-: Okay, Attorney Bancroft.
-: Thank you, your honor.
May it please the court
Allison Bancroft on behalf of mother,
who is also with me in the courtroom today.
This court in Vasquez Diaz,
held that virtual hearings may satisfy due process
if they approximate an in-person hearing
and can adequately safeguard a party's right
to hear the testimony,
to see the witnesses testify against them,
to give their testimony,
and to privately consult with their attorneys.
But the almost ideal video circumstances in Vasquez Diaz
were not the circumstances of this case.
What happened in this Zoom trial,
which was really only a telephone trial for my client
was a technological disaster and those errors
that occurred at trial deprived her of a fair trial
in a case where her rights at stake are so fundamental.
Judge Cypher: Counsel, can I ask you a question?
There was a hearing,
a termination proceeding that was vacated.
-: Yes, your honor. -: Can you tell me
a little bit it about that, what happened there?
-: In February of 2020, there was a prior termination trial.
The judge in that case
mistakenly issued a premature decision
without hearing the testimony in mother's case.
And as a result, mother was granted a new trial
and that judge recused himself in March of 2020.
And this trial then took place following that.
Judge: Okay.
-: In this Vasquez Diaz concurrence,
Judge Kafker noted that not all litigants
have access to stable, reliable internet,
or Zoom ready devices,
and not all have enough familiarity with Zoom
to fully participate in a virtual hearing.
In this case, the trial court moved forward
with a Zoom trial over pro se mother's objection,
knowing that pro se mother only had a cell phone
with no access to video and knowing that
her audio was terribly flawed.
There were no pretrial safeguards that took place
in this trial to ensure that mother had access
to any of those things that are necessary such as a laptop,
a desktop,
reliable internet. -: All right
before we go through that, one of other question,
and that is that the judge made some findings
about the mother hanging up.
Are you saying those are clearly erroneous?
-: Yes, your honor.
And before I discuss the myriad of ways
that mother was denied through the technology issues
at trial, I would like to discuss the judge's
clearly erroneous findings that mother chose
to absent herself during this trial.
First in the case summary by the judge,
it's on record appendix at page 56,
the judge sets out mother's behavior during trial,
and then echoes that in his conclusion of law number 22.
And he states that mother hung up on the first day of trial,
that he took a negative inference against her
and that she rejoined.
In the conclusion he states that she disconnected
during the first day.
And that finding is clearly erroneous.
It's clear from the transcript that what happened
on the first day of trial
was that mother was connected throughout the testimony
of that first witness,
that the judge was unable to hear her
at the time when it came for cross examination
and the judge removed her,
noting that he was assuming it was a technical issue
and stating on the record that he did not know
if mother's absence was purposeful.
To the extent that he could have believed
that that issue was related to mother's telephone
as opposed to the Zoom connection of the court,
immediately, as soon as the second witness
started to testify, the exact same issue occurred
during the testimony of the second witness.
The second witness was connected.
The court noticed that it was unable to hear her.
The court removed her from the zoom feed
and she was able to rejoin.
The court then took the testimony of a third witness.
There was an issue with Zoom during her testimony,
the court removed her.
She was unable to rejoin and then had to call in
from another device.
From the judge's clearly erroneous findings,
and I set them out in detail in my brief,
but the judge then took a number of negative inferences
in which he stated that mother refused to testify
and that mother refused to cross examine witnesses.
The judge abused his discretion.
-: But we do have day number two when she clearly says,
you know, a pox on your house, it's over, right?
-: On day number two, there was an instance in which mother
announced that she was done with the proceeding, hung up.
And I would say that in juvenile court cases,
it does sometimes occur that parents
do walk out of the courtroom, very emotional, very upset.
They're able to gather themselves.
-: I get your argument and you've laid out well,
as far as the factual findings in your argument,
that is clearly erroneous.
The factual foundation for her being unable to connect
all come in the affidavit for motion for new trial, correct?
-: No.
So they're the Zoom issues,
mother's connection issues are on the record.
There was a problem on the second day of trial,
when mother first connected with the court,
it wasn't transcribed.
And so that had to be reconstructed,
it's in the record, appendix at pages 162
and mother immediately,
when she came back on the second day,
she explained to the court that she had service.
