In re R.D. ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Date: 2023.04.10
Appellate Court 14:03:04 -05'00'
In re R.D., 2021 IL App (1st) 201411Appellate Court In re R.D., O.W., J.F., Mi. S., Ma. S., J.S., C.S., E.T., Ce. P., and
Caption Co. P., Minors (The People of the State of Illinois, Petitioner-
Appellee, v. N.D., M.F., T.T., and S.M., Respondents-Appellants).
District & No. First District, Sixth Division
Nos. 1-20-1411, 1-21-0099, 1-21-0142, 1-21-0196 cons.
Filed August 27, 2021
Decision Under Appeal from the Circuit Court of Cook County, Nos. 17-JA-340, 18-
Review JA-003, 14-JA-225, 15-JA-1177, 15-JA-1178, 16-JA-1002, 17-JA-
1313, 16-JA-522, 18-JA-412, 18-JA413; the Hon. Bernard J. Sarley,
the Hon. Robert Balanoff, and the Hon. Kimberly Lewis, Judges,
presiding.
Judgment Affirmed.
Counsel on Sharone R. Mitchell Jr., Public Defender, of Chicago (James Stephens
Appeal Jacobs, Frank M. Adams, Marsha Watt, and Claudette Greene,
Assistant Public Defenders, of counsel), for appellants.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, Ashlee Cuza, and Brian A. Levitsky, Assistant State’s
Attorneys, of counsel), for the People.
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain, Jean
M. Agathen, and Kina N. Arnold, of counsel), guardian ad litem.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Connors and Oden Johnson concurred in the judgment and
opinion.
OPINION
¶1 In this consolidated appeal, the respondents challenge the circuit court’s determination to
terminate their parental rights. The sole issue raised on appeal is whether the trial court violated
respondents’ due process rights by using audio-video conferencing to conduct the termination
proceedings. For the following reasons, we affirm.
¶2 I. JURISDICTION
¶3 The circuit court entered its final judgment terminating respondents’ parental rights, and
each filed a timely notice of appeal from that determination. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(6) (eff. Nov. 1, 2017), governing
appeals from a judgment terminating parental rights under the Adoption Act (750 ILCS 50/5
(West 2016)).
¶4 II. BACKGROUND
¶5 Respondents contend that the trial court’s use of Zoom to conduct their termination
hearings violated their due process rights. We note that respondents do not challenge the
court’s findings at the termination hearing, nor do they argue that specific facts of their cases
rendered Zoom videoconferencing unconstitutional as applied to them. Therefore, we set forth
only those facts necessary to resolve the sole issue on appeal.
¶6 In early March 2020, the circuit court of Cook County canceled or imposed restrictions on
in-person court appearances due to the COVID-19 pandemic. The administrative office of the
circuit court issued a general administrative order that, “except as expressly provided below or
in extraordinary or compelling circumstances, all matters in all Districts and Divisions of the
court shall be conducted by videoconference.” Cook County Cir. Ct. Gen. Adm. Order 2020-
07 (Mar. 23, 2021). As a result, proceedings held on the termination of parental rights were
conducted through Zoom videoconferencing software. The hearings challenged here took place
between December 9, 2020, and January 28, 2021.
¶7 Respondents objected to the use of Zoom, arguing that their right to maintain a parental
relationship with their children was a fundamental liberty interest protected by the due process
clause of the Illinois and United States Constitutions. Specifically, they argued that the
termination proceedings conducted through Zoom deprived them of their right to confront
witnesses against them and their right to effective assistance of counsel. The circuit court in all
cases overruled their objections and denied their motions for a continuance.
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¶8 On December 9, 2020, the trial court in cases numbered 17JA00340 and 18JA00003 (case
No. 1-20-1411 on appeal) ruled:
“As of yesterday, according to the latest information from the Office of the Chief Judge,
211 employees, 79 staff members at the Juvenile Temporary Detention Center and 69
residents at the Juvenile Temporary Detention Center as well as 17 judges have tested
positive for COVID-19. This includes court reporters, court clerks, and employees of
the Office of the Public Guardian. As of yesterday, over 280,000 Americans have died
from COVID-19.
There is a vaccine that apparently is close to being able to be administered, but
we’re not sure when that is actually going to be available. And there is certainly no cure
to the disease. And over the last two months, cases have dramatically risen not only in
the Chicago area but all over the country—all over this country.
The Illinois Supreme Court, the Office of the Chief Judge, and the Presiding Judge
of the Child Protection Division have conversed upon the court discretion to either
conduct some types of in-person hearings in certain cases or to continue with remote
hearings.
During my earlier statement about the virus and the pandemic, I refuse to put any
employee of the Cook County court system or anyone that comes in contact with the
court system in danger involuntarily. Furthermore, I believe that conducting this type
of hearing remotely would not deprive any of the parties of their right to a full and fair
hearing.
