2022 IL App (1st) 211505 No. 1-21-1505 Opinion filed May 13, 2022
SIXTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re M.M., a Minor ) Appeal from the Circuit Court ) of Cook County. (The People of the State of Illinois, ) ) Petitioner-Appellee, ) ) v. ) No. 19 JA 942 ) T.S., ) The Honorable ) Levander Smith, Jr., Respondent-Appellant). ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 In the instant appeal, T.S., an incarcerated parent, 1 claims that her due process rights
were violated when she was expelled from a remote Zoom dispositional hearing, at which the
trial court ultimately found her unable and unwilling to care for her minor child, M.M., and
adjudged M.M. a ward of the court. The trial court expelled T.S. for being too disruptive during
1 The mother was detained at Cook County Jail awaiting trial. No. 1-21-1505
the proceeding, although the Zoom host had repeatedly muted T.S.’s microphone at the
direction of the trial court.
¶2 On appeal, T.S. asserts that the trial court (1) improperly removed her from the hearing
in violation of her constitutional and statutory rights to due process and (2) failed to sufficiently
inquire into her pro se claim that her counsel was ineffective, thereby requiring a remand for a
Krankel inquiry. People v. Krankel, 102 Ill. 2d 181 (1984). 2 T.S. also requests that we direct
the trial court to find, at a new dispositional hearing, that she is not unwilling to parent. 3
¶3 T.S. argues that there was no showing of unrelenting vile, threatening, or abusive
language by her to justify her exclusion from the hearing. As such, she claims that she was
denied the constitutional right to a fundamentally fair proceeding and the statutory right to be
present. The State, however, contends that, because the conduct at issue “occurred primarily
during an off-the-record recess,” a bystander’s report is needed in order for this court to assess
the conduct in question. The State argues that, without it, the record is incomplete, and we
cannot rule in her favor.
¶4 A party, such as T.S., has a right to appeal “an adjudication of wardship of the court
under Section[ ] 2-22” of the Juvenile Court Act of 1987 (Act). 705 ILCS 405/1-5(3) (West
2020). Section 2-22 of the Act governs dispositional hearings, such as the one at issue in the
instant appeal. 705 ILCS 405/2-22 (West 2020) (“Dispositional hearing”). T.S. filed a notice
2 In Krankel, 102 Ill. 2d at 189, the supreme court remanded the case before it to the trial court so that the trial court could hold a hearing on the defendant’s pro se, posttrial claim of ineffective assistance of counsel. After Krankel, a whole new “common-law procedure *** developed” to “govern[ ] a pro se posttrial claim alleging ineffective assistance of trial counsel.” People v. Jackson, 2020 IL 124112, ¶ 95. “An abundance of decisions” from both the supreme court and the appellate courts has “ ‘contributed to the refinement of,’ ” what has come to be known as, “ ‘the Krankel procedure.’ ” Jackson, 2020 IL 124112, ¶ 97 (quoting People v. Roddis, 2020 IL 124352, ¶ 37. T.S. asks us to remand to permit such a procedure. 3 The public guardian states in its appellate brief: “The public guardian is not asking this Court to affirm the trial court’s finding that the mother [T.S.] is unwilling” to parent. (Emphasis added.) 2 No. 1-21-1505
of appeal on November 16, 2021, within 30 days of the dispositional order entered on October
22, 2021. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). Thus, we have jurisdiction to hear this 4 appeal.
¶5 For the reasons explained below, we agree that the record is sufficient for our review,
and we thereby reverse and remand for a new dispositional hearing but decline to address her
ineffective assistance claim at this time. We also decline T.S.’s request to order that she is “not
unwilling” as it would require us to prejudge the outcome of the new dispositional hearing.
¶6 BACKGROUND
¶7 The case at bar concerns a girl, M.M., who was born on February 11, 2017, to T.S., the
appellant in this case. M.M.’s father is not a party to this appeal. At an adjudication hearing on
August 6, 2021, the juvenile court found that M.M. was neglected because she was exposed to
an injurious environment and abused because she was at substantial risk of physical injury.
The evidence established that both of M.M.’s parents abuse alcohol, which leads them to argue
and injure each other. At a remote Zoom dispositional hearing on October 22, 2021, the trial
court found that T.S. was unable and unwilling to care for her child. The court made M.M. a
ward of the court and placed her under the guardianship of the Department of Children and
Family Services (DCFS).Since T.S.’s claims arise from events at the dispositional hearing, we
describe those events in detail below.