She had really bad service on the first day of trial.
She also told the judge that she wasn't able to hear
the entire testimony of the first witness.
-: Okay.
So, 'cause I guess the point I was trying to make was that
she files a motion for a new trial
with the factual basis for it.
And the judge just denies it the same day.
There's no factual findings to say otherwise, correct?
-: That is correct.
He did issue his findings in the case
approximately a week or two later,
but there were no findings on the mother's new trial,
which included an affidavit with additional
information about her lack of service issues.
-: Are you done? -: Yeah, I am, thank you.
-: So in September of 2020, right?
This is when the trial's taking place.
The courts are closed right at this point?
-: Yes. -: What are they doing
out there?
'Cause we've got kids,
I understand that there are all kinds of problems
with this trial, I get it.
But an in-person trial wasn't possible then, right?
The courts are closed, is that correct?
-: That is correct.
-: So given we're acting in the best interest of the child,
what should have happened?
I understand you don't like this
and there are good reasons not to like it,
but tell me what should have happened
given this thing has been going on a long time,
the child's 10, right, at this point?
-: The child's 11 today. -: Today.
Is the child, okay.
So the child. -: Yes.
-: Tell me what should have happened?
-: So there are a number of things which could have happened.
Essentially the motion for an in-person trial
was a motion to continue trial
until such time as it could be in person.
If the judge.
-: So we had a similar to Vasquez,
a request for a continuance here,
'cause in Vasquez there's a request for continuance,
it's denied, right? -: Right.
-: If I remember it correctly.
-: And so this was titled a motion for an in-person trial,
but because it was an impossibility,
it could have been treated like her prior motion was,
as a motion to continue until such a time
as it could be conducted.
There are always concerns about the child's best interest
and the need for permanency.
And those interests could have been satisfied
while also affording mother her due process
by doing a number of things.
The first would have been allowing mother a short recess
to try to get the technology necessary
in order to participate on video during the Zoom trial,
so she didn't have to do it over the telephone.
Male Judge: Was that given an option to the judge?
-: I'm sorry?
-: Did she give this as an option to the judge?
-: She didn't.
The court knew at the beginning of trial
that she only had telephone access
and the court does have a responsibility
in order to facilitate meaningful participation.
And in this case, mother argues that her due process
would've been facilitated
had she been able to use all of the functions of Zoom,
like the other parties and particularly in this case
where she was pro se,
she should have been able to see the witnesses
testify against her. -: But,
and I'm sorry for not knowing the record better,
but did she say, hey, give me give an hour
and I'll grab a laptop?
-: She did not say that.
And truthfully given her indigent status,
she didn't have any options.
-: Okay so when you're saying
the judge should have done this,
it really kind of rings tall
because those really weren't options to the judge, right?
-: Well, what I'm saying is that the judge
should have recognized that this was an issue
and made an inquiry to determine whether or not
there was some way that she could participate via
video before proceeding directly to the trial
with mother over the telephone.
But there are other ways.
-: Some courts have Zoom rooms.
I don't know if they had them back then,
but there's an opportunity to be able to
not be in the courtroom, separated,
but still participate by Zoom.
Did that exist at this time?
-: I don't know if that existed at this courthouse.
It certainly wasn't an option that was given to mother
and everything was closed at the time,
the public libraries were closed.
She had no way to obtain the technology that she needed.
But again, there.
-: Was any of this discussed?
I mean, I haven't read the transcripts of this,
but when this is going on
and clearly, she can't hear whatever,
and she's got standby council, right?
Alison: She does.
-: Standby council is on the video.
Is there any discussion of, okay,
we have to something here
or basically just get her back on the phone,
was the discussion?
-: Right.
Standby counsel alerted the court
that she didn't have video capacity.
Other than that standby counsel was there for mother,
if mother had questions and mother wasn't able to
access standby counsel at all during the trial.
-: Wait was there a point in time where she wanted to do that
and was not given the opportunity to do that,
to access her standby counsel?
-: Well, the point that I'm trying to make is that
if there was, she had no opportunity,
the only device she had was her cell phone.
