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
1 Stephanie ultimately consented to adoption and is not a party to this appeal. 2022 IL App (2d) 210404
et seq.) (West 2018)). The State alleged H.B. was neglected based on an injurious environment
(id. § 2-3(1)(b)).
¶5 In August 2018, the trial court entered an adjudicatory order, finding H.B. was neglected
as alleged in the State’s petition. In November 2018, the court entered a dispositional order
(1) finding respondent was unfit and unable, for reasons other than financial circumstances alone,
to care for, protect, train, educate, supervise, or discipline H.B. and (2) granting the Department of
Children and Family Services (DCFS) custody, guardianship, and the right to place H.B.
¶6 B. Termination Phase
¶7 In July 2019, the State petitioned to terminate respondent’s parental rights. It alleged
respondent was unfit due to his failures to (1) maintain a reasonable degree of interest, concern, or
responsibility as to H.B.’s welfare (750 ILCS 50/1(D)(b) (West 2018)); (2) protect H.B. from the
conditions that were injurious to his welfare (id. § 1(D)(g)); (3) make reasonable efforts to correct
the conditions that were the basis for removal of H.B. (id. § 1(D)(m)(i)); and (4) make reasonable
progress toward the return of H.B. in the initial nine-month period following the adjudication of
neglect (id. § 1(D)(m)(ii)).
¶8 Trial commenced on January 15, 2020. The court heard testimony on that day, as well as
on January 16, February 20, February 21, and March 9, 2020. All 20 witnesses who testified on
those dates did so in person. On March 9, the State called Stephanie as a witness, and, when the
proceedings broke for the day, cross-examination of her had not yet been completed. The trial was
continued to March 26, 2020.
¶9 In the meantime, on March 16, 2020, the chief judge of the Sixteenth Judicial Circuit
entered General Order No. 20-07, effective March 17 (Kane County Cir. Ct. G.O. 20-07, (Mar. 17,
2020)), in response to the emerging COVID-19 pandemic. The order continued all matters, subject
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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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would be released from IDOC custody before that day, and his attorney told the court she would
appear in person with respondent.
¶ 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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proper social distancing was available, should Stephanie’s attorney choose to appear in person.
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,
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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
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counsel, in the event he elected to file an amended Anders motion, to “full[y] analy[ze] the issue
and explain*** why he believe[d] such an argument would be frivolous.”
¶ 38 On November 23, 2021, respondent’s counsel filed an amended motion to withdraw under
Anders. This time, counsel provided little more analysis but cited two additional cases, In re R.D.,
2021 IL App (1st) 201411, and In re Aa. C., 2021 IL App (1st) 210639, that came to similar
conclusions as did P.S. 2 He again asserted the recent case law, which involved similar scenarios
and discussed many of respondent’s concerns, was persuasive. He noted that those decisions had
analyzed due-process claims under the three factors set forth in Mathews v. Eldridge, 424 U.S. 319
(1976), but he failed to offer any analysis of those factors under the facts of this case. On December
1, 2021, we denied counsel’s amended Anders motion with prejudice and directed respondent to
file a brief no later than December 15, 2021. See Austin C., 353 Ill. App. 3d at 948 (explaining the
appellate court has three discretionary options when appointed counsel does not comply with
Anders). The parties thereafter complied with shorter briefing deadlines, and the case was
submitted for decision on January 7, 2021.
¶ 39 In light of the foregoing, we find we have good cause to excuse our failure to issue our
decision within the timeframe set forth in Rule 311(a)(5). See In re B’Yata I., 2013 IL App (2d)
130558, ¶ 26.
¶ 40 B. Forfeiture and Respondent’s Noncompliance with
Illinois Supreme Court Rule 341
2 Both R.D. and Aa. C. were decided before counsel’s initial Anders motion, but counsel
neither cited nor discussed them.
