IN RE ADOPTION OF PATTY, Mass: Supreme Judicial Court 2022:
"WENDLANDT, J.
Given the special circumstances presented by the COVID-19 pandemic
and its related restrictions on the ability of the Juvenile Court to
conduct in-person proceedings, and in light of the unique and often
time-sensitive interests involved in proceedings concerning the care and
protection of children, we conclude that the use of an Internet-based
video conferencing platform to conduct a trial on the issue whether to
terminate a party's parental rights does not present a per se violation
of due process provided that adequate safeguards are employed.
Lamentably, the first day of the two-day virtual bench trial conducted
in this case was plagued by technological issues and inadequate
safeguards, resulting in the self-represented mother's inability to
participate either by video or by telephone, interrupting the testimony
of the witnesses presented by the Department of Children and Families
(department) during its case-in-chief, causing the mother to miss all
but a few minutes of the department's evidence against her, and leading
the judge to acknowledge that plowing ahead in the mother's absence may
be creating an "appealable issue." When the virtual trial resumed two
days later, the mother was provided an opportunity to cross-examine the
witnesses whose testimonies she had missed; however, the damage was
done. The judge, who eventually determined to take an adverse inference
in light of the mother's "absence" on the first day of trial, issued a
decree terminating the mother's parental rights to the child.[2]
See G. L. c. 119, § 26. He also denied her request for a new trial. We
acknowledge that the mother's conduct on the second trial day was not
above reproach; however, because the conduct of the trial violated the
mother's right to due process under the Fourteenth Amendment to the
United States Constitution and art. 10 of the Massachusetts Declaration
of Rights, we are required to vacate the decree insofar as it concerns
the mother, and remand for a new trial.[3]
1. Background.
The subject child has been in the custody of the department since
2014, when she was four years old and the underlying petition was filed
pursuant to G. L. c. 119, § 24, alleging that she was a child in need of
care and protection. In 2015, the department was granted permanent
custody of the child, with the stipulation of the mother and the father;
the goal, at that time, was working toward reunification.[4]
In 2016, the goal changed to adoption, and in 2018, the child was
placed with a preadoptive family, with whom she remains to this day.
On September 9, 2020, a bench trial commenced to determine whether it
was in the best interest of the child to terminate the mother's and the
father's parental rights. See G. L. c. 119, § 26(b)(4).[5]
At the time, the Commonwealth was operating under a state of emergency
declared by the Governor in response to the outbreak of COVID-19. See
Governor's Declaration of Emergency (Mar. 10, 2020). Also, in an effort
to stem transmission of the highly contagious respiratory disease, the
Massachusetts court system was operating under one of a series of orders
issued by this court that restricted in-person proceedings and required
"most court business" to be conducted "virtually." See Third Updated
Order Regarding Court Operations Under the Exigent Circumstances Created
by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020). In
addition, the trial courts had issued COVID-19-related orders to address
procedures in their respective courts. Relevant to the present case,
the Juvenile Court's order covering the relevant time period allowed
termination trials to proceed at the discretion of the trial judge, but
only virtually. See Juvenile Court Standing Order 8-20(IV)(B) (2020). As
a result, the trial in the present case proceeded via a video
conferencing platform provided by Zoom Video Communications, Inc.
(Zoom).
When the trial commenced, the judge, the clerk, the department's
attorney, the child's attorney, and the mother's stand-by counsel[6]
were each connected to the virtual hearing room by video. The mother,
who was self-represented, was not connected, and it quickly became
apparent that she had not been provided with instructions on how to join
the proceedings. Stand-by counsel informed the judge that she had been
in communication with the mother and understood that the mother wanted
to participate, but did "not have video capacity." Noting that there was
a telephone number that could be used to connect to the Zoom
proceedings by telephone, the judge recessed the proceedings for thirty
minutes, while stand-by counsel provided the telephone number to the
mother.
When the trial resumed, the mother was connected by telephone,
permitting her to hear but not to see the proceedings. She informed the
judge that she was currently living outside Massachusetts in a home she
had rented for the summer due to the pandemic; and she moved to conduct
the trial in person. No inquiry was conducted regarding her access to
technology that might allow her to participate in the Zoom hearing via
video, so as to be on equal footing with the other participants.
Instead, the judge denied the mother's motion, stating "we're not doing
in-person hearings at this point," and asked the department to call its
first witness.
The first witness, who appeared by video, was a department social
worker who had been assigned to the case. Shortly after the direct
examination began, the technological problems that were to plague the
first day of the virtual trial ensued. Specifically, the clerk realized
that the mother had been disconnected from the virtual hearing room, but
had attempted to rejoin and was in the Zoom "waiting room."[7]
With the judge's permission, the clerk readmitted her to the virtual
hearing room, and the trial resumed. The record of the first day of the
trial does not reflect how much of the first witness's testimony the
mother missed before the clerk noticed her absence.
