Court Should Have Granted Continuance to Let Father Participate by Wi-Fi Phone

The Colorado Court of Appeals’ Thursday decision is in E.B. Interests PeopleThis was written by Judge Craig Welling with Judges Terry Fox, Sueanna Johnson joining him:

On January 20, 2020, Jefferson County Division of Children, Youth and Families started a dependency and neglected case and was granted temporary custody of this newborn child. He was currently being treated for opioid withdrawal. The umbilical chord had also been tested for methamphetamine and a variety of other opiates. Father made an admission. The juvenile court declared the child neglected and dependent. The Division later sought to end the legal relationship between the father and child.

The hearing was held by the juvenile court on February 20, 2021 regarding the Division’s motion to terminate. Due to the COVID-19 epidemic, the hearing was conducted via remote Webex videoconference.

The hearing began when father’s lawyer appeared. Counsel noted at that point that father wasn’t there, but did not make any record of why.

However, midway through hearing, counsel was alerted by the court that father could have intermittently been logging into the hearing. Following this, the court took a quick recess. The county attorney stated that her father wanted to attend the hearing after the court had taken a brief recess.

On father’s request, counsel requested that the court suspend the proceedings so counsel can reach father. Counsel was not able to contact father so the court paused proceedings.[e]”case” to allow father to testify later. Counsel stated that father attempted to contact him multiple times after being released twelve days ago.

Counsel explained to father that father didn’t call him and that father was unable to contact him because father has a Wi-Fi telephone. This meant that father can only reach him when he is connected to Wi-Fi. Court resumed the hearing, without ruling explicitly on the request of father’s counsel.

In closing argument, father’s counsel repeated his request for a continuation. Counsel claimed that he knew from paternal grandparents that the father attempted to log in at the hearing. However, he was told to leave the gas station and not use the Wi-Fi. Counsel reiterated his desire to present the testimony of father.

Father requested a continuation of proceedings by juvenile court. According to the court, father was not allowed to move for a continuance. [the child’s] best interest.”

It was noted by the court that dad had many opportunities to get ready to join us today. It’s a shame that he was not able. However, case law is very clear. He was always represented by counsel. So that motion … is denied.” The court then granted the Division’s motion to terminate father’s parental rights….

The court denied father’s request to continue the proceedings, reasoning that father was given plenty of time to arrange to log in. Given the numerous failed attempts by father to contact his counsel between the release of custody and the hearing, we cannot understand why this was so.

This isn’t a case where father couldn’t attend the hearing. The record shows that father was trying to obtain Wi-Fi access for the hearing. The court did not allow father to participate personally in the hearing except for briefly pausing it.

It is important. This is significant.

Finally, while we recognize that the child’s best interests and need for permanency are key factors in deciding whether to continue a termination hearing, they must be considered in the context of the reason for the delay—affording father his due process right to be heard in a meaningful manner—and the length of the delay. Both the child and his father had a shared interest in avoiding an erroneous termination. Look! Santosky v. Kramer(1982). Recognizing that the children and their parents have a crucial interest in keeping the natural marriage from ending, until the state has proven parental unfitness. Therefore, the child was best to allow father fair process.

The court arranged for father to participate via Webex. This was indeed a one-witness hearing. It spanned only eighty-one pages from start to end (including the court ruling). There’s also no evidence in the records that father would need to be allowed to participate in the hearing.

These reasons lead us to conclude that the court of juveniles abused its discretion and denied father the request to prolong the termination hearing. Therefore, we must reverse the termination judgement.