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¶ 41 We first address the State’s contention that respondent has forfeited his contention on
appeal by failing to adequately argue it under Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1,
2020). Rule 341(h)(7) requires a party’s brief to present argument, which must contain the
contentions of the party and be supported by citation to the authority and the pages of the record
relied on. Id. A party must clearly define the issues to be decided and set forth cogent arguments
in support of his or her position. Maday v. Township High School District 211, 2018 IL App (1st)
180294, ¶ 50. Indeed, it is well settled this court “is not a repository into which an appellant may
foist the burden of argument and research.” Ramos v. Kewanee Hospital, 2013 IL App (3d)
120001, ¶ 37. A party forfeits an argument when he or she fails to adequately develop it. Maday,
2018 IL App (1st) 180294, ¶ 50.
¶ 42 Respondent’s brief fails to comply with the requirements of Rule 341(h)(7). Respondent
states the issue on appeal is whether the trial court abused its discretion in conducting the
termination trial in a hybrid manner and, in doing so, violated his constitutional rights to due
process and to confront the witnesses against him. However, the argument portion of respondent’s
brief is devoid of any reference to the court’s discretion and any discussion of how the court’s
decision was an abuse of that discretion. Nor has respondent provided any true due-process or
confrontation-clause analysis based on the specific facts of this case. Instead, after setting forth
some relevant boilerplate law, pointing us to some of the recent case law on the issue, and directing
us specifically to Justice Wharton’s dissent in P.S., respondent argues as follows:
“In relation to the instant appeal, [Justice Wharton’s] dissent at [paragraph] 105
essentially echoes [respondent’s] concern which his [trial] counsel adopted *** from [the
ASA’s] concerns *** about observation of a witness during testimony, ‘Although video
conferencing platforms like Zoom do not eliminate a judge’s opportunity to observe a
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parent’s demeanor throughout the hearing[,] they do impose limitations.[’] [Citation.] In
the instant case, the testimony of *** Diaz *** was taken via Zoom on September 23, 2021,
and September 24, 2021. Although it was the only witness testimony relative to
[respondent’s] case taken via Zoom[,] it was vital testimony that [respondent] believes had
a high likelihood to be misinterpreted by the court due to the witness not appearing in
person.”
Respondent does not explain how Diaz’s testimony was vital to the court’s findings in relation to
him. Nor could he. Diaz’s testimony concerned Stephanie’s engagement with domestic-violence
counseling. (Respondent does not raise any argument regarding Timoti’s rebuttal testimony, which
was also taken remotely. Her testimony bore directly on respondent’s fitness, as it concerned his
efforts to engage with services after he was released from IDOC, and contradicted respondent’s
testimony that he attempted to engage in services.) Moreover, respondent does not explain how
the safeguards employed by the trial court in this case were not adequate to protect his interest in
maintaining a parental relationship with H.B.
¶ 43 Additionally, we must call attention to other shortcomings in respondent’s brief. For
instance, his statement of facts does not fully set forth all the facts necessary to understanding the
single issue raised on appeal. See Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). While respondent
includes an in-depth discussion of the procedural history of the case, more than half of his
statement of facts discusses matters that have no relevance to the issue raised on appeal. And he
has not set forth any of the in-court discussion regarding the hybrid format used here. He also
states the standard of review is abuse of discretion but does not cite any authority in support of his
assertion. See Ill. S. Ct. R. 341(h)(3) (eff. Oct. 1, 2020). We could strike respondent’s brief and
dismiss the appeal in light of these deficiencies (In re Marriage of Reicher, 2021 IL App (2d)
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200454, ¶ 30), but we decline to do so. Forfeiture is a rule of administrative convenience and does
not preclude us from considering an otherwise forfeited contention. See Coley v. Bradshaw &
Range Funeral Home, P.C., 2020 IL App (2d) 190627, ¶ 31. Indeed, forfeiture is a limitation on
the parties, not this court. CB Construction & Design, LLC v. Atlas Brookview, LLC, 2021 IL App
(1st) 200924, ¶ 19. Considering the nature of the interests involved here, i.e., respondent’s
fundamental right to maintain a parental relationship with his child (see Santosky v. Kramer, 455
U.S. 745, 753 (1982)), we choose to excuse respondent’s forfeiture and consider the merits of his
claims.
