In re Harley S.
This text of 2022 IL App (5th) 210342-U (In re Harley S.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOTICE 2022 IL App (5th) 210342-U NOTICE Decision filed 04/06/22. The This order was filed under text of this decision may be NO. 5-21-0342 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re HARLEY S., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Wayne County. ) Petitioner-Appellee, ) ) v. ) No. 18-JA-28 ) Reggie S., ) Honorable ) Matthew J. Hartrich, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justice Moore concurred in the judgment. Justice Welch concurred in part and dissented in part.
ORDER
¶1 Held: We hold that portion of the circuit court’s judgment finding the respondent an unfit person was not contrary to the manifest weight of the evidence and affirm. We reverse that portion of the circuit court’s judgment terminating the respondent’s parental rights based on the circuit court’s finding that termination of his parental rights was in the minor child’s best interest where the record does not demonstrate a good cause, or appropriate safeguards implemented prior to the circuit court proceeding with the best interest hearing with the respondent appearing via video conferencing.
¶2 The respondent, Reggie S., is the father of Harley S., born December 2014. On
August 4, 2021, the circuit court of Wayne County found Reggie to be an unfit person
within the meaning of the Adoption Act (750 ILCS 50/1(D) (West 2020)) for failing to 1 make reasonable efforts to correct the conditions that were the basis for the removal of
Harley (id. § 1(m)(i)) and failing to make reasonable progress toward the return of Harley
(id. § 1(m)(ii)) during the periods of October 10, 2018, to July 10, 2019, July 11, 2019, to
April 11, 2020, and April 12, 2020, to January 12, 2021; such periods following the
adjudication of abuse or neglect on October 10, 2018. On September 29, 2021, the circuit
court determined that it was in Harley’s best interest to terminate Reggie’s parental rights
and, the same day, entered a written order terminating Reggie’s parental rights regarding
Harley.
¶3 Reggie now appeals the circuit court’s judgment terminating his parental rights
arguing that he was denied his constitutional right to attend the circuit court’s best interest
hearing in person. Reggie further argues that the circuit court’s findings that Reggie was
an unfit person and that termination of his parental rights was in the best interest of Harley
were against the manifest weight of the evidence. Finally, Reggie argues that the circuit
court abused its discretion in denying Reggie’s agreed motion to continue the circuit court’s
best interest hearing and motion for transcript. For the following reasons, we affirm in part
and reverse in part the judgment of the circuit court.
¶4 I. BACKGROUND
¶5 On April 15, 2018, Harley’s mother 1 contacted law enforcement alleging that
Reggie had choked her. When law enforcement arrived, it was reported that Harley had
witnessed the domestic violence and had been exposed to Reggie’s methamphetamine use.
1 Harley S.’s biological mother was also a respondent in the circuit court proceedings but is not a party to this appeal. As such, we will only recite the background information relevant to Reggie’s challenges on appeal. 2 The Illinois Department of Children and Family Services (DCFS) was contacted, and
Harley was taken into protective custody on April 17, 2018. On April 18, 2018, a petition
for adjudication of wardship pursuant to the Juvenile Court Act of 1987 (Act) (705 ILCS
405/1-1 et seq. (West 2018)) was filed with the circuit court. The circuit court conducted a
shelter care hearing the same day and determined that there was probable cause to believe
that Harley was neglected or abused, but that it was not a matter of immediate and urgent
necessity that he be placed in shelter care. As such, the circuit court returned Harley to
Reggie’s care and directed Reggie to comply with a DCFS service plan for six months. The
circuit court further directed Reggie to submit to random drug testing including an initial
test to be administered instanter.
¶6 On April 23, 2018, the Wayne County Probation Office filed a report informing the
circuit court that it was unable to complete Reggie’s drug test on April 18, 2018, and that
Reggie was advised to expect a phone call informing him when to report back for the drug
test. The report indicated that the probation office attempted to contact Reggie, but that the
phone number provided went to voicemail. According to the report, the probation office
left a voice message on April 20, 2018, directing Reggie to report for drug testing by 4 p.m.
that day and Reggie failed to report or contact the probation department as directed. Finally,
the report indicated that Reggie did appear at the probation office on April 23, 2018, and
stated that he had not received the voice message and then stated that he did not get home
from work in time to report for the drug test.
¶7 On July 11, 2018, the circuit court conducted another shelter care hearing at the
request of the State. According to the circuit court’s docket entry, Reggie had tested
3 positive for methamphetamine 2 and was noncompliant with the services offered by DCFS.
The docket entry indicated that Reggie arrived late to the shelter care hearing and appeared
pro se. At Reggie’s request, the circuit court appointed counsel to represent Reggie;
however, the circuit court proceeded with the shelter care hearing with Reggie remaining
pro se. The circuit court’s docket entry further stated that Reggie participated in the shelter
care hearing for approximately five minutes when he abruptly interrupted the witness, got
agitated, and voluntarily left the courtroom notwithstanding the circuit court’s attempts to
get him to stay. The circuit court proceeded with the shelter care hearing in Reggie’s
absence and found Harley to be abused or neglected due to Reggie’s drug use and failure
to comply with his service plan. As such, the circuit court found that it was a matter of
immediate and urgent necessity to protect Harley and placed Harley in the care and custody
of DCFS.
¶8 On August 14, 2018, DCFS filed a status report with the circuit court. The status
report indicated that Reggie had a long criminal record and was known to be volatile and
uncooperative. The status report stated that Reggie had not cooperated with DCFS services
or scheduled drug testing, and that Reggie had admitted that he would test positive for
methamphetamine if tested. The status report further indicated that Reggie had not obtained
stable and safe housing, had not obtained stable employment, had failed to appear for two
drug tests, and had failed to attend visitation with Harley on August 13, 2018. According
to the status report, Reggie’s service plan required him to successfully complete domestic
2 The date of Reggie’s positive drug test was not provided in the circuit court’s docket entry of July 11, 2018. 4 violence services, trauma informed psychotherapy, substance abuse assessment, random
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NOTICE 2022 IL App (5th) 210342-U NOTICE Decision filed 04/06/22. The This order was filed under text of this decision may be NO. 5-21-0342 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re HARLEY S., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Wayne County. ) Petitioner-Appellee, ) ) v. ) No. 18-JA-28 ) Reggie S., ) Honorable ) Matthew J. Hartrich, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justice Moore concurred in the judgment. Justice Welch concurred in part and dissented in part.
ORDER
¶1 Held: We hold that portion of the circuit court’s judgment finding the respondent an unfit person was not contrary to the manifest weight of the evidence and affirm. We reverse that portion of the circuit court’s judgment terminating the respondent’s parental rights based on the circuit court’s finding that termination of his parental rights was in the minor child’s best interest where the record does not demonstrate a good cause, or appropriate safeguards implemented prior to the circuit court proceeding with the best interest hearing with the respondent appearing via video conferencing.
¶2 The respondent, Reggie S., is the father of Harley S., born December 2014. On
August 4, 2021, the circuit court of Wayne County found Reggie to be an unfit person
within the meaning of the Adoption Act (750 ILCS 50/1(D) (West 2020)) for failing to 1 make reasonable efforts to correct the conditions that were the basis for the removal of
Harley (id. § 1(m)(i)) and failing to make reasonable progress toward the return of Harley
(id. § 1(m)(ii)) during the periods of October 10, 2018, to July 10, 2019, July 11, 2019, to
April 11, 2020, and April 12, 2020, to January 12, 2021; such periods following the
adjudication of abuse or neglect on October 10, 2018. On September 29, 2021, the circuit
court determined that it was in Harley’s best interest to terminate Reggie’s parental rights
and, the same day, entered a written order terminating Reggie’s parental rights regarding
Harley.
