In re Maliyah M. ( 2022 )

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IN RE MALIYAH M.*
(AC 45183)
IN RE OCTAVIA D.
(AC 45199)
IN RE EDGAR S. ET AL.
(AC 45369)
Bright, C. J., and Alvord and Elgo, Js.
Syllabus
The respondent parents in three separate cases appealed to this court from
the judgments of the trial court terminating their parental rights as to
their minor children. Because of the COVID-19 pandemic, the trials on
the termination petitions were held virtually, either in whole or in part,
via the Microsoft Teams platform, during which witnesses for the peti-
tioner, the Commissioner of Children and Families, testified remotely.
On appeal, the parents claimed that they were denied their rights to
due process under the fourteenth amendment to the United States consti-
tution because the trial courts did not first conduct an evidentiary hear-
ing to determine whether, under State v. Jarzbek (204 Conn. 683), there
was a compelling need for the petitioner’s witnesses to testify remotely.
Held that the records of the three trials were inadequate under State v.
Golding (213 Conn. 233) to review the parents’ unpreserved claims that
they were denied due process when the trial courts failed to conduct
hearings pursuant to Jarzbek before allowing the petitioner’s witnesses
to testify remotely: because the parents never objected to the virtual
format of the termination trials on the ground that it violated their
constitutional rights to confront the witnesses in person, the trial courts
had no occasion to make findings of fact regarding the threat posed by
COVID-19 and whether that threat was sufficiently compelling to curtail
the parents’ confrontation rights; moreover, the parents could not over-
come the inadequacy of the trial records by claiming that they had an
unqualified right to a hearing at which the petitioner would bear the
burden of establishing by clear and convincing evidence a compelling
governmental interest in presenting the witnesses’ testimony virtually,
that claim having been rejected by our Supreme Court in In re Annessa
J. (343 Conn. 642); furthermore, even if the parents’ claim was distinct
from that asserted in In re Annessa J., it would fail under Golding, as
there is no constitutional right to a Jarzbek-type hearing ordered by a
trial court sua sponte.
Argued September 8—officially released November 22, 2022**
Procedural History
Petition, in the first case, by the Commissioner of
Children and Families 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, and tried to the court,
Conway, J., and petition, in a second case, by the Com-
missioner of Children and Families to terminate the
respondents’ parental rights with respect to their minor
child, brought to the Superior Court in the judicial dis-
trict of New Haven, Juvenile Matters, and tried to the
court, Marcus, J., and petition, in a third case, by the
Commissioner of Children and Families to terminate
the respondents’ parental rights with respect to their
minor children, brought to the Superior Court in the
judicial district of New Britain, Juvenile Matters, and
tried to the court, Hoffman, J.; thereafter, in the first
case, the court, Conway, J., rendered judgment termi-
nating the respondents’ parental rights, from which the
respondent father appealed to this court, and, in the
second case, the court, Marcus, J., rendered judgment
terminating the respondents’ parental rights, from
which the respondent father appealed to this court,
and, in the third case, the court, Hoffman, J., rendered
judgments terminating the respondents’ parental rights,
from which the respondent mother appealed to this
court. Affirmed.
James P. Sexton, assigned counsel, with whom, on
the brief, was Albert J. Oneto IV, assigned counsel, for
the appellants in Docket Nos. AC 45183 and AC 45199
(respondent fathers).
Matthew C. Eagan, assigned counsel, for the appel-
lant in Docket No. AC 45369 (respondent mother).
Evan O’Roark, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Nisa Khan, assistant attorney general, for the
appellee in each case (petitioner).
Opinion
PER CURIAM. These three appeals present the same
legal claim and involve similar, though unrelated, fac-
tual and procedural histories. In each appeal, the
respondent parent appeals from the judgment of the
trial court terminating his or her parental rights. On
appeal, each respondent asserts the same claim—that
the court ‘‘denied the respondent the due process of
law under the fourteenth amendment to the United
States constitution’’ when it conducted the termination
of parental rights trial, either in whole or in part, virtu-
ally, via Microsoft Teams,1 without first holding an evi-
dentiary hearing to determine whether there was a com-
pelling need for virtual testimony.