¶ 44 C. The Merits
¶ 45 Respondent contends the trial court abused its discretion in conducting the termination trial
in a hybrid in-person/remote manner and, in doing so, violated his rights to procedural due process
and to confront the witnesses against him. He asserts Diaz’s testimony was vital, and, because it
was given on Zoom, it was highly likely to be misinterpreted. Respondent does not raise any issue
with the court permitting Timoti to testify in rebuttal via Zoom.
¶ 46 The State argues the hybrid nature of the proceedings did not violate respondent’s rights to
due process or to confront the witnesses against him. It argues that, even assuming the
confrontation clause applies in proceedings under the Act, the right to be present and cross-
examine witnesses, in person or otherwise, is not absolute. It asserts respondent “is unable to show
any ‘gross’ deviation from fair due process procedures” or that the procedure used impinged upon
the truth-seeking function of cross-examination. Further, the State contends the trial court struck
an appropriate balance between respondent’s rights and the government’s interests in providing
permanency for H.B. and protecting the public from a novel, deadly virus, and that it established
adequate safeguards to protect those interests. Moreover, the State notes only 2 out of 25 witnesses
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testified remotely, and respondent has taken issue with only one of those witnesses, Diaz, whose
testimony concerned Stephanie’s fitness. Thus, the State maintains, respondent cannot establish
he was prejudiced by the trial court’s decision to allow her to testify remotely.
¶ 47 As will be discussed more fully below, we first conclude the hybrid procedure did not
violate respondent’s right to procedural due process. Second, to the extent confrontation rights
may be an aspect of due process in these civil proceedings, we find the procedure adequately
protected respondent’s right to confront the witnesses against him. Finally, we find the court did
not abuse its discretion in employing the hybrid procedure under both Illinois Supreme Court Rule
241 (eff. May 22, 2020) and its own local administrative orders.
¶ 48 Before beginning our discussion, we find it useful to set forth the backdrop against which
we are analyzing the issue. The fitness portion of this trial commenced in January 2020 and
concluded almost 1½ years later, in June 2021. In the midst of the proceedings, the emergence of
the SARS-CoV-2 virus, which can cause severe illness and death, upended our daily lives. The
disease caused by the virus, COVID-19, was later declared a pandemic. Our supreme court has
guided the lower courts of this state through the pandemic and has encouraged and promoted the
use of technology to allow remote proceedings in all matters, where feasible and constitutionally
sufficient. See generally Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). To that end, the court directed
lower courts to establish temporary procedures to minimize the impact of COVID-19 on the court
system and its participants, while expanding access to the courts. With this in mind, we turn to the
merits.
¶ 49 1. Procedural Due Process
¶ 50 At its core, procedural due process requires a party to be given the opportunity to be heard
at a meaningful time and in a meaningful manner. R.D., 2021 IL App (1st) 201411, ¶ 19. The
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concept “ ‘is flexible and calls for such procedural protections as the particular situation
demands.’ ” Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
When determining whether a procedure is constitutionally sufficient, a court must consider and
balance (1) the private interest affected, (2) the risk of an erroneous deprivation of that interest by
using the procedure and the probable value of any additional or substitute safeguards, and (3) the
governmental interests involved. Id. at 335.
¶ 51 After balancing the three Mathews factors, we conclude the trial court’s use of a hybrid
format did not deprive respondent of his right to due process. As to the first Mathews factor, a
parent has a fundamental liberty interest in maintaining a parental relationship with his or her child.
Santosky, 455 U.S. at 753; In re D.W., 214 Ill. 2d 289, 310-11 (2005). Indeed, that interest is among
the most “ ‘basic civil rights.’ ” Stanley v. Illinois, 405 U.S. 645, 651 (1972) (quoting Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)). And it “is perhaps the oldest of the
fundamental liberty interests” recognized by the Supreme Court. Troxel v. Granville, 530 U.S. 57,
65 (2000) (plurality opinion).