After the department finished its direct examination of the first
witness and the child's attorney conducted a short cross-examination,
the judge asked the mother if she had any questions. The mother did not
respond, although her telephone number still appeared on the screen,
suggesting she might still be connected.[8]
The judge had the clerk place a telephone call to the mother's
telephone number, which apparently was connected to the Zoom hearing;
however, the mother did not answer, and the clerk left a message. The
judge directed the clerk to move the mother to the waiting room, hoping
that would prompt her to ask to be readmitted. Nothing in the record
suggests that the mother understood either that she was being moved to
the waiting room or how to ask to be readmitted.
When this attempt at troubleshooting did not have the desired effect,
the judge directed the clerk to readmit the mother to the virtual
hearing room, and the judge stated: "I'm assuming there's some technical
reason that you cannot join us. If there is a legitimate reason then
you can hang up and try to call back in, reestablish the connection. So
I'm hoping you can hear me. We really would like to have you participate
in the hearing." The mother did not respond. After further suggesting
that the mother call stand-by counsel to "[l]et us know what's going
on," the judge had the clerk disconnect the mother from the hearing
altogether. It is not clear that the mother could hear the judge's
statements.
The department, meanwhile, asked the judge to draw an adverse
inference against the mother for failing to participate, but he declined
to do so because he could not determine whether her lack of
participation was purposeful. He then excused the first witness, subject
to being recalled if the mother had a "legitimate reason" for her
absence, and recessed the trial for one-half hour.
Following the recess, the mother still was absent and had not
contacted the clerk or stand-by counsel. The judge concluded, "I don't
think we have any choice but to continue. It's possible that this could
create an appealable issue, but we have tried just about everything we
can to get mother engaged. I don't know if this is purposeful on her
part, or not."
The department called its second witness, another social worker
assigned to the child's case, who appeared by video. As soon as the
direct examination commenced, the technological issues continued; the
judge had difficulty hearing the witness. In an attempt to improve the
connection, the witness disconnected from Zoom and rejoined. The
technological issues persisted, and the judge told the witness "to
pretend" she was "yelling" at the department's attorney, so as to be
heard. After the examination resumed, it was interrupted again due to
the witness's connection "breaking up." Eventually, the department
completed its direct examination, and the child's attorney conducted a
brief cross-examination.
The department called its third witness, one of the child's current
social workers, who also appeared by video. Within minutes, however, the
technological issues resurfaced; this time the witness's connection
froze. As a result, the clerk had to "knock her out" of the virtual
hearing, hopeful that she would "come right back." The witness tried to
reconnect by video, without success. Instead, she reconnected and
continued her testimony by telephone.
During a lunch break, stand-by counsel attempted to contact the
mother by sending a text message to her cellular telephone. When the
break ended, the mother had not rejoined the trial. The judge decided to
continue with the trial nevertheless, and the department completed its
examination of the third witness.
The department indicated that it had intended to call the mother as
its fourth and final witness and repeated its request for the judge to
draw an adverse inference from her absence. The judge again refused:
"I'm not going to do that. Not unless I know what the reason for her
absence is." Instead, the judge suspended the trial for two days and
issued a summons to be served on the mother at her last known address.
The trial resumed two days later, again via Zoom. Following some
initial difficulty, the mother managed to connect by telephone. Once she
was admitted from the waiting room, she informed the judge that her
cellular telephone service had been "really bad" on the first day of
trial; she could hear, but not be heard. The judge did not inquire as to
the extent of the first witness's testimony she had managed to hear on
the first day prior to being disconnected. Instead, the judge asked if
she was ready to question that witness. After again objecting to the
denial of her request for an in-person trial, the mother responded
affirmatively. The department's attorney contacted the first witness and
asked her to rejoin the proceedings.
As that was happening, the mother declared, "I'm done. I'm so fucking
done with this." She then "hung up." The judge determined to draw an
adverse inference against the mother. He dismissed the first witness and
directed the department to begin closing argument.
Shortly after the closing argument commenced, the mother reconnected
to the trial, again by telephone. The first witness rejoined the virtual
hearing, and the judge allowed the mother to proceed with
cross-examination. When one of her first questions drew an objection,
however, the mother declared, "This is a mock trial because of COVID. I
have plenty of paperwork here. There's no way I can produce my
evidence." After confirming that the mother had no further questions for
the first witness and did not "want to question anybody," the judge had
the parties complete closing arguments. The mother's closing argument
was brief and consisted of a request for a "fair trial." The judge took
the matter under advisement.