After the respondents filed their principal briefs in
each appeal, this court granted the unopposed motions
filed by the petitioner, the Commissioner of Children
and Families, requesting that her brief be due thirty
days after our Supreme Court issued its decisions 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., 343 Conn.
709, 275 A.3d 1181 (2022), which involved claims similar
to the claim in the present cases. Our Supreme Court
issued those decisions on June 20, 2022, and we now
conclude that In re Annessa J. is dispositive of the
issue in the present appeals. Accordingly, we affirm the
judgments of the trial courts.
In Docket No. AC 45183, the respondent father, Hec-
tor R.-B., appeals from the judgment of the court termi-
nating his parental rights as to Maliyah M. on the ground
of failure to achieve a sufficient degree of personal
rehabilitation pursuant to General Statutes § 17a-112 (j)
(3) (B) (i).2 In his brief, he represents that the termina-
tion of parental rights trial was a ‘‘ ‘hybrid’ virtual pro-
ceeding, in which the respondent was present with
counsel and a Spanish speaking interpreter in the court-
room, but all other participants except [the] child’s
counsel appeared virtually.’’ On appeal, he claims ‘‘that
he was denied the due process of law under [the] four-
teenth amendment to the United States constitution
at the partially virtual parental rights termination trial
when the trial court dispensed with his right of physical
confrontation without first holding an evidentiary hear-
ing to determine by clear and convincing evidence that
there was a compelling need for the petitioner’s last
four witnesses to testify against him virtually.’’
In Docket No. AC 45199, the respondent father, Jason
D., appeals from the judgment of the court terminating
his parental rights as to his minor child, Octavia D., on
the grounds of failure to achieve a sufficient degree of
personal rehabilitation pursuant to § 17a-112 (j) (3) (B)
(i) and (E).3 On appeal, he claims ‘‘that he was denied
the due process of law under [the] fourteenth amend-
ment to the United States constitution at the virtual
parental rights termination trial when the trial court
dispensed with his right of physical confrontation with-
out first holding an evidentiary hearing to determine
by clear and convincing evidence that there was a com-
pelling need for the petitioner’s witnesses to testify
against him virtually.’’
In Docket No. AC 45369, the respondent mother,
Lymari O., appeals from the judgments of the court
terminating her parental rights as to her four minor
children, Edgar S., Jaden A., Jeomarye A., and Josue
G., on the ground of failure to achieve a sufficient degree
of personal rehabilitation pursuant to § 17a-112 (j) (3)
(B) (i). She claims ‘‘that she was denied the due process
of law under [the] fourteenth amendment to the United
States constitution at the virtual parental rights termina-
tion trial when the trial court dispensed with her right
of physical confrontation without first holding an evi-
dentiary hearing to determine by clear and convincing
evidence that there was a compelling need for the peti-
tioner’s witnesses to testify against her virtually.’’
Each respondent concedes that their claim is unpre-
served and seeks review pursuant to 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. . . . [S]ee In re
Yasiel R., [supra, 781] (modifying third prong of Gold-
ing). 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.’’ (Emphasis in
original; internal quotation marks omitted.) In re
Annessa J., supra, 343 Conn. 656–57.
In In re Annessa J., the respondent mother, Valerie
H., appealed from the judgment of the trial court termi-
nating her parental rights. Id., 650. Due to the COVID-
19 pandemic, the trial had been conducted virtually,
via Microsoft Teams, and, on appeal to this court, the
respondent mother 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 . . . .’’ Id. She conceded that her claim was
unpreserved and sought review pursuant to Golding.
Id., 661. This court determined that, ‘‘because Valerie
did not ask the trial court to hold an evidentiary hearing
on the need for a virtual trial, the record was inadequate
to review Valerie’s unpreserved federal due process
claim.’’ Id., 651.