¶ 52 As to the second factor, respondent argues only that Diaz’s testimony was “high[ly] likel[y]
to be misinterpreted by the court due to the witness not appearing in person.” He does not offer
any argument as to how Diaz’s testimony was susceptible to misinterpretation under the
circumstances of this case or how any potential misinterpretation of her testimony would prejudice
him. Instead, respondent points generally to Justice Wharton’s dissent in P.S., asserting the
concerns raised by Justice Wharton “essentially echo” his position.
¶ 53 We note P.S. is distinguishable from this case. In P.S., the parents’ termination trial was
conducted entirely on Zoom, over the respondent’s requests for a continuance and for an
immediate in-person hearing. P.S., 2021 IL App (5th) 210027, ¶ 7. Here, the trial was conducted
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in a hybrid manner. The court required respondent and Stephanie to be physically present while
allowing two of the State’s witnesses—the only witnesses who were called after the court
implemented the hybrid procedure—to participate remotely, and respondent never requested a
continuance until all witnesses could appear in person without a substantial risk to their health. All
the recent case law on this issue is likewise distinguishable. R.D., 2021 IL App (1st) 201411 (fully
remote proceeding; administrative order required remote hearing, except for good cause); Aa. C.,
2021 IL App (1st) 210639 (same); In re Es. C., 2021 IL App (1st) 210197 (same). But respondent
does not recognize this distinction.
¶ 54 This distinction aside, in his dissent in P.S., Justice Wharton emphasized the seriousness
of the State action at issue, likening the termination of parental rights to a “parental death
sentence.” P.S., 2021 IL App (5th) 210027, ¶ 95 (Wharton, J., dissenting). He noted, “[a] judge
can only see what takes place within the video frame, and it is harder to watch parties’ real time
reactions to testimony when the parties and the witnesses appear in separate boxes.” Id. ¶ 105.
Accordingly, he argued, a court receiving remote testimony risked missing subtle but important
clues that any given witness gives during his or her testimony and “[a] better opportunity to observe
[the respondent’s] temperament could have helped inform the court’s decision.” Id. ¶¶ 105-
06, 108. He also noted there were particular challenges in that case, as one witness appeared to be
using notes during her testimony. Id. ¶ 105. Thus, Justice Wharton concluded, the second Mathews
factor—the risk of erroneous deprivation—“weigh[ed] at least slightly in favor of finding that due
process required an in-person hearing.” Id. ¶ 108.
¶ 55 We do not necessarily disagree with Justice Wharton that certain illuminating subtleties
could in some circumstances be lost when a witness testifies remotely as opposed to in person.
Maryland v. Craig, 497 U.S. 836, 851 (1990); see R.D., 2021 IL App (1st) 201411, ¶ 15 (noting
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in-person testimony and cross-examination are preferred over remote testimony); People v. Lofton,
194 Ill. 2d 40, 56 (2000) (citing Craig and noting preference for in-person confrontation); see also
Ill. S. Ct. R. 241, Committee Comments (adopted May 22, 2020) (noting “the relative importance
of live testimony in court”). But, under the facts of this case, we do not agree with respondent’s
suggestion that the procedure used here risked erroneously depriving respondent of his right to
maintain a parental relationship with H.B. Indeed, nothing in the record supports respondent’s
suggestion and respondent can do nothing more than speculate as to how allowing the two
witnesses to testify remotely affected the truth-seeking function of the trial.