I’ve been conducting remote hearings on all cases since the court shut down in
March of 2020. My ability to evaluate the credibility of witnesses has not been
negatively impacted by remote versus in-person hearings. In situations in which a party
or a witness is broken up or been rendered temporarily inaudible due to a connection
issue, and that’s happened already today like in other cases, the situation has been
resolved so that the person could be heard and understood before moving on with the
hearing.
As I said, we were able to do that in a previous case this morning. This hearing will
be conducted so as to ensure that due process rights of the parties are maintained. The
Court will ensure that all witnesses called to testify are alone and not subject to being
coached. The Court will ensure that witnesses are not using notes, documents or
electronics while testifying and the only properly admitted exhibits are viewed by the
witnesses if necessary.
The Court will give counsel every opportunity to confer with their clients before,
during or after witness examinations so that effective assistance of counsel will be
provided.
In the past, witnesses in these types of proceedings have testified via telephone or
Skype. Their credibility has been subjected to cross examination, properly admitted
documentation including service plans and service reports. This same type of effective
cross examination can be used in the case at bar in addition to the words, appearance,
and mannerisms of witnesses to test their credibility.
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Accordingly, the objection to conducting this TPR trial by video app is respectfully
overruled… As I said earlier but it bears repeating. I will not put employees of the court
system or those whose paths took them to the juvenile court in danger involuntarily.”
The court in the other cases expressed similar reasoning, noting that courts continued to
conduct Zoom hearings and that it would give counsel every opportunity to confer with their
clients before, during, and after witness examination. They also stated that respondents would
have adequate access to a computer.
¶9 Following the Zoom hearings, each respondent was found unfit, and the court determined
that it would be in the minors’ best interests to be freed for adoption. Respondents filed this
appeal.
¶ 10 III. ANALYSIS
¶ 11 Respondents contend that they have a constitutional right to confront witnesses against
them in person and that the Zoom hearings interfered with that right. They argue that, because
they could not exercise their right to confrontation at the termination hearings, they were
deprived of their fundamental right as parents without due process. To resolve the issue on
appeal, we must first address whether respondents have a constitutional right to confront
witnesses in person at a hearing to terminate parental rights.
¶ 12 The sixth amendment confrontation clause provides that, in criminal prosecutions, the
accused shall have the right to confront the witnesses against him or her. U.S. Const., amend.
VI. The confrontation clause in the Illinois Constitution mirrors the sixth amendment clause.
People v. Lofton, 194 Ill. 2d 40, 53 (2000). Respondents cite In re K.L.M., 146 Ill. App. 3d 489(1986), as support that the confrontation clause applied to their civil termination proceedings.
¶ 13 The court in K.L.M. noted that the sixth amendment confrontation clause directly applied
to criminal prosecutions. It recognized, however, that the clause had also been applied to civil
cases “involving procedures before administrative agencies.” Id. at 494-95. The court found
no such case involving purely civil proceedings in a state court, and where the clause had been
applied in administrative proceedings, there had been a “gross” deviation from fair procedure.
Id. at 495. It concluded that the “confrontation rights of a party to a civil case are not as
complete as those of an accused in a criminal case.” Id. Therefore, to the extent “confrontation
rights may be an aspect of due process in civil proceedings, the confrontation clause need not
be” strictly applied. (Emphasis added.) Id. In their briefs, respondents make no distinction
between a criminal defendant’s sixth amendment confrontation right and the narrower
confrontation right applicable to civil proceedings considered by the court in K.L.M.
¶ 14 Furthermore, our supreme court has held that, even in a criminal proceeding, the
requirement of face-to-face confrontation “is not absolute.” Lofton, 194 Ill. 2d at 59. Rather,
the United States Supreme Court has “carved out a narrow exception when denial of face-to-
face confrontation is necessary to further an important public policy” as the necessities of the
case require. Id. (citing Maryland v. Craig, 497 U.S. 836, 857 (1990)). Craig held that “the
Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-
face confrontation, ensures the reliability of the evidence by subjecting it to rigorous
adversarial testing and thereby preserves the essence of effective confrontation.” Craig, 497
U.S. at 857. When evaluating whether the alternate procedure complied with the confrontation
clause, courts consider whether the procedure (1) impinged upon the truth-seeking purpose of
the clause and (2) was necessary to further an important state interest. Lofton, 194 Ill. 2d at 58.