After granting the respondent mother certification to
appeal, our Supreme Court agreed with this court that
the record was inadequate to review her unpreserved
claim. The court explained that, ‘‘[u]nlike 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. . . . [T]he trial court explained that,
‘[d]ue to the COVID-19 . . . pandemic, the trial [on the
termination of parental rights petition] was conducted
virtually.’ As a result, we would need to consider the
specific factual circumstances surrounding the trial and
the COVID-19 pandemic to properly evaluate Valerie’s
claim. As Valerie concedes, ‘[a]lthough the trial court
referenced the COVID-19 public emergency as the rea-
son 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.’’ (Citation omitted.)
Id., 661–62. The court also rejected the respondent
mother’s contention that the lack of evidence in the
record was not her burden to overcome under the first
prong of Golding. Id., 662–63.
Similarly, in In re Vada V., supra, 343 Conn. 738, the
respondent parents appealed from the judgments of the
trial court terminating their parental rights after a trial
held virtually, via Microsoft Teams, during the COVID-
19 pandemic. The respondents asserted an unpreserved
claim that ‘‘the trial court denied them the right to
physically confront and cross-examine the witnesses
against them at the virtual trial, thereby violating their
right to due process . . . .’’ Id. Our Supreme Court
again concluded that the record was inadequate to
review the unpreserved due process claim, reiterating
that, ‘‘even if [it] were to assume that there is a constitu-
tional right to in person confrontation, there is no fac-
tual record or factual findings for [the court] to rely on
to determine whether that right was violated or whether
the trial court correctly concluded that the govern-
ment’s interests were sufficiently great to warrant con-
ducting the trial virtually.’’ Id., 740.4
After those decisions were issued, the petitioner
moved to dismiss each of the present appeals, arguing
that, because the records are inadequate to review the
respondents’ unpreserved due process claim ‘‘in the
same way the respective records in In re Annessa J.
and In re Vada V. were inadequate, the result must be
the same.’’ This court denied the motions to dismiss
and, sua sponte, ordered the parties in each appeal to
file supplemental memoranda of law addressing
whether the judgments terminating the respondents’
parental rights should be summarily affirmed in light
of our Supreme Court’s decisions in In re Annessa J.,
In re Vada V., In re Aisjaha N. and In re Juvenile
Appeal (Docket No. 10155), 187 Conn. 431, 435–41,
446 A.2d 808 (1982) (holding that respondent father’s
constitutional rights were not violated when he was
unable to be physically present in courtroom for termi-
nation of parental rights trial but participated via tele-
phone).
In their principal briefs, filed before our Supreme
Court issued its decisions in In re Annessa J., In re
Vada V. and In re Aisjaha N., the respondents in the
present appeals contended that the trial court violated
their right to due process by failing to hold a compelling
needs hearing pursuant to State v. Jarzbek, 204 Conn.
683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061,
108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), before allowing
the petitioner’s witnesses to testify remotely. In State
v. Jarzbek, supra, 707, our Supreme Court held ‘‘that,
in criminal prosecutions involving the alleged sexual
abuse of children of tender years, videotaping the testi-
mony of a minor victim outside the physical presence
of the defendant is a constitutionally permissible prac-
tice if, and only if, the state proves by clear and convinc-
ing evidence a compelling need to exclude the defen-
dant from the witness room during the victim’s
testimony.’’
In their supplemental memoranda of law, the respon-
dents contend that their unpreserved constitutional
claim is distinct from the one recently addressed by
our Supreme Court because, ‘‘[u]nlike in In re Annessa
J. and In re Vada V., the issue to be resolved in [these]
appeal[s] is whether the rule in [Jarzbek]—requiring
the state to establish a compelling governmental need
by clear and convincing evidence at a hearing before
the trial court may dispense with the right of physical
confrontation—applies with equal force in parental
rights termination trials . . . .’’ They argue that ‘‘[t]he
distinction is significant because the only factual predi-
cate required to resolve the constitutional issue . . .
is the lack of a compelling needs hearing in the trial
court, which factual predicate is supported by the
record.’’ The petitioner responds that the respondents’
claim is another way of stating that the lack of evidence
in the record as to a compelling governmental interest
is not the respondents’ burden to overcome, an argu-
ment our Supreme Court rejected in In re Annessa J.
We agree with the petitioner.