Three days later, the judge issued his decision, declaring the mother
and the father unfit and terminating their rights to receive notice of
or to consent to the child's adoption. Nine months later, he issued
extensive findings of fact and conclusions of law in support of the
decision. In the meantime, the mother moved for a new trial on the
ground that the virtual trial violated due process. In a supporting
affidavit, she asserted that she heard only six or seven minutes of the
first witness's testimony on the first day of trial due to poor cellular
telephone service, despite driving around in a car in search of a
better signal. She further asserted that she had tried to dial back in,
without success, and that she had called the clerk's office, but could
not be reconnected to the virtual trial. The judge denied the motion
without a hearing.
The mother appealed from the termination of her parental rights[9]
and the denial of her motion for a new trial. The appeals were
consolidated in the Appeals Court, and we transferred the case to this
court sua sponte.
2. Discussion.
a. Standard of review.
"In deciding whether to terminate a parent's rights, a judge must
determine whether there is clear and convincing evidence that the parent
is unfit and, if the parent is unfit, whether the child's best
interests will be served by terminating the legal relation between
parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011).
A finding of unfitness must be supported by clear and convincing
evidence, based on subsidiary findings proved by at least a fair
preponderance of evidence. See Adoption of Elena, 446 Mass. 24, 30-31 (2006).
"We give substantial deference to a judge's decision that termination
of a parent's rights is in the best interest of the child, and reverse
only where the findings of fact are clearly erroneous or where there is a
clear error of law or abuse of discretion." Adoption of Ilona, supra.
The mother's constitutional claim presents a question of law, which we review de novo. See Commonwealth v. McGhee, 472 Mass. 405, 412-413 (2015)
(due process challenge to statute "present[s] questions of law that we
review de novo"). Where a judgment is void for failure to conform to the
requirements of due process of law, we must vacate it. See Gianareles v. Zegarowski, 467 Mass. 1012, 1014 (2014)
(general principle that rulings on motions pursuant to Mass. R. Civ. P.
60 [b], 365 Mass. 828 (1974), are reviewed only for abuse of discretion
is subject to "important exception" where judgment is void as result of
failure to conform to requirements of due process of law). See also
Mass. R. Civ. P. 60(b) (upon motion, court may relieve party from final
judgment if judgment is void).
b. Due process.
Previously, we have been asked to address the constitutional
propriety of conducting specific types of criminal proceedings virtually
during the COVID-19 pandemic. In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021),
the court held, among other things, that in the then-prevailing
circumstances of the pandemic, conducting a suppression hearing via an
Internet-based video conferencing platform was not a per se violation of
due process "so long as the video conferencing technology provides
adequate safeguards." Id. at 339-343. Subsequently, in Commonwealth v. Curran, 488 Mass. 792 (2021),
we "provide[d] guidance to trial courts that offer [criminal]
defendants the opportunity to receive virtual or partly virtual bench
trials during the COVID-19 pandemic." Id. at 799-800. Now, we consider
first whether a virtual bench trial, conducted in the midst of the
COVID-19 pandemic, to determine whether to terminate parental rights, a
civil proceeding, presents a per se violation of a parent's right to due
process; we conclude that it does not. We next consider whether the
virtual bench trial conducted in this case violated the mother's due
process rights; we conclude that it did.
i. Per se violation.
"Due process is not a technical conception with a fixed content, but
varies with context, and therefore is a flexible concept that calls for
such procedural protections as the particular situation demands"
(citation omitted). Vazquez Diaz, 487 Mass. at 341.
In assessing whether the right to due process was satisfied, we
consider the private interest that will be affected, the risk of an
erroneous deprivation of such interest through the procedures used, the
probable value of additional or substitute procedural safeguards, and
the government's interest involved. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See also Care & Protection of Rashida, 489 Mass. 128, 132 (2022); Vazquez Diaz, supra.
A. Private interests.
In considering the private interests affected, consideration must be
given both to the parents' interests and the child's interests. With
regard to the former, there can be no doubt that the "loss of a child
may be as onerous a penalty [to the parents] as the deprivation of the
parents' [own] freedom" (citation omitted). Care & Protection of Robert, 408 Mass. 52, 58 (1990).
Parents' interest in the care, custody, and control of their children
"is perhaps the oldest of the fundamental liberty interests recognized
by [the United States Supreme] Court." Care & Protection of M.C., 479 Mass. 246, 256 (2018), S.C., 483 Mass. 444 (2019), quoting Troxel v. Granville, 530 U.S. 57, 65 (2000). Before parents can be deprived of custody of their child, therefore, the requirements of due process must be satisfied. See Santosky v. Kramer, 455 U.S. 745, 752-754 (1982); Care & Protection of M.C., supra.
