In re Faith D.-A. ( 2022 )

****************************************************************
The ‘‘officially released’’ date that appears near the
beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
****************************************************************
IN RE FAITH D.-A.*
(AC 44973)
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 mother was
represented by counsel and participated in the proceedings by telephone.
The respondent father consented to termination. At the conclusion of
the trial, the trial court rendered judgment terminating the respondents’
parental rights. On the respondent mother’s appeal, held that, pursuant
to State v. Golding (213 Conn. 233), the record was inadequate to review
the mother’s claim that, by requiring her to participate in a virtual trial
to terminate her parental rights without providing her with an electronic
device that allowed her to appear before the court in the same manner
as if she were on trial in a courtroom, she was denied due process of
law and equal protection of the law under the fourteenth amendment
to the United States constitution: although the parties agreed that the
mother participated via telephone outside the proximity of her counsel,
the record was silent as to whether the mother chose to turn her video
off or whether she was unable to participate via video as a result of
inadequate technology; moreover, other than one connectivity issue
during the mother’s canvass, there was no indication that she had diffi-
culty hearing or participating at the trial, and the trial court repeated
the canvass after being advised of the connectivity issue; furthermore,
the mother did not ask for any technical assistance or accommodation
during the trial; accordingly, the situation was analogous to that set
forth in In re Vada V. (343 Conn. 730), in that the trial court was unable
to assess any potential problems with the mother’s ability to participate
via video and had no occasion to consider alternative means for her to
participate, to provide her with technology or Internet access, or to
continue the trial until it could be held in person.
Argued September 6—officially released October 6, 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 New Haven, Juvenile
Matters, where the respondent father consented to the
termination of his parental rights; thereafter, the matter
was tried to the court, Hon. Richard E. Burke, judge
trial referee; judgment terminating the respondents’
parental rights, from which the respondent mother
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 mother).
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 mother, Shanequa A.,
appeals from the judgment of the trial court terminating
her parental rights with respect to her minor child, Faith
D.-A.1 On appeal, the respondent claims that she was
denied due process of law and equal protection of the
law under the fourteenth amendment to the United
States constitution because ‘‘the state compelled her
to participate in a virtual trial to terminate her parental
rights without providing her with an electronic device
that allowed her to appear before the court in the same
manner as if she were on trial in a courtroom.’’2 We
affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The Department of Children and
Families became involved with the child at the hospital
following the child’s birth in December, 2018. At that
time, the respondent presented with unaddressed men-
tal health, substance abuse, and interpersonal vio-
lence issues.
On December 18, 2018, the petitioner, the Commis-
sioner of Children and Families, filed an ex parte motion
for an order of temporary custody, which was issued,
and a neglect petition. On December 28, 2018, the order
of temporary custody was sustained. On April 23, 2019,
the child was adjudicated neglected and committed to
the care and custody of the petitioner. The respondent
and Barry D. were given specific steps to facilitate reuni-
fication with the child. On November 14, 2019, the trial
court approved a permanency plan of termination of
parental rights and adoption.
On January 10, 2020, the petitioner filed a petition
seeking to terminate the parental rights of the respon-
dent and Barry D. as to the child on the ground that
they had failed to rehabilitate. Subsequently, Barry D.
consented to the termination of his parental rights and
the petition was amended as to Barry D. to allege con-
sent as the sole ground for terminating his parental
rights.
The trial on the petition was conducted virtually using
Microsoft Teams3 over two days, March 22 and April
26, 2021, before the court, Hon. Richard E. Burke, judge
trial referee, with the respondent participating with her
counsel on both days. On the first day of trial, the
respondent joined the proceeding by phone. While the
court was conducting a pretrial canvass of the respon-
dent in accordance with our Supreme Court’s decision
in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015),4
the respondent’s telephone disconnected. When she
reconnected, the respondent stated: ‘‘Sorry about that.
The area I’m in is really not giving me good reception.
It keeps making the phone call fell.’’ The court repeated
the canvass.
testimony of two witnesses, and the respondent’s coun-
sel cross-examined each of the witnesses. On the sec-
ond day of trial, the respondent again joined the pro-
ceedings by telephone. The respondent presented the
testimony of one witness, and the respondent testified
on her own behalf. Both parties entered exhibits into
evidence.
In its memorandum of decision issued on July 20,
2021, the court terminated the parental rights of the
respondent and Barry D. It found by clear and convinc-
ing evidence that the respondent had failed to rehabili-
tate. After making the seven findings required by Gen-
eral 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 she was denied
due process of law and equal protection of the law
under the fourteenth amendment to the United States
constitution because ‘‘the state compelled her to partici-
pate in a virtual trial to terminate her parental rights
without providing her with an electronic device that
allowed her to appear before the court in the same
manner as if she were on trial in a courtroom.’’5 The
respondent 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., supra, 317
Conn. 781.
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. 709.6 In re Vada V. is controlling of
the issue raised in the present appeal. Accordingly, we
begin with a discussion of that case.
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
‘‘various unpreserved state and federal constitutional
arguments premised on the fact that the state did not
provide the respondents, who were indigent, with their
own exclusive devices and Internet connection to par-
ticipate both visually and by audio in the proceeding.’’
Id., 740. Our Supreme Court concluded that the record
was inadequate to review the respondents’ claims
because the record was silent on, or undermined, the
factual predicates to the respondents’ claims. Id., 742.