¶3 Reggie now appeals the circuit court’s judgment terminating his parental rights
arguing that he was denied his constitutional right to attend the circuit court’s best interest
hearing in person. Reggie further argues that the circuit court’s findings that Reggie was
an unfit person and that termination of his parental rights was in the best interest of Harley
were against the manifest weight of the evidence. Finally, Reggie argues that the circuit
court abused its discretion in denying Reggie’s agreed motion to continue the circuit court’s
best interest hearing and motion for transcript. For the following reasons, we affirm in part
and reverse in part the judgment of the circuit court.
¶4 I. BACKGROUND
¶5 On April 15, 2018, Harley’s mother 1 contacted law enforcement alleging that
Reggie had choked her. When law enforcement arrived, it was reported that Harley had
witnessed the domestic violence and had been exposed to Reggie’s methamphetamine use.
1 Harley S.’s biological mother was also a respondent in the circuit court proceedings but is not a party to this appeal. As such, we will only recite the background information relevant to Reggie’s challenges on appeal. 2 The Illinois Department of Children and Family Services (DCFS) was contacted, and
Harley was taken into protective custody on April 17, 2018. On April 18, 2018, a petition
for adjudication of wardship pursuant to the Juvenile Court Act of 1987 (Act) (705 ILCS
405/1-1 et seq. (West 2018)) was filed with the circuit court. The circuit court conducted a
shelter care hearing the same day and determined that there was probable cause to believe
that Harley was neglected or abused, but that it was not a matter of immediate and urgent
necessity that he be placed in shelter care. As such, the circuit court returned Harley to
Reggie’s care and directed Reggie to comply with a DCFS service plan for six months. The
circuit court further directed Reggie to submit to random drug testing including an initial
test to be administered instanter.
¶6 On April 23, 2018, the Wayne County Probation Office filed a report informing the
circuit court that it was unable to complete Reggie’s drug test on April 18, 2018, and that
Reggie was advised to expect a phone call informing him when to report back for the drug
test. The report indicated that the probation office attempted to contact Reggie, but that the
phone number provided went to voicemail. According to the report, the probation office
left a voice message on April 20, 2018, directing Reggie to report for drug testing by 4 p.m.
that day and Reggie failed to report or contact the probation department as directed. Finally,
the report indicated that Reggie did appear at the probation office on April 23, 2018, and
stated that he had not received the voice message and then stated that he did not get home
from work in time to report for the drug test.
¶7 On July 11, 2018, the circuit court conducted another shelter care hearing at the
request of the State. According to the circuit court’s docket entry, Reggie had tested
3 positive for methamphetamine 2 and was noncompliant with the services offered by DCFS.
The docket entry indicated that Reggie arrived late to the shelter care hearing and appeared
pro se. At Reggie’s request, the circuit court appointed counsel to represent Reggie;
however, the circuit court proceeded with the shelter care hearing with Reggie remaining
pro se. The circuit court’s docket entry further stated that Reggie participated in the shelter
care hearing for approximately five minutes when he abruptly interrupted the witness, got
agitated, and voluntarily left the courtroom notwithstanding the circuit court’s attempts to
get him to stay. The circuit court proceeded with the shelter care hearing in Reggie’s
absence and found Harley to be abused or neglected due to Reggie’s drug use and failure
to comply with his service plan. As such, the circuit court found that it was a matter of
immediate and urgent necessity to protect Harley and placed Harley in the care and custody
of DCFS.
¶8 On August 14, 2018, DCFS filed a status report with the circuit court. The status
report indicated that Reggie had a long criminal record and was known to be volatile and
uncooperative. The status report stated that Reggie had not cooperated with DCFS services
or scheduled drug testing, and that Reggie had admitted that he would test positive for
methamphetamine if tested. The status report further indicated that Reggie had not obtained
stable and safe housing, had not obtained stable employment, had failed to appear for two
drug tests, and had failed to attend visitation with Harley on August 13, 2018. According
to the status report, Reggie’s service plan required him to successfully complete domestic
2 The date of Reggie’s positive drug test was not provided in the circuit court’s docket entry of July 11, 2018. 4 violence services, trauma informed psychotherapy, substance abuse assessment, random
drug urinalysis, and therapeutic parenting education. Finally, the status report indicated
that it was DCFS’s recommendation that the custody and guardianship of Harley remain
with DCFS.
¶9 On August 25, 2018, Reggie was taken to the Fairfield Memorial Hospital with an
altered mental status and a potential drug overdose after apparently running out of a house
and falling into a sewage drainage ditch. The medical report indicated that Reggie tested
positive for methamphetamine but that an overdose could not be confirmed. Reggie was
treated for a potential overdose and was then discharged.
¶ 10 On September 4, 2018, DCFS filed a resource referral report with the circuit court.
The resource referral report indicated that Reggie had failed to appear for drug testing on
June 15, 2018, July 30, 2018, and August 27, 2018. The resource referral report also
indicated that Reggie had tested positive for benzodiazepines, cocaine, methadone, opiates,
phencyclidine (PCP), tetrahydrocannabinol (THC), ecstasy, and heroin metabolite on June
29, 2018.
¶ 11 DCFS next filed a service plan with the circuit court on September 14, 2018. The
service plan stated that Reggie had made no progress with his assigned services. According
to the service plan, Reggie was dropped from his anger management class due to
nonattendance and Reggie had failed to notify his caseworker when he changed phone
numbers or moved locations. The service plan also stated that Reggie had not refrained
from using drugs and Reggie had pending criminal charges, but was not on probation,
parole, or incarcerated at that time. The service plan went on to state that Reggie had missed
5 visitations with Harley for failing to take a drug test before the visits and that Reggie was
homeless and staying with his sister. The service plan further stated that Reggie was
employed but that he did not have consistent work hours. As such, the service plan
indicated that Reggie was rated unsatisfactory progress on his tasks of parenting services,
anger management, cooperation with DCFS, obtainment of housing, random drug testing,
and substance abuse assessment. Finally, the DCFS service plan recommended a
permanency goal of return home within 12 months.
¶ 12 On October 10, 2018, the circuit court entered an adjudicatory order pursuant to
section 2-21 of the Act. 705 ILCS 405/2-21 (West 2018). The adjudicatory order stated
that the circuit court had found, by a preponderance of the evidence, that Harley was abused
or neglected as defined by section 2-3 of the Act (id. § 2-3) in that Harley was in an
environment that was injurious to the welfare of a minor child as defined in section 2-
3(1)(b) of the Act (id. § 2-3(1)(b)). The circuit court based its finding on Harley being
subjected to an environment of domestic abuse that was inflicted by Reggie. The circuit
court’s adjudicatory order admonished Reggie to comply with the terms of his service plan
and correct the conditions that required Harley to be taken into care or risk the termination
of his parental rights.
¶ 13 On December 12, 2018, DCFS filed a dispositional report with the circuit court. The
dispositional report stated that Reggie was arrested on September 5, 2018, for the
possession of methamphetamine and on two warrants for driving with a suspended license.
According to the dispositional report, Reggie was released on bond on November 29, 2018,
and had a pending court date. The dispositional report also indicated that Reggie had not
6 obtained housing or employment and had not complied with assessments for substance
abuse, mental health, domestic violence, and parenting services. As such, the dispositional
report recommended to the circuit court that guardianship of Harley be granted to DCFS.
¶ 14 DCFS next filed a second service plan with the circuit court on January 2, 2019. The
second service plan indicated that Reggie was awaiting sentencing for a drug charge and
that he had been incarcerated from September to November 2018. The second service plan
again rated Reggie as unsatisfactory progress on his tasks of parenting services, anger
management, cooperation with DCFS, obtainment of housing, random drug testing, and
substance abuse. The second service plan recommended that the permanency goal remain
return home within 12 months. On the same day, the circuit court entered an agreed
dispositional order finding Reggie unfit and unable to care for Harley based on Reggie’s
failure to participate in services and his pending sentencing for a felony offense. The agreed
dispositional order made Harley a ward of the court and placed Harley in the custody and
guardianship of DCFS.