At a minimum, due process requires that parents be provided with "an
opportunity to be heard at a meaningful time and in a meaningful manner"
(citation and quotation omitted). Brantley v. Hampden Div. of the Probate & Family Court Dep't, 457 Mass. 172, 187 (2010). They must "have an opportunity effectively to rebut adverse allegations concerning child-rearing capabilities." Adoption of Mary, 414 Mass. 705, 710 (1993).
We also are mindful that "[termination] proceedings are not criminal
in nature. As parens patriae, the State does not act to punish
misbehaving parents but to protect children . . ." (citations and
quotations omitted). Adoption of Don, 435 Mass. 158, 168 (2001). Accordingly, "the full panoply of constitutional rights afforded criminal defendants does not apply in these cases." Custody of Two Minors, 396 Mass. 610, 616 (1986).
After a parent has received notice of proceedings affecting parental
rights in the child, we require further that the parent be represented
by counsel and that the Commonwealth prove the parent unfit by clear and
convincing evidence. See, e.g., Custody of a Minor (No. 2), 392 Mass. 719, 725 (1984) (requiring proof by clear and convincing evidence); Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 4-5 (1979)
(affording indigent parents court-appointed counsel in contested
termination proceedings). However, because the proceedings are civil in
nature, certain constitutional rights attaching to criminal proceedings
simply do not apply. See, e.g., Adoption of Don, supra at 169 (children allowed to testify in manner that does not force them into face-to-face confrontation with their parents); Custody of Two Minors, supra at 617
("the privilege against self-incrimination applicable in criminal
proceedings, which prevents the drawing of a negative inference from a
defendant's failure to testify, is not applicable in a child custody
case"); Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 384 Mass. 707, 711 (1981) (exclusionary rule does not apply); Custody of a Minor, 375 Mass. 733, 746 (1978) (double jeopardy principles not applicable); Adoption of John, 53 Mass. App. Ct. 431, 435-436 (2001)
(colloquy similar to that required for plea agreements in criminal
cases is not required when parent enters into agreement for judgment).
Significantly, termination proceedings also affect the private
interest of the child. Accordingly, we have recognized that "[t]he right
of parents to be free from intrusion by the State in matters of
childrearing . . . is not absolute. In custody proceedings, the rights
of the children to a stable and safe environment assume an importance at
least equal to the interest of the parents in a fair proceeding"
(citations and quotation omitted). Custody of Two Minors, 396 Mass. at 617. See J.K.B., 379 Mass. at 5
(balance to be struck in termination proceedings is complex and
involves consideration of not only rights of parents and interests of
society, but also rights and needs of child). A child also has an
interest in timely adjudication in a termination proceeding. "Unless
proceedings involving the custody of a minor are expedited, they fail to
accomplish their purpose. Circumstances may change rapidly, and the
harm sought to be avoided may worsen with the passage of time." Custody of a Minor, 389 Mass. 755, 764 (1983).
B. Risk of erroneous deprivation.
As we have already concluded in Vasquez Diaz, 487 Mass. at 341,
the risk of erroneous deprivation of these interests because a hearing
is conducted via an Internet-based video conferencing platform like Zoom
can be "minimal," even in certain criminal proceedings such as hearings
on motions to suppress, if proper safeguards are provided and the judge
carefully monitors the technology to ensure it is functioning as
intended. As we noted, "Although generally not preferable, with today's
video conferencing technology, a virtual hearing can approximate a live
physical hearing in ways that it could not previously." Id. at 342. We
relied on several features of the Zoom platform, in particular, to
buttress that conclusion, including, inter alia, the "breakout room"
function, which allowed a party to privately consult with the party's
attorney during the Zoom hearing, and the "share screen" function, which
permitted participants to show electronic documents to other
participants. Id. at 339.
Zoom, however, is not the only choice available to trial judges in
termination proceedings. Even before the COVID-19 pandemic, judges in
such proceedings were "given some flexibility, consistent with the facts
of each case, in determining among several of the currently available
options, including but not limited to video or telephonic conferencing
during the proceedings, how best to assure that a parent has a
meaningful opportunity to respond to the evidence presented at trial"
(citation omitted). Adoption of Edmund, 50 Mass. App. Ct. 526, 530 (2000).
In Edmund, for example, the Appeals Court held "that an incarcerated
parent does not have an absolute right to attend a hearing [in person]
that could result in the termination of parental rights, particularly if
the parent is represented at trial by a lawyer." Id. at 529. The ruling
was in accord with those from a large number of other States. See id.
at 529 n.4 (collecting cases from other jurisdictions).
