In re Mar. S. ( 2023 )

2023 IL App (1st) 231349Opinion filed: November 9, 2023
FIRST DISTRICT
FOURTH DIVISION
No. 1-23-1349
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
In re MAR. S. JR. and MAC. S., ) Appeal from the
) Circuit Court of
Minors- Appellees, ) Cook County
)
)
(The People of the State of Illinois )
) Nos. 19 JA833
Petitioner-Appellee, ) 19 JA835
)
v. )
)
Christina H., ) Honorable
) Diane Pezanoski,
Respondent-Appellant). ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Martin concurred in the judgment.
OPINION
¶1 Respondent Christina H., the mother of Mar. S. Jr. (Mar.) and Mac. S. (Mac.), brings an
interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), seeking
vacatur of an order preventing her from copying the transcripts from dispositional and permanency
hearings for her minor children and sharing them on social media sites. We affirm.
No. 1-23-1349
¶2 On August 2, 2019, the State filed petitions for adjudication of wardship alleging that 12-
year-old Mar. and 3-year-old Mac. were neglected based on a lack of necessary care and an
injurious environment and that they were abused based on a substantial risk of injury. Mar. also
was abused because he suffered from excessive corporal punishment.
¶3 The State alleged that respondent had three prior indicated cases. An intact case was opened
in February 2019 after Mar. was found with facial injuries caused by respondent. The State also
alleged that Mar. and Mac. were left home alone for several hours almost daily. Mar. had untreated
mental health issues and was left to babysit his siblings. The Department of Children and Family
Services (DCFS) took protective custody of Mar. and Mac. after they were found outside at night,
walking the streets alone.
¶4 On December 3, 2021, the court entered an adjudication order finding that Mar. and Mac.
were abused or neglected based on a lack of necessary care, an injurious environment, and
substantial risk of injury. Following a dispositional hearing held on January 14, 2022, the court
adjudicated Mar. and Mac. wards of the court and found respondent unable to care for them.
¶5 The court also held a permanency hearing on January 14, 2022, and entered a permanency
goal for Mar. of substitute care pending independence. Mac.’s permanency goal was to return
home within 12 months. On December 2, 2022, Mac.’s permanency goal changed to private
guardianship.
¶6 On March 3, 2023, the public guardian filed an emergency motion for a protective order,
alleging:
“[Respondent] uses the internet to publicly post videos of parent-child visits,
Administrative Case Reviews, Child and Family Team Meetings, and confidential court
proceedings. The confidential court proceedings and Child and Family Team Meetings
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were illegally taped without participants’ knowledge or consent. Among other online sites,
the videotaped court proceedings, Child and Family Team Meetings, therapy sessions and
parent- child visits can be found on her YouTube channel.”
¶7 On March 7, 2023, the court held a hearing on the emergency motion for a protective order.
The public guardian informed the court that respondent posted videos of court hearings without
consent of the parties. These videos identified Mar. and Mac. as being under the guardianship of
DCFS. The public guardian argued that Mar. and Mac.:
“are not in this court system for any fault of their own. They are here because of the abuse
and neglect. *** They are not juvenile [delinquents] and they don’t have, they should not
be exposed to the public as being court-involved and have their privacy revealed to the
general public.”
¶8 The public guardian requested that the court order the immediate removal of all such
videos.
¶9 The State agreed with the public guardian and provided multiple screen shots from
photographs/videos depicting courtroom proceedings involving Mar. and Mac. as well as from
videos of a child and family team meeting, an administrative case review, and a therapy session.
These videos were posted on respondent’s Facebook page, as well as on TikTok and on her
YouTube channel. The court noted its concern that the videos identified Mar. and Mac as being
“court-involved and being in the custody of DCFS” even though “these court proceedings are
confidential.”
¶ 10 The court ordered the removal of the offending videos from the social media sites, and
ordered respondent to refrain from posting any similar videos or other information in the future
that would publicly identify Mar. and Mac. as being court-involved and in the custody of DCFS.
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The court specifically ordered respondent not to record any court hearings, child and family team
meetings, or administrative case reviews involving Mar. and Mac.