¶ 15 On May 30, 2019, DCFS filed a permanency report with the circuit court. The
permanency report indicated that Reggie had not obtained housing or employment, and
that he had not complied with assessments for mental health, domestic violence, or
parenting services. The permanency report stated that it was unknown whether Reggie had
successfully completed substance abuse treatment or if he left without completing the
services. The permanency report recommended that guardianship of Harley be continued
7 ¶ 16 DCFS filed a third service plan with the circuit court on July 8, 2019. The third
service plan stated that Reggie had not made any progress since the last service plan. As
such, the third service plan indicated that Reggie maintained an unsatisfactory progress
rating on his tasks of parenting services, anger management, cooperation with DCFS,
obtainment of housing, and random drug testing. The third service plan also indicated that
Reggie was in “rehab” from January 2019 to February 2019, but it did not state what type
of rehabilitation program Reggie had attended. The service plan further indicated that
Reggie was “rearrested again in May 2019.” The recommended permanency goal stated in
the third service plan was return home within 12 months.
¶ 17 DCFS filed a second permanency report with the circuit court on October 17, 2019.
The second permanency report repeated the information contained in the initial
permanency report that Reggie had not obtained housing or employment and that he had
not complied with assessments for mental health, domestic violence, or parenting services.
There was no report of progress on behalf of Reggie within the second permanency report.
As such, the second permanency report recommended that custody and guardianship of
Harley be continued with DCFS.
¶ 18 On November 13, 2019, the circuit court entered a permanency order finding that
Reggie had not made reasonable efforts toward returning Harley home. The circuit court’s
permanency order directed that the custody and guardianship of Harley remain with DCFS
with a permanency goal of return home within 12 months.
¶ 19 On January 2, 2020, DCFS filed a status report with the circuit court which again
indicated that Reggie had not made any progress on his assigned services. On January 24,
8 2020, DCFS filed a fourth service plan with the circuit court which indicated that Reggie
was incarcerated within the Illinois Department of Corrections (IDOC) and that he had
made no progress on assigned services. The fourth service plan also noted that Reggie had
failed to sign the necessary releases of information in order for DCFS to verify that he was
engaged in services while incarcerated. The recommended permanency goal of the fourth
service plan remained return home within 12 months.
¶ 20 On July 16, 2020, the State filed a motion for termination of parental rights and for
appointment of guardianship with power to consent to adoption (motion for termination).
The motion for termination stated that Harley was adjudicated neglected on October 10,
2018, and that a dispositional order was entered on January 2, 2019. According to the
State’s motion for termination, Reggie was an unfit person as defined in the Adoption Act
(750 ILCS 50/1(D) (West 2020)) for the following reasons:
“a. Abandonment of the child. 750 ILCS/50/1(D)(a)[.]
b. Failure to maintain a reasonable degree of interest, concern[,] or
responsibility as to the child’s welfare. 750 ILCS/50/1(D)(b)[.]
c. Desertion of the child for more than 3 months next proceeding the
commencement of the Adoption proceeding. 750 ILCS 50/1(D)(c)[.]
d. Failure to Protect the child from conditions within his environment
injurious to the child’s welfare. 750 ILCS 50/1(D)(g)[.]
e. Failure by the parent to make reasonable efforts to correct the conditions
that were the basis for the removal of the child from the parent during any 9-month
9 period following the adjudication or neglected or abused minor under Section 2-3
of the Juvenile Court Act of 1987. 750 ILCS 50[/]1(D)(m)(i)[.]
f. Failure by the parent to make reasonable progress toward the return of the
child from the parent during a 9-month period following the adjudication of
neglected minor under Section 2-3 of the Juvenile Court Act of 1987. 750 ILCS
50/1(D)(m)(ii)[.]”
¶ 21 The State’s motion for termination further alleged that it was in Harley’s best
interest and welfare that Reggie’s parental rights be forever and irrevocably terminated.
The State’s motion for termination also stated that it was in the best interest and welfare of
Harley that DCFS continue as legal guardian and custodian of Harley and that DCFS be
vested with the power to consent to the adoption of Harley.
¶ 22 On August 4, 2020, DCFS filed a fifth service plan with the circuit court. The fifth
service plan indicated that Reggie had not made any substantial progress and that Reggie
remained incarcerated where he was not attending any services. As such, Reggie was again
rated unsatisfactory progress on his tasks of parenting services, anger management,
cooperation with DCFS, obtainment of housing, random drug testing, and substance abuse.
The fifth service plan noted that the State had filed a motion for termination of parental
rights, but that the hearing on the State’s motion for termination was continued due to the
COVID-19 pandemic.
¶ 23 DCFS filed a third permanency report with the circuit court on October 7, 2020. The
third permanency report indicated that Reggie had “just begun to be cooperative” with
DCFS. According to the third permanency report, Reggie had attended parenting education
10 class, mental health therapy, and substance abuse treatment. The third permanency report
stated that Reggie had reported being employed and that Reggie had monthly visits with
Harley since being released from IDOC in July 2020. The third permanency report,
however, also noted that Reggie had been sentenced to IDOC twice and had spent time
incarcerated in the Wayne County Law Enforcement Center since the case was opened.
The third permanency report further stated that Harley had behavioral issues in school
“before and after visits w/Reggie.” Finally, the third permanency report stated that Reggie
had not successfully completed his services and recommended that the circuit court change
the permanency goal to substitute care pending termination of parental rights.
¶ 24 On January 8, 2021, DCFS filed a fourth permanency report with the circuit court.
The fourth permanency report again stated Reggie was arrested on September 5, 2018, for
possession of methamphetamine and two warrants for driving with a suspended license.
Reggie was released on bond on November 29, 2018, and then sentenced to three years’
incarceration within IDOC on June 27, 2019, with 123 days credit for time served. The
fourth permanency report indicated that Reggie was released from custody on July 7, 2020,
and that on October 9, 2020, Reggie was operating a motor vehicle that struck a 10-year-
old boy who later died from his injuries. The toxicology report of Reggie’s urine taken
after the accident indicated that amphetamine and methamphetamine were detected.
According to the fourth permanency report, Reggie was being held at the Jefferson County
jail and had been charged with a Class 4 felony aggravated driving under the influence
(DUI) with no valid insurance, among other charges stemming from the accident. DCFS
indicated in its fourth permanency report that it was awaiting an update on that matter. The
11 fourth permanency report went on to indicate that Reggie had not obtained housing or
employment and that he had not successfully completed domestic violence services, trauma
informed psychotherapy, mental health, substance abuse assessment, or therapeutic
parenting education. DCFS again recommended that the circuit court change the
permanency goal from return to home within 12 months to substitute care pending
termination of parental rights. DCFS based its recommendation on Reggie’s overall
unsatisfactory progress with his service plan and the length of time that Harley had been in
care.
¶ 25 The circuit court entered another permanency order on February 10, 2021. The
permanency order stated that Reggie was incarcerated and had not made reasonable and
substantial progress toward returning Harley home. As such, the circuit court’s permanency
order set a permanency goal of substitute care pending determination of termination of
parental rights.
¶ 26 On April 16, 2021, DCFS filed a status report with the circuit court. The status report
indicated that on March 3, 2021, Reggie received a sentence of five years’ incarceration
for aggravated DUI with license suspended or revoked, and five years’ incarceration for
driving on a revoked or suspended license second offense. On May 26, 2021, DCFS filed
another status report with the circuit court which indicated that Reggie was transferred to
the Graham Correctional Center in Hillsboro, Illinois, on May 17, 2021, and was not set to
be released from IDOC until September 12, 2023.