¶ 56 The record shows the trial court established adequate safeguards to protect the integrity of
the judicial process and allow respondent to confront the witnesses against him. Respondent was
physically present in the courtroom, with his attorney, when both remote witnesses testified and
was never prohibited from communicating with his attorney during the testimony. The court
reminded all participants that the proceedings were confidential. Both remote witnesses were
sworn, and they were visible on a screen in the courtroom. Respondent’s attorney was permitted
to fully cross-examine both witnesses, raised timely objections, and received rulings on those
objections. Before Diaz’s testimony, which concerned only Stephanie’s fitness, the court
instructed her to conduct herself as if she were physically present in the courtroom and reminded
her that the proceedings were confidential, that all nonparties in her location should leave, and that
she could not refer to any documents without permission. Before Timoti’s testimony, to which
respondent does not object, the court instructed her to not communicate with anyone during her
testimony and to not refer to any documents without the court’s permission. Thus, the procedure
used was as close to in-person proceedings as the circumstances permitted. In light of the
safeguards established in this case, we cannot conclude that whatever nuances may have been lost
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by way of the witnesses’ virtual appearances risked erroneously depriving respondent of his right
to maintain a parental relationship with H.B.
¶ 57 As to the third Mathews factor, there is no dispute the government has significant interests
in protecting minors’ well-being and in expeditiously finding permanency for abused and
neglected minors. See R.D., 2021 IL App (1st) 201411, ¶ 21 (noting “[c]hildren have an interest
in a stable home life free from the uncertain and fluctuating world of foster care” (internal
quotation marks omitted)); Es. C., 2021 IL App (1st) 210197, ¶ 24; In re D.T., 212 Ill. 2d 347, 365
(2004); In re D.L., 191 Ill. 2d 1, 13 (2000); see also Lassiter v. Department of Social Services, 452
U.S. 18, 32 (1981) (noting “child-custody litigation must be concluded as rapidly as is consistent
with fairness”). Nor is there any dispute that the government has a significant interest in preserving
public health and limiting the spread of a novel, deadly disease caused by a highly transmissible
virus. See JL Properties Group B, LLC v. Pritzker, 2021 IL App (3d) 200305, ¶ 59 (noting both
the government and the public have a strong interest in preserving public health).
¶ 58 Simply put, the trial court here carefully advanced the government’s interests while
establishing appropriate safeguards to decrease the risk of erroneously depriving respondent of his
fundamental right to maintain his parental relationship with H.B. Under these circumstances, we
conclude the trial court’s use of hybrid proceedings for the trial did not violate respondent’s right
to procedural due process.
¶ 59 2. Confrontation Clause
¶ 60 Defendant also argues the hybrid proceedings violated his sixth amendment right to
confront the witnesses against him. We disagree.
¶ 61 The sixth amendment explicitly limits its application to criminal proceedings. U.S. Const.,
amend. VI. Termination proceedings under the Act are civil in nature. In re E.S., 246 Ill. App. 3d
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330, 335 (1993). However, termination proceedings involve fundamental liberty interests and
invoke some of the constitutional concerns implicated in criminal cases. In re J.R., 342 Ill. App.
3d 310, 316 (2003). The confrontation clause may well be one of these concerns, but it need not
be strictly applied in termination proceedings. In re R.D., 2021 IL App (1st) 201411, ¶ 13 (citing
In re K.L.M., 146 Ill. App. 3d 489, 495 (1986)). In the civil context, courts generally look to
whether there has “been a ‘gross’ deviation from fair procedure.” Id.
¶ 62 Even in the criminal context, however, the right to face-to-face confrontation is not
absolute. Id. ¶ 14. “When evaluating whether the alternate procedure complied with the
confrontation clause [(in the criminal context)], courts consider whether the procedure
(1) impinged upon the truth-seeking purpose of the clause and (2) was necessary to further an
important state interest.” Id.
¶ 63 Respondent does not make any distinction between civil and criminal proceedings, and he
has not pointed to any authority establishing that termination proceedings are subject to the more
rigorous confrontation standard used in criminal proceedings. However, even if we were to apply
the more rigorous standard, we find the proceedings here did not violate respondent’s
confrontation rights.