She was listening to the trial on her cell phone
and the court in Vasquez Diaz when they talk about those
parts of Zoom that safeguard someone's due process rights,
they include the fact that there's a breakout room,
so if you have a question for your attorney
or your standby counsel, you'd have the ability to do so.
And mother didn't have, because of her access point,
she had none of the capabilities of Zoom
or any of those protections that would be afforded to Zoom
that would approximate an in-person trial.
But getting back to Judge Kafker's question about
what else the court could have done
in order to keep this trial moving
and preserve mother's due process rights,
certainly at the time when the judge discovered
that mother couldn't be heard,
instead of simply moving forward
with the other two witnesses, he could have stopped
the trial at that time,
put those two witnesses over to the following day
instead of taking their testimony,
knowing that there was an issue
about the technology. -: Didn't he give
the mother an opportunity to recall these witnesses?
-: On the second day. -: On the second day?
-: On the second day of trial,
after mother explained her issues,
he told her that she had the opportunity
to cross-examine them. -: Right.
-: But he knew she hadn't heard most of the first witness.
And she had heard none of the second or third witness,
'cause he had removed her.
So the opportunity to cross examine witnesses
whose testimony you have not heard on direct is largely.
-: Well he had removed her 'cause of her misconduct, correct?
-: No. -: No, your honor.
He had removed her because he couldn't hear her response
when he asked her to cross examine the first witness.
That was a Zoom related issue.
-: But that's day one, I'm sorry.
-: Day one. -: Yeah.
I'm confusing in day one and day two.
-: Right.
-: In terms of the timeliness,
I noticed the decision doesn't get issued
until June of 2021, right?
So we have a hearing in September.
I take it the main reason for doing this is timing.
Does the judge dispense with consent at the trial
and then just doesn't issue the decision
for nine months or whatever it is?
Or is there no decision whatsoever in this case
until June of 2021?
-: So if I understand your question,
he issued a termination decree immediately after.
-: Immediately after, okay. -: Right, so soon thereafter.
But the findings of facts didn't issue
until the following summer.
-: Right.
And I take it this child's pre-adoptive home
is still in place, I'll ask the child that, is that?
-: It's my understanding that that's so,
but it's certainly a question.
-: Yeah, okay. -: Better answered
by child's counsel.
I see.
-: The child is 11 years old now?
-: Yes she is, your honor.
-: And this had gone on for, I can't remember,
you've managed to stay hired,
but your client has fired six or seven lawyers in between.
Is that delaying the trial proceedings here?
-: No. -: Go ahead, sorry.
-: No, your honor, mother did have
a number of prior attorneys.
Two of them to my knowledge became judges.
One was allowed to withdraw because she became a judge
and one, it was shortly thereafter.
There were three attorneys who had
filed a notice of appearance and then only were
attorney of record for a month or two.
So there were really only a few attorneys
who actually substantively represented mother.
-: [Chief Justice Budd] Okay, any other questions?
Female: No, thanks.
Thank you. -: Thank you, your honor.
-: Okay, next we have Attorney Krasner.
-: May it please the court, Sherry Krasner
on behalf of the child.
As an attorney who devotes a significant portion
of my practice to child welfare appeals,
I look forward to a post-pandemic world
and guidance from this court as to how in such a world
virtual trials can be conducted
that afford all the litigants due process,
but that's not how I'm here today.
I'm here on behalf of one child,
a child who is currently 11 years old,
came into custody of DCF when she was four years old
and remains in the temporary custody of DCF today,
seven years later.
She's also a child who's very clear on the record
has desired permanency and stability,
as far back as October of 2018.
Even though she was only eight years old,
the guardian ad litem found that she articulated a clear
and intelligent and persuasive reasons
for no longer wanting to have any contact
or visits with her mother.
And the record here also makes it clear
that these proceedings could have
and should have ended sometime after October 14th of 2020.
And that is because mother failed a pro se litigant,
failed to timely file her notice of appeal
within the 30 day period.
Mother was pro se, there's no doubt that mother was pro se
and cases make it clear that the obligations
on a pro se litigant to follow the rules of the court exist.
This court said it in the rescript opinion of Brisco
in 2019, relying on older precedents
about the obligations of a pro se litigant.