¶ 27 The circuit court conducted a fitness hearing on July 14, 2021. Reggie was present
in person and represented by counsel. The State called LaDia Jones-Singh as its first
12 witness. LaDia testified that she was employed by DCFS and became involved with this
matter in June 2018, after a domestic violence incident between Reggie and Harley’s
mother. LaDia stated that a service plan was completed for Reggie and that Reggie was
rated unsatisfactory progress on his services because he had not completed any of his
services other than a substance abuse program from January to February 2019. LaDia
testified that Reggie also failed to obtain stable housing or a stable income, and that Reggie
failed to do so even during periods when he was not incarcerated.
¶ 28 LaDia stated that Reggie had been incarcerated twice while she was assigned to this
case. The first time Reggie was incarcerated was in the county jail from September to
November 2018, and then he went to prison. LaDia testified that she believed Reggie was
released from prison around June 2020. According to LaDia’s testimony, Reggie did not
engage in services when he was incarcerated, but he did visit with Harley for two hours a
month and then engaged in visitation with Harley shortly after he was released from prison.
¶ 29 LaDia testified that Reggie was again incarcerated in October 2020, due to a fatal
accident in which Reggie was driving on a revoked or suspended license. LaDia stated that
Reggie struck a child with his vehicle that resulted in the child’s death, and that Reggie
tested positive for methamphetamine at the time of the accident. LaDia stated that Reggie
remained incarcerated from the charges stemming from the accident and that Reggie’s
projected parole date was September 2023.
¶ 30 LaDia testified that Reggie was very aggressive in his interactions with her and that
it was her belief that Reggie was unfit. LaDia stated she believed Reggie to be unfit because
Reggie was noncompliant with all his services except substance abuse treatment, and that
13 all of Reggie’s incarcerations were due primarily to drug issues. LaDia also testified that
the conditions that caused Harley to be removed from Reggie’s care had not been corrected,
nor had Reggie made any reasonable progress on his services during any nine-month period
following the adjudication of abuse or neglect. LaDia stated that it was her opinion that the
environment of Reggie’s home would be injurious to Harley’s welfare since Reggie had
not addressed certain issues such as random drug testing, parenting, stable income, or stable
housing. LaDia testified that she received a promotion in November 2020, and that the case
was transferred to caseworker Kristina Wilson at that time.
¶ 31 On cross-examination, LaDia testified that it was possible that Reggie could have
participated in counseling or other classes that she was not aware of, but further testified
that it would have been Reggie’s responsibility to provide her documentation of the
completion of any courses. LaDia stated, that to her knowledge, Reggie did not complete
drug and alcohol assessments at Comprehensive Services and that Reggie did not take
counseling with Sparrow Counseling for anger management because Reggie was dropped
for nonattendance. LaDia further testified that she had only conducted one team meeting
with Reggie because he was very argumentative and “upset with us because I guess he
wasn’t hearing what he wanted to hear.” LaDia acknowledged that Reggie did request help
with obtaining housing and employment, but that there was nothing they could actually do
for him. According to LaDia’s testimony, the one team meeting occurred a couple of weeks
before the fatal accident. LaDia stated that she would normally meet with a person she was
working with monthly and that she had tried to find Reggie, but his whereabouts were
unknown to her at times. LaDia also acknowledged that Reggie missed some of his drug
14 screenings due to being in prison, but also stated that some of the times Reggie missed his
drug testing was because he failed to show up for testing.
¶ 32 On examination by the circuit court, LaDia stated that she had prepared Reggie’s
service plans of September 14, 2018, January 2, 2019, July 8, 2019, January 24, 2020, and
August 4, 2020. She further testified that those documents would have been prepared in
the normal course of business and would accurately reflect the progress of a parent towards
reunification.
¶ 33 Next, the State called Kristina Wilson as a witness. Kristina testified that she was
employed by DCFS and became involved in this matter in November 2020. Kristina stated
that Reggie had been incarcerated for the entire time she had been assigned to this case.
While Reggie was incarcerated in the county jail, Kristina testified that there were no
services available to him. Once Reggie was transferred to the Graham Correctional Center,
Kristina stated that she had reached out to the facility to coordinate services, but then
Reggie was transferred to the River Correctional Center. Kristina stated that she had
attempted to reach out to the River Correctional Center but was still waiting on a response.
¶ 34 On cross-examination, Kristina again acknowledged that no services were available
at the county jail, no services were done at the Graham Correctional Center, and no services
had been provided at the River Correctional Center to date. Kristina testified that she was
waiting to find out what services were available at the River Correctional Center because
DCFS acknowledges many of the services a parent completes while incarcerated. Kristina
stated, however, that even if the services are completed while incarcerated, the parent
15 would still be required to follow-up upon discharge to show that the skills could be
maintained.
¶ 35 Upon examination by the circuit court, Kristina testified that she had prepared the
service plan filed on April 21, 2021, and that the service plan was kept in the normal course
of business. Kristina also stated that Reggie had made no progress towards reunification.
Kristina further stated on recross-examination that Reggie was rated unsatisfactory
progress for his lack of progress in the recommended services. Kristina testified that DCFS
could not control what services are offered for an incarcerated parent, and that if a parent
does not comply, they are still rated unsatisfactory progress even though they are not able
to comply.
¶ 36 Thereafter, the State rested, and Reggie was called to testify on his own behalf.
Reggie testified that he was incarcerated for approximately a year from 2019 through 2020.
Reggie stated that he was released from Vienna Correctional Center in approximately July
2020 and then was rearrested in October 2020. Reggie testified that he did an evaluation at
Comprehensive Services in July of 2020 and went out there four or five times. As such,
Reggie testified that he “completed that for DCFS.” Reggie also testified that he
participated in a parenting class from July through August at Southtown in Mt. Vernon,
Illinois, and successfully completed that course. Reggie further testified that he did four or
five sessions with Sparrow, but “there hadn’t been no anger management out there for 18
months.” While incarcerated, Reggie testified that he completed the Inside Out Dad
program.
16 ¶ 37 Reggie went on to testify that his projected release date was September 2023 and
that it was his desire to continue to be involved in Harley’s life. Reggie stated that it was
his desire to establish a home and have custody of Harley once he is released and that he
was willing to work with DCFS and take the necessary steps to accomplish that. Reggie
testified that he had a tentative job doing drywall and carpentry with an individual in Mt.
Vernon, Illinois, and that he planned on residing with his mother upon his release.
¶ 38 Upon cross-examination, Reggie testified that during the periods he was not
incarcerated, he took one drug test for the evaluation he did at the counseling center, but
that he only saw DCFS one time. Reggie again testified that he had completed the parenting
class at Southtown, but that he could not complete anger management since it was not
offered at the Sparrow counseling center. Reggie further testified that he had seen a mental
health counselor at Sparrow who was trying to figure out why he was sent there since they
did not offer anger management. Reggie stated that the counselor at Sparrow arranged a
meeting with Reggie, LaDia, and LaDia’s supervisor, but that he was never directed to
attend anger management at any other location. Reggie went on to testify that he had
completed a drug evaluation at Comprehensive Services and that they recommended
services, which Reggie stated he completed. Reggie testified that he had completed all the
various counseling and evaluations between July and September of 2020.
¶ 39 Thereafter, the defense rested, and the State called LaDia Jones-Singh in rebuttal.