¶ 11 The court held a permanency hearing on June 30, 2023. Matthew Bauman, a supervisor
with the National Youth Advocate Program, testified that he was assigned to Mar.’s case. Mar. has
been in three different foster homes and attempted to set fire to one of those homes in December.
He eloped in April and was gone for about three or four weeks before being found by police in
central Illinois.
¶ 12 As of the date of the hearing, Mar. was 16-years-old, going into his junior year of high
school, and living with his uncle. Mar. has unsupervised day and overnight visits with respondent.
Bauman spoke with Mar.’s caseworker, who said that Mar.’s placement with his uncle was safe
and appropriate and that his visits with respondent have been going well.
¶ 13 Bauman testified that respondent has completed all services except for individual therapy,
but that her therapist says she is “making progress.” Both respondent and Mar. want to live with
each other. Bauman recommended that Mar. be returned home to respondent. The public guardian
also asked the court to return Mar. to respondent’s care and custody under an order of protection.
The State opposed Mar.’s return to respondent.
¶ 14 The court ordered that Mar. be returned to respondent under the supervision of the
probation office. The court also ordered respondent to cooperate with DCFS and to comply with
the terms of any aftercare plan.
¶ 15 The court then proceeded to the permanency hearing for Mac. The court noted that Mac.
has had five different placements and that he had last been placed in a nonrelative foster home.
Respondent informed the court that Mac. no longer was at the foster home and instead had been
placed in the Lawrence Hall residential facility. Lawrence Hall has suspended any visitation
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between respondent and Mac. because Mac. has been “acting out” during visits and no longer
wishes to see respondent.
¶ 16 Respondent sought a continuance of the permanency hearing so that Lawrence Hall could
conduct a staffing to address how to best reinstate respondent’s visits with Mac. The court granted
the continuance and ordered that a staffing be held within 21 days.
¶ 17 The State then informed the court that the court coordinator had received an e-mail from
“someone in mediation” indicating that respondent was asking for transcripts of prior proceedings
and wanting to know “if there was an order in place limiting her access to obtaining transcripts.”
The court inquired of respondent’s attorney, who stated that respondent was acting on her own
behalf in seeking transcripts from the dispositional and permanency hearings held on January 14,
2022. 1
¶ 18 The State argued that since respondent previously had published videos of confidential
court proceedings on social media sites, the court should take special care to ensure that she not
similarly publish the transcripts of the confidential January 14, 2022, hearings. Accordingly, the
State requested that the court specifically order respondent not to share those transcripts “with
anybody.”
¶ 19 Respondent’s attorney stated that respondent has a large support network of persons
helping her deal with the trauma of being in the child welfare system and that she would want to
share the transcripts with those particular persons. She would not post the transcripts to Facebook
or other social media sites where they could be publicly accessed.
Respondent misspoke by identifying the date of those hearings as January 14, 2021; however, the
1
record indicates that the hearings were held in 2022.
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¶ 20 The State suggested that respondent’s attorney obtain the transcripts and then respondent
could view them in his office.
¶ 21 The court made an oral ruling allowing respondent to view the transcripts in her attorney’s
office, where she could be joined by “professional people and clinical people,” such as her
therapist, who would review the transcripts with her.
¶ 22 On July 8, 2023, the court entered a written order nunc pro tunc to June 30, 2023, stating:
“Mother *** may view copies of transcripts as provided by her attorney of record,
Mr. Steven Pick. Mother shall not copy the transcripts, photograph the transcripts, or
duplicate them in any way. Mother shall not show the transcripts to anyone. Mother shall
not share the transcripts via any means, including but not limited to by posting them on the
internet or social media.”
¶ 23 Respondent filed this Rule 307(a)(1) interlocutory appeal. Rule 307(a)(1) provides that an
appeal may be taken from an interlocutory order granting an injunction. Ill. S. Ct. R. 307(a)(1)
(eff. Nov. 1, 2017). An injunction is defined as “ ‘a judicial process, by which a party is required
to do a particular thing, or to refrain from doing a particular thing, according to the exigency of
the writ, the most common sort of which operate as a restraint upon the party in the exercise of his
real or supposed rights.’ ” In re A Minor, 127 Ill. 2d 247, 261 (1989) (Minor I) (quoting Wangelin
v. Goe, 50 Ill. 459, 463 (1869)). A protective order, such as the one entered here, barring a party
from copying or publicizing transcripts is an injunctive order appealable under Rule 307(a)(1).
See, e.g., In re Daveisha C., 2014 IL App (1st) 133870 (a protective order barring the public
guardian from copying a victim sensitive interview was an injunctive order subject to a Rule
307(a)(1) appeal); Minor I, 127 Ill. 2d at 263 (interlocutory restraints upon publication of
information are injunctive orders under Rule 307(a)(1)). Our scope of review is limited to
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determining whether the circuit court abused its discretion in granting the requested interlocutory
injunctive relief. In re J.S., 267 Ill. App. 3d 145, 147 (1994).
¶ 24 Respondent argues that the court abused its discretion because its injunctive order was a
prior restraint of speech that violated her first amendment rights. Respondent forfeited review by
failing to raise this argument below. See Flood v. Wilk, 2019 IL App (1st) 172792, ¶ 29. However,
forfeiture is a limitation on the parties and not the appellate court (Duniver v. Clark Material
Handling Co., 2021 IL App (1st) 200818, ¶ 18), and we choose to address the issue on the merits.
¶ 25 The public guardian argues that there was no constitutional violation, citing Minor I, In re
Minor, 149 Ill. 2d 247 (1992) (Minor II), and J.S. in support. We proceed to briefly discuss those
cases.
¶ 26 In Minor I, 127 Ill. 2d at 251, the circuit court entered an order during the course of a
juvenile proceeding banning a newspaper from publishing the name of a minor who had been
charged in connection with a fatal shooting. The newspaper had learned the minor’s identity
through “ordinary reportorial techniques,” and the minor’s identity was already in the public
domain. Id. at 250. The circuit court claimed to act under the authority of section 701-20 of the
Juvenile Court Act, which provided that the court “ ’may, for the minor’s protection and for good
cause shown, prohibit any person or agency present in court from *** disclosing the minor’s
identity.’ ” (Emphasis omitted.) Id. at 263-64 (quoting Ill. Rev. Stat. 1983, ch. 37, ¶ 701-20(6)
(now codified as amended as the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-5(6) (West
2022)))).
¶ 27 On appeal, the newspaper argued that the circuit court’s order constituted a prior restraint
upon speech. Minor I, 127 Ill. 2d at 264. The supreme court summarized the governing law:
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“[A]ny prior restraint upon speech, while not unconstitutional per se, bears a heavy
presumption against its validity. [Citation.] *** In the context of pending judicial
proceedings, a judicial order restraining speech will not be held invalid as a prior restraint
if it is: (1) necessary to obviate a ‘serious and imminent’ threat of impending harm, which
(2) cannot adequately be addressed by other, less speech-restrictive means.” Id. at 265.
¶ 28 The supreme court held that the circuit court’s proscription of the publication of the minor’s
name in connection with the juvenile proceeding was unconstitutional where the publisher learned
the identity of the minor through routine, reportorial techniques and where the publication of the
minor’s name did not pose any serious and imminent threat of harm to the his well-being. Id. at
270.
¶ 29 Minor II, 149 Ill. 2d at 248, was an interlocutory appeal from an order entered in two
juvenile court proceedings, each involving a minor child who was the victim of physical and sexual
abuse by a parent. Prior to commencement of an adjudicatory hearing, the circuit court entered an
order refusing to permit a newspaper reporter from attending the proceedings unless they signed a
pledge not to reveal the identity of the minors. Id. On appeal, the newspaper argued that the court’s
order constituted an unconstitutional prior restraint on speech and cited in support Minor I. Id. at
253-54. The supreme court determined that Minor I was inapposite because in Minor I the juvenile
was before the court in a fatal shooting, whereas the juveniles in Minor II were before the court as
victims of physical and sexual abuse by a parent. Id. at 254.
¶ 30 The supreme court held that the State has an interest in the nondisclosure of the minor
victims’ identities in its role as parens patriae and that “the danger of public disclosure and the
probability of irreparable adverse effects which such disclosure would entail [is] a compelling
State interest.” Id. Also, the minor victims have a compelling interest against the invasion of their
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privacy under article I, section 6, of the Illinois Constitution, which provides that people “shall
have the right to be secure in their persons, houses, papers and other possessions against ***
invasions of privacy” (Ill. Const. 1970, art. I, § 6); and article I, section 12, which provides that
every person shall find “a certain remedy in the laws for all injuries and wrongs which he receives
to his *** privacy” (id. § 12). The supreme court further observed:
“The minor victims in this case have done nothing to limit or diminish their
constitutional right to be free from governmental and nongovernmental invasions of their
privacy. They are not juvenile delinquents. They are not participating in the juvenile
proceedings begun on their behalf through their own free will. They were victims of abuse
by a parent. They were thrust into the juvenile system by actions of third parties, not by
their own actions. Under these facts, we find that the minor victims have a compelling
interest in their right to be free from invasions of their privacy. Public disclosure of their
identities would surely invade their right to privacy in a most egregious manner.”
(Emphasis in original.) Minor II, 149 Ill. 2d at 256-57.
¶ 31 The supreme court then weighed the minors’ and State’s compelling interests in
nondisclosure against the newspaper’s need for free and unfettered expression and found no
compelling need for free and unfettered disclosure of the minor victims’ identities. Id. at 257.
¶ 32 In J.S., 267 Ill. App. 3d at 147, DCFS took protective custody of J.S. following his mother’s
report that he had been sexually abused by his father. The father brought a petition seeking sole
custody of J.S., and the State filed a petition for adjudication asking that J.S. be declared a
neglected minor and made a ward of the court. Id. Following a hearing, the circuit court ruled that
J.S. was a neglected minor and awarded the father sole custody. Id. The court found that the mother
had caused J.S.’s emotional environment to be injurious through her obsession with proving that
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his father sexually abused him. Id. The mother physically abused J.S. for the purpose of attempting
to prove that the father sexually abused him. Id. The evidence showed that the father did not
sexually abuse J.S. Id.
¶ 33 The circuit court entered a gag order prohibiting the parties and their attorneys from
discussing the facts of the case with the news media. Id. at 146-47. On appeal, the mother argued
that the gag order violated her constitutional right to free speech. Id. at 147. We noted that, as in
Minor II, the minor was an innocent child victim and not a juvenile delinquent, and we held:
“[T]he record indicates that J.S. has suffered emotional trauma because of the strife
between the parents. Airing that strife in the media could only exacerbate the problem and
surely would constitute an egregious invasion of the child’s privacy, forbidden by Minor
II. On the other side of the balance is the ‘need for unfettered speech.’ We fail to see the
necessity of discussing the details of this case with the news media. Weighing the factors
outlined in Minor II, we find that J.S.’s rights to privacy and to be free from further
emotional trauma outweigh the mother’s right to take her case to the press.” (Emphasis in
original.) Id. at 150.
¶ 34 Minor II and J.S. teach that where a minor is participating in juvenile proceedings, not
because of any delinquent or criminal conduct, but because he was a victim of abuse or neglect,
both the minor and the State have a compelling interest that the minor’s identity be protected from
publication. Minor II and J.S. are in accordance with section 1-8(A) of the Act (705 ILCS 405/1-
8 (West 2022)), which provides for the confidentiality of juvenile court records: “All juvenile court
records which have not been expunged are sealed and may never be disclosed to the general public
or otherwise made widely available.” See In re K.D., 279 Ill. App. 3d 1020 (1996) (holding that
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the general purpose of the Act is to protect the interests of minors, which includes protecting the
confidentiality of the minor’s identity).
¶ 35 In the present case, the minors Mar. and Mac. were not juvenile delinquents who were
charged with criminal conduct; rather, they were thrust into the juvenile system due to the alleged
abuse and neglect of their mother. As in Minor II and J.S., Mar. and Mac. each have a compelling
interest against the invasion of their privacy and the disclosure of their identities under article I,
sections 6 and 12 of the Illinois Constitution and section 1-8(A) of the Act, and they have done
nothing to limit or diminish their constitutional and statutory rights to be free from governmental
and nongovernmental invasions of their privacy. Also as in Minor II and J.S., the State has a
compelling interest in protecting the minors’ privacy and preserving the nondisclosure of their
identities in its role as parens patriae. The doctrine of parens patriae recognizes the general power
and obligation of the government to protect minors from abuse and neglect and is codified in the
Act, which “specifically charges the circuit court with the duty to act in the best interests of the
minor and for the minor’s own protection.” In re D.S., 198 Ill. 2d 309, 328 (2001).
¶ 36 Minor II and J.S. also teach that the minors’ right to privacy must be balanced against
respondent’s general need for unfettered speech. The “unfettered speech” at issue here relates to
respondent’s desire to copy and share transcripts from the dispositional and permanency hearings
held on January 14, 2022. The transcripts would include confidential information regarding Mar.
and Mac.’s identities as well as confidential information regarding their placement and medical
and mental health. The publication of the transcripts potentially could exacerbate the emotional
harm already suffered by the minors as evidenced by Mar.’s attempt to set fire to a foster home
and Mac.’s acting out during visits with respondent. The court struck a balance between the
minors’ compelling privacy rights and emotional needs against respondent’s need for unfettered
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speech, by allowing respondent to view the requested transcripts in her attorney’s office but
preventing her from copying or sharing the transcripts with the general public on the internet and
social media. The court’s order did not constitute an abuse of discretion.
¶ 37 Respondent argues that the court’s written order goes too far in preventing her from sharing
the transcripts with her therapist. However, in its oral ruling, the court stated that when viewing
the transcripts in her attorney’s office, respondent could be joined by “professional people and
clinical people” such as her therapist. To the extent that the court’s oral pronouncement conflicts
with the written order, the oral pronouncement prevails. In re R.W., 371 Ill. App. 3d 1171, 1173
(2007). Respondent may view the transcripts in her attorney’s office, accompanied by her
therapist. However, respondent may not copy the transcripts or publicize them such as by posting
them on the internet or on social media sites.
¶ 38 Respondent also argues that the court should have used a less restrictive means of
protecting the minors’ privacy, such as by ordering that their names be redacted from the
transcripts prior to their dissemination. We disagree. In re D.P., 2011 IL App (1st) 111631, is
informative. In D.P., the respondent mother of minors D.P. and D.V. appealed the trial court’s
order restricting her access to case documents from the minors’ wardship adjudication cases. Id.
¶ 1. The order specified in pertinent part that she only could review her attorney’s case materials
in the attorney’s presence for 31 days after entry of the order. Id. The order was entered pursuant
to section 2-22 of the Act (705 ILCS 405/2-22(2) (West 2022)), which limits respondent’s access
to the case file and states that the court may order that documents containing reports prepared for
the use of the court “need not be submitted to inspection, or that sources of confidential information
need not be disclosed except to the attorneys for the parties.” We held:
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“[T]he court did not abuse its discretion in issuing the injunction limiting respondent’s
access to the case file. The record suggests that respondent was posting damaging,
embarrassing and confidential information about her children on the Internet. It was within
the trial court’s discretion to take action to prevent the disclosure and publication of
confidential information and case materials. The limitations imposed on respondent’s
access to the case materials were reasonable, and we believe the court’s order limiting
respondent’s review of the case records was a proper exercise of its judicial discretion.”
D.P., 2011 IL App (1st) 111631, ¶ 5.
¶ 39 Although the instant case does not involve access to the case file, it does involve access to
transcripts of juvenile court proceedings containing confidential information about the minors.
Similarly to D.P., given respondent’s history of posting videos of confidential court proceedings
involving her children on the Internet, the circuit court acted reasonably by requiring her to review
the requested transcripts at her attorney’s office without copying, distributing, or posting them on
the Internet. The court’s order allowed respondent access to the transcripts while minimizing the
chances of further invasions of the minors’ privacy. We find no abuse of discretion.
¶ 40 Respondent next argues that the court’s order preventing her from copying the transcripts
violates section 1-8(A)(1) of the Act, which states:
“Inspection and copying of juvenile court records relating to a minor who is the subject of
a proceeding under this Act shall be restricted to the following:
(1) The minor who is the subject of record, the minor’s parents, guardian,
and counsel.” (Emphasis added.) 705 ILCS 405/1-8(A)(1)(West 2022).
¶ 41 However, section 1-8(C)(0.3) states:
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“In determining whether juvenile court records should be made available for inspection
and whether inspection should be limited to certain parts of the file, the court shall consider
the minor’s interest in confidentiality and rehabilitation over the requesting party’s interest
in obtaining the information.” (Emphasis added.) Id. § 1-8(C)(0.3).
¶ 42 As we have discussed, the circuit court here considered the minors’ interest in
confidentiality and privacy when restricting respondent to inspecting (without copying) the
transcripts at her attorney’s office. The circuit court’s consideration of the minors’ confidentiality
and privacy interests was proper under section 1-8(C)(0.3) and its resultant order was not an abuse
of discretion.
¶ 43 Next, respondent argues that she received no prior notice that the State would be seeking
an injunctive order preventing her from copying and disseminating the transcripts and that in
ordering the injunction, the circuit court did not hear any witnesses or accept any briefs.
Respondent argues that the failure to receive prior notice or an “orderly hearing” deprived her of
procedural due process.
¶ 44 Procedural due process is met “by having an orderly proceeding wherein a person is served
with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect
his rights.” Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 244 (2006). Parents in
juvenile court proceedings have the right to be present, to be heard, to present evidence material
to the proceedings, to cross-examine witnesses and to be represented by counsel. See 705 ILCS
405/1-5(1) (West 2022). In deciding whether a party received a meaningful opportunity to be
heard, we balance (i) the private interest affected by the official action, (ii) the risk of an erroneous
deprivation of such interest through the procedures used and the probable value of additional
procedural safeguards, and (iii) the government’s interest. Mathews v. Eldridge, 424 U.S. 319, 335
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(1976). A procedural due process claim presents a legal question subject to de novo review. People
v. Cardona, 2013 IL 114076, ¶ 15.
¶ 45 Respondent was not deprived of procedural due process, as it was her request for transcripts
that precipitated the hearing at issue. Respondent was represented by counsel when the court
considered her request, and she did not object to the court also considering the State’s motion for
an injunctive order at the same time, nor did she request a briefing schedule or further time to
prepare or that any witnesses be called. Instead, she indicated a desire for an immediate resolution
of the issue by arguing for denial of the injunctive order and by asking that no limitations be put
on her ability to view the transcripts while accompanied by her support network, including her
therapist. The court subsequently entered the injunctive order at issue, after balancing the minors’
privacy interest and the State’s interest in the minors’ privacy in its role as parens patriae against
respondent’s stated need for the transcripts and allowing all parties to be heard on their respective
arguments.
¶ 46 On this record, the court complied with Mathews as respondent received sufficient notice
and a meaningful opportunity to be heard both on her request for transcripts and on the State’s
motion for an injunctive order. As such, respondent was not denied procedural due process.
¶ 47 Further, respondent has not shown how she was prejudiced by the process afforded her, as
she ultimately was granted her request that she and her therapist 2 be allowed to view the transcripts,
which is all she asked of the circuit court. In the absence of any prejudice, respondent’s due process
2
As discussed, to the extent that the written order conflicted with the oral ruling allowing respondent’s
therapist to view the transcripts with her at the attorney’s office, the oral ruling controls.
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claim fails. See Snow v. Chicago Transit Authority, 2022 IL App (1st) 201217, ¶ 54 (“A court will
find a due process violation only if there is a showing of prejudice.”).
¶ 48 For all the foregoing reasons, we affirm the circuit court.
¶ 49 Affirmed.
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In re Mar. S., 2023 IL App (1st) 231349Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 19-JA-833,
19-JA-835; the Hon. Diane Pezanoski, Judge, presiding.
Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Kevin Duffy
for Jr., Assistant Public Defender, of counsel), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham and Gina DiVito, Assistant State’s Attorneys, of
Appellee: counsel), for the People.
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain
and Carrie Fung, of counsel), for appellee.
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