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Nothing wrong with Zoom trials during the pandemic, but woman deserves a new one because of all the technical glitches at hers, court rules

The Supreme Judicial Court today ordered a new trial for a woman whose child a judge took away after a Zoom-based trial that started with the woman getting cut off and being unable to log in via video to make her pro-se case or even to hear some witnesses.

The case centers on a child who had been put in state custody when she was just four, in 2014, before being placed with a "preadoptive family" in 2018, with whom she remains today. On Sept. 9, 2020, after the state court system had been shut for in-person hearings and trials because of the pandemic, an Essex Juvenile Court judge began a trial on whether to permanently remove the mother's parental rights. According to the SJC summary:

When the trial commenced, the judge, the clerk, the department's attorney, the child's attorney, and the mother's stand-by counsel were each connected to the virtual hearing room by video. The mother, who was self-represented, was not connected, and it quickly became apparent that she had not been provided with instructions on how to join the proceedings. Stand-by counsel informed the judge that she had been in communication with the mother and understood that the mother wanted to participate, but did "not have video capacity." Noting that there was a telephone number that could be used to connect to the Zoom proceedings by telephone, the judge recessed the proceedings for thirty minutes, while stand-by counsel provided the telephone number to the mother.

When the trial resumed, the mother was connected by telephone, permitting her to hear but not to see the proceedings. She informed the judge that she was currently living outside Massachusetts in a home she had rented for the summer due to the pandemic; and she moved to conduct the trial in person. No inquiry was conducted regarding her access to technology that might allow her to participate in the Zoom hearing via video, so as to be on equal footing with the other participants. Instead, the judge denied the mother's motion, stating "we're not doing in-person hearings at this point," and asked the department to call its first witness.

The first witness, who appeared by video, was a department social worker who had been assigned to the case. Shortly after the direct examination began, the technological problems that were to plague the first day of the virtual trial ensued. Specifically, the clerk realized that the mother had been disconnected from the virtual hearing room, but had attempted to rejoin and was in the Zoom "waiting room." With the judge's permission, the clerk readmitted her to the virtual hearing room, and the trial resumed. The record of the first day of the trial does not reflect how much of the first witness's testimony the mother missed before the clerk noticed her absence.

The court continued:

The mother was not the only one to experience technological problems on the first day. The second witness was disconnected at one point and had to be reconnected. Technological issues persisted, and the witness was advised to yell, so as to be heard. Technological issues also affected the department's final witness; indeed, the clerk then had to "knock [the third witness] out" of the Zoom hearing when her connection froze. When she tried to reconnect by video, she could not. Instead, she had to complete her testimony by telephone.

The trial continued and the judge offered the mother the chance to cross-examine witnesses from the first day, and ruled against her.

There is nothing wrong with Zoom trials, the state's highest court says. But the way this woman's trial was conducted - there was no attempt to get her onto a video hookup or provide her a "breakout room" to talk to her stand-by lawyer - means her rights were violated and she deserves a new trial, the justices concluded.

It is clear that on the second day of trial immediately after the mother informed the judge of the significant difficulties she had experienced with her cellular telephone service during the first day, he offered her the chance to cross-examine the witnesses from the first day. The mother, however, had only heard a portion of the testimony of one of those witnesses, if that. Thus, it was unreasonable to expect her to be in a position to conduct meaningful cross- examination. Again, other alternatives likely existed and, at the very least, should have been explored. For example, the trial could have been suspended for a short time to allow the mother to review the testimony of the three witnesses, and then reconvened to allow her to conduct cross-examination. Under the circumstances, the trial in this case was conducted in violation of the mother's right to due process.

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Comments

This is a good ruling.

And as someone who is a frequent expert witness and court evaluator for DCF cases, my reaction is that this ruling is a welcome anomaly. Judges typically rubber stamp most anything DCF does and offer an unconscionable amount of leeway to DCF for substandard and unethical work.

During regular in-person hearings, I see things like the parent's attorney subpoenaing a particular DCF employee who is a necessary witness, the person not showing, and the judge just ruling anyway because DCF workers are interchangeable and subpoenas are just suggestions. Or parents present evidence that what DCF says happened just flat-out did not happen, or evidence like a child's ongoing medical provider saying the medical child's needs were consistently met, and the judge deferring to a DCF worker who decided they weren't.

During the days of complete lockdown, I saw many DCF workers dropping off iPads for parents to use for virtual visits (which, honestly, parents and their children should have just been considered a pod and allowed to visit in person, except that the system prioritizes the comfort of foster parents over the rights of children) if they didn't have suitable technology, and to use for doctor's appointments and everything else for which DCF would have judged them harshly had they not attended. I saw many other DCF workers shrugging and saying the parents without technology missed the zoom meetings thus aren't fit parents. Why on earth would they not bring a parent an iPad for attending court? And why on earth weren't the officers of the lower court paying attention and recessing any time the parent wasn't connected via audio?

Oh, right, because the court hearings are viewed by most judges as a formality for DCF to just do what they want anyway. That's why. They're preparing to issue rulings that say basically, "Yes, DCF did screw up in the following ways, but we defer to them regardless."