-: I don't remember,
but do we have orders in play at this time
delaying when appeals,
do we have whatever the SJC COVID orders
in play at this point
that would've extended those timeframes?
-: There was no tolling.
Are you suggesting that because of the pandemic
that there was some sort of tolling?
-: Well we've issued a bunch of orders,
I don't know what the status was in September of 2020.
-: Those were not in effect
or they certainly didn't affect this case.
The decision issued on September 14th of 2020
and mother as a pro litigant had until October 14th of 2020
to file her notice of appeal, she did not.
Her standby counsel and we have nothing on this record
to indicate that mother directed her standby counsel
to take that job on her behalf.
It was nothing other than simple oversight.
Male Judge: So you're arguing that the judge abused
his discretion in finding excusable neglect?
-: There was no excusable neglect
and because there was no excusable neglect,
the judge's discretion to allow the late filing
and to act on the motion to strike the late filing,
it just doesn't exist.
Even the cases cited.
-: Be careful what you wish for, Ms. Krasner,
given what you do,
just, this is a little odd to having listened to you for 20.
Sherry: I'm sorry.
I can't hear you.
-: Having listened to you for 20 years,
I'm a little surprised by this one, to be honest.
I could see your sister over there presenting this,
but be careful what you wish for.
That's all I'm telling you.
Female: Just representing her client.
-: It is true, I've been before this court for a long time.
I represent parents and I want parents to be afforded
every protection that they are afforded,
but that protection is cabined by the rules.
It is. -: Can I ask you
about that protection for the parents bit?
Why wasn't the right thing to do, the required thing to do
under due process, after the judge realized,
I can't hear mom and bounced her off,
standby counsel's trying to get her, can't get her back,
why isn't the right thing to do at that point
to just adjourn?
Why go forward with two other witnesses?
And you know, it just seems inconsistent
with due process to me to say,
well, we have no idea why mom's not here,
it's looks like a technical difficulty.
Why not just adjourn and say, let's try again on Tuesday?
-: But that is essentially what the judge did here.
-: But didn't he go forward with the second witness
and then the third witness,
each of whom had technical issues as well?
-: But he kept saying that first counsel for DCF
asked that a negative (indistinct) be drawn against mother.
The judge refused to do that.
-: Right. -: He repeated
several times that he was going to afford mother
the opportunity to recall any witness.
And that second day of trial existed
so that mother could appear.
DCF was prepared to rest its case on that Wednesday.
And the only reason that there was in fact
a hearing on that Friday
and a summons issued for mother's appearance,
which went to a wrong address because mother hadn't
provided the court with the correct address,
which is another issue that goes to her rights to appeal,
but that second day existed for mother to be able to.
-: Isn't that a big difference though?
That mom can recall the witnesses,
but mom can't cross examine?
So she doesn't know what they said.
-: Perhaps, perhaps if this was a case
in which mother did not have standby counsel,
then I think that argument may been more palatable.
But in her brief, mother argues that.
-: Standby council was sort of told to stand down, right?
-: Right. -: Standby council
didn't ask any questions, didn't step in.
Just told her she was not on the phone,
right? -: Right,
but there was no question that standby council,
excuse me, was connected for the entire time.
And even in her brief, mother argues
that the court could have allowed mother
to watch any recorded testimony she missed
and then recall witnesses as necessary.
And essentially that is what
existed because of standby counsel, who was.
-: Counsel, but hold on for one second.
We're in the middle of this pandemic
and certainly one of the things that we talked about
in Vasquez Diaz was talking about whether or not
we really had to go forward.
All of these witnesses were witnesses that worked for
the department.
They weren't percipient witnesses.
They could have been called at any time.
What we're talking about here was determination
of a person's parental rights,
probably the most personal thing
and the most heartbreaking thing
that anybody could probably go through.
Back to Justice Wendlandt's point,
when I'm looking at the transcript,
everything that militates in favor of suspension is there.
In fact, the judge even says,
I'm probably creating an appealable issue here, right?
He says, I hate this, right?
The clerk's talking about how much they hate it.
The judge is talking about how much they hate it.
No one can hear anybody.
The judge keeps telling the witnesses,
come in, I can't hear you, lean in forward.