¶ 64 First, the hybrid procedure used in this case did not impinge upon the truth-seeking purpose
of the confrontation clause. Admittedly, as noted, in-person testimony and cross-examination are
preferred over remote testimony. See Lofton, 194 Ill. 2d at 56. However, as discussed in our
analysis of respondent’s due-process claim, the record shows the trial court took steps to ensure
the remote witnesses’ appearances were functionally equivalent to in-person appearances. Further,
nothing in the record suggests the court, the parties, or the parties’ attorneys were unable to view
the witnesses as they testified, observe their demeanor, or evaluate their credibility. Under these
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circumstances, we conclude the hybrid procedure used in this case “adequately ensure[d] that the
testimony [was] both reliable and subject to rigorous adversarial testing in a manner functionally
equivalent to that accorded live, in-person testimony” (Craig, 497 U.S. at 851) and did not impinge
on the truth-seeking purpose of the confrontation clause (R.D., 2021 IL App (1st) 201411, ¶ 14).
¶ 65 Second, the hybrid procedure used here was necessary to further two important government
interests: (1) the welfare of minors, including their interests in their own well-being and living in
a stable environment and (2) the protection of the public from a deadly virus that spreads easily
through in-person interaction. See R.D., 2021 IL App (1st) 201411, ¶ 16. The trial court employed
the hybrid procedure beginning in September 2020, at a time when this state was in the grips of
the COVID-19 pandemic and when there were few authorized treatments and no vaccines. See
Emergency Use Authorization, U.S. Food & Drug Admin., https://www.fda.gov/emergency-
preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-
authorization#coviddrugs (last visited Feb. 16, 2022) [https://perma.cc/9FVL-TP3R]. The hybrid
procedure allowed the proceedings to move forward, facilitating permanency for H.B., while at
the same time protecting the participants from the risk of illness. As our colleagues in the First
District recognized, “[k]eeping children in limbo, particularly when they have already spent years
in the system, would not further the [government’s] interest in their welfare.” R.D., 2021 IL App
(1st) 201411, ¶ 16.
¶ 66 For these reasons, we conclude that, to the extent respondent has confrontation rights in
these civil termination proceedings, the hybrid procedure employed here did not violate that right.
¶ 67 3. Illinois Supreme Court Rule 241 and Local Administrative Orders
¶ 68 Respondent also contends the trial court abused its discretion by conducting his termination
trial in a hybrid manner. Though respondent does not mention either the trial court’s local
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administrative orders or Illinois Supreme Court Rule 241 (eff. May 22, 2020), we find his argument
implicates both the orders and the rule.
¶ 69 On May 1, 2020, the presiding judge of the juvenile division entered an administrative
order setting forth temporary procedures to be used in pending juvenile cases. In re COVID-19
Temporary Procedures for Juvenile Division Matters, Kane County Cir. Ct. Family Div. Admin.
Order (May 4, 2020). The order provided the judge assigned to a matter could, in his or her
discretion, initiate remote proceedings. Id. The order directed the assigned judge to consider “such
factors as the need for parties to appear, the evidentiary or non-evidentiary nature of the
proceeding, [and] the need to involve a court reporter.” Id. Additionally, the order provided as
follows:
“Eligibility for a contested remote hearing (remote hearing) is limited to cases
wherein all parties are represented by attorneys, have access to the Zoom platform or
telephonic conferencing, and in which the parties consent to the remote hearing. However,
if all parties do not consent to the remote hearing[,] then the court may, in the exercise of
its discretion and after affording the objecting party the opportunity to show why they
would be prejudiced by a remote hearing, order the matter to proceed via a remote hearing
or in a hybrid manner. These limits will be frequently reviewed and modified, when
possible, in an ongoing effort to expand access to justice.” Id.
The order also stated that remote proceedings were to “be conducted to the same standards as
hearings in a courtroom” and in accord with the Illinois Code of Civil Procedure, the supreme
court rules, and the court’s local rules, but the precise method of hearing was reserved to the
assigned judge’s discretion. Id. Finally, the administrative order set forth certain safeguards,
including that each witness was to (1) be alone in a secure room with closed doors, (2) wear
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appropriate attire and conduct themselves as if they were appearing in a physical courtroom, and
(3) ensure there would be no interruptions or distractions for the duration of their appearance. Id.
