Pandemic-era video trials pass muster

Constitutionality upheld, claims dismissed that remote conferences violated parents’ rights in child custody cases

The state Supreme Court upheld the constitutionality of some of the remote, video conference trials that became a pandemic-era fixture of the court system when it dismissed claims by parents in three child custody disputes that the remote procedures cost them the ability to physically confront witnesses and other rights.

But the court acknowledged that access to the high-tech services and equipment that enable remote teleconferencing varies in Connecticut and elsewhere by race, age, income and location, and it said courts must take steps to ensure equal access if virtual trials are to be just.

The cases on which the court released decisions late Monday involved the termination by the state of parental rights in child neglect cases. In all three cases, judges ruled after remote trials instituted by the judicial branch as a measure to protect against the spread of COVID-19 infections.

Justice Andrew Mcdonald wrote the unanimous decisions in which the identities of family members were concealed to protect children.

In one case, In re Annesa J, the court said the video trial was repeatedly interrupted by technical glitches, but the trial judge was able to quickly remedy the problems and “using the virtual technology ... was able to assess the demeanor and credibility of the witnesses.’’

“There were several technical issues throughout trial, such as background noise interrupting the audio of a witness and video ‘freezing,’ during an expert’s testimony,” the Supreme Court said.

“In each instance, the trial court took corrective measures, including directing that a witness stop testifying until the background noise abated, directing an attorney to reposition her camera, and sending a new Microsoft Teams link when technical difficulties persisted,” the ruling said. “In keeping with its offer at the start of trial, the court also regularly paused the proceedings so that the parties could confer with their counsel. Additionally, at no time did the respondents ask for technical assistance or accommodations from the court.”

In a second case, In Re Vada V Et al, the parents claimed in their appeal that they were indigent and lacked the electronic equipment they needed to participate meaningfully in the trial. The court said the claim was not persuasive. It said the trial record showed that the parents and their lawyers told their trial judge, repeatedly, that

the were able to participate fully by use of mobile telephones.

The court declined in a third case, IN RE AISJAHA N, to act on a request from a parent to use its supervisory authority over the court system to establish a new rule which would require a trial court to make sure parties to child protection cases either appear by two-way videoconferencing technology or clearly waive the right to do so.

In that case, a parent who was described as mentally unstable, was allowed after the close of evidence in the case, to testify only by audio rather than video using a telephone. The high court said it was unable to formulate a new rule because of, among other things, the lack of an evidentiary record in the case.

“Although we do not address whether a trial court may conduct virtual trials in circumstances other than during a pandemic, we take this opportunity to emphasize the importance of ensuring equal access to justice when a court undertakes a virtual trial,” the court said. “Equal access to justice is particularly significant in the context of virtual hearings and trials given the digital divide.”

The court said the judicial branch, over which it exercises supervisory authority, has published a “Connecticut Guide to Remote Hearings for Attorneys and Self-represented Parties” to direct those preparing for remote court hearings.

“It is also important that trial courts, when undertaking virtual proceedings, ensure the proper functioning of technology,” the court said.

“If the technology is not functioning properly, the court must take corrective measures then to remedy the technological problem, or continue the case until either it can be conducted in person or the technology problem can be resolved,” according to the ruling.