Everyone's having difficulty hearing everybody.
And yet it's just okay that the parent isn't there
and that no one knows why?
-: Several things, absolutely,
the parents' rights predominate, they do
but these are trials about the best interest of the child.
-: Sure. -: In September of 2020.
-: And in September of 2020,
the child had just been put in their pre-adoptive home,
was doing what?
It was in August of that month,
wasn't it? -: No.
It was in August of 2018. -: Two years.
-: Well she was in the pre-adoptive home for two years
and that wasn't going to change, right?
-: But it is a pre-adoptive home.
-: Understood.
But the point is the status quo was not going to change
with the continuance.
That's the point, right?
-: The child would still not have permanency and stability.
And this was a child old enough,
perhaps if we're talking about a three year old child,
who's still living in the same home,
doesn't know the intricacies of what it is to be adopted
versus to be in a pre-adoptive home.
This was a child who was 10 years old,
who had refused to see her mother for two years,
considered to be a knowing refusal.
Justice Georges: Sure.
-: There are findings of fact
about the mother coming to homes in the community
and saying, my daughter has been stolen.
This was not an infinite home.
-: But I'm not asking this esoterically.
I'm weighing this in terms of whether or not
there's a due process violation here.
So I'm saying, what is the governmental interest
when she's been in the pre-adoptive home for two years,
all of the witnesses work for the department
and easily could, one had left and gone to work for,
I think the City of Malden or something.
So what is the governmental interest
in pressing forward under these circumstances?
Sherry: But mother at this trial
did not make this request.
At the beginning of the trial,
mother asked for an in-person trial.
And the court said, we're not doing in-person trials now.
Mother did not object on the following.
And then mother participated.
Judge Kafker: Well she did object, she objected.
Sherry: I'm sorry, your honor?
Judge Kafker: She did object, she wanted an in person.
-: But when the judge said, I'm denying your motion,
we're not doing in person trials,
she just accepted that and went forward with the trial.
She didn't say, I'm hanging up now because
I only want
an in-person trial. -: She should've done more?
I mean, I'm not even sure a lawyer would've done more,
right?
I object, your honor.
Note the record, right?
I mean.
-: A lawyer certainly would've preserved that issue.
Justice Kafker: More formally, that's all, yeah.
-: But I, you know, I see my time is running out.
I ask the court to read those 141 findings of fact,
and the only ones that mother objects to
are ones that go to credibility.
That's something clearly within the purview
of the trial judge.
I ask the court also to think about those findings
in the aggregate and about mother's propensity for violence,
mother's failure to follow her service plan
and all of those things, whether they add up
in what would be in the best interest of the child.
And I go back to my first argument that
mother did not timely file her notice and that this,
we shouldn't even be here today.
And I would ask the court to issue an order of dismissal.
And if the court doesn't do that,
to act as promptly as it can to afford this child stability.
Thank you.
-: Thank you.
Okay, Attorney Murphy.
-: Good afternoon, may it please the court,
Lynn Murphy for the Department of Children and Families.
Since mother was given an opportunity
to participate in the proceedings,
we do not have a due process violation.
-: Was she afforded the opportunity
to meaningfully participate?
Forget, just participate, meaningfully participate?
-: Yes, I believe she was. -: How?
-: Judge. -: I mean,
with everything that we know about what happened here,
she didn't have any video access, she's only on the phone.
Most of the testimony comes in and no one even realizes
that she has been disconnected.
At some point and I've really dug into the transcript,
they find out that she's not on,
no one can get a hold of her.
And rather than stop, everything keeps going.
How is that meaningful participation?
This is the first day.
How is that meaningful participation?
-: Because the judge on day two made efforts, excuse me,
made efforts to give mother another opportunity.
And in fact, even though she acted to hang up
in such a abrupt manner,
the judge, you can see from the transcripts.
-: On day two?
-: On day two. -: Okay.
-: I'm gonna give mother another opportunity.
-: Sure, she comes
back in. -: I want to recall witnesses.
We will recall witnesses.
We will do what it takes to provide her an opportunity
to continue to participate and mother did participate.
She did for a short period cross examine
the department's social worker.
And then at that point, she said,
I don't want to question anyone else.