According to LaDia’s rebuttal testimony, she was present in court and heard Reggie’s
testimony. LaDia stated that the meeting Reggie testified about occurred after he spoke
with the counselor at Sparrow, and the purpose of the meeting was because Reggie had
17 gone to Sparrow and informed Sparrow that he did not know why he was there. As such,
LaDia testified that she conducted a team meeting so that Reggie would know his services
and what he needed to do. LaDia stated that Reggie was clearly instructed on the service
plan that was in place at that time and was instructed on what to do. LaDia testified that to
her knowledge, she had no information that Reggie followed any of the instructions that
came out of that meeting. LaDia also stated that her supervisor asked Reggie at the meeting
whether he was free of drugs because he was being aggressive, but that Reggie denied any
drug use. LaDia noted, however, that Reggie tested positive for methamphetamine after the
accident a few weeks later. LaDia also testified that if Reggie had completed the services
he testified to completing, then he should have submitted the documentation of completion
to her. LaDia stated it was possible that Reggie could have completed services; however,
if he did not report it and provide proof, then it is taken as if he did not do it since he can
say whatever he wants. LaDia testified that she had no evidence of Reggie completing
those services.
¶ 40 Upon completion of the parties’ closing arguments, the circuit court stated as
follows:
“THE COURT: *** So I’m going to take the fitness determination under
advisement. I want to set a status hearing, but I’d also like to set the best interest
phase slash permanency hearing contingent upon the Court’s ruling on fitness.
So I guess my question is: The status hearing would really just be a hearing
to make sure that I have a deadline for making a fitness determination. So, [defense
counsel], would you want [Reggie] to show up at the status hearing, because really
18 it’d just be more about making sure of the ruling, or just set the best interest stage
slash permanency hearing now and [Reggie] would appear at that date?
***
[DEFENSE COUNSEL]: He doesn’t want to come just for a status hearing.
But if we do have further hearings, he would want to participate.
THE COURT: I think we are planning for a status. Is it correct, [defense
counsel], that for any substantive hearing, your client is insisting he wishes to be in
person?
[DEFENSE COUNSEL]: Yes. The status, we’re okay with the video on
status because that’s just going to be a brief hearing. But best interest where he could
lose his children, he needs to be here.
THE COURT: Okay. Yes, I agree with that.”
¶ 41 On August 4, 2021, the circuit court entered a written order finding Reggie to be an
unfit person by clear and convincing evidence. The circuit court determined that Reggie
was an unfit person as defined in section 1(D)(m)(i) of the Adoption Act (750 ILCS
50/1(D)(m)(i) (West 2020)), in that Reggie failed to make reasonable efforts to correct the
conditions that resulted in Harley’s removal from his care for the nine-month periods after
the adjudication that Harley was neglected or abused from October 10, 2018, to July 10,
2019, July 11, 2019, to April 11, 2020, and April 12, 2020, to January 12, 2021. The circuit
court further found Reggie to be an unfit person as defined in section 1(D)(m)(ii) of the
Adoption Act (id. § 1(D)(m)(ii)) in that Reggie failed to make reasonable progress toward
19 the return of Harley to his care for the nine-month periods after the adjudication that Harley
was neglected or abused from October 10, 2018, to July 10, 2019, July 11, 2019, to April
11, 2020, and April 12, 2020, to January 12, 2021. Specifically, the circuit court found that
Reggie did not satisfactorily complete the assigned services in his service plan, including
parenting and anger management classes, over the relevant time periods listed, and that
Reggie missed drug screening tests or tested positive when he took drug screening tests.
The circuit court found that Reggie’s refusal to complete his required services constituted
both a lack of reasonable progress toward the return of Harley to his care and a lack of
reasonable efforts to correct the conditions that resulted in Harley’s removal from his care.
¶ 42 On September 1, 2021, DCFS filed a best interest report with the circuit court. The
best interest report recommended that it was in Harley’s best interest that Reggie’s parental
rights be terminated due to Reggie’s lack of progress on his service plan, and that Harley
had a strong support system with his foster family with whom he had been placed for over
three years. DCFS’s best interest report further stated that Harley’s foster parents went
“above and beyond to meet his needs and love him,” and that the adoption of Harley by his
foster parents would allow for permanency.
¶ 43 A best interest hearing was scheduled by the circuit court for September 29, 2021.
On September 27, 2021, Reggie’s counsel filed a motion to continue and for transcript of
the fitness hearing conducted on July 14, 2021. According to the motion to continue,
Reggie’s counsel had received certificates of completion for a seven-week Systematic
Training for Effective Parent course dated October 9, 2020, a 12-week Inside Out Dads
course dated April 8, 2020, and a Money Smart course dated June 3, 2020. The motion to
20 continue stated it was the recollection of counsel that the State’s witnesses had testified
that Reggie had not completed these courses and, as such, a transcript of the fitness hearing
was necessary for the proper representation of Reggie. The motion to continue further
stated that the State had no objection to the motion. The same day, the circuit court denied
the motion to continue but granted the request for the preparation of the transcript.
¶ 44 On September 29, 2021, the circuit court conducted a best interest hearing. Reggie
appeared “by Zoom 3” and all other participants were physically present in the courtroom.
At the beginning of the best interest hearing, Reggie’s counsel made an objection to
proceeding without Reggie being present in person and without having the transcript of the
fitness hearing. In response, the circuit court stated as follows:
“THE COURT: I believe that you were the one that requested the video writ,
[defense counsel]. Yes, I’m fairly certain. You stated that he didn’t want to appear
in person because he didn’t want to have a transporter, so I believe it was by your
request.
[DEFENSE COUNSEL]: I mean at the hearing the last time when we were
discussing it, I do not recall requesting that, but I cannot tell that for sure. And in
the event the transcript, when we get it, shows that I did ask for him to be here, I am
now objecting to him not being here.
3 “Zoom” is a video conferencing platform. 21 THE COURT: Okay. Well, the fifth district did address this issue on a ruling
on July 26 of this year. And it did indicate that these hearings can be done with a
remote appearance by Zoom, so we’ll proceed.”
¶ 45 The State called Misty Huff as its first witness. Misty testified that she was
employed by DCFS and was the supervisor of Kristina Wilson, the primary caseworker for
this matter. Misty stated that she had approved the best interest report that was prepared by
Kristina and filed with the circuit court on September 1, 2021. As such, Misty testified that
she was familiar with the contents of the report.
¶ 46 Misty stated that she believed Harley needed permanency and that the case had been
pending for several years. Misty testified that Harley had been in his current foster home
since approximately August 2018, and that he knows them as his family and has bonded
with them. Misty also testified that Harley is familiar with who his parents are through
visitation and that his foster family had supported that contact as long as it was supervised
and safe. According to Misty’s testimony, Harley’s foster parents had one son who was 11
months apart from Harley in age, and Harley’s foster parents treated Harley as their son.
Misty stated that Harley’s foster parents had a stable home in which Harley had his own
room and that all of Harley’s physical, emotional, and financial needs were being met.
Misty further testified that Harley refers to his foster parents as “mom” and “dad” and there
have been no concerns with regard to Harley’s placement during the years he has been with
his foster parents. Misty testified that she believed it was in Harley’s best interest that the
parental rights of Reggie be terminated. On cross-examination, Misty was presented with
22 the certificates of completion listed in the motion to continue and acknowledged that the
certificate appeared to indicate that Reggie had completed those courses.
¶ 47 The State next called Heather McCall as a witness. Heather testified that she was
Harley’s foster mother and that she resided in Centralia, Illinois. Heather stated that she
was married to Christopher Scott McCall, who goes by his middle name of Scott, and that
she and Scott were licensed foster parents. Heather testified that Harley was placed in their
home on August 20, 2018, and that he was three years old at that time. Heather stated that
Harley was now six years old, and her other son was now five years old. Heather testified
that the two boys had been together now for over three years. According to Heather’s
testimony, the boys are like brothers and her relationship with Harley was like she was his
mother. Heather testified that she loved Harley and that Harley tells her that he loves her.
Heather described her husband’s relationship with Harley as “[h]e treats him just like his
own son.” Heather testified that it was her intention to adopt Harley if Reggie’s parental
rights were terminated. No further witnesses were called by the State.