Regardless of the technology employed, whether it be an
Internet-based video conferencing platform like Zoom or the telephonic
participation of an incarcerated parent represented by counsel, the
judge must ensure, preferably in advance of the hearing, that the
participants understand the procedures to be used when the technology
does not work as intended. Thus, in Vasquez Diaz, we looked favorably on
the fact that the hearing judge
"outlined the steps that would be taken in the event any
technological difficulties arose. She stated that the court would
suspend the hearing at the request of counsel and resume the hearing
after the issue was resolved. We emphasize[d] that this [was] an
important protection and urge[d] 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."
Vazquez Diaz, 487 Mass. at 342.
While never ideal, given the unique restrictions placed on in-person
proceedings required by health and safety considerations presented by
the COVID-19 pandemic, and assuming the safeguards outlined above are
provided and monitored by the judge, a parental rights hearing conducted
via an Internet-based video conferencing platform may be conducted so
as not to pose an undue risk of erroneous deprivation to a parent's
right to participate, even where the parent is self-represented and only
able to participate by telephone.
C. Government's interest.
As we concluded in Vazquez Diaz, 487 Mass. at 343,
the government had a "significant" interest in protecting the public
health during the COVID-19 pandemic by holding virtual rather than
in-person court proceedings. Certainly, this was true at the point in
the pandemic when the trial in this case took place. The government also
has a significant interest in reaching a prompt resolution in
termination cases given the benefits of permanency and stability to
children. See Adoption of Nancy, 443 Mass. 512, 517 (2005)
("Stability in the lives of children is important, particularly in a
case that has continued for a long period of time in the hope that [a
parent] could and would successfully rehabilitate . . ."). See also Adoption of Don, 435 Mass. at 170
(harm of delay in case "is unfortunately suffered principally by the
children"). This interest was particularly acute here, given that the
subject child's case was approaching six years old at the time of trial.
At the same time, the government also has an interest in making sure
that parental rights decisions are the product of fair proceedings.
D. Balancing the factors.
The government's significant interest in protecting the public health
during the COVID-19 pandemic, combined with the interest in timely
providing permanency and stability for children, would, in many
instances, outweigh a self-represented parent's interest in appearing in
person at a termination hearing so long as safeguards are in place and
monitored by the judge to minimize the risk of an erroneous deprivation.
Accordingly, we conclude that, assuming the safeguards outlined above
are provided and monitored, a termination trial conducted via an
Internet-based video conferencing platform when, because of the COVID-19
pandemic, in-person proceedings are not possible without jeopardizing
the health and safety of the public, is not a per se violation of a
parent's right to meaningfully participate, even where the parent is
self-represented and only able to participate by telephone.[10]
ii. As applied challenge in this case.
Our determination regarding the mother's due process challenge to the
proceedings in this case is informed by our review of her objection to
certain findings made by the judge as clearly erroneous and his decision
to draw an adverse inference against her. Accordingly, we review those
factual findings before turning to assess the mother's due process
challenge.
A. Adverse inference.
The judge supported his decision to terminate the mother's parental
rights by, among other things, drawing an adverse inference against her
for what he termed her "refusal to testify" and participate in the
trial. The drawing of an adverse inference is permissible in a parental
rights proceeding. See Custody of Two Minors, 396 Mass. at 616
("unique characteristics of child custody proceedings do not require
alteration or modification of the rule permitting inferences from a
party's failure to testify in a civil case"); Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017)
(judge has discretion to draw adverse inference from parent's failure
to attend termination proceedings). In exercising his discretion to draw
the adverse inference in this case, the judge relied on the following
findings:
"The [termination] trial occurred on September 9 and 11,
2020. Mother initially joined the virtual trial via telephone on
September 9, 2020. However, mother hung up on the proceeding. The court
took a negative inference that mother could not conform her behavior to
the trial standard. Mother did rejoin the trial shortly thereafter. On
September 11, 2020, the trial continued. This time mother hung up
stating `I'm done — I'm so fucking done'. The court drew a negative
inference from mother's refusal/inability to attend the trial. Again
mother rejoined the trial some time later, and she was given the
opportunity to question any witnesses and present her own case. She
chose not to."
The judge also found that the "mother disconnected from the hearing
without cause instead of cross-examining witnesses" and "terminated her
participation in trial after the third witness began her testimony," and
that the "[m]other refused to participate in trial, disconnecting from
the call both days."
The record does not support the finding either that the mother "hung
up" from the trial during the first day of trial or that she did so
after the third witness. Instead, the record shows that the mother did
not respond when the judge asked her if she had any questions for the
first witness, although her telephone still seemed to be connected to
the Zoom hearing. As a result, the judge directed the clerk to move her
to the Zoom waiting room; when that did not have the desired effect, the
judge instructed the clerk to disconnect her from the trial altogether.
Nor did the mother rejoin the trial "shortly thereafter"; instead, she
missed the testimony of the second and third witnesses.