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(which, honestly, parents and their children should have just been considered a pod and allowed to visit in person, except that the system prioritizes the comfort of foster parents over the rights of children)

Lol yeah the state is just absolutely full of fosters, we've got them coming out of our ears and if a bunch of them close their homes because they've got reasonable COVID concerns, no big.

DCF has issues but acting like foster families somehow are being unreasonable for wanting to have taken the same precautions everybody else was is insane. how can a child and a parent be a pod if there's three different fosters in one house all seeing their three different families in person and a hallmark of families that get dragged into DCF problems is "poor, no options" so it's not like the parents in question were all comfortably WFH during the duration of the pandemic. they were off working shitty low paying jobs and being exposed every day.

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I'm a foster parent and adoptive parent as well as a child welfare clinician.

The "shortage" of foster families is a contrived concept. Most children in care are there for reasons of poverty and racism. Almost all are removed for neglect, not abuse. Massive amounts of federal money is available for removal and quick adoption, but very little for supporting families. Most children in foster care don't need to be there and their homes are not unsafe. Their families need assistance with housing, child care, cleaning, tutoring, etc.

Massachusetts closes a huge number of foster homes per year, usually around 1000, and usually for absolutely ridiculous reasons. A lot of these are actually related to foster families treating children and their families well and supporting reunification, which is the official stated job of a foster parent. I go to meetings where DCF workers say that a foster family is speaking positively of a child's family and trying to maintain connections with the child's familiar people, and that gets in the way of their divide-and-conquer mission, so they move the child and close the home. They also go into meetings where the child's attorney is asking for phone calls, asking that a child participate in the activities they've done all their life, etc., and DCF just says all of that is up to the foster parent. The foster parent is being paid to do a job, which specifically on paper is to support the child and their reunification, but if they say they're uncomfortable with phone calls, or that taking the kid once a week to the next town is too much, they just get to say no. And if the foster parent is the one who suggested that these things would be good for the child, they're "aligned with the parent" and the child gets moved and the home closed. Obviously "not all workers" and everything* but the system very much prefers foster parents who are very aligned with DCF.

Many people were asked to put themselves at some risk as essential workers during the pandemic. I would have been absolutely fine as a foster parent putting myself at this risk if it meant that a child got to see their parent -- particularly some of the infants I saw in my work who didn't understand the virtual visit was taking place, no longer understood who their parent was, and then were subject to reports that they weren't bonded to their parent, sometimes even based just on their behavior during a cell phone "visit"!

*personally, our family has worked with everything from absolute unicorn workers who we keep in touch with a decade+ later to absolute nightmare workers who routinely blatantly lied in court and caused lifelong damage to children

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As previously stated, DCF is a nightmare, and the state paying foster families to hold kids when they could just pay parents that money and not have to remove kids is its own problem. Child welfare in this country is a mess and punishes a lot of well meaning people without recourse. And fosters who aren't in it for reunification are obviously, doing it for the wrong reasons.

But in the standalone context of the pandemic, it's not unreasonable for foster families to not want to be exposed to COVID when virtual meetings, etc, are an option. Regardless of whether the kids should be in the system or not, they are, and setting up a situation of "risk covid or disrupt the placement" isn't good for the kid and isn't going to make the traumatic situation any better.

I would like to see courts come up with some sort of remote system that works better in these cases. So many of these court houses are huge and cavern like. There must be a way to have people in and around the building safely?

From what I have seen, technology issues are a huge impediment for people having these issues. We don't all have brand new laptops with top tier internet connections and the perfect environment for hearings. I could imagine there being secure satellite locations with technology available for people for these hearings.

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Most of the courthouses already are set up to allow social distancing and courtroom use could be staggered so they could be cleaned in between. Child welfare proceedings are closed in Massachusetts*, so there wouldn't be an issue with having more than a handful of people in the room.

Funny that you mention the Wi-Fi hotspot usage. I have observed parents doing things like parking outside a Starbucks to access Wi-Fi, and being told they won't proceed until they're in an appropriate location, or having the issue directly raised that they don't have Wi-Fi at home so can't possibly parent children properly. I've had families be mandated to participate in various services, not have anywhere private to do virtual meetings, and have this count as a strike against them.

When I evaluate individuals via videoconference, I allow them to somewhat "waive" their privacy and will meet with them if they are in a small apartment with family members in the next room, or outside where there might be people passing by, or whatever is the most private setting they are able to arrange. This is permissible for clinicians working in a healthcare setting as well, and the government agencies even suggest a model of informed consent regarding privacy and risks of potentially being overheard. However, some of the healthcare settings that are just inflexible and completely systems-aligned have ridiculously strict rules such as that clients may not be outside no matter what, and may not be in a car, even if not driving. (I've gone and sat in my car outside to do my own personal appointments when another family member was doing a video call in our small apartment, and have never had anyone tell my white middle-class self there was anything wrong with this.) I experienced plenty of adults and children getting kicked out of therapies and mandated groups because the provider could hear family members in another room.

(*This is a practice that alleges to be for privacy and dignity, but really just favors DCF. In states with open court for these cases, where advocates, reporters, concerned citizens, and others are free to observe court, families fare much better.)

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