So at that point,
there was really nothing more for the judge to do.
And mother was disinterested in proceeding.
-: Well you overlay disinterest in this and I don't.
I just wonder again, you have someone who's not a lawyer,
who's surrounded by lawyers and a judge,
who quite clearly is giving the indication that
I'm just going to give you an opportunity
to do something in a vacuum.
She hasn't heard anybody from day one, witness two or three.
And who knows how much of witness one.
If you as a lawyer were coming into that day two
and the judge were to say to you,
I'll give you an opportunity to recall
or cross-examine these people, we'd be jumping up and down
saying that's absolutely unfair
because I don't know anything about what those people said
two days ago.
You and I both know that.
We both know that.
So now somebody who has no legal training whatsoever,
who's facing the loss of her child,
now under those circumstances
were supposed to say that's a meaningful opportunity?
-: And again, I think she was provided
with a meaningful opportunity,
but she did not avail herself of those opportunities.
She should have said to the judge,
I did not hear.
In fact, she said the opposite.
She said,
I had to listen to this badgering all day Wednesday.
So we know she did hear something
and she should have been more articulate and said,
this is what I need,
I did not hear these other two social workers,
and I need to talk to my standby counsel.
I need some assistance in this.
-: Was there any obligation on the judge
to ask any further questions of her at some point?
Like, have you heard everything you needed to hear?
You don't want to hear anymore from Wednesday,
so you terminated, but what would make it
able for you to participate today?
Did he have any obligation to ask any of those points
that Justice Georges is raising?
-: Well, I think the judge did make efforts
throughout the two days to involve mother.
He was very concerned about this.
He kept asking standby counsel,
have you had communications with your client?
And the counsel said, yes, she can call me and text me.
And in fact, she did do that.
During the hearing, we did see mother reaching out.
And the judge interrupted the proceedings on day one
and tried a different method,
let's put her in the waiting room, let's disconnect her.
Let's give her 30 minutes.
After lunch the judge says again, okay has anybody heard?
Have you heard, Counsel from your or client?
No, nothing.
So, but, and even then.
-: A little bit like having a wedding without the bride,
though.
I mean, the whole thing seems,
I mean, this is not how we want to do these things, right?
Even in, during the pandemic, this is not Vasquez.
This is a mess.
Maybe there's some harmless error or burden
post that may save you here,
but we really don't wanna say this is adequate, right?
The way this was done is
there's just too many problems with it.
I'm very sympathetic to the fact that this child
has now been in this home for five years
and the trauma that could come from having to redo this,
that, and I don't know well,
are there any cases which says the obligation
in this kind of procedural mess, you know,
is there any harm with error analysis?
'Cause this mother has a lot of problems
that have been identified in this record,
but at the same time we can't judge this fully
because we haven't had a normal trial.
I mean, I don't know how we get out of that box.
This is.
-: Well, I think the circumstances were very challenging.
And mother was outta state at the time.
I mean almost every conceivable situation
unfortunately happened.
And you know, you do have technical problems,
but that is on a spectrum.
Sometimes you have a little, for a better term, glitch
and there were glitches here.
-: But this isn't in the glitch category.
This is like gobbly category.
There's one, she's on the phone and every other person
is on the video, which in and of itself is a disadvantage.
Then she's in and out.
Your sister's made a bunch of arguments
about factual errors.
I don't know if you're gonna want to address those,
but the judge doesn't seem to have completely recounted
the facts correctly.
So we've got errors on the factual stuff.
This is just, I don't know, can we really save this?
You know, and do you want to save this kind of proceeding?
-: Well, I don't think the judge made any factual errors
as to mother's participation.
I think the judge acted within his discretion
to find that she did terminate and her activity is.
-: The first day.
Again, she's done very detailed job.
I've not unlike Justice Georges,
I haven't read this whole transcript yet.
Are we gonna find that the judge's recounting of the facts
on whether she was intentionally terminating or not
on the first day is correct?
Are we gonna find errors there too?
-: I'm so sorry, I didn't understand
the question. -: I apologize.
Talking through the mask is the problem, okay.
But are you confident that her clearly erroneous
arguments are gonna go out the window too
when we read this transcript?
