WITH THE COVID-19 pandemic upending judicial proceedings, courts have ruled that under certain circumstances, a criminal trial can be held via Zoom. Now the same question is arising in Juvenile Court: Can a termination of parental rights hearing be held virtually?
A hearing terminating a parent’s right to their child has been referred to as the “civil death penalty,” because it severs forever that legal bond. Parental rights hearings are conducted like a trial, with attorneys and witnesses. While there are serious downsides to delaying such proceedings indefinitely – namely, delaying a child’s chance at adoption – advocates for families worry that holding trials via Zoom infringes on parents’ rights, particularly the rights of poor parents who may struggle with technology.
“Parents involved in care and protection cases tend to be poor, are disproportionately Black and brown and under-resourced in many ways,” said Jamie Sabino, an attorney at the Massachusetts Law Reform Institute, a poverty law agency. “For many of them, the virtual world is not part of the world they operate in.”
The Supreme Judicial Court is soliciting amicus briefs on the topic of whether a hearing to terminate parental rights can be held online over the objection of a parent, as long as safeguards are in place, or whether that violates the parent’s right to due process. How the SJC rules in the case will set the ground rules for termination of parental rights hearings going forward.
The briefs in the case are impounded, and the mother’s attorney said she could not speak about it because the case is confidential, as are all termination of parental rights cases. The Department of Children and Families, the opposing party in the case, also declined to comment.
But a summary of the case was included in a memo written by Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, and other attorneys in the public defender’s office. The memo was included in the agenda for a public meeting, at which the CPCS board voted unanimously to submit a brief in support of the mother.
The memo says that the trial in this case “was, to put it bluntly, a mess.” The mother was representing herself with an attorney on standby and participated in the online trial from her car in order to get a better internet connection. She lost her connection midway through the first of three witnesses and was unable to hear the direct examination of the other two. The judge continued with the trial despite her connectivity issues.
Today, official Trial Court policy is that termination of parental rights hearings are required to be held in person – but they can be made virtual on a case-by-case basis, with the decision made by the judge “with the agreement of all parties.” But that policy was only implemented in June 2021. Sherrie Krasner, an attorney representing the child in the case before the SJC, said the trial occurred in September 2020, when Juvenile Court was not holding in-person trials.
Previously, the SJC has held that criminal proceedings may be conducted via Zoom, with certain safeguards. In Commonwealth v. Martin Curran, the defendant agreed to a virtual trial, and the court ruled that a criminal trial can be held virtually with conditions, like ensuring communication between the defendant and their attorney and ensuring public access, if the defendant agrees. In John Vasquez Diaz v. Commonwealth, where the defendant objected to a motion hearing being held virtually, the court ruled that the hearing should not have gone forward. But the ruling was based on specific facts of the case, and the SJC said there may be evidentiary hearings where a judge is justified in holding a virtual hearing over a defendant’s objection.
As in criminal cases, there are competing interests in parental rights cases. Krasner said a child in foster care has a right to a final disposition in their case, and the opportunity for permanent resolution of their status. Krasner said her client was 10 years old when the trial occurred and had been in Department of Children and Families care for six years. “If the trial is delayed that much longer, it’s that much more limbo for her, that much more of her voice not being heard,” Krasner said.
At the same time, family law attorneys point out the enormous difficulties parents face participating in virtual trials, and the importance of protecting parents’ rights. One attorney who handles these cases worried that a virtual trial “depersonalizes and dehumanizes” the parent, who appears as a box on a screen. Several organizations plan to ask the SJC to either disallow virtual trials over a participant’s objection, or at least require significant safeguards to ensure parents can fully participate.
Ann O’Connor, attorney in charge at the Worcester public defenders’ office, said the Committee for Public Counsel Services will argue that parental rights trials should always be held in person if there is no state of emergency. In an emergency, CPCS will argue that virtual trials can only be conducted with safeguards in place to protect each party’s rights, similar to the safeguards that the SJC has established for criminal cases.
The CPCS memo noted that the “ideal” virtual conditions envisioned in the SJC rulings in criminal cases rarely exist in real life, where indigent parents often participate in trials on small smartphones with limited data and patchy connectivity. “The constitutionality of Zoom trials is not an intellectual exercise, but a matter of technological disparity and racial and socio-economic inequity,” the memo said. “Lost audio and video (or no video whatsoever), dropped witness testimony, and spotty attorney-client communication are the norm.”
Sabino said when she worked on care and protection cases, parents often had trouble grasping the situation even when they were sitting in court. Some parents had developmental delays and almost all had experienced trauma. Sabino said the Massachusetts Law Reform Institute supports flexibility. Some parents might want a virtual trial to avoid the challenges of transportation or childcare. But if parents are uncomfortable with technology, she said, they must have a right to appear in person. “If being virtual in any way puts a strain on a parent trying to make their case to the court, that’s deeply unfair,” Sabino said. “They should have every opportunity to make the case in the manner they wish to do it.”
Robert LeRoux Hernandez, staff attorney for Mental Health Legal Advisors Committee, which provides legal and policy advocacy for people with mental health challenges, said many parents facing termination of parental rights hearings have a disability, such as a mental health issue or substance use disorder. “The physical presence of the person at court gives the judge a full better understanding of what’s going on, for the impact on the person, for the relationship of the person to the children,” Hernandez said. Hernandez plans to argue in a brief that if a participant with a disability objects to a virtual hearing, that should be enough to trigger an in-person hearing, without the person having to prove how they will be harmed. “The choice should be given to the parent because the loss is so great,” Hernandez said.
Cristina and Debbie Freitas, attorneys and sisters who practice child welfare law, said in the eastern Massachusetts counties where they practice, some courts are holding all parental rights hearings in person, while others are holding them virtually and granting a continuance if a party objects.
Cristina Freitas said there is a clear difference in the perceived gravity of a trial if it occurs virtually or in person. “The reality is the courtroom serves as a crucible to get the evidence,” she said. “It’s not the same when you sit behind the screen in your pajamas in your house.” As in the case now before the SJC, she has also been involved in hearings where people’s connections drop mid-hearing.
Debbie Freitas said there is some advantage to having pretrial conferences conducted virtually, so parents do not have to take a whole day off work. But in a trial where evidence is being presented and witnesses are being examined, she believes that the proceedings should be done in person whenever possible.
Cristina Freitas noted that the hearings generally involve people of color and low-income individuals who have spotty internet, less sophisticated devices, and smaller apartments, where they can’t participate away from other family members — all of which make it harder to participate virtually. “When you participate via cellphone…there’s no comparison to actually being in the courtroom,” she said.