4 Although no party has raised this as an issue, we observe that, pursuant to Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), this court was required to issue our decision within 150 days after the filing of the notice of appeal, except for good cause shown. In this appeal, we granted multiple extensions of time to both sides for the filing of their briefs. While these extensions delayed the filing of our decision, the parties’ requests in each instance were made for legitimate reasons and not to hinder the timely resolution of this appeal. Thus, good cause was shown. In re. J.V., 2018 IL App (1st) 171766, ¶ 3. 3 No. 1-21-1505
¶8 The transcript of the dispositional hearing begins with the trial court stating: “Let’s go
on the record.” After the attorneys identified themselves, T.S.’s assistant public defender
(APD) stated that he was “expecting her from Cook County” jail. Someone who is identified
on the record only as “Madam Sheriff” said: “She’s here. She’s waiting.” After T.S. identified
herself on the record, the trial court informed her: “Your attorney *** is here, okay, on the
screen. I just want[ed] you to know.”
¶9 The trial court observed that the father appeared to be having “technical difficulty” with
the Zoom technology. The trial court noted that, for a moment, the father appeared frozen on
the screen and the court was not sure that the father could hear the court. The father’s APD
suggested that the father “just do the call-in,” and the trial court agreed.
¶ 10 The court noted that the foster mother had appeared “on the screen” and asked her to
turn up the volume because she could not be heard. After the foster mother turned up her
volume, the court noted that her volume was still faint, and the court asked the court reporter
if the reporter could hear her. The reporter stated that her voice was still faint. After the foster
mother informed the court that the foster father was unable to attend, the court reporter
interrupted, asking: “What was the first name of the other—.” The trial court then spelled the
foster father’s first name.
¶ 11 After the court finished spelling the foster father’s name, M.M.’s mother stated: “I need
a breakout room with my lawyer real quick.” The trial court responded: “Hold on. Hold on,
*** Hold on, please. Hold on.” The trial court noted that M.M.’s father still did not seem to be
able to hear the proceedings and the court asked T.S.’s APD “what’s going on with your
client?” When the APD replied that T.S. had requested a break-out room, the trial court asked:
“And you?” T.S.’s APD responded that, if his client wanted a break-out room, then so did he.
4 No. 1-21-1505
The APD argued the court would not lose any time because the court was still waiting for
M.M.’s father.
¶ 12 The trial court asked the Zoom host, who was the regional counsel of DCFS, if she
could accommodate T.S.’s request for a break-out room, and the host said that she could. The
trial court noted that it was then 1:56 p.m. and that they would be back on the record at 2:05
p.m. At which point, a short recess was held.
¶ 13 The recess ended with the trial court stating: “Go back on the record.” The trial court
then confirmed that, during the short recess, T.S., the mother, had had an opportunity to confer
with counsel, and the court also asked whether the father was able to join the proceeding:
“THE COURT: Okay. After the parties have had an opportunity to confer, [the
mother’s APD] with his client. And [the father’s APD], your client is he able to get on
the screen or on the record at this point?
Somebody please mute the mother again, and if she’s come [sic] back without
invitation from this court, remove her from this courtroom, and we will proceed.
Now, if you cannot control yourself, ma’am, you will be removed.”
This was the first time on the record that the trial court told T.S. that she would be removed if
she interrupted the proceeding.
¶ 14 Next, the trial court confirmed that the father was “coming across loud and clear,” and
that the father was participating by phone instead of by computer “due to some technical
difficulties.” The trial court advised all parties present that “in the State of Illinois it is illegal
to record these hearings without the consent of all participants, and [the court] did not consent.”
The trial court further warned everyone that “the only person that may record the hearings is
the Official Court Reporter, who is present.”
5 No. 1-21-1505
¶ 15 The trial court summarized for the record what had occurred off of it. It was during this
summary that the court ordered T.S. removed from the proceeding:
“THE COURT: [T]here was discussion off the record. The mother *** who’s
incarcerated and represented by [her APD], stated to this court that she wanted
alternative counsel, because there were documents that she felt should have been
admitted at adjudication. And [her APD] stated that[,] in his professional opinion, he
had reviewed the documents and did not think that in light of the evidence presented
by the State, which this court found to be a preponderance of evidence that it would
have made any positive impact on the mother’s case.
So this court is at this point, despite the mother’s request, denying the request right
now but invited the mother to in the future, if she feels that her representation is not
appropriate or competent, to bring it up to this court in the appropriate fashion, which
is generally by way of a motion. And—
[THE MOTHER]: I’ve got that.
THE COURT: She’s to discuss that with her attorney, who will remain, the office
of the Public—
[THE MOTHER]: I—
THE COURT: Defender, through [her APD]—remove the mother at this point,
please. Remove her. Thank you.”
¶ 16 The trial court then stated for the record its reasons for ordering the mother removed:
“THE COURT: The court has also advised the mother several times while we were
off the record that if she continued to interrupt this court, that she would be removed.
6 No. 1-21-1505
She has already been silenced in terms of her microphone being muted more than once,
and she continued to interrupt the court, so she is hereby removed.
All right. We will proceed with the dispositional hearing today.”
¶ 17 The mother’s APD stated “Your Honor, for the record—,” when he was interrupted by
the trial court who then provided an additional reason for denying the mother’s request for
alternative counsel:
“THE COURT: What the court was stating, the court found that [the mother’s APD]
had made a legal determination and that he was not operating contrary to the best
interest of his client, which as he knows would have not been—would not have
comported with the Rules of Professional Practice, so the mother, whatever it was that
she was doing or trying to get before this court, she did not bring it to the court in the
appropriate fashion anyway, so that was an additional reason.”
The record does not indicate what documents the T.S. was trying to bring to the attention of
the trial court. The trial court indicated that it did not know the nature of the documents when
it stated, “whatever it was that she was *** trying to get before this court.”
¶ 18 After providing its “additional reason,” the trial court asked T.S.’s APD if it had
accurately summarized what had occurred off the record. T.S.’s APD confirmed that the
court’s summary was accurate and used this opportunity to object to the court’s removal of his
client, stating: “I think you have stated it accurately. I would just object to going forward
without my client being present.” In response to the APD’s objection, the trial court further
stated:
“THE COURT: All rightie. The mother was provided with the opportunity several
times to proceed, but she has chosen to disrupt the proceedings, and I am not going to
7 No. 1-21-1505
make [M.M.] wait, because her mother refuses to contain herself. So with that having
been said, [the proceeding] continues.”
¶ 19 The dispositional hearing proceeded to the evidentiary phase, during which the court
went off the record several times for various reasons. In closing argument, the State asked the
court to find that T.S. was “unable *** only,” but that the father was both unable and unwilling
to parent the child. The assistant public guardian (APG) who represented the minor joined the
State in asking for a finding that T.S. was unwilling only. Similar to the State and the APG,
T.S.’s APD requested a finding that his incarcerated client “is unable only at this time.”
¶ 20 With respect to T.S., the trial court found:
“THE COURT: [T]he minor is adjudged a ward of the court, it being in the best
interest and welfare of the minor and that of the public.
The mother in this case is found to be unable and unwilling to care for protect, train
and discipline the minor.”
The trial court found that it was in the best interest of the minor to remove the minor from the
custody of the parents, and it appointed a DCFS administrator “as the custodian and guardian
of the minor with the right to place the minor and all of the rights pursuant thereto.”
¶ 21 Before advising the parents of their appellate rights, the trial court stated: “I need the
father to listen, as the mother is no longer on the screen, but her attorney is here.” The trial
court then stated that it was advising “each parent” of his or her appellate rights. After stating
the parents’ appellate rights, the trial court instructed the father to unmute himself and also
threatened to remove him from the proceeding:
“THE COURT: Do you—first of all, unmute yourself, please, ***.
[THE MINOR’S APG]: I think on the phone is it star—what is it?
8 No. 1-21-1505
THE COURT: Star 6 ***. Press star 6 to unmute yourself, please. *** Are you
there? Please raise your right hand. I cannot see you, because you’re participating by
phone. Let me know when your right-hand is raised.
[THE FATHER]: I don’t agree with your situation here.
THE COURT: I am not asking you—*** please don’t have me have you removed
as well. Just raise your right hand, and let me know when your right hand is raised, sir.”
The trial court asked the father if he understood his appellate rights, and the father replied:
“Not entirely, no.” The trial court then advised him to discuss those rights with his attorney
after the proceeding. After this advice, the trial court threatened again to remove the father:
“THE COURT: For further clarification—sir, *** I will have you removed as well.
If you do not—and that is your last warning, sir. Now, you may mute yourself again at
this time.
You can discuss this further with your attorney off the record after these
proceedings. We are going to continue at this point with or without you, so please mute
yourself.
[THE FATHER]: Okay. Go on.
THE COURT: Please mute yourself.
[THE FATHER]: How?
[THE FATHER’S APD]: Star 6.
THE COURT: [Father’s APD], please speak with your client before he appears in
this courtroom again about his decorum in this courtroom.”
9 No. 1-21-1505
The transcript does not disclose what the father did or said before the trial court said that it
could remove him as well. T.S. filed a timely notice of appeal on November 16, 2021, and this
appeal followed.
¶ 22 ANALYSIS
¶ 23 T.S. argues that her removal from the dispositional hearing violated her due process
and statutory rights to be present.“A parent has a fundamental due process right to the care,
custody and control of his or her children ***.” In re Andrea F., 208 Ill. 2d 148, 165 (2003).
As a result, all juvenile court proceedings must satisfy “[t]he basic requirements of due process
and fairness.” In re J.S., 272 Ill. App. 3d 219, 222 (1995). In our state, section 1-5(1) of the
Act codifies certain rights that protect a parent’s due-process interest in the custody of his or
her children. In re K.C., 323 Ill. App. 3d 839, 849 (2001). Section 1-5(1) guarantees, among
other things, that every parent who is a party respondent has “the right to be present [and] to
be heard” and “the right to be represented by counsel” at proceedings under the Act. 705 ILