I.T., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

• Court: District Court of Appeal of Florida
• Decided: March 2, 2022
• Docket: 21-1887
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 2, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1887 Lower Tribunal No. 15-16216 ________________

I.T., the Mother, Appellant,

vs.

Department of Children and Families, et al., Appellees.

An appeal from the Circuit Court for Miami-Dade County, Jason E. Dimitris, Judge.

Albert W. Guffanti, P.A., and Albert W. Guffanti, for appellant.

Karla Perkins, for appellee Department of Children and Families, Sara Elizabeth Goldfarb and Sarah Todd Weitz (Tallahassee), for appellee Guardian ad Litem.

Before FERNANDEZ, C.J., and LINDSEY, and MILLER, JJ.

MILLER, J. Appellant, I.T., the mother, challenges a final judgment terminating her

parental rights as to four of her five children, N.S., C.S., D.M.T., and I.A.V.,

at the request of appellee, the Department of Children and Families. On

appeal, the mother raises several claims of error, only one of which merits

further discussion. We write to address her contention that the use of

videoconferencing equipment during the termination proceedings violated

constitutional due process protections. 1

BACKGROUND

Given the nature of the issue on appeal, the facts require little

elaboration. Confronted with a global pandemic, Chief Justice Charles

Canady of the Florida Supreme Court issued a series of administrative

orders directed at maintaining the operability and efficiency of the court

system. As relevant to these proceedings, beginning in May of 2020, with

the consent of the parties, circuit court judges were authorized to conduct

termination of parental rights trials remotely. By the time I.T. proceeded to

1 As it is well-settled the denial of due process constitutes fundamental error that may be raised for the first time on appeal, we reject the Department’s contention this issue is not preserved. See Withers v. Blomberg, 41 So. 3d 398, 401 (Fla. 2d DCA 2010); Verizon Bus. Network Servs., Inc. ex rel. MCI Commc’ns, Inc. v. Dep’t of Corr., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008); Sparks v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999); State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993); Alamo Rent–A–Car v. Phillips, 613 So. 2d 56, 58 n.1 (Fla. 1st DCA 1992); Ray v. State, 403 So. 2d 956, 960 (Fla. 1981).

2 trial, the operative administrative order provided, in relevant part:

“Termination of parental rights and juvenile delinquency cases shall be

conducted remotely if ordered by the chief judge or the presiding judge or, if

not, shall be conducted in person.” In re: Comprehensive COVID-19

Emergency Measures for Florida Trial Courts, Fla. Admin Order No. AOS20-

23, Amend. 9 (Fla. Feb. 17, 2021), (on file with Clerk, Fla. Sup. Ct.). In

conformity with this prerogative, the trial court ordered the trial to occur

remotely via the Zoom videoconferencing platform. 2 At the conclusion of the

trial, the lower court terminated the mother’s parental rights. The instant

appeal ensued.

STANDARD OF REVIEW

We review a claim of deprivation of procedural due process de novo.

VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., LLC, 68 So. 3d 997,

999 (Fla. 4th DCA 2011).

ANALYSIS

In this appeal, the mother’s challenge is two-fold: (1) she contends that

the use of remote technology in any termination proceeding violates due

process; and (2) she argues that specific technological challenges in her trial

deprived her of the process to which she was due.

2 AOS20-23 is referenced in the final judgment of termination.

3 Underpinnings of Due Process

“No State shall . . . deprive any person of life, liberty, or property,

without due process of law . . . .” Amend. XIV, § 1, U.S. Const.; see Art. I, §

9, Fla. Const. While this tenet is so deeply ingrained in our jurisprudence

that citation to authority is a mere formality, “[f]or all its consequence, ‘due

process’ has never been, and perhaps can never be, precisely defined.”

Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 24 (1981).

However, “[t]he fundamental requirement of due process is the opportunity

to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v.

Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965)).

In this regard, “due process ‘is not a technical conception with a fixed

content unrelated to time, place and circumstances.’” Lassiter, 452 U.S. at

24 (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S.

886, 895 (1961)). Instead, it is a “flexible” concept and “calls for such

procedural protections as the particular situation demands.” Keys Citizens

for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948

(Fla. 2001) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

4 In the seminal decision Mathews v. Eldridge, the Supreme Court

developed three factors that must be considered in determining whether a

due process violation occurred:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335.

