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

The hearing was virtual, because of the epidemic.

From Thursday's Colorado Court of Appeals decision in People in the Interest of E.B., written by Judge Craig Welling and joined by Judges Terry Fox and Sueanna Johnson:

In January 2020, the Jefferson County Division of Children, Youth and Families initiated a dependency and neglect case and assumed temporary custody of the newborn child. At that time, the child was being treated for opiate withdrawal and his umbilical cord had tested positive for a multitude of opiates as well as methamphetamine. Father entered an admission, and the juvenile court adjudicated the child dependent and neglected. Later, the Division moved to terminate the legal relationship between father and the child.

In February 2021, the juvenile court held a hearing on the Division's termination motion. Because of the ongoing COVID-19 pandemic, the juvenile court conducted the termination hearing via the Webex remote videoconference platform.

At the start of the hearing, father's counsel entered his appearance. At that time, counsel noted that father wasn't present but made no record as to why father was not personally participating in the hearing.

Midway through the hearing, however, the court alerted counsel that father may have been intermittently logging in to the hearing. The court then took a brief recess. Following the recess, the county attorney represented that the paternal grandfather had just let her know that father was trying to access the hearing.

At the request of father's counsel, the court then paused the proceeding so that counsel could have time to reach out to father. But counsel was unable to reach father and requested "to continue father's portion of th[e] case" so that he could have father testify at a later time. In doing so, counsel indicated that father had tried to contact him several times since being released from jail twelve days earlier.

Counsel further explained that he hadn't been available when father called and had been unable to get back in touch with father because father had "a Wi-Fi phone," which meant that he could only be reached when he had access to Wi-Fi. Without explicitly ruling on father's counsel's request, the court resumed the hearing.

Father's counsel renewed his request for a continuance during closing argument. At that time, counsel asserted that he had learned from the paternal grandparents that father had tried to log in to the hearing, but he had been asked to leave the gas station where he was using the Wi-Fi. Counsel also reiterated that he wanted to present father's testimony.

The juvenile court denied father's request for a continuance. In denying father's motion, the court noted that it "cannot find a manifest injustice would occur if a continuance were not granted" and that it "can't find good cause for a continuance or that a continuance would be in [the child's] best interest."

In support of its ruling, the court noted that "father's had ample opportunity to prepare to join today. I'm sorry he wasn't able to. But case law is clear. He's been represented by counsel throughout. So that motion … is denied." The court then granted the Division's motion to terminate father's parental rights….

In denying father's request for a continuance, the court reasoned that father had been given ample opportunity to make arrangements to log in to the hearing. But we are unable to understand the basis for this conclusion given father's multiple unsuccessful attempts to communicate with his counsel during the twelve-day period between his release from custody and the termination hearing.

Additionally, this is not a case in which father was unavailable to participate in the termination hearing. To the contrary, the record reveals that he was making efforts to secure Wi-Fi access so that he could participate in the hearing. Yet, other than briefly pausing the hearing, the court didn't facilitate father's efforts to personally participate in this hearing.

This is significant. As a division of this court has previously explained, holding a termination hearing via Webex affords a parent due process when, among other things, the court is willing to make accommodations to ensure that a parent who wants to personally participate in the hearing is able to do so.

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. The child and father shared an interest in avoiding the erroneous termination of father's parental rights. See Santosky v. Kramer (1982) (recognizing that until the state proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship). Consequently, it was in the child's best interests to afford father due process.

And, here, only a short delay was necessary to allow father and his counsel to arrange for him to personally participate in the hearing via Webex. Indeed, this was a one-witness termination hearing spanning just eighty-one pages of transcript from start to finish (including the court's ruling), and there's no indication anywhere in the record that a lengthy continuance would have been required to accommodate father's participation in the hearing.

For these reasons, we conclude that the juvenile court abused its discretion by denying father's request to continue the termination hearing. Accordingly, the termination judgment must be reversed.