In her brief to the Supreme Court in In re Annessa
J., the respondent mother cited Jarzbek in support of
her due process claim and argued ‘‘that the right of
physical confrontation under the due process clause is
not limited to criminal cases but extends to civil mat-
ters, including parental rights termination cases, where
state action threatens fundamental liberty interests.
. . . Although 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 the COVID-19 virus threatened the health or safety
of any of the persons involved in [the trial]. . . . [T]his
lacuna in the record with respect to whether there was
a compelling reason to curtail her right of physical
confrontation was not [the respondent’s] burden to
overcome under the first prong of . . . Golding. Under
Golding, it was sufficient for the respondent to show
that she was denied the ability to confront physically
the witnesses against her at the virtual trial, with the
burden falling on the state to demonstrate that the
record disclosed facts sufficient to justify an abridg-
ment of the right.’’ (Citation omitted.) In re Annessa
J., Conn. Supreme Court Briefs & Appendices, Third
Term, 2021–2022, Appellant’s Brief pp. 22–24.
In rejecting the claim that the lack of evidence in the
record ‘‘was not her burden to overcome,’’ our Supreme
Court expressly held that the respondent mother’s claim
must be analyzed pursuant to the three part Mathews
test. In re Annessa J., supra, 343 Conn. 661. Because
that test is fact intensive, the court held that her claim
failed in the absence of an evidentiary record regarding
the Mathews factors and that she indeed had the burden
to ensure an adequate evidentiary record for review of
her claim. In particular, the court explained: ‘‘During
the trial, the petitioner and the trial court were never
put on notice that Valerie objected to the virtual nature
of the termination of parental rights trial on the basis
that it violated her right to confront the petitioner’s
witnesses. . . . Because the trial court was not alerted
to this right to confrontation issue, it did not have occa-
sion to make findings of fact regarding the threat posed
by the COVID-19 pandemic and whether that threat
was sufficiently compelling to curtail any constitutional
right to in person confrontation. In such circumstances,
the [petitioner] bears no responsibility for the eviden-
tiary lacunae, and, therefore, it would be manifestly
unfair to the [petitioner] for [the reviewing] court to
reach the merits of the [respondent’s] claim upon a
mere assumption that [the factual predicate to her claim
has been met]. . . .
‘‘Not only would such an assumption be improper,
but, because, under the test in Golding, [the reviewing
court] must determine whether the [appellant] can pre-
vail on his [or her] claim, a remand to the trial court
would be inappropriate. The first prong of Golding was
designed to avoid remands for the purpose of supple-
menting the record. . . . The parties agree that there
is an inadequate basis in the record for the trial court to
determine whether the government’s interests warrant
conducting a virtual trial. Thus, in order to make the
requisite findings, the trial court, on remand, would
have to open the evidence. In cases of unpreserved
constitutional claims, this court consistently has
refused to order a new trial when it would be necessary
to elicit additional evidence to determine whether the
constitutional violation exists. . . . Therefore, we
agree with the Appellate Court that the record is inade-
quate for review of this claim.’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Annessa J., supra,
343 Conn. 662–64.
In the present cases, just as in In re Annessa J., 343
Conn. 661, the respondents acknowledge that their right
to confrontation is not unqualified and agree that their
due process claims must be analyzed pursuant to the
three part test in Mathews. Furthermore, there is no
dispute that they failed to object to the virtual format
of the trial on the ground that it violated their right to
confront the petitioner’s witnesses.5 Nevertheless, the
respondents attempt to avoid the consequences of the
inadequacy of the records by claiming that they have
an unqualified right to a hearing at which the burden
would be on the petitioner to demonstrate a compelling
governmental interest pursuant to State v. Jarzbek,
supra, 204 Conn. 707. According to the respondents,
because the record establishes that no such hearing
was held, this court may ‘‘review whether [they were]
denied the due process of law when the trial court
dispensed with [their] right of physical confrontation
at the parental rights termination trial[s] without first
determining by clear and convincing evidence at a spe-
cial hearing that there was a compelling state interest
that justified curtailment of the right.’’