Moreover, contrary to his findings, the judge did not draw an adverse
inference against the mother on the first day of trial; instead, he
expressly refused to do so because he did not "know . . . the reason for
her absence" and whether it was "legitimate." When the mother connected
to the trial on the second day, she explained her inability to
participate, stating that her cellular telephone service had been
"really bad" on the first day. While the judge need not credit the
mother's explanation, the mother's assertion was not challenged; as
discussed supra, she was not the only participant to encounter
technological problems during the first trial day. Yet, the mother was
not asked any questions to explore further her efforts to reconnect. Nor
was an evidentiary hearing held on the mother's motion for a new trial,
which might have provided some basis for a finding that the mother's
absence on the first day was purposeful.
All told, the record does not support the findings undergirding the
judge's decision to draw an adverse inference against the mother and the
evidence in its entirety leaves us "with the definite and firm
conviction that a mistake has been committed" (citation omitted). Adoption of Larry, 434 Mass. 456, 462 (2001). The findings were clearly erroneous, and thus the decision to draw the adverse inference is unsupported. Adoption of Talik, 92 Mass. App. Ct. at 375, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("A decision is an abuse of discretion if it amounts to a `clear error of judgment' . . .").
B. Inadequacy of safeguards.
In light of the foregoing, we turn to consider the mother's due
process challenge to the termination proceedings in this case, which
unfortunately went forward with little adherence to the safeguards we
have delineated supra. In particular, it appears that no steps were
taken in advance to determine whether the mother possessed the
technology necessary to connect to Zoom, by video or otherwise. Then,
when it was determined on the first day of trial that she did "not have
video capacity," the judge immediately defaulted to having her
participate by telephone. At the very least, the judge should have
determined what technology she might have available to her that would
allow her to connect by video and, if she did not have any, whether it
was possible to assist her in obtaining access to such technology.[11]
While a court's ability to assist in this regard may be limited, it
should at least have been explored before requiring a self-represented
parent to participate by telephone in a trial where such important
rights were at issue, and where all other participants participated by
video.
Moreover, it is not clear whether the Zoom video conferencing
platform utilized in this trial had a private "breakout room" function
that would have allowed the mother to consult with stand-by counsel at
any time during the hearing. If that feature was available, the record
does not reflect that the judge made the mother aware of it on the
record. An explanation of what a breakout room is and how it can be
requested and used during a trial should be part of the instructions
provided before the commencement of a virtual trial.[12]
Further, the record does not reflect any consideration as to how
documents and exhibits would be shared with the mother. The use of
documents and exhibits can be difficult when participating in a remote
hearing by telephone, especially for a self-represented litigant. When
participating by video, the platform typically has a "share screen"
function, "which permits participants to show electronic documents to
the other participants. If a participant does not wish to use this
function, or cannot use this function, he or she simply can hold a
physical document in front of the camera to display it to the other
participants." Vazquez Diaz, 487 Mass. at 339. A telephone participant can do neither.
The challenge, however, is not insurmountable. Documents and other
exhibits could have been exchanged in advance, so that everyone had a
copy and could follow when a particular document or exhibit was used to
question a witness. This is not an uncommon requirement in advance of a
trial. It becomes particularly important when participants are connected
to a remote hearing by telephone. The record here does not reflect
whether such an exchange took place in this case, but the department
ultimately submitted at least thirty-five exhibits.[13]
Indeed, it appears the mother had wanted to use some "paperwork" in
connection with mounting her defense, but lacked the understanding of
how to do so.
"Our discussion so far would be academic if the telephone solution
allowed [the mother] to meaningfully participate in the
termination-of-parental-rights proceedings" (emphasis in original). In re the Termination of Parental Rights to Idella W., 2005 WI App 266, ¶ 8
(incarcerated father not able to meaningfully participate in parental
rights termination hearing where his "ability to hear the proceedings
faded in and out, and, at least at one point, was temporarily
interrupted by static"). It did not.
Almost as soon as the first witness started to testify on direct
examination, the mother was disconnected and had to be readmitted from
the waiting room by the clerk. Then, as detailed above, she was
disconnected from the trial altogether at the direction of the judge
when it was her turn to question the first witness and she was
unresponsive. Her explanation that her cellular telephone service on the
first day was "really bad" stands unchallenged. It is unclear how much
of the first witness's testimony she heard. It is undisputed, however,
that she then missed the entire testimony of the next two witnesses.