The court explained that ‘‘the trial court took numerous
steps to ensure that the respondents could meaningfully
communicate with their counsel throughout trial.’’ Id.It further considered that the record was ‘‘silent as
to the manner in which the respondents participated
throughout the trial’’ and noted that when technical
difficulties did arise, the trial court ‘‘took corrective
measures to ensure that it, the parties and counsel could
meaningfully participate.’’ Id., 743–44. Finally, our
Supreme Court emphasized that ‘‘neither [of the respon-
dents] asked for technical assistance or accommoda-
tions from the trial court. Because the respondents did
not raise any issue with their technology at trial, the
trial court was unable to assess any potential problems
with their ability to participate via video and had no
occasion to consider alternative means for them to par-
ticipate via video, to provide them technology or
Internet access, or to continue the trial until it could
be held in person.’’ Id., 744–45.
Following the release of our Supreme Court’s deci-
sions in In re Annessa J., In re Vada V., and In re
Aisjaha N., this court ordered the parties in the present
case to submit supplemental briefs. The petitioner
argues, inter alia, that the record is inadequate to review
the respondent’s claim because, ‘‘just as in In re Vada
V., it does not contain any of the factual predicates to
her claim, namely, facts about the manner in which she
participated in the virtual trial.’’ The respondent argues
that the ‘‘record in this case is factually distinct’’ from
In re Vada V. because, ‘‘[i]n this case, it is stipulated that
the respondent appeared by telephone for the entire
proceeding.’’ She further contends that ‘‘there is no
indication in the record that the trial court took the
numerous steps taken by the court in [In re] Vada
V. to ensure that the respondent could meaningfully
consult with her attorney during the proceeding.’’ Last,
the respondent maintains that ‘‘the record . . . demon-
strate[s] that the respondent was attempting to access
the hearing not through a high-speed connection or Wi-
Fi but, instead, using regular cell phone service.’’ She
points to her comment that she did not have good recep-
tion as demonstrating that ‘‘the respondent’s device was
not even capable of producing a clear audio signal,
never mind a signal reliable enough to establish video
contact.’’
We disagree with the respondent that the record is
adequate for review of her claim. Although the parties
agree that the respondent participated via telephone
outside the proximity of her counsel, there is nothing
in the record demonstrating the type of device the
respondent used or suggesting that the device lacked
video capabilities. Thus, the record is silent as to
whether the respondent ‘‘chose to turn her video off
or whether she was unable to participate via video as
a result of inadequate technology.’’ In re Aisjaha N.,
supra, 343 Conn. 720. With respect to the respondent’s
contention that service was poor, aside from the con-
nectivity issue during the respondent’s canvass, there
is no indication in the record that the respondent had
difficulty hearing or participating at the trial. Moreover,
on being advised that there was a connection issue, the
court repeated the canvass. At no time did the respon-
dent ask the court for any technical assistance or
accommodation. As a result, just as in In re Vada V.,
supra, 343 Conn. 744–45, ‘‘the trial court was unable
to assess any potential problems with [her] ability to
participate via video and had no occasion to consider
alternative means for [her] to participate via video, to
provide [her] technology or Internet access, or to con-
tinue the trial until it could be held in person.’’ ‘‘[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.) Id., 745. Accordingly, we conclude that
the record is inadequate to review the respondent’s
claim.
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 6, 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 father,
Barry D., who consented to termination and has not appealed from that
judgment. We hereinafter refer to the respondent mother as the respondent
and to Barry D. by name.
2
In her principal appellate brief, the respondent claimed that the failure
to provide her with appropriate technology also violated the open courts
provision of the state constitution. See Conn. Const., art. I, § 10. The respon-
dent, however, abandoned this claim during oral argument before this court.
The respondent also asked this court, in her principal appellate brief, to
reverse the decision of the trial court pursuant to its supervisory authority
over the administration of justice. Specifically, she asked this court to ‘‘adopt
a procedural rule, to be applied on remand, that would require the Superior
Court, when conducting virtual trials in all child protection cases, to ensure
that the participants appear by two-way video technology or otherwise waive
the right to do so following a brief canvass.’’ Subsequent to the filing of her
principal brief, our Supreme Court, in In re Aisjaha N., 343 Conn. 709,
723–24, 275 A.3d 1181 (2022), declined to exercise its supervisory authority
to adopt such a rule. At oral argument before this court, the respondent’s
counsel abandoned this claim. Accordingly, we do not further discuss these
two claims.
3
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 5, 2022).
4
In In re Yasiel R., supra, 317 Conn. 795, our Supreme Court exercised
its supervisory authority to ‘‘require that, in all termination proceedings, the
trial court must canvass the respondent prior to the start of the trial. The
canvass need not be lengthy as long as the court is convinced that the
respondent fully understands his or her rights. In the canvass, the respondent
should be advised of: (1) the nature of the termination of parental rights
proceeding and the legal effect thereof if a judgment is entered terminating
parental rights; (2) the respondent’s right to defend against the accusations;
(3) the respondent’s right to confront and cross-examine witnesses; (4) the
respondent’s right to object to the admission of exhibits; (5) the respondent’s
right to present evidence opposing the allegations; (6) the respondent’s right
to representation by counsel; (7) the respondent’s right to testify on his or
her own behalf; and (8) if the respondent does not intend to testify, he or
she should also be advised that if requested by the petitioner, or the court
is so inclined, the court may take an adverse inference from his or her
failure to testify, and explain the significance of that inference. Finally, the
respondent should be advised that if he or she does not present any witnesses
on his or her behalf, object to exhibits, or cross-examine witnesses, the
court will decide the matter based upon the evidence presented during trial.
The court should then inquire whether the respondent understands his or
her rights and whether there are any questions.’’
5
Counsel for the child adopted the brief of the petitioner.
6
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.