¶ 70 Illinois Supreme Court Rule 241 (eff. May 22, 2020) provides the court may, upon request
or its own order, for good cause shown and upon appropriate safeguards, allow a witness to testify
in a civil proceeding by videoconferencing from a remote location. The Committee Comments to
Rule 241 explain “good cause” must be shown because of the importance of live in-person
testimony. Ill. S. Ct. R. 241, Committee Comments (adopted May 22, 2020). “Good cause is likely
to arise when a witness is unable to attend trial for unexpected reasons, such as accident, illness,
or limited court operations, but also in foreseeable circumstances such as residing out of state.” Id.
When allowing remote testimony, the court must impose adequate safeguards to ensure accurate
identification of the participant and to avoid improper influences by any individual who may be
present with the participant during their testimony. Id. Moreover, “[a] court has broad discretion
to determine if video testimony is appropriate for a particular case,” and it must balance all relevant
considerations, including (1) any due-process concerns, (2) the ability to question witnesses,
(3) hardships that may prevent the witnesses from appearing in person, (4) the type of case, (5) any
prejudice to the parties if testimony is to occur by video conference, and (6) any other issues of
fairness. Id.
¶ 71 Because both the local administrative order and Rule 241 invoke the trial court’s discretion,
we must determine whether the trial court’s decision to proceed in a hybrid manner was an abuse
of discretion. An abuse of discretion occurs when the trial court’s decision is unreasonable. Blum
v. Koster, 235 Ill. 2d 21, 36 (2009).
¶ 72 We conclude the trial court did not abuse its discretion by conducting the trial in a hybrid
manner and permitting certain witnesses to testify remotely. Here, all parties were represented by
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attorneys and, although respondent did not consent, the administrative order permitted the court,
in the exercise of its discretion, to order the matter to proceed in a hybrid manner. The court, in
accordance with the administrative order, afforded respondent the opportunity to explain his
position. Respondent generally objected to the hybrid proceedings, noting he had the “right to face
the witnesses in person” and he would not be able to fully observe the demeanor and assess the
credibility of the witnesses appearing remotely. But the only specific concern respondent raised at
any time in the proceedings was the presence of a glare on the screen in the courtroom in which
the witness appeared, which was remediated when the court closed the blinds in the courtroom.
Further, the trial court left open the possibility that it could reconsider its order if the hybrid
proceedings proved to be problematic, but respondent never identified any specific problems with
the format. Moreover, respondent has not established how the hybrid proceedings prejudiced him,
and, given the fact Diaz’s testimony had no bearing on the State’s allegations concerning
respondent, we fail to see how he could do so.
¶ 73 In addition, we note the trial court found there was good cause to allow Diaz to testify
remotely, in accordance with Rule 241. Given Diaz’s representation that she had a family member
who was particularly vulnerable to severe illness if the family member contracted COVID-19, we
do not disagree with that finding, particularly where respondent has not identified any instance in
which he was unable to question Diaz or specified how he was prejudiced. See Ill. S. Ct. R. 241,
Committee Comments (adopted May 22, 2020).
¶ 74 We acknowledge the trial court made no finding of good cause with respect to Timoti, who
also testified remotely. However, respondent has not raised any issue on appeal concerning
Timoti’s remote testimony, and we will not advocate on his behalf.
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¶ 75 In sum, the record shows the trial court carefully considered the competing interests, the
rights at issue, respondent’s arguments, and the fact that proceeding fully in person would cause
additional delay, which was not in H.B.’s or any other party’s best interests, and found it was
proper to proceed in a hybrid manner. Under the facts of this case, we cannot say the trial court’s
decision was unreasonable.
¶ 76 III. CONCLUSION
¶ 77 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 78 Affirmed.
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No. 2-21-0404
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-JA-21; the Hon. Kathryn Karayannis, Judge, presiding.
Attorneys Ronald L. Haskell, of St. Charles, for appellant. for Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Adam Trejo, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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