2022 IL App (2d) 210404 No. 2-21-0404 Opinion filed February 23, 2022 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re H.B., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 18-JA-21 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Christopher B., ) Kathryn Karayannis, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice McLaren concurred in the judgment and opinion.
OPINION
¶1 Respondent, Christopher B., appeals from the trial court’s order finding him unfit to parent his son, H.B., and terminating his parental rights. His sole contention is that the trial court erred by conducting the termination proceedings in a hybrid in-person/remote format. We disagree and affirm.
¶2 I. BACKGROUND
¶3 A. Adjudication Phase
¶4 In June 2018, the State filed a petition for adjudication of wardship against respondent and H.B.’s mother, Stephanie M., 1 under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1
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2022 IL App (2d) 210404 to a few exceptions, for “at least 35 days.” Id. On May 1, 2020, the presiding judge of the juvenile division entered an administrative order that set forth temporary procedures that applied to pending juvenile matters. See In re COVID-19 Temporary Procedures for Juvenile Division Matters, Kane
County Cir. Ct. Family Div. Admin. Order (May 4, 2020), https://cic.countyofkane.org/
Admin%20Orders/Family%20Division/Family%20Division%20Maters%E2%80%8B%E2%80
%8B%E2%80%8B%20wdd,%205-4-020.pdf[https://perma.cc/JS7B-N9AN]. In pertinent part, the order permitted the trial court, in its discretion, to allow contested juvenile matters to proceed remotely or in a hybrid manner, over any party’s objection, with certain safeguards, provided it first allowed the objecting party to show why he or she would be prejudiced by the procedure. Id.
¶ 10 On June 22, 2020, the matter convened for the continued trial. The assistant state’s attorney
(ASA) appeared in person, while the parties, their attorneys, the court appointed special advocate
(CASA), the CASA’s supervisor, and the CASA’s attorney appeared remotely via the Zoom videoconferencing application. At the time, respondent was in the custody of the Illinois
Department of Corrections (IDOC). While the parties and the attorneys were identifying themselves for the record, respondent interjected, asking to speak with his attorney because he had not spoken to her since March. He continued, “I don’t know what’s going on. I am on a tiny little phone.” He stated, “[t]his isn’t fair,” and asked the court to continue the case until August.
¶ 11 The court then asked if there were any objections to proceeding in a hybrid manner, and respondent raised his hand. Respondent and his attorney were then admitted into a private “break-
out room” to discuss his objection. When respondent and his attorney were admitted back into the hearing room, respondent’s attorney withdrew the objection. No evidence was presented that day.
Instead, the matter was continued to September 23, 2020. Respondent indicated he believed he
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¶ 12 On September 23, 2020, two ASAs, respondent, respondent’s attorney, and the CASA’s
attorney appeared in person. Stephanie, her attorney, the CASA, and the CASA’s supervisor appeared on Zoom. After the parties and attorneys identified themselves, the court noted it was proceeding on a hybrid platform and asked the parties whether they had any objections. No objections were raised. The court reminded the participants that the proceedings were confidential and asked that any nonparty leave the location where the remote participants were. It also stated that recording or live streaming of the proceedings was not permitted and asked all participants to act as if they were physically present in the courtroom.
¶ 13 The court then noted the trial last broke on March 9, 2020, during cross-examination of Stephanie. The court asked if anyone was not prepared to proceed and received no responses. It then asked, “Is there anything we need to address prior to [re]commencing the Cross-Examination
[(of Stephanie)]?”
¶ 14 The State requested that both respondent and Stephanie be physically present in court if and when they testified. The State’s concern was that the court would not otherwise have the full opportunity to observe their demeanor. The State asked, however, that its witnesses be allowed to appear remotely. Stephanie’s attorney responded that Stephanie “ha[d] hesitation about the entire proceeding being done by Zoom.” Stephanie’s attorney stated she, too, had “reservations *** about a termination trial at all being conducted by Zoom” because of the significant rights at issue.
Stephanie’s attorney stated she was “super high risk” (presumably to suffer severe illness from
COVID-19), however, and, if the court required Stephanie to come in, she would “probably try to make arrangements to have [a different attorney] come sit with [Stephanie]” while she appeared
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remotely. Respondent’s position was that if he and Stephanie were required to testify in person, then all witnesses should be required to testify in person. He noted he had a “right to face the witnesses in person.” The CASA joined the State’s request and noted Stephanie had moved in and out of the Zoom frame during the discussion (not during her testimony).