¶ 48 Reggie was called by his counsel and testified on his own behalf. Reggie testified
that he was requesting the case to stay open until he was released from prison so he could
retain custody of Harley. Reggie stated that he had completed various counseling courses,
but that no counseling was available where he was currently incarcerated. Reggie stated
that he was scheduled to be released from IDOC late next year and had a potential job and
housing. As such, Reggie testified that if the circuit court would find it in Harley’s best
interest to return home, he would take the appropriate steps necessary to make that happen.
23 ¶ 49 After closing arguments, the circuit court found by a preponderance of the evidence
that it was in Harley’s best interest to terminate Reggie’s parental rights. The circuit court
noted that the evidence had demonstrated that Harley had been in his foster home for over
three years and had lived there for approximately half of his life. As such, Harley’s foster
home is the place that Harley remembers and thinks of as his home. The circuit court also
noted that it would be another year or two before Reggie would be released from
incarceration and that Reggie would still be required to do services after his release to make
an appropriate home for Harley. Therefore, it would be years of Harley not knowing what
was going to happen with his future. The circuit court found it appropriate under the
juvenile code to provide permanency for Harley and entered a written order permanently
and forever irrevocably terminating Reggie’s parental rights regarding Harley.
¶ 50 Reggie filed a timely notice of appeal of the circuit court’s September 29, 2021,
judgment terminating his parental rights. On appeal, Reggie argues that he was denied his
constitutional right to attend the circuit court’s best interest hearing in person. Reggie
further argues that the circuit court’s findings that Reggie was an unfit person and that
termination of his parental rights was in the best interests of Harley were against the
manifest weight of the evidence. Finally, Reggie argues that the circuit court abused its
discretion in denying Reggie’s agreed motion to continue the circuit court’s best interest
hearing.
¶ 51 II. ANALYSIS
¶ 52 “A parent’s right to raise his or her biological child is a fundamental liberty interest,
and the involuntary termination of that right is a drastic measure.” In re B’Yata I., 2013 IL
24 App (2d) 130558, ¶ 28. The Act (705 ILCS 405/1-1 et seq. (West 2020)), along with the
Adoption Act (750 ILCS 50/0.01 et seq. (West 2020)), governs the proceedings for the
termination of parental rights. In re D.F., 201 Ill. 2d 476, 494 (2002). The Act provides a
two-stage process for the involuntary termination of parental rights. 705 ILCS 405/2-29(2)
(West 2020). The State must first establish, by clear and convincing evidence, that the
parent is an unfit person under one or more of the grounds of unfitness enumerated in
section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)). 705 ILCS 405/2-29(2),
(4) (West 2020); In re D.T., 212 Ill. 2d 347, 352-53 (2004). If the court finds the parent
unfit, the State must then show that termination of parental rights would serve the child’s
best interests. 705 ILCS 405/2-29(2) (West 2020); In re B’Yata I., 2013 IL App (2d)
130558, ¶ 28.
¶ 53 A. Parental Unfitness
¶ 54 A determination of parental unfitness involves factual findings and credibility
assessments that the circuit court is in the best position to make, and a finding of unfitness
will not be reversed unless it is against the manifest weight of the evidence. In re Tiffany
M., 353 Ill. App. 3d 883, 889-90 (2004). “A factual finding is against the manifest weight
of the evidence only if the opposite conclusion is clearly evident or if the determination is
arbitrary, unreasonable, and not based on the evidence.” In re G.W., 357 Ill. App. 3d 1058,
1059 (2005). Even if the State alleges more than one count of unfitness, only one count
needs to be proven to find a parent unfit. In re J.A., 316 Ill. App. 3d 553, 564 (2000).
¶ 55 In this matter, the circuit court determined that the State had proven, by clear and
convincing evidence, that Reggie was an unfit person as defined in section 1(D)(m)(i) of
25 the Adoption Act (750 ILCS 50/1(D)(m)(i) (West 2020)), in that Reggie failed to make
reasonable efforts to correct the conditions that resulted in Harley’s removal from his care
during the nine-month periods of October 10, 2018, to July 10, 2019, July 11, 2019, to
April 11, 2020, and April 12, 2020, to January 12, 2021. The circuit court further found
Reggie to be an until person as defined in section 1(D)(m)(ii) of the Adoption Act (id.
§ 1(D)(m)(ii)) in that Reggie failed to make reasonable progress during the nine-month
periods of October 10, 2018, to July 10, 2019, July 11, 2019, to April 11, 2020, and April
12, 2020, to January 12, 2021. We will focus on the circuit court’s finding regarding
reasonable progress as it is dispositive to Reggie’s claim that the court erred in finding him
unfit.
¶ 56 Reggie argues that it was inherently unfair for the circuit court to find that he had
not made reasonable progress toward the return of Harley to his care based upon his failure
to complete services when those services were unavailable to him since he was
incarcerated. Reggie states that he testified at the fitness hearing to the completion of
various parenting and other counseling courses. As such, Reggie argues that he made a
showing of participating and completing the few available courses and that he was taking
the necessary steps to retain his parental rights.
¶ 57 While the mere fact of incarceration alone is not evidence of failure to make
reasonable progress, incarceration can impede progress toward the goal of reunification.
In re Neveah R., 2017 IL App (2d) 170229, ¶ 21. Our supreme court has clearly held that
time spent incarcerated is included in the nine-month period during which reasonable
progress must be made under section 1(D)(m) of the Adoption Act, as the statute contains
26 no exception for incarcerated parents. 750 ILCS 50/1(D) (West 2020); In re J.L., 236 Ill.
2d 329, 343 (2010).
¶ 58 In this matter, Reggie’s incarceration alone did not prevent him from complying
with his service plan. Reggie was released from incarceration on November 29, 2018, and
was not sentenced until June 27, 2019, yet the DCFS dispositional report filed on December
12, 2018, indicated that he had not complied with any services. Reggie was rated
unsatisfactory progress on all services in his service plan filed on January 2, 2019, and the
DCFS permanency report of May 30, 2019, also indicated that Reggie had made no
progress on services. Further, the circuit court heard testimony that Reggie failed to
participate in drug testing, and by his own testimony, Reggie had completed only one drug
test during the time period that he was not incarcerated.
¶ 59 Further, reasonable progress is an objective standard that is not concerned with a
parent’s individual efforts and abilities. In re D.D., 309 Ill. App. 3d 581, 589 (2000). We
review reasonable progress using an objective standard relating to making progress toward
the goal of returning the child home. In re R.L., 352 Ill. App. 3d 985, 998 (2004).
Reasonable progress requires measurable or demonstrable movement toward the goal of
reunification, and reasonable progress can be found if the trial court can conclude that it
can return the child to the parent in the near future. In re J.H., 2014 IL App 3d 140185,
¶ 22.
¶ 60 Reggie failed to demonstrate that he would be able to complete his service plan’s
requirements, including anger management, mental health, and domestic abuse, at any
point in the near future. Reggie testified that his release date was September 2023, and
27 LaDia testified that Reggie would have to demonstrate that he could maintain proper
housing, employment, and provide a safe environment upon completion of his services. It
has been repeatedly stated that “a court is duty bound to ensure that serious parental
deficiencies of whatever nature have been corrected before the court permits one of its
wards to be returned to that parent’s custody.” In re L.L.S., 218 Ill. App. 3d 444, 464
(1991). Given Reggie’s release date and the testimony of LaDia, the circuit court had
sufficient evidence to determine that it would be years of an unknown future for Harley if
Reggie’s parental rights were not terminated. Based on these factors, this court sees no
basis upon which the circuit court could have found that it would have been able to order
Harley returned to Reggie’s custody in the near future.
