June 29, 2022

In re Aisjaha N. (SC 20612)

June 2022

Mother appealed the trial court’s decision to vest permanent legal guardianship of her child in her maternal grandmother. On the basis of Mother’s substance abuse, poor parenting, and unrelated mental health issues, DCF had placed the child in her grandmother’s home. Thereafter, DCF filed a neglect petition; the trial court adjudicated the neglected and ordered her committed to DCF. Subsequently, DCF filed a motion for permanent legal guardianship, requesting that the trial court vest permanent legal guardianship of the child in her grandmother, to which Mother objected. A hearing was held remotely via Microsoft Teams amid the COVID-19 pandemic. Prior to the start of Mother’s testimony, which occurred after the parties’ closing arguments because Mother indicated to her counsel at that point that she wanted ‘‘to be heard,’’ DCF counsel noted, for the record, that Mother was on the phone but not on video. The court asked whether anyone had an objection to proceeding with Mother testifying via audio only. There was no objection, and Mother then briefly testified.

On appeal from the trial court’s decision vesting permanent legal guardianship of he child in her maternal grandmother, this Court held: 1. Mother’s unpreserved claim that she was denied due process of law under the Fourteenth Amendment to the U.S. Constitution by virtue of the trial court’s failure to ensure that she was present by two-way video technology was unavailing.  The record was inadequate to review that claim insofar as it was largely silent regarding the nature of Mother’s participation in the virtual hearing.  Although Mother relied on a statement by DCF counsel indicating that, after the close of evidence, Mother appeared by audio and not video during her testimony, the record was silent as to whether she appeared by video at any point prior to that during the proceedings.  Moreover, because the record was silent as to what type of phone Mother used to participate in the hearing and whether the phone had video capability, this Court could not determine whether Mother simply chose to turn her video off or whether she was unable to participate via video as a result of inadequate technology.  Furthermore, Mother waived any argument with respect to testifying via audio only when she, her counsel and her GAL failed to object, at the trial court’s express invitation, to proceeding without video.

Additionally, this Court declined Mother’s invitation to invoke its supervisory authority over the administration of justice to adopt a rule requiring that a trial court, before conducting a virtual hearing or trial in a child protection case, ensure that the parties either appear by two-way videoconferencing technology or waive the right to do so, after a brief canvass.  Here, Mother failed to demonstrate that the inability of parties to meaningfully participate in virtual child protection hearings or trials via two-way videoconferencing technology was a pervasive and significant problem that required this Court’s intervention.  Moreover, the record was not sufficiently robust to facilitate this Court’s exercise of its supervisory authority insofar as the record did not even indicate the manner in which Mother appeared during the hearing, with the exception of during her testimony after closing arguments.  Furthermore, neither Mother, her counsel, nor her GAL asked the trial court for technical accommodations; the trial court was fully attentive to potential problems regarding the remote technology and took steps to ensure that the virtual format of the hearing did not negatively impact Mother. 

Nevertheless, although this Court did not address whether a trial court may conduct virtual hearings or trials in circumstances other than during a pandemic, it did take the opportunity to emphasize the importance of ensuring equal access to justice and the proper functioning of technology when a trial court conducts a virtual hearing or trial.  It noted that equal access to justice was particularly significant in the context of virtual hearings and trials, given that certain groups, such as indigent litigants, communities of color, older people, and people with disabilities were more likely to lack access to reliable internet service and devices that are adequate to participate in remote court proceedings by videoconferencing technology.