¶ 15 The court observed Stephanie appeared to be having difficulties with the audio and video feed, she had been moving in and out of the frame, and someone else was present in the room she was using (Stephanie had shushed someone in the background). The court found it would have
trouble observing Stephanie and, more importantly, that Stephanie would have trouble hearing the proceedings. After noting that felony jury trials had been proceeding during the pandemic, the court stated it would require Stephanie to come to court to conclude her cross-examination. It also stated it would require respondent to be present in the event he testified. Regarding all other witnesses, the court stated it would consider requiring the witnesses to testify in person on an individual basis and would require any witness appearing remotely via Zoom to have a hardwired connection. The court also stated it would inquire whether there was a larger courtroom “if that
[made] people more comfortable” but it could nevertheless accommodate Stephanie’s physical presence while maintaining proper social distancing.
¶ 16 The court then invited the State to call a witness out of order. The State indicated it could call a domestic violence counselor, Michelle Diaz, who was in the Zoom waiting room. (Diaz was the State’s last witness.) The court asked respondent whether his position was the same—i.e., that all witnesses should be required to appear in person, and he responded affirmatively. The State told the court it had explained to Diaz that she should treat the proceedings the same as if she were physically present in the courtroom and that she should not refer to any notes or documents without the court’s permission. The State also told the court that Diaz had family members who were
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“particularly vulnerable” (presumably to severe illness from COVID-19) and that she was requesting to appear remotely but would appear in person if ordered to do so.
¶ 17 The court stated it would break so the parties could discuss with their attorneys their positions on the hybrid proceedings and the court could determine courtroom setups it could offer if the matter was to proceed on Zoom. It noted that, if the matter did not proceed in at least a hybrid manner, then it was possible the trial would not move forward for “a very long time,” which was not in “anyone’s best interests.” It stated, “Again, we are doing felony jury trials. I think *** we can accommodate this.”
¶ 18 After the break, the court stated the proceedings had been moved to a different courtroom
to allow for social distancing. It took note of its discretion to control the proceedings and, in the exercise of that discretion, determined the matter would proceed in a hybrid manner. The court stated it would permit certain witnesses to testify remotely and require others to testify in person.
Stephanie reiterated her hesitance to proceed in a hybrid manner, especially given her attorney could not appear in person. The court stated it would allow Stephanie and her attorney to communicate by phone or in person (by recessing the proceedings) while Stephanie was not
testifying. Respondent reiterated his argument that all witnesses should be required to appear in person, so that he could have the opportunity to observe the witnesses’ mannerisms and behavior, and he noted it was “very difficult to see the screen” from where he and his attorney sat, because of a glare on the screen. The court closed the blinds, and respondent did not again complain of his inability to see the screen.
¶ 19 The court stated its ruling would stand and that the case would proceed in a hybrid manner.
It noted it had considered the rights at issue and did not believe any of those rights would be impacted by the witnesses testifying remotely. Further, it noted, a courtroom that would allow
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The court also noted it could change its decision if the hybrid proceedings proved problematic.
¶ 20 The court admitted Diaz via Zoom into the hearing room and, before her testimony, told her the proceedings were confidential, that audio or video recording was not permitted, that all nonparties present in her location should leave, that she should conduct herself as if she were present in the courtroom, and that she could not look at any documents or notes without the court’s permission.
¶ 21 The State presented Diaz’s testimony, which largely concerned Stephanie’s engagement with domestic-violence counseling. Diaz’s remote testimony continued into the next day, and she again testified via Zoom. Prior to the recommencement of her testimony, however, the court formally found, on the State’s request, good cause for permitting Diaz to testify remotely, because she had a family member who was particularly vulnerable to severe illness from COVID-19.
Respondent’s attorney cross-examined Diaz and made several objections during her testimony. At no time did respondent or his attorney raise any concern with their ability to hear Diaz’s testimony or observe her demeanor. Stephanie then finished her testimony in person (with her attorney appearing remotely).
¶ 22 On October 8, 2020, the trial reconvened. The State did not present testimony; instead, it introduced eight recordings of phone calls made by respondent while in custody and then rested its case. Stephanie asked for leave to file a written motion for a directed finding. The court granted the request and set the motion for hearing on December 4, 2020.
¶ 23 On November 19, 2020, in response to increased community transmission of COVID-19, the chief judge entered General Order No. 20-29 (Kane County Cir. Ct. G.O. 20-29 (Nov. 30, 210410
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2020)). The order provided that, beginning on November 30, 2020, all matters were to be heard remotely until at least February 1, 2021. Id.
¶ 24 Thus, on December 4, 2020, all parties and their attorneys appeared via Zoom. The court denied Stephanie’s motion and continued the matter to March 8, 2021.