The mother was not the only one to experience technological problems
on the first day. The second witness was disconnected at one point and
had to be reconnected. Technological issues persisted, and the witness
was advised to yell, so as to be heard. Technological issues also
affected the department's final witness; indeed, the clerk then had to
"knock [the third witness] out" of the Zoom hearing when her connection
froze. When she tried to reconnect by video, she could not. Instead, she
had to complete her testimony by telephone. "[L]ike all other
technology, video conferencing is prone to both technological issues and
user errors. . . . The communication problems . . . can be exacerbated
by a dropped connection, a frozen or lagged video display of a witness,
or a pause in the proceedings to deal with a technological delay on the
part of one or all participants." Vasquez Diaz, 487 Mass. at 366-367 (Kafker, J., concurring).
To be sure, in-person trials are often riddled with obstacles, as well. See Curran, 488 Mass. at 797 n.5
("minor technological disruptions" during course of remote bench trial
were "comparable to irregularities that routinely occur during in-person
proceedings"). Whether it is a remote or in-person hearing, therefore,
the integrity of the trial often will be measured by how the obstacle is
overcome, if at all. Here, a recess of one-half hour was taken after
the judge had the mother disconnected. The clerk also attempted to
contact her and left a message on her telephone. When the recess was
over and the mother had neither reconnected nor responded to the
outreach, the judge concluded that he did not "have any choice but to
continue" without her. No doubt, the judge was dealt a difficult hand.
If discussions had occurred in advance of the hearing, the parties and
court might have been better prepared to enact a troubleshooting plan to
try to overcome the technological issues that presented. Given the lack
of safeguards in place, however, the proper course when it became
apparent that the mother could not participate on the first day was to
suspend the trial until the cause of the mother's absence could be
determined. See Vazquez Diaz, 487 Mass. at 342 (it is "crucial" to suspend trial when technological difficulties arise).
The mother's conduct, in failing to contact the court, be it through
the clerk, stand-by counsel, or someone else, is not above suspicion.
The problem, however, is that the court did not outline in advance the
steps that would be taken if someone were to be disconnected and have
difficulty rejoining the trial. See Vazquez Diaz, 487 Mass. at 342.
If it had, it may have been reasonable to infer from the mother's
failure to comply with those instructions that her absence was
purposeful. Instead, the judge pressed forward with the trial while
acknowledging that he had no idea whether the mother's absence was
purposeful or not.
In his decision, the judge stated that he gave the "mother ample
opportunity to resume participation in the case," but she refused. It is
clear that on the second day of trial, immediately after the mother
informed the judge of the significant difficulties she had experienced
with her cellular telephone service during the first day, he offered her
the chance to cross-examine the witnesses from the first day. The
mother, however, had only heard a portion of the testimony of one of
those witnesses, if that. Thus, it was unreasonable to expect her to be
in a position to conduct meaningful cross-examination. Again, other
alternatives likely existed and, at the very least, should have been
explored. For example, the trial could have been suspended for a short
time to allow the mother to review the testimony of the three witnesses,
and then reconvened to allow her to conduct cross-examination.
Under the circumstances, the trial in this case was conducted in violation of the mother's right to due process.
3. Conclusion.
For the foregoing reasons, the decree terminating the mother's
parental rights is vacated and the matter is remanded for a new trial.[14]
So ordered.
[1] A pseudonym.
[2] The judge also terminated the parental rights of the father, who did not participate in the trial and has not appealed.
[3]
We acknowledge the amicus letter submitted by Mental Health Legal
Advisor's Committee and the amicus brief submitted by Committee for
Public Counsel Services, Boston Bar Association, Citizens for Juvenile
Justice, Children's Law Center of Massachusetts, Disability Law Center,
Juvenile Rights Advocacy Program at Boston College Law School,
Massachusetts Appleseed Center for Law and Justice, Massachusetts
Association of Criminal Defense Lawyers, Massachusetts Bar Association,
and Massachusetts Law Reform Institute.
[4] Effectively, the father has been uninvolved in the child's life since she was permanently placed in the department's custody.
[5]
A trial was held in person in January 2020 before a different Juvenile
Court judge and resulted in the issuance of a decree terminating the
mother's and the father's parental rights to the child. The decree was
vacated, however, for reasons that are not apparent from the appellate
record.
[6]
During the course of the child's case, the mother was represented by
eight different attorneys, six of whom were allowed to withdraw due to
breakdowns in communication with her. When the eighth attorney moved to
withdraw shortly before trial, the judge, who was concerned that the
mother was using it as "a delaying tactic," denied the request. He
allowed the mother to proceed pro se, however, with the eighth attorney
acting as stand-by counsel.
[7]
According to Zoom, the host can control when participants join the
hearing or meeting by admitting them, one by one or all at once, from
the "waiting room," and can return participants to the "waiting room."
Zoom, Using Waiting Room (updated Mar. 22, 2022),
https://support.zoom.us/hc/en-us/articles/115000332726-Using-Waiting-Room
[https://perma.cc/QLJ6-W3PF].
