In a decision that held implications for how courts conduct business during the COVID-19 pandemic, the Colorado Court of Appeals ruled on Thursday that a parental-rights hearing conducted virtually did not violate the mother’s constitutional rights.

“We conclude that the juvenile court ensured that [the] mother was provided with substantially similar procedures as would have been available at an in-person termination hearing,” wrote Judge Robert D. Hawthorne for the three-member appeals panel. “So conducting the termination hearing via Webex afforded [the] mother due process.”

Ann Gushurst, senior counsel at Griffiths Law in Lone Tree, said the ruling likely meant that virtual proceedings “are here for the duration.  I have suspected for some time that we will never fully go back to in person.”

The Denver Department of Human Services initiated a dependency and neglect case against an unnamed mother in February 2019, and subsequently placed the child with the godmother. In March 2020, the department moved to terminate the mother’s relationship with the child. However, it was around that time the Judicial Department drastically altered its protocols as COVID-19 transmission in the United States accelerated.

Part of the changes involved the use of virtual hearings over the online platform Webex, including for terminations of parental rights.

The mother asked to reschedule the hearing, alleging that the videoconference would be fundamentally unfair due to the difficulty of hearing other parties, the possibility of technical glitches and not permitting the judge and attorneys to observe a witness’s demeanor, among other objections.

Judge Laurie A. Clark denied the motion. Following the hearing, Clark decided in favor of termination.

In assessing the mother’s appeal, the panel agreed that custody proceedings need to ensure certain fundamental rights – such as the right of the parent to be heard and defend herself. In the virtual hearing, all of those protocols remained in place. Although the mother said she was experiencing homelessness and was unable to appear by Webex, “at no point did [the] mother alert the court that she faced this problem.”

If she “had indicated that she wanted to personally participate in the hearing, it would have made accommodations to ensure that [she] was able to do so either by telephone or Webex,” wrote Hawthorne, a retired appeals judge who sat on the panel at the chief justice’s assignment. In asserting a violation of equal protection under the law, the mother “doesn’t explain how she received disparate treatment compared to other parties who are similarly situated.”

Aside from ruling that the virtual hearing did not infringe on the mother’s constitutional rights, the appellate judges noted the lower court had properly addressed the logistical concerns: Webex allowed all participants to view each other, the judge paused the hearing to troubleshoot her inability to hear the mother’s attorney, and a “virtual lobby” prevented witnesses from hearing each other’s testimony.

“This decision doesn’t go so far as to give the thumbs up to every remote trial in every setting,” said Frederick R. Yarger, a former solicitor general for the state and currently a partner at Wheeler Trigg O’Donnell. “But it does give a sense of the procedures courts have to provide: the ability to make arguments, cross-examine adverse witnesses and present evidence. That includes adequate technical support during trial to fix hiccups along the way.”

John Kellner, district attorney for the 18th Judicial District, believed the use of Webex for many types of courtroom appearances short of jury trials should continue post-pandemic.

“One of the takeaways that we need to enshrine, whether it’s in rules or legislation, is the ability to use Webex and remote means for low-level cases,” he said. While Kellner had not reviewed the Court of Appeals’ decision in this case, he said that in general, virtual participation would help defendants and victims participate without major disruptions to their lives for short appearances in court.

The technology could also speed up proceedings, allowing courts to more efficiently address their backlog of jury trials. It is an open question, Kellner added, whether the technology would still be permissible after the public health emergency has passed. But if the answer is in the affirmative, it “should potentially free up more space for us to try our cases.”

The case is People in the Interest of R.J.B.