¶ 61 Based on the foregoing, we find that the circuit court’s finding that Reggie was an
unfit person for failing to make reasonable progress during the periods of October 10, 2018,
to July 10, 2019, July 11, 2019, to April 11, 2020, and April 12, 2020, to January 12, 2021,
was not against the manifest weight of the evidence. We will not address the circuit court’s
finding that Reggie was an unfit person for failing to make reasonable efforts to correct the
conditions that resulted in Harley’s removal from his care since only one count needs to be
proven to find a parent unfit. In re J.A., 316 Ill. App. 3d 553, 564 (2000). Therefore, we
affirm that portion of the circuit court’s judgment finding Reggie an unfit person as defined
in section 1(D)(m)(i) of the Adoption Act (750 ILCS 50/1(D)(m)(i) (West 2020)).
¶ 62 B. Best Interests
¶ 63 If the circuit court finds the parent unfit, the matter proceeds to a second hearing
where the State must prove, by a preponderance of the evidence, that it is in the child’s
28 “best interest” that parental rights be terminated. 705 ILCS 405/2-29(2) (West 2020); In re
D.T., 212 Ill. 2d 347, 366 (2004). In this case, the circuit court conducted a best interest
hearing on September 29, 2021, and Reggie argues on appeal that his due process rights
were violated when he was not permitted to attend the best interest hearing in person.
¶ 64 A parent has a fundamental liberty interest in maintaining a parental relationship
with his or her child which is protected by the due process clause of the fourteenth
amendment. In re D.R., 307 Ill. App. 3d 478, 482 (1999). As such, there are certain due
process and statutory safeguards parents are entitled to in actions to terminate their parental
rights. Id.; 705 ILCS 405/1-5(1) (West 2020). These safeguards include the right to be
present, to be heard, to present evidence material to the proceedings, and to cross-examine
witnesses. In re D.R., 307 Ill. App. 3d at 482; 705 ILCS 405/1-5(1) (West 2020).
¶ 65 The termination of parental rights is civil in nature and the general rules of civil
practice apply. In re P.S., 2021 IL App (5th) 210027, ¶ 73. Illinois Supreme Court Rule
241 provides that:
“The court may, upon request or on its own order, for good cause shown and
upon appropriate safeguards, allow a case participant to testify or otherwise
participate in a civil trial or evidentiary hearing by video conferencing from a remote
location.” Ill. S. Ct. R. 241 (eff. May 22, 2020).
¶ 66 The committee comments to Rule 241 indicate that a “case participant includes any
individual involved in a civil case including the judge presiding over the case, parties,
lawyers, guardians ad litem, minors in the care of the Department of Children and Family
Services (DCFS), witnesses, experts, interpreters, treatment providers, law enforcement
29 officers, DCFS caseworkers, and court reporters.” Ill. S. Ct. R. 241, Committee Comments
(rev. May 22, 2020). The committee comments also state that given the relative importance
of live testimony in court, “a showing of good cause is required.” Ill. S. Ct. R. 241,
Committee Comments (rev. May 22, 2020). Along those lines, the committee comments
indicate that the court
“should take into consideration and balance any due process concerns, the ability to
questions witnesses, hardships that would prevent the case participant from
appearing in person, the type of case, any prejudice to the parties if testimony
occurred by video conference, and any other issues of fairness. A court must balance
these and other relevant factors in an individual case.” Ill. S. Ct. R. 241, Committee
Comments (rev. May 22, 2020).
¶ 67 In this matter, the circuit court was under the belief that Reggie had requested to
attend the best interest hearing via video conferencing; however, that belief was misplaced
as evidenced by the record of proceedings. Reggie had actually requested to appear in
person at the best interest hearing and the circuit court had previously agreed that Reggie
should appear in person. Further, even if Reggie had requested to appear via video
conferencing, Rule 241 requires good cause to be shown regardless of whether the video
conferencing appearance was upon a participant’s request or on the court’s own order. Ill.
S. Ct. R. 241 (eff. May 22, 2020). The record on appeal in this matter does not indicate a
good cause, nor does it denote any of the balancing factors that the circuit court may have
taken into consideration in determining good cause.
30 ¶ 68 The dissent states that the “statements made by the court on the record demonstrate
that it did in fact consider and determine that the respondent appearing via Zoom was
appropriate” (infra ¶ 83). The dissent fails, however, to note what statements by the circuit
court it believes indicated a consideration of the factors. Instead, the dissent lists factors
(i.e., that Reggie had multiple felonies, could read and write the English language, and had
waived his right to a jury trial) that have no bearing on any due process concerns and that
were not citied by the circuit court when it directed Reggie to appear via video conferencing
at the best interest hearing. The dissent also notes that the committee comments state “the
distance of the respondent’s resident to the courthouse and the need for a secure transport
to and from the prison can constitute good cause” (infra ¶ 84). Although the committee
comments do state that “distance from the courthouse” could be considered in a circuit
court’s determination of good cause, there is nothing in the record on appeal that indicated
that secure transportation was unavailable to transport Reggie to the best interest hearing,
and there was no discussion at the best interest hearing concerning a lack of transportation.
¶ 69 By this decision, we are not stating that a lower court must specifically state the
factors it considers in making a good cause determination or that a specific finding of good
cause must be made on the record. We are, however, stating that the record must
demonstrate, in some manner, a good cause for allowing or requiring a participant to appear
via video conferencing in compliance with Rule 241. Ill. S. Ct. R. 241 (eff. May 22, 2020).
¶ 70 Further, along with good cause, Rule 241 requires that the circuit court have
appropriate safeguards prior to allowing a participant to appear via video conferencing. Ill.
S. Ct. R. 241 (eff. May 22, 2020). The dissent states that Reggie was given “all necessary
31 safeguards during the hearing” (infra ¶ 82) but, again, fails to state a single safeguard that
circuit court imposed prior to requiring Reggie to appear via video conferencing. The
majority’s review of the record on appeal can find no indication of any safeguards
implemented by the circuit court—not even a single instruction to Reggie on the manner
in which he could confidentially confer with his counsel. Again, by this decision we are
not stating that the safeguards must be specifically stated on the record, but the record on
appeal must demonstrate in some manner that safeguards were implemented as required by
Rule 241.
¶ 71 We next note that the circuit court stated, when it made its determination to proceed
with the best interest hearing with Reggie appearing via video conferencing, that “the fifth
district did address this issue on a ruling on July 26 of this year. And it did indicate that
these hearings can be done with a remote appearance by Zoom ***.” The State argues that
we should follow our holding in In re P.S., 2021 IL App (5th) 210027, that was issued on
July 26, 2021, and find that Reggie’s virtual attendance did not in any way infringe on
Reggie’s rights.
¶ 72 Both the circuit court and the State have failed to address a vital portion of this
court’s findings in In re P.S. We found that the record in In re P.S. demonstrated that “the
trial court allowed all of the case participants to testify or participate in the hearing remotely
via a video conferencing platform because court operations were limited in Madison
County due to the public health concerns presented by the ongoing coronavirus pandemic.”
Id. ¶ 59. This court also noted in In re P.S. that the “committee comments to Rule 241
specifically indicate that ‘limited court operations’ can constitute ‘good cause’ for
32 proceeding under the rule” and that the lower court had taken appropriate safeguards. Id.
¶¶ 59-60. As such, this court found in In re P.S. that the respondent’s due process rights
were not violated by the proceedings being conducted via video conferencing since the
circuit court cited good cause and took steps to safeguard the integrity of the proceedings.
Id. ¶ 63. In the case at bar, however, the record fails to demonstrate a good cause, or any
safeguards as required by Rule 241.
