In re Aisjaha N.

• Decision Date: 20 June 2022
• Docket Number: SC 20612
• Parties: IN RE AISJAHA N.
• Court: Connecticut Supreme Court

343 Conn. 709

275 A.3d 1181

IN RE AISJAHA N.^*

SC 20612

Supreme Court of Connecticut.

Argued November 18, 2021

Officially released June 20, 2022^**

Albert J. Oneto IV, assigned counsel, for the appellant (respondent mother).

Evan O'Roark, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Andrei V. Tarutin, assistant attorney general, for the appellee (petitioner).

Douglas H. Butler, Giovanna Shay, Shelley White, Nilda R. Havrilla, Agata Raszczyk-Lawska, Raphael Podolsky and Janice J. Chiaretto filed a brief for the Greater Hartford Legal Aid et al. as amici curiae.

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

This appeal is one of the companion cases to In re Annessa J. , 343 Conn. 642, ––– A.3d –––– (2022), which we also decide today. The respondent mother, Jacqueline H., appeals from the decision of the trial court, which vested permanent legal guardianship of Jacqueline's minor child, Aisjaha N., in a relative, pursuant to General Statutes § 46b-129 (j) (6). On appeal, Jacqueline claims that she was denied due process of law when the trial court failed to ensure that she appeared by two-way video technology at a virtual trial, conducted via Microsoft Teams,¹ on the motion for permanent legal guardianship. Alternatively, Jacqueline asks this court to reverse the decision of the trial court pursuant to our supervisory authority over the administration of justice. Specifically, she asks this court to adopt a procedural rule requiring that a trial court, before conducting a virtual 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. We affirm the decision of the trial court.

The record reveals the following relevant facts and procedural history. Jacqueline has a history of involvement with the Department of Children and Families as a result of her substance abuse, poor parenting, and untreated mental health issues, including schizophrenia

and psychotic disorder. Relevant to this appeal, in 2018, the department became involved with Jacqueline due to her continued unstable mental health. Specifically, Jacqueline's adult daughter reported that Jacqueline was behaving erratically, telling Aisjaha that "someone entered [Jacqueline's] home while she was out, the water was unsafe to drink, it was not safe for her to be at home, and that someone was coming to get them." As a result of this behavior, Aisjaha asked her older sister if she could live with her. Concerned about Jacqueline's mental health, Aisjaha's older sister called the police. The police responded to Jacqueline's home, and Jacqueline was subsequently hospitalized under a seventy-two hour psychiatric hold. Aisjaha's older sister took Aisjaha to her home, where they met with a department social worker. While investigating the events surrounding Jacqueline's hospitalization, the department learned that Jacqueline had been forcing Aisjaha, who was then eight years old, to ingest expired human immunodeficiency

virus (HIV) medication because Jacqueline believed that a man with HIV had sexually abused Aisjaha. Aisjaha, however, denied having ever been inappropriately touched, and a previous medical examination revealed no sexual trauma. Aisjaha also reported that Jacqueline "yells and is explosive, in that she throws things around in the home, and then vomits after being explosive."

After a department social worker met with Jacqueline following her release from the hospital, the department placed Aisjaha in the home of her maternal grandmother, and the petitioner, the Commissioner of Children and Families, sought an order of temporary custody of Aisjaha. Thereafter, the trial court, Hon. Maurice B. Mosley , judge trial referee, issued the order vesting temporary custody of Aisjaha in the petitioner. At that time, the petitioner also filed a petition alleging that Aisjaha had been neglected. At the initial hearing on the neglect petition, the trial court ordered Jacqueline to undergo a competency evaluation. She participated in that evaluation. The expert who evaluated her later testified that Jacqueline was not competent but could be restored to competency within sixty days if she engaged in mental health treatment, adhered to any prescribed medication, and abstained from smoking marijuana. Two months later, the trial court, Hon. William T. Cremins , judge trial referee, found that Jacqueline had not been cooperating with the entities providing her certain services and had not been restored to competency. The court appointed a guardian ad litem for Jacqueline and set the case down for trial on the neglect petition.