Private Interest

In accord with Mathews, we are directed to first examine the private

interest at stake in this dispute. “[A] natural parent’s ‘desire for and right to

the companionship, care, custody, and management of his or her children’

is an interest far more precious than any property right.” Santosky v. Kramer,

455 U.S. 745, 758–59 (1982) (quoting Lassiter, 452 U.S. at 27). Indeed, as

we have previously stated,

“It is a basic tenet of our society and our law that individuals have the fundamental constitutionally protected rights to procreate and to be a parent to their children.” “These constitutional rights are recognized by both the Florida Constitution and the United States Constitution.” “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” “Even when blood relationships are strained, parents retain a vital

5 interest in preventing the irretrievable destruction of their family life.”

I.T. v. Dep’t of Child. & Fams., 277 So. 3d 678, 683 (Fla. 3d DCA 2019)

(citations omitted). Here, the Department seeks not merely to infringe upon

that relationship, but to terminate it. Success by the Department in this

endeavor “work[s] a unique kind of deprivation.” Lassiter 452 U.S. at 27.

Given these stakes, the private interest weighs in favor of the mother.

Risk of an Erroneous Deprivation

As required under Mathews, we next examine the risk of an erroneous

deprivation associated with conducting the proceedings remotely. The

mother does not contend she was deprived of notice of the issues involved

or an impartial arbiter, nor does she allege she was prohibited from

responding to evidence, presenting favorable evidence, or consulting with

her attorney. Instead, she argues that using remote technology in any

termination proceedings “runs contra to the fundamental liberty interests at

stake in dependency cases,” and that, in her case, technological issues

impaired the quality of the trial. 3 We address each argument in turn.

3 Although the mother further contends that the use of remote technology undermined the effectiveness of her counsel, the allegations in furtherance of this position are wholly conclusory.

6 It is scarcely debatable that the physical presence of a parent is

preferred in termination proceedings. However, there is a vast body of

persuasive authority holding that “[t]here is no due process right mandating

a parent’s physical presence at a civil termination of parental rights trial when

represented by counsel.” N.J. Div. of Child Prot. & Permanency v. F.M., A-

3893-17T3, 2019 WL 149667, at *5 (N.J. Super. Ct. App. Div. Jan. 7, 2019).

Further, in various reported cases, Florida courts have authorized remote

appearances in other similar high-stakes contexts, including at probation

violation hearings, delinquency trials, and sentencing hearings. See

Clarington v. State, 314 So. 3d 495, 500 (Fla. 3d DCA 2020); E.A.C. v. State,

324 So. 3d 499, 507 (Fla. 4th DCA 2021); Brown v. State, 47 Fla. L. Weekly

D190, D193 (Fla. 4th DCA Jan. 12, 2022). Similarly, several courts from

other jurisdictions have determined that, for constitutional purposes, a

meaningful opportunity to be heard may be afforded despite the absence of

the physical presence of a parent. See In re C.T., 501 P.3d 899, 909 (Kan.

Ct. App. 2021) (denying mother’s request for an in-person hearing where she

had access to all exhibits, could consult with her attorney privately, and

would appear by videoconference); In re I.L., 177 N.E.3d 864, 872 (Ind. Ct.

App. 2021) (holding there was no due process violation where virtual

termination procedures were “substantially similar” to in-person termination

7 procedures); In re P.S., Nos. 5-21-0027, 5-21-0028, 2021 WL 3141203, at

*17 (Ill. App. Ct. July 26, 2021) (holding that conducting a termination of

parental rights hearing over Zoom did not violate due process); In re Smith,

Nos. 355077, 355677, 2021 WL 2769825, at *4 (Mich. Ct. App. July 1, 2021)

(finding no due process violation where termination hearing was conducted

over Zoom, father could appear virtually and was given the opportunity to

present evidence and question witnesses); E.N. v. Tex. Dep’t of Fam. &

Protective Servs., No. 03-21-00014-CV, 2021 WL 2460625, at *5 (Tex. App.

June 17, 2021) (holding that termination of parental rights jury trial conducted

by videoconference did not violate father’s due process rights); see also Alex

H. v. State Dep’t of Health & Soc. Servs., 389 P.3d 35, 54 (Alaska 2017)

(finding no due process violation where court refused to order incarcerated

father’s transport to termination trial); In re J.P.B., 509 S.W.3d 84, 97 (Mo.

2017) (recognizing no constitutional right of incarcerated parents to

physically attend termination hearings); St. Claire v. St. Claire, 675 N.W.2d

175, 177–78 (N.D. 2004) (concluding incarcerated parent had only a limited

right to appear in person at hearing to terminate parental rights); In re Int. of

L.V., 482 N.W.2d 250, 258 (Neb. 1992) (“[P]arental physical presence is

unnecessary for a hearing to terminate parental rights, provided that the

8 parent has been afforded procedural due process for the hearing to terminate

parental rights.”).