¶ 25 On March 8, 2021, the matter reconvened with all parties and their attorneys appearing via
Zoom. Respondent was prepared to present evidence but nevertheless moved to continue the proceedings. (Stephanie joined his motion.) Respondent’s attorney noted respondent “ha[d] always
made it clear that he would prefer to proceed with this matter in person as well as having the witnesses testify in person.” The court asked the CASA’s attorney whether H.B.’s therapist believed further delay would be detrimental. The CASA’s attorney responded the therapist believed it would not be detrimental, because visitation between respondent and H.B. had been suspended. The State had no objection. The court, after noting in-person proceedings were being
conducted only with special permission, granted respondent’s request, “based upon primarily the therapist indicating this would not at this point be detrimental to the minor.”
¶ 26 On June 2, 2021, the ASA, respondent, respondent’s attorney, Stephanie, and the CASA’s attorney appeared in person. Stephanie’s attorney, the CASA’s supervisor, Lacey Timoti, a
Children’s Home and Aid caseworker, and Timoti’s supervisor appeared via Zoom. As previously
noted, Stephanie executed an irrevocable consent to adoption, and she was excused. Accordingly, the remainder of the termination trial concerned only respondent. The CASA presented her
evidence, which consisted of audio recordings of phone calls made by respondent while in the custody of the Kane County jail and various documents, and then rested.
¶ 27 Respondent testified on his own behalf, presented the testimony of the CASA and his sister, both of whom testified in person, and then rested.
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¶ 28 In rebuttal, the State called Timoti, who testified via Zoom. Before Timoti’s testimony, the court cautioned her that she was not to communicate with anyone during her testimony and that she could not refer to any documents absent the court’s permission to do so. Her testimony focused on respondent’s effort, or lack thereof, to contact the agency and his failure to engage in services after his release from IDOC in July 2020, which contradicted respondent’s testimony.
Respondent’s attorney cross-examined her, and neither respondent nor his attorney raised any concerns about their ability to hear her testimony, observe her demeanor, or gauge her credibility.
¶ 29 The State rested in rebuttal, and, after hearing the parties’ summations, the court continued the matter to June 23, 2021, for its ruling. That day, the proceedings took place in the hybrid manner used throughout the proceedings. The court found respondent was unfit, finding the State had proved the allegations of its termination petition.
¶ 30 The matter proceeded to a best-interests hearing, at which H.B.’s therapist, a foster parent, and respondent all testified in person. At the conclusion of the hearing, the court found it was in the H.B.’s best interests to terminate respondent’s parental rights.
¶ 31 This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 A. Illinois Supreme Court Rule 311
¶ 34 Initially, we note we have issued our decision outside the 150-day timeframe specified in Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), which states, “[e]xcept for good cause
shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal.” Respondent filed his notice of appeal on July 20, 2021. Thus, the record on appeal was due in this court on August 24, 2021, and our disposition was due on December 17, 2021. See Ill.
S. Ct. R. 311(a)(4), (5) (eff. July 1, 2018).
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¶ 35 On August 17, 2021, respondent moved this court for an extension of time to file the record, supported by an affidavit from the court reporter, requesting an extension to September 14, 2021.
We granted respondent’s motion, and the record was filed on September 14, 2021, and supplemented with the bulk of the report of proceedings on October 7, 2021.
¶ 36 On October 4, 2021, respondent moved this court for an extension of time to file his brief, asserting that, due to the delay in receiving the complete report of proceedings, the sheer volume of the record itself (the report of proceedings is nearly 1700 pages and the exhibits total more than
2000 pages), and his attorney’s other professional obligations, he needed an additional 21 days to file his brief. We granted his request and ordered his brief be filed no later than October 26, 2021.
¶ 37 On October 26, 2021, respondent’s appointed appellate counsel moved for leave to
withdraw as counsel, purportedly in accordance with the procedures set forth in Anders v. California, 386 U.S. 738 (1967). See In re S.M., 314 Ill. App. 3d 682, 685 (2000) (noting appellate
counsel in termination proceedings may move to withdraw in accordance with Anders). In pertinent part, counsel noted he had consulted with respondent and learned respondent took issue with, among other things, the hybrid in-person/remote nature of the proceedings. Counsel asserted that he found persuasive the court’s reasoning in In re P.S., 2021 IL App (5th) 210027, which
found a fully remote termination trial did not violate the respondent’s due-process and confrontation-clause rights, and counsel “elect[ed] to leave it to the discretion of this Honorable court to choose whether the court wishes to address the issue.” He did not sketch out a potential
argument, present any analysis of the issue, or explain the argument’s frivolity. See In re Austin C., 353 Ill. App. 3d 942, 946 (2004). Accordingly, we denied counsel’s motion without prejudice.
We directed counsel to reconsider his conclusion regarding the hybrid nature of the proceedings and file an amended Anders motion or brief no later than November 23, 2021. We also ordered