determined that
the record was inadequate to review the respondents’
unpreserved claim, which was identical to the claim
that it had considered in In re Annessa J. Id., 739–40.
Our Supreme Court reiterated that, even if it were to
assume that ‘‘there is a constitutional right to in person
confrontation, there is no factual record or factual find-
ings for this court to rely on to determine whether that
right was violated or whether the trial court correctly
concluded that the government’s interests were suffi-
ciently great to warrant conducting the trial virtually.’’
Id., 740.
Following the release of our Supreme Court’s deci-
sion in In re Annessa J. and In re Vada V., this court
ordered the parties in the present case to submit supple-
mental briefs. The petitioner argues, inter alia, that ‘‘the
record in this case is inadequate for review in the same
manner as the Supreme Court explained that the respec-
tive records in In re Annessa J. and In re Vada V. were
inadequate.’’ The respondent contends that the record
in the present case is adequate to review his claim.9 In
arguing that ‘‘the trial court believed it had no discretion
in the decision of whether the trial should be held in
person,’’ the respondent highlights the trial court’s
remark that it had ‘‘been told that the chief administra-
tive judge has indicated [that termination of parental
rights] trials should go in person ASAP.’’ The respon-
dent contends that ‘‘the decision of whether to hold a
virtual trial was not made by the trial court and that,
indeed, the public health emergency brought on by
COVID-19 had already been determined by authority
outside the trial court to override not only confrontation
rights but all other similar rights guaranteed by due
process.’’ Thus, according to the respondent, the
‘‘record is adequate to review [his claim] because the
only question is whether the right to physical confronta-
tion, if it applies to civil matters, can be overridden by
a blanket administrative judicial order.’’
We disagree with the respondent that the comment
made by the trial court renders the record adequate for
review. It does not create the factual record required
to apply the three part test set forth in Mathews v.
Eldridge, supra, 424 U.S. 335. In the present case, the
respondent’s counsel did not raise any objection to the
virtual format of the trial, let alone raise an objection
on the basis that it violated the respondent’s right to
confront the petitioner’s witnesses. Consequently, just
as in In re Annessa J., supra, 343 Conn. 662, and In re
Vada V., supra, 343 Conn. 740, there is no factual record
or factual findings on which this court could base a
determination of whether the respondent’s right to con-
front the petitioner’s witnesses was violated by the vir-
tual format of the trial or whether the court correctly
concluded that the government’s interests were suffi-
ciently great to warrant conducting the trial virtually.
Thus, the respondent’s claim fails under the first prong
of Golding.
The judgment is affirmed.
* 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.
** October 4, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of the respondent mother,
Lisa S., who consented to termination and has not appealed from that
judgment. We hereinafter refer to the respondent father as the respondent
and to Lisa S. by name.
2
Microsoft Teams is ‘‘collaborative meeting [computer software] with
video, audio, and screen sharing features.’’ Connecticut Judicial Branch,
Connecticut Guide to Remote Hearings for Attorneys and Self-Represented
Parties (November 23, 2021) p. 5, available at https://jud.ct.gov/HomePDFs/
ConnecticutGuideRemoteHearings.pdf (last visited October 3, 2022).
3
In his principal appellate brief, the respondent also raised an unpreserved
claim that ‘‘the judgment terminating his parental rights was unconstitutional
under article fifth, § 1, and article first, § 10, of the Connecticut constitution
. . . where the trial was not conducted in the physical presence of the
judicial authority.’’ Considering the same unpreserved claim, our Supreme
Court, in In re Annessa J., 343 Conn. 642, 660, A.3d (2022), deter-
mined that the respondent had ‘‘failed to establish that there exists a funda-
mental right under article first, § 10, and article fifth, § 1, of the Connecticut
constitution to an in person termination of parental rights trial.’’ At oral
argument before this court, the respondent’s counsel conceded that this
claim was no longer viable in light of In re Annessa J. Accordingly, we do
not discuss it further.
4
The following exchange occurred:
‘‘[The Petitioner’s Counsel]: . . . Your Honor, I would just note that
there’s another individual with [the respondent] that appeared on the screen
a moment ago.
‘‘The Court: I missed that. So, [respondent], is there—these proceedings
are private and confidential, so are you on headphones so that only you
could hear what’s going on, or can anybody hear what’s going on? Let’s
take that first.
‘‘[The Respondent]: No, I’m in the room.
‘‘The Court: And . . . is there someone else in the room with you?
‘‘[The Respondent]: No, they not—she walking out. No, nobody not in here.
‘‘The Court: But there—yes, I saw somebody in the background just a
second ago after the lawyer mentioned it. But you need to make sure—
‘‘[The Respondent]: Again, she walk—she walking back out. She . . .
picked something off the floor.
‘‘The Court: Okay, so—
‘‘[The Respondent]: But she left out the room. She left out the room.
‘‘The Court: Okay. If she comes back in again let me know, and I’ll wait
for her to leave, okay?
‘‘[The Respondent]: Yeah.’’
5
For example, following cross-examination of one of the petitioner’s wit-
nesses, the following exchange occurred:
‘‘[The Respondent’s Counsel]: One second, Your Honor. I just want to
confer with my client really quick. It’ll take a minute [because] I have to
use text.
‘‘The Court: No problem.
‘‘[The Respondent’s Counsel]: [Respondent], did you . . . get my text
question?
‘‘[The Respondent]: Yes. . . . I just was looking at it.
‘‘[The Respondent’s Counsel]: If there’s something—am I all set with
questions?
‘‘[The Respondent]: Yep.’’
6
After counsel for the child concluded his closing argument, the court
informed the respondent’s counsel that ‘‘it looks like your client wants to
say something’’ and asked counsel whether she would like to confer with
her client. The respondent’s counsel then muted her microphone, and the
court went off the record. When the proceeding resumed, the respondent’s
counsel made additional closing remarks regarding the respondent’s prior
inquiry of the social worker regarding housing.
7
Counsel for the child adopted the brief of the respondent. At oral argu-
ment before this court, the petitioner’s counsel represented that it is the
department’s understanding that the child was in support of the termination
of parental rights at the time of the trial, that the child is still in support of
the termination of parental rights, and that the child wishes to be adopted
as soon as possible. When asked for the position of the child during oral
argument, counsel for the child stated that the child enjoys being with his
maternal grandmother and wants her to adopt him, the child is in contact
with his father, and the child has a relationship with his father.
8
In the present case, the petitioner’s counsel filed with this court a letter
in which she represented that all counsel agreed that this court should
hold oral argument in this appeal after the release of our Supreme Court’s
decisions in In re Annessa J., In re Vada V., and In re Aisjaha N.
9
Counsel for the child adopted the supplemental brief of the respondent.
See footnote 7 of this opinion.