¶ 73 The dissent also cites In re P.S., stating that, as in In re P.S., Reggie had “all the
same access that would have been available if he appeared in person, and modern
technology was used to assure that he was able to fully participate during the hearing”
(infra ¶ 84). However, the record on appeal does not demonstrate that finding. In In re P.S.,
the record clearly reflected that the lower court had limited operations due to COVID-19
and further reflected the utilization of breakout rooms in which the parent was able to
confidentially confer with counsel. In re P.S., 2021 IL App (5th) 210027, ¶ 63. In this
matter, there is no indication of limited court operations, problems with transportation, or
any factor other than the confusion of whether Reggie requested to appear in person. There
is also no indication within the record that Reggie was able to confidentially confer with
his counsel or that he had all the same access. Unlike the dissent, we do not find that the
single factor addressed by the circuit court at the best interest hearing that it believed
Reggie had requested to appear via video conference to reflect a good cause nor do we find,
without any indication within the record, that appropriate safeguards were implemented.
¶ 74 Finally, the dissent states that “[t]he majority reads too narrow the definition of what
constitutes ‘good cause’ under Rule 241” and “reads the committee comments as if they
33 are an exclusive list of what constitutes good cause” (infra ¶ 81). The majority decision,
however, makes no such inference. Instead, the majority decision is based upon our review
of the record which we believe fails to reflect a good cause or appropriate safeguards. We
further note that there have been multiple recent published and unpublished decisions
discussing the use of video conferencing in these types of proceedings, and all of these
cases have found that conducting some or all of the proceedings through video conference
does not infringe on a parent’s right to be present as long as the lower court proceeds
pursuant to the framework of Rule 241. See In re P.S., 2021 IL App (5th) 210027, ¶ 90;
In re B.R., 2022 IL App (2d) 210673-U, ¶ 39; In re L.S., 2022 IL App (1st) 210824, ¶ 150;
In re Es. C., 2021 IL App (1st) 210197, ¶¶ 21, 28. In this matter, with all due consideration
to the dissent, we find that the circuit court did not proceed pursuant to the framework of
Rule 241, and as such, we find that Reggie’s due process rights were violated, and that
remand is required.
¶ 75 Therefore, we reverse that portion of the circuit court’s judgment finding that it was
in Harley’s best interest to terminate Reggie’s parental rights, and that portion of the circuit
court’s judgment terminating Reggie’s parental rights with regard to Harley. Because we
have determined that remand is required regarding the best interest hearing, Reggie’s issues
on appeal of whether the circuit court’s finding that termination of Reggie’s parental rights
was in Harley’s best interests was against the manifest weight of the evidence and whether
the circuit court abused its discretion in denying the agreed motion to continue are moot.
34 ¶ 76 III. CONCLUSION
¶ 77 For the foregoing reasons, we hold that the circuit court’s finding that Reggie was
an unfit person was not against the manifest weight of the evidence and affirm that portion
of the circuit court’s judgment. We reverse that portion of the circuit court’s judgment
terminating the respondent’s parental rights based on the circuit court’s finding that
termination of his parental rights was in Harley’s best interest where the record does not
demonstrate a good cause, nor any safeguards implemented prior to requiring Reggie to
appear via video conferencing at the best interest hearing. We remand this matter for further
proceedings consistent with this decision.
¶ 78 Affirmed in part and reversed in part; cause remanded.
¶ 79 JUSTICE WELCH, concurring in part and dissenting in part:
¶ 80 I agree that the trial court properly found the respondent to be an unfit parent as
defined in section 1(D)(m)(i) of the Adoption Act (750 ILCS 50/1(D)(m)(i) (West 2020)).
¶ 81 However, I respectfully disagree with my colleagues where the majority reverses
the trial court’s decision to terminate the respondent’s parental rights based on its best
interests finding. The court did not err in conducting the best interests hearing with the
respondent appearing via Zoom. I disagree with the majority’s reading of the requirements
of Illinois Supreme Court Rule 241 (eff. May 22, 2020). The majority reads too narrow the
definition of what constitutes “good cause” under Rule 241. As cited by the majority, the
rule states that “[t]he court may, upon request or on its own order, for good cause shown
and upon appropriate safeguards, allow a case participant to testify or otherwise participate
in a civil trial or evidentiary hearing by video conferencing from a remote location.” Id. 35 However, the majority reads the committee comments as if they are an exclusive list of
what constitutes good cause. This reading is too narrow, as the plain language of the rule
does not have any kind of list for the definition of good cause. Furthermore, the committee
notes from May 22, 2020, specifically keep the definition broad and within the court’s
discretion, where it states that the use of video technology “to conduct testimony under
oath in civil trials increases accessibility to the courts, aids in the efficient administration
of justice, avoids delays in trials, and more efficiently administers testimony for case
participants who face an obstacle to appearing personally in court such as illness, disability,
or distance from the courthouse.” Ill. S. Ct. R. 241, Committee Comments (rev. May 22,
2020).
¶ 82 The purpose and requirements of Rule 241 were met in this case where the
respondent was incarcerated at the time of the hearing, his appearance would require both
a continuance and a secure transport to and from the prison, and the video technology
utilized during the hearing, i.e., Zoom, allowed the respondent to hear all of the testimony
and evidence, cross-examine witnesses, and testify. The respondent was able to fully
participate in the hearing and, based on the evidence presented, his presence was not
necessary as it would have had no effect on his access. Additionally, any continued undue
delay would be a waste of court resources and only further the uncertainty of the minor’s
potential adoption by the two foster parents whom he called mom and dad, had lived with
during his formative years (from the ages of three to six years old at the time of the hearing),
and whom he considered to be his family (which also included the parent’s five-year-old
son whom he called his brother). The respondent was given all necessary safeguards during
36 the hearing, and it was within the trial court’s discretion to find good cause to continue
with the hearing without further delay and to utilize the available video technology.
¶ 83 The record also reflects that, as to the respondent’s request to appear in person for
the best interests hearing, there was confusion on the part of both the trial court and the
respondent’s counsel. Though it is true that at the fitness hearing the respondent’s counsel
made clear that the respondent wanted to appear in person for the termination hearing, but
consented to appearing via video for status conferences, there was later confusion on this
issue. At the outset of the best interests hearing, the respondent’s counsel stated on the
record that he could not recall whether he had requested that the respondent appear in
person as he did not yet have access to the transcript of the fitness hearing. Counsel then
objected to the termination hearing being held without the respondent appearing in person.
After considering the objection and the respondent’s circumstances, the court overruled the
objection and continued with the termination hearing, and the respondent appeared via
Zoom. The statements made by the court on the record demonstrate that it did in fact
consider and determine that the respondent appearing via Zoom was appropriate. The
record establishes that the respondent had experience with the criminal justice system
where he was convicted of multiple felonies, he could read and write the English language,
he was combative with the court, he waived his right to a jury trial, and he admitted to
using narcotics after the removal of the minor from his care. For these reasons, it is not
necessary to reverse and remand the court’s best interests finding and termination of the
respondent’s parental rights.
37 ¶ 84 Affirming the trial court’s termination of the respondent’s parental rights would also
be in line with this court’s findings in In re P.S., 2021 IL App (5th) 210027, that was issued
on July 26, 2021. Here, as in that case, the reasons underlying the trial court’s determination
were referenced in the committee notes, where the notes state that the distance of the
respondent’s residence to the courthouse and the need for a secure transport to and from
the prison can constitute good cause for proceeding via video. Additionally, the respondent
here had all the same access that would have been available if he appeared in person, and
modern technology was used to assure that he was able to fully participate during the
hearing. Therefore, as in In re P.S., the use of video technology was appropriate.
¶ 85 I therefore dissent from the portion of the majority’s order reversing the trial court’s
judgment with regards to the best interests finding and terminating the respondent’s
parental rights and remanding for further proceedings.
Related
Cite This Page — Counsel Stack
2022 IL App (5th) 210342-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-harley-s-illappct-2022.