'Cause it doesn't sound like the judge accurately described
when she was sort of intentionally not participating
and when she was just cut off.
-: I think what happened on day one that the judge suspected
that mother was not participating,
but held off making that determination
until it became abundantly clear
that mother did disconnect in an abrupt and angry manner.
And I think if that had not.
Justice Georges: On day one or two?
-: Day two. -: But is that,
can you then impute that conduct on day two to day one?
-: I think you can,
particularly as the judge found when mother made no efforts
to call her counsel, even after the hearing elapsed
and the judge had inquired on that, on day two
and counsel said, no, I have not heard from mother
until today.
-: I think the problem with that is as counsel pointed out
the factual findings that were clearly erroneous.
I agree with you, if we just went by the trial record,
the judge says, I don't believe her, she's rude,
she's cutting me off.
She's saying, you know,
whatever she said on the second day,
so I find that on the first day it's more of the same.
But when the judge does that, he makes factual errors.
That's a huge problem.
Lynn: I'm sorry, I didn't hear the last.
-: The judge makes factual errors in that regard,
that's a problem.
-: Factual errors into what occurred on day one and
day two? -: Right,
as to her, yeah.
-: Well again, I think that the court
did not abuse it's discretion
in finding that mother disconnected on both days.
-: But the findings aren't put in context
of the fact that there are other technical difficulties,
day one.
-: But the other technical difficulties were conquered.
I think that is another piece of it.
Day one, there were technical difficulties
with the social worker,
I think it was the second or the third.
And they were able to overcome those.
And this is what I was trying to make my point about.
-: They weren't able to overcome it, she was
because she couldn't reconnect and she had to call in
and that's in the transcript. -: Right.
-: So it wasn't as if somehow
the clerk and everybody was able to figure all this out.
They actually weren't.
-: Well, I disagree slightly because I think the judge
and the clerk tried very hard through the proceedings.
They tried different methods to get people connected
and they would move people to the waiting room,
disconnect them in order to give them the signal
that they were not being heard.
So I do believe the judge made great efforts here.
Now I will say that in Vasquez Diaz,
the superior court judge did a really good job
of giving instructions prior to the hearing
and laying out if you're disconnected,
this is what you should do.
And I think that would've been helpful here,
but also given the circumstances,
I'm not sure that it would've made any difference
because we do have a parent who has anger management issues.
In fact, this was a significant part of her parental
unfitness.
-: That wouldn't make any difference point.
How does that fit into the doctrine?
Is there a harmless error analysis that goes into this?
We're determining whether or not
there was a constitutional violation.
Do we look beyond that?
You used the word,
it wouldn't have made any difference here.
Say you're right, does that factor into our analysis
in this type of case?
-: Yes, I think so.
Because and the judge did clearly consider
mother's history in regards to that.
-: It wouldn't make any difference
if she was an unwilling participant all the way through,
correct?
-: She was unwilling to participate at times.
And then at other times she did appear
she wanted to participate.
I think that's what makes it a little more difficult.
Because she would terminate and then come back.
And at one point, the judge says, well.
-: And believe me, this judge was dealt a bad hand.
So I think our comments also,
we were talking about due process violations,
but he was dealt a very bad hand.
He did not have the resources or the ability
that the superior court judge had in Vasquez Diaz
for a better hearing
and so let's just put that out on the table as well.
-: Right.
Well, that is why I think guidance from this court
would certainly be helpful. -: Well,
we hope we're not here again doing this.
So we'll see.
Male Judge: Were there other, a lot of these cases
being done by telephone during this time period?
Male Judge: They all were, right?
-: Well, I would hope not.
I mean, and this was six months into the pandemic
and I think people really were trying to, you know,
find their way through it.
And it was unfortunate that mother only had
the telephonic connection, but as we know
from adoption of Edmond,
that we have had situations where the telephone
has had to suffice. -: That was before Zoom, right?
-: It was before Zoom. -: Well, before Zoom adoption.
I take it the prisoners are doing them on Zoom these days
rather than by phone, but I don't know
the answer to that. -: Right, probably, probably.
But if there are no further questions,
I would ask you respectfully to affirm
and rest on my brief.