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¶ 15 At the Zoom termination hearings, respondents were represented by counsel and had the
opportunity to be present, to be heard, to present evidence, and to cross-examine the witnesses
against them. While in-person testimony and cross-examination are preferred (id. at 56),
respondents and their counsel could view and hear the witnesses as they testified. The trial
court found that its “ability to evaluate the credibility of witnesses has not been negatively
impacted by remote versus in-person hearings.” The court also made certain “that all witnesses
called to testify are alone and not subject to being coached *** [and] that witnesses are not
using notes, documents or electronics while testifying and the only properly admitted exhibits
are viewed by the witnesses if necessary.” The presence of these elements “adequately ensures
that the testimony is both reliable and subject to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person testimony.” Craig, 497 U.S. at 851. We
find that, even if we view respondents’ confrontation rights under the more expansive criminal
standard, the trial court’s use of Zoom to conduct hearings did not impinge upon the truth-
seeking purpose of the confrontation clause.
¶ 16 We also find that the use of Zoom was necessary to further important state interests.
Significantly, Zoom was used to conduct these hearings only because Illinois was in the grips
of the COVID-19 pandemic and, at the time, a vaccine was not available. Given the
extraordinary challenges presented by the pandemic, Zoom hearings enabled courts to conduct
business while keeping people safe from a deadly virus that spreads easily through in-person
interactions. The government also has an interest in the welfare of minors, which corresponds
to the minor’s interests in his or her own well-being and living in a stable environment. People
v. R.G., 131 Ill. 2d 328, 354 (1989). The end of the pandemic remains uncertain, and despite
the existence of vaccines, new variants threaten to dismantle plans for reopening the courts for
in-person hearings. Keeping children in limbo, particularly when they have already spent years
in the system, would not further the State’s interest in their welfare.
¶ 17 For these reasons we find that, to the extent respondents have a confrontation right under
the Adoption Act, the termination hearings conducted via Zoom did not infringe upon that
right.
¶ 18 Respondents also contend that the Zoom hearings violated their right to procedural due
process. They argue that, without an in-person hearing, their counsel could not effectively
assess the credibility of witnesses through cross-examination by observing their demeanor and
body language. They also contend that during Zoom hearings the trial court could not
effectively assess the credibility of witnesses because “it is impossible to monitor whether one
or more unauthorized individuals were outside the view of the audio-video camera affecting
witness testimony.”
¶ 19 Fundamentally, procedural due process requires an opportunity to be heard “at a
meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Mathews
v. Eldridge, 424 U.S. 319, 333 (1976). The Supreme Court recognized that “[d]ue process is
flexible and calls for such procedural protections as the particular situation demands.” (Internal
quotation marks omitted.) Id. at 334. In determining whether the procedure provided was
constitutionally sufficient, courts consider and balance the following factors: (1) the private
interest affected, (2) the risk of erroneous deprivation of the interest by using the procedure
and the probable value, if any, of additional or substitute safeguards, and (3) the governmental
interests involved. Id. at 335.
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¶ 20 It is undisputed that respondents’ right to maintain a parental relationship with their
children is a significant liberty interest recognized by courts. In re D.W., 214 Ill. 2d 289, 310-
11 (2005). As for the second Mathews factor, we have already found that the use of Zoom gave
respondents a fair opportunity to assess a witness’s credibility through cross-examination, thus
satisfying the confrontation clause. Counsel conducted a contemporaneous cross-examination
and, through the monitor, counsel could observe the witness’s demeanor and body language.
The presence of these elements of confrontation “adequately ensures that the testimony is both
reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that
accorded live, in-person testimony.” Craig, 497 U.S. at 851. Even if we accept that the physical
presence of a witness enhances credibility determinations, the trial court found that its
observation of a witness’s demeanor was not significantly compromised by the use of video
testimony.
¶ 21 As for the third factor, the government has a significant interest in the minors’ well-being.
Children have an interest in a stable home life free from the “uncertain and fluctuating world
of foster care.” In re D.T., 212 Ill. 2d 347, 365 (2004). One of the minors had been in the
system since 2014. Given the seriousness of the continuing COVID-19 pandemic and the
uncertainty of when it would be safe to hold in-person hearings, we must weigh this factor
accordingly. When balancing these factors—the interest involved, the slight risk that the Zoom
hearings affected respondents’ confrontation rights, and the governmental interests at stake—
we find that the use of Zoom to conduct the hearings below did not violate respondents’
procedural due process rights. 1
¶ 22 Respondents disagree, citing In re C.M., 319 Ill. App. 3d 344 (2001), as support. In C.M.,
case manager Allison Greenwald testified at the termination hearing by telephone, and the
State provided no explanation for her absence from the courtroom. Id. at 350. The respondents
objected, but the trial court overruled their objection. The court explained:
“ ‘I think the only thing that it actually causes is not rigorous cross-examination. It just
causes me not to be able to entirely evaluate the demeanor of the witness as the witness
testifies. And for that, I will allow it for weight. And that will also necessarily impact
the weight of the testimony ***.’ ” Id.¶ 23 On appeal, the respondents argued that allowing Greenwald to testify by telephone violated
their due process rights. Id. at 353. This court noted that “the trial court placed great reliance
on Greenwald’s testimony in making its finding that respondents had failed to make reasonable
progress toward the return of the minors under section 1(D)(m).” Id. at 354. The trial court,
however, was unable to determine what documents she used or if anyone was in the room with
her. It also could not assess her demeanor or body language. Id. at 355. With no reason
proffered for her absence, “the risk that respondents were erroneously deprived of their
parental interest *** was heightened by Greenwald’s physical absence from the courtroom.”