Further, in this case, the mother did not request to appear in person,

and the trial court ensured that the proceedings bore all of the hallmarks of

a formal trial. In this regard, the mother was granted access to all exhibits,

permitted to privately consult with counsel, and afforded the opportunity to

present opening statement, closing argument, and legal argument, examine

and cross-examine witnesses, voice objections, and offer exhibits.

Throughout the proceedings, the trial judge repeatedly instructed the

participants to immediately alert him of any disruptions in the audio or visual

feed. Although the mother correctly cites to portions of the record reflecting

discussions regarding internet connectivity issues, video freezing, and low

volume, in each cited instance, the court halted the proceedings until

connectivity or sound was restored or asked the speaker to repeat the

preceding statement or question. Given these preventative and remedial

measures, we conclude the mother has failed to demonstrate any viable risk

of an erroneous deprivation.

The Government’s Interest

Lastly, we are directed by Mathews to examine the government’s

interest. Of initial note, “the proceeding arises in the midst of a global

9 pandemic which has spawned a public health emergency.” Clarington, So.

3d at 502. This, however, is but one consideration. In all termination cases,

the State has two additional interests: “a parens patriae interest in preserving

and promoting the welfare of the child and a fiscal and administrative interest

in reducing the cost and burden of such proceedings.” A.M. v. Dep’t of Child.

& Fams., 223 So. 3d 312, 316 (Fla. 4th DCA 2017) (quoting Santosky, 455

U.S. at 766). The former consideration necessarily encompasses the child’s

need to achieve permanency and the correlating harm that results when such

permanency is unduly delayed, while the latter implicates governmental

hardship. See J.B. v. Fla. Dep’t of Child. & Fams., 170 So. 3d 780 (Fla.

2015); B.Y. v. Dep’t of Child. & Fams., 887 So. 2d 1253 (Fla. 2004). In view

of the unique circumstances gripping our state, which have precipitated

congested dockets, along with the need for implementation of prophylactic

measures within court facilities, we conclude that the State’s parens patriae

and administrative interests both weigh in favor of conducting the termination

trial remotely. See C.M. v. Dep’t of Child. & Fam. Servs., 854 So. 2d 777,

779 (Fla. 4th DCA 2003) (citation omitted) (“At all stages of the proceedings,

courts are compelled to expedite proceedings to prevent children from

languishing in the foster care system. . . . Achieving permanent stability in

the child’s life is the paramount concern of the judicial process.”); J.B. v. Fla.

10 Dep’t of Child. & Fam. Servs., 768 So. 2d 1060, 1065–66 (Fla. 2000)

(“[Termination] proceedings place a tremendous cost and hardship on the

State. In response, the Legislature has attempted to resolve this

monumental burden by enacting legislation which swiftly moves these cases

toward resolution, while at the same time guarding the rights and liberties of

the parties involved.”).

Net Weight of Factors

Because termination proceedings seek not merely to infringe upon a

fundamental liberty interest, but to end it, the private interest factors weigh

heavily in favor of the mother. See Santosky, 455 U.S. at 759. Conversely,

the State’s interest in protecting the welfare of the children and ensuring

expeditious and cost-effective proceedings weigh against the mother.

Although the private interest is arguably more compelling, as it is

constitutionally derived, we are not persuaded that the mother has

demonstrated the use of technology in all termination cases or in this

particular case presents a risk of erroneous deprivation. Concluding the trial

court afforded adequate procedural safeguards to comport with due process,

we affirm the final judgment in all respects.

Affirmed.

11 I.T., the mother v. Department of Children and Families, et al. Case No.: 3D21-1887

LINDSEY, J., specially concurring.

I agree this case should be affirmed. On this record, there are no

specific circumstances that give rise to a violation of the Mother’s due

process rights. Most of the Mother’s arguments on appeal broadly challenge

the use of remote proceedings as a violation of due process. However, I

would focus more narrowly on the specific circumstances below that the

Mother contends compromised the integrity of the proceedings. Specifically,

the alleged technical problems or “glitches.” Based on the record before us,

I agree that in this case, the integrity of the proceedings was not

compromised. Though there were technical issues, the trial court properly

mitigated any harm.

But I think it important to add that this Court’s opinion is limited to the

particular facts in this case, and it does not foreclose the possibility of due

process violations in other remote proceedings. See E.A.C. v. State, 324

So. 3d 499, 509 (Fla. 4th DCA 2021) (Levine, C.J., specially concurring) (“[I]t

is also important to remember that there is no pandemic exception to the

Constitution. Although the pandemic persists, so does the Constitution.”

(citing Terkel v. Ctrs. for Disease Control & Prevention, 521 F. Supp. 3d 662,

676 (E.D. Tex. 2021), appeal dismissed, 15 F.4th 683 (5th Cir. 2021))).