Jacqueline did not appear for the trial, and the trial court, Hon. John Turner , judge trial referee, proceeded with the trial in her absence, over the objections of Jacqueline's counsel and the guardian ad litem. Judge Turner thereafter adjudicated Aisjaha neglected and ordered her committed to the care and custody of the petitioner. The Appellate Court subsequently affirmed the judgment of the trial court. In re Aisjaha N. , 199 Conn. App. 485, 498, 237 A.3d 52, cert. denied, 335 Conn. 943, 237 A.3d 2 (2020).

Approximately one year after the trial court committed Aisjaha to the petitioner's care, the petitioner filed a motion for permanent legal guardianship, requesting that the trial court vest permanent legal guardianship of Aisjaha in her maternal grandmother pursuant to § 46b-129 (j).² Jacqueline objected to the petitioner's motion for permanent legal guardianship. Jacqueline's counsel requested that the trial on the motion be conducted via Microsoft Teams due to the COVID-19 pandemic. On January 25, 2021, the trial court, Hon. William T. Cremins , judge trial referee, held a virtual trial on the petitioner's motion for permanent legal guardianship via Microsoft Teams. The petitioner's evidence showed that Jacqueline still had not engaged in any mental health treatment and that she remained "adamant that she didn't need mental health services." The petitioner proved, by clear and convincing evidence, one of the grounds for termination of parental rights, namely, the failure to rehabilitate. The petitioner's evidence also demonstrated that Aisjaha was "flourishing" while living with her maternal grandmother.

Relevant to this appeal, when the maternal grandmother logged into the trial via Microsoft Teams, the trial court and all counsel could hear her but could not see her on video. Jacqueline's counsel objected to the maternal grandmother's testifying via audio only, and the court stated that, "if there is an objection to the witness testifying by audio only, and she can't get onto the call as a video, then we'll have to continue the [case] until we can either set it up as live or get her access." After Aisjaha's counsel raised an objection, the court reiterated: "[I]f there's any objection to proceeding this way, then we will have to continue the case. ... [I]f there's any objection at all, [because] this is an unusual way to proceed, I'm not going to go forward." The parties ultimately agreed to allow the maternal grandmother to state certain facts for the record.

After the petitioner's counsel called her last witness, Jacqueline's counsel asked the trial court for a recess, so that she could "call [Jacqueline] to confer with her about whether ... she still wishes to be heard." The court agreed. Following the recess, Jacqueline's counsel stated that "[Jacqueline] does not wish to testify." Thereafter, during her closing argument, Aisjaha's counsel argued in favor of vesting permanent legal guardianship of Aisjaha in her maternal grandmother, stating that, "since the beginning of the case, Aisjaha has been very clear that she wants to continue living with ... her grandmother." After the closing arguments of the petitioner's counsel and Jacqueline's counsel, during which Jacqueline repeatedly interrupted the proceedings, the court asked whether Jacqueline's counsel needed a recess to again speak with Jacqueline. Counsel responded in the affirmative, and the court recessed. Jacqueline's counsel then notified the court: "I realize that we've rested and done closing; [Jacqueline], however, is insisting she really wants to be heard, and I've advised against it, but, at this point in time, I'm asking if she can be heard." The court allowed Jacqueline to testify, despite evidence having already been closed. Before Jacqueline testified, however, the court stated that it was having difficulty hearing her due to background noise. Jacqueline replied, "[o]h, I'm outside. I'm walking inside now." She then asked, "can you hear me now?" The court replied, "[y]eah, that's much better." Prior to the start of Jacqueline's testimony, the petitioner's counsel noted, for the record, that Jacqueline "is currently just on the phone; she's not on video." The court asked whether anyone had an objection to proceeding with Jacqueline testifying "on audio, rather than on audio and video." None of the parties objected; nor did Jacqueline's guardian ad litem. Jacqueline then briefly testified in narrative fashion. All parties declined to cross-examine her.

In its memorandum of decision, the trial court noted that Jacqueline had been represented by counsel and that she and her guardian ad litem "were present" for trial on the petitioner's motion for permanent legal guardianship. The court found that the petitioner had satisfied her burden of proving each element for the establishment of a permanent legal guardianship. Accordingly, the trial court granted the petitioner's motion for permanent legal guardianship and vested permanent legal guardianship of Aisjaha in her maternal grandmother. This appeal followed.³

On appeal, Jacqueline raises two claims. First, she claims that she was denied due process of law when the trial court failed to ensure that she appeared by two-way video...