Id.¶ 24 C.M. is distinguishable. The witnesses in respondents’ cases did not testify by telephone.
Instead, they testified by video through Zoom. As such, counsel was able to see and hear them
as they testified and during cross-examination. While the court could not view everything in
While not binding on this court, we note that other jurisdictions have upheld the use of Zoom or
1
videoconferencing to conduct civil proceedings remotely. See In re R.J.B., 2021 COA 4; In re TJH,
2021 WY 56, 485 P.3d 408 (2021); In re Doe I, 480 P.3d 143 (Idaho Ct. App. 2020).
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the room with the witness, it could observe his or her demeanor for clues that something might
be amiss. The court in C.M. could not see Greenwald at all as she testified. Therefore, the
concerns expressed by the court in C.M. do not apply with the same force here.
¶ 25 Also, cogent reasons existed below for holding the termination hearings via Zoom. The
COVID-19 pandemic made it necessary for courts to conduct hearings remotely except in
“extraordinary or compelling circumstances.” See Cook County Cir. Ct. Gen. Adm. Order
2020-07 (Mar. 23, 2021). With no end to the pandemic in sight at the time, the minor’s interest
in a stable home had to be given due consideration. C.M. even recognized that time is of the
essence in these cases, finding that the third Mathews factor weighed in favor of the children.
C.M., 319 Ill. App. 3d at 356. In contrast, the State in C.M. gave no reason for the alternate
procedure.
¶ 26 We emphasize that, while we find the use of Zoom to conduct a termination hearing is not
categorically prohibited, there may be circumstances where a video hearing in place of an in-
person hearing does violate a parent’s due process rights. However, we do not address that
issue here since respondents make no fact-specific arguments to support their due process
claim.
¶ 27 Respondents alternatively argue that the trial court should have granted their motions for a
continuance. They contend that, at the time of the hearings, a vaccine was being developed and
continuing the matter until the court could conduct in-person hearings would not have imposed
significant costs. As support, they cite In re C.J., 272 Ill. App. 3d 461 (1995).
¶ 28 In C.J., the respondent was incarcerated and could not personally attend the termination
hearing. Id. at 463. She filed a motion to continue the hearing set for July 19, 1994, to May 1,
1995, the date she would be released from prison. The trial court denied her motion. Id. The
hearings proceeded without the respondent’s participation, and the court ordered that her
parental rights be terminated. Id. at 464. The respondent appealed, contending that her statutory
and constitutional rights were violated where the hearings occurred in her absence without
giving her an opportunity to be heard. Id. The appellate court found that, although a
continuance until the respondent’s release from prison was not necessary, “other, less time-
consuming methods” would have afforded her an opportunity to be heard. Id. at 466.
¶ 29 C.J. is distinguishable for a couple of reasons. First, the respondent in C.J. was not present
at the hearings either by telephone or by video. Second, the court in C.J. found that the
proceedings need not wait until her release because “other, less time-consuming methods”
existed that would allow the respondent to exercise her rights. Here, respondents wanted the
proceedings continued until the court could hold in-person hearings. That option would require
continuance of the proceedings until the end of the pandemic or until use of a vaccine lessened
the risk of in-person hearings. At the time the Zoom hearings took place, between December
2020 and January 2021, neither scenario seemed certain in the foreseeable future.
¶ 30 There is no absolute right to a continuance under the Act. In re K.O., 336 Ill. App. 3d 98,
104 (2002). We will not overturn the trial court’s denial of a continuance absent an abuse of
discretion, and we find no abuse of discretion here. Even if the trial court had abused its
discretion, denial of a continuance is not grounds for reversal unless respondents have been
prejudiced by the denial. In re M.R., 305 Ill. App. 3d 1083, 1086 (1999). Respondents make
no argument in their brief that they were prejudiced by the denial. In their reply brief,
respondents generally argue that a COVID-19 vaccine had been approved and was being
distributed in Cook County by February 2021 and that in-person jury trials began again in
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criminal cases in March 2021. They make no connection, however, between those facts and
their cases or explain how they were prejudiced.
¶ 31 IV. CONCLUSION
¶ 32 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 33 Affirmed.
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