[8]
According to the clerk, Zoom "highlighted" the trial participant who
was speaking the loudest at any given moment. Every time the other
participants were quiet, it would highlight the mother's connection,
"which means there's noise happening where she is."
[9]
The mother's notice of appeal was filed five days late, but the judge,
over the department's and the child's objections, allowed the late
filing after finding that it was the product of excusable neglect. See
Mass. R. A. P. 4(c), as appearing in 481 Mass. 1606 (2019) (upon showing
of excusable neglect, court may extend time for filing notice of appeal
for period not to exceed thirty days from original deadline). The child
cross-appealed from that ruling. The department did not appeal and
concedes that the judge did not abuse his discretion in allowing the
late filing. See Care & Protection of Minor, 478 Mass. 1015, 1015 (2017)
(ruling on motion for leave to file late notice of appeal reviewed for
abuse of discretion). Because, on this record, we cannot "conclude the
judge made a clear error of judgment in weighing the factors relevant to
the decision such that the decision falls outside the range of
reasonable alternatives" (citation and quotation omitted), L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), we agree with the department.
[10]
Other jurisdictions have also held that, during the COVID-19 pandemic,
a termination trial on a virtual video conferencing platform is not a
per se due process violation so long as there are sufficient safeguards.
See, e.g., Amira N. vs. Department of Health & Social Servs.,
Office of Children's Servs., No. S-18085 (Alaska Mar. 9, 2022) (mother,
who was represented by counsel, was able to speak to counsel during
video conference trial, and participated by telephone from her place of
incarceration, was not deprived of due process); In re K.C., 2021 IL App
(1st) 210305-U, ¶¶ 79-80 (mother, who was represented by counsel in
virtual hearing, was not denied due process where she was able to
communicate with counsel, and participated by telephone, testified by
video conference, and additional video technology was made available to
her); In re P.S., 2021 IL App (5th) 210027, ¶¶ 59-64, 76
(no due process violation when father was able to communicate with
counsel in breakout rooms, was able to assist in cross-examination, and
himself participated in termination hearing); Interest of C.T., 61 Kan.
App. 2d 218, 233 (2021) (termination proceedings conducted by video
conferencing not per se violation of due process where there are
adequate safeguards, including adequate audio quality, ability of
participants to observe witnesses, ability of parties to access
exhibits, and ability to confer with counsel privately); In re O.C.
Smith, Nos. 355077, 355677 (Mich. Ct. App. July 1, 2021) (no due process
violation in termination trial conducted by video conferencing where
father was incarcerated, was able to consult with his counsel in
breakout rooms, and had opportunity to present witnesses and evidence);
E.N. vs. Texas Dep't of Family & Protective Servs., No.
03-21-00014-CV (Tex. Ct. App. June 17, 2021) (due process not violated
given extensive procedural safeguards set forth in connection with video
conference trial to determine parental rights); Matter of the Dependency of J.D.E.C., 18 Wash. App. 2d 414, 422-424 (2021)
(no due process violation where father, who was represented by counsel,
chose to participate telephonically in video conference hearing to
terminate his rights, was able to and did communicate with counsel using
breakout room technology, provided information to his counsel for
cross-examination, and directed whom counsel should call in his
defense). Cf. People in the Interest of E.B., 2022 COA 8, ¶¶ 15-17
(due process violated where father, who was represented by counsel, was
denied continuance to obtain wireless connection to participate in
virtual hearing to terminate his parental rights where father tried
multiple times to secure connectivity and court failed to facilitate
father's efforts to participate).
[11] The COVID-19 court operations order that was issued by this court and in effect at the time of trial required as follows:
"In cases with one or more self-represented litigants (SRLs)
where a court is scheduling a videoconference, courts will recognize the
possibility that SRLs may have limited access to the technology needed
to conduct videoconferences or limited experience with it, and will
either assist the SRL in being able to conduct a videoconference or
offer an alternative to videoconferencing for the virtual hearing."
Third Updated Order Regarding Court Operations Under the Exigent
Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No.
OE-144, § 2 (June 24, 2020).
[12]
According to Zoom, a participant connected by telephone can be added
to a breakout room just like a participant connected by video. See Zoom,
Participating in Breakout Rooms (updated Feb. 28, 2022),
https://support.zoom.us/hc/en-us
/articles/115005769646-Participating-in-breakout-rooms
[https://perma.cc/7UUL-J8CP].
[13]
The trial judge's findings suggest that there were thirty-five
exhibits. The joint appendix of exhibits submitted by the mother and the
child contains thirty-six.
[14]
Having already vacated the termination decree on other grounds, we
need not reach the mother's claim that it should be vacated due to the
department's failure to make reasonable efforts to reunify her with the
child."
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