The respondents, presuming that the rule in Jarzbek
applies, then argue that the three part Mathews due
process balancing test weighs in their favor because
‘‘[t]he state’s interest in limiting [their] right of physical
confrontation . . . was never established in the
record. The trial court never made a finding by clear
and convincing evidence at a compelling needs hearing
that there was an overriding state interest that justified
abridging [their] right to confront physically the wit-
nesses against them.’’
We see no meaningful distinction between the claim
presented in the present appeals and the one rejected
by our Supreme Court in In re Annessa J., supra, 343
Conn. 662. In the same way that the respondent mother
in In re Annessa J. invoked Jarzbek to claim that the
inadequacy of the record was not her burden to over-
come, the respondents here rely on Jarzbek to disclaim
their burden under the first prong of Golding by claim-
ing that the constitutional error was the trial court’s
failure to make a finding, sua sponte, as to an issue
the respondents failed to raise. As our Supreme Court
explained, however, ‘‘[b]ecause the trial court was not
alerted to this right to confrontation issue, it 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
constitutional right to in person confrontation.’’
(Emphasis added.) Id., 663. In other words, the trial
court had no duty to make findings of fact relevant to
the right of confrontation issue when that issue never
was raised before the court. Thus, our Supreme Court
necessarily rejected the present claim, which seeks to
impose such a duty. Merely recasting the claim as
involving an unqualified right to a Jarzbek hearing
instead of relying on Jarzbek to argue that they had no
burden to overcome the lack of evidence in the record
does not alter our analysis. Consequently, for the same
reason that the respondent mother’s claim in In re
Annessa J. failed under Golding’s first prong, so, too,
does the respondents’ claim in the present cases.
Furthermore, even if we were to treat the respon-
dents’ claim as somehow different from that asserted
in In re Annessa J., the result would be the same. By
rejecting the respondent mother’s argument in In re
Annessa J. that, pursuant to Jarzbek, the burden was on
the petitioner ‘‘to demonstrate that the record disclosed
facts sufficient to justify an abridgment of the right [of
physical confrontation],’’ the court necessarily deter-
mined that there was no constitutional right to a sua
sponte Jarzbek-type hearing. Consequently, insofar as
the respondents’ claim is distinct from the respondent
mother’s claim in In re Annessa J., it fails under the
third prong of Golding because they have failed to
establish that the alleged constitutional violation exists.
See In re Tayler F., 296 Conn. 524, 554, 995 A.2d 611(2010) (‘‘[a] due process violation exists only when a
claimant is able to establish that he or she was denied
a specific procedural protection to which he or she was
entitled’’ (internal quotation marks omitted)).
The judgments are 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.
** November 22, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
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 November 22, 2022).
2
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing . . . may grant a petition [for termination
of parental rights] if it finds by clear and convincing evidence that (1) the
Department of Children and Families has made reasonable efforts to locate
the parent and to reunify the child with the parent in accordance with
subsection (a) of section 17a-111b, unless the court finds in this proceeding
that the parent is unable or unwilling to benefit from reunification efforts
. . . (2) termination is in the best interest of the child, and (3) . . . (B)
the child (i) has been found by the Superior Court or the Probate Court to
have been neglected, abused or uncared for in a prior proceeding . . . and
the parent of such child has been provided specific steps to take to facilitate
the return of the child to the parent pursuant to section 46b-129 and has
failed to achieve such degree of personal rehabilitation as would encourage
the belief that within a reasonable time, considering the age and needs of
the child, such parent could assume a responsible position in the life of the
child . . . .’’
3
Subparagraph (E) of § 17a-112 (j) (3), in relevant part, provides for the
termination of parental rights when ‘‘the parent of a child under the age of
seven years who is neglected, abused or uncared for, has failed, is unable
or is unwilling to achieve such degree of personal rehabilitation as would
encourage the belief that within a reasonable period of time, considering
the age and needs of the child, such parent could assume a responsible
position in the life of the child and such parent’s parental rights of another
child were previously terminated pursuant to a petition filed by the Commis-
sioner of Children and Families . . . .’’ General Statutes § 17a-112 (j) (3) (E).
4
In In re Aisjaha N., the respondent mother raised a due process claim
distinct from the one raised by the respondents in In re Annessa J. and In
re Vada V. In In re Aisjaha N., the respondent claimed ‘‘that she was denied
due process of law . . . when the trial court failed to ensure that she was
present by two-way video technology at the virtual trial.’’ In re Aisjaha N.,
supra, 343 Conn. 717. Our Supreme Court held that the record was inadequate
to review the respondent’s unpreserved due process claim ‘‘[b]ecause the
record [was] largely silent regarding the nature of [the respondent’s] partici-
pation in the virtual trial . . . .’’ Id., 721. Accordingly, In re Aisjaha N. is
not relevant to our resolution of the claim in the present appeals.
5
We note that, in AC 45183, the respondent father filed an ‘‘objection to
virtual termination of parental rights trial,’’ claiming that conducting the
trial virtually would deprive him of his due process rights in myriad ways,
including by denying him the right to confront in person the witnesses
against him. At a hearing on October 29, 2020, however, his counsel did not
advance that claim in support of the objection. Instead, counsel argued
that the respondent required a Spanish interpreter but that there was no
procedure for providing simultaneous, as opposed to consecutive, interpreta-
tion over the Microsoft Teams platform. At the hearing, the following collo-
quy occurred between the court and the respondent’s counsel:
‘‘The Court: . . . [W]hat’s your position if you and your client were put
in a [courtroom] and were able to access an interpreter for simultaneous
interpretation, not consecutive?
‘‘[The Respondent’s Counsel]: Would the interpreter be assisting my client
in [the] courtroom . . . also?
‘‘The Court: There—this is hypothetically; yes.
‘‘[The Respondent’s Counsel]: I’m trying to think to make sure the—so,
[he] would be getting an interpreter interpreting what’s going on with the
trial; is that correct?
‘‘The Court: So, theoretically, all right, your client would have headphones
on . . .
‘‘[The Respondent’s Counsel]: Let me. I’m trying to see what—if there’s
issues with that.
‘‘The Court: All right. So, this is all hypothetical. So, I agree that this
concurrent or nonconsecutive interpretation is not feasible in a trial of this
complexity. I am hoping that in the next months, because we are scheduling
out now until next year, that we have innovation in our technology that will
permit simultaneous interpretation by an interpreter. If we get that type of
technology, what I need to have answered, [counsel], is, will that obviate
your concerns and objections?
‘‘[The Respondent’s Counsel]: I think the—I think the uniformity of the
procedure, the input of the Limited English Proficiency Committee, just—
and I think that it would be vetted so that it’s a uniform process . . . that’s
just the concern I have, is, you know, I’d like to see what the procedures
is of, you know, what it looks like.’’
After hearing from all the parties involved, the court ruled as follows: ‘‘I
think the bigger issue that we have to resolve is the simultaneous interpreta-
tion. And so at this point, having heard from the parties, the court makes
a finding that, based on the complexity of this trial, meaning the number
of days of the trial that are left to be had, the number of witnesses that are
left to testify, the additional documentary evidence that may be forthcoming,
and the fact that this is a termination trial, and up to it not being a case
that is not conducive to being tried virtually unless and until we have the
ability to have the interpreter interpret simultaneously. So, I am—to the
extent [the] objection relates to the [consecutive] interpretation during the
[termination] trial, the court agrees, but the court also will pursue a virtual
trial with accommodations, use of the courtroom here, use of one or more
interpreters, assuming we can get the interpretation to occur simultaneous
with the testimony.’’
After scheduling tentative dates for the virtual trial, the court stated: ‘‘All
right. And . . . just so everyone’s clear on the court’s order, assuming we
have the ability and the technology in February and March of 2021, this
trial will be conducted virtually if simultaneous interpretation to accommo-
date [the respondent] father’s needs can be effectuated. Anything else
today?’’
The respondent’s counsel, along with counsel for all parties involved,
responded in the negative, and the court adjourned. Thus, although the
respondent’s counsel raised the right to confrontation in his written objec-
tion, he failed to advance that claim at the hearing on his objection and,
instead, seemed to accept the court’s solution of in-court concurrent inter-
pretation. On appeal, the respondent father concedes that his due process
claim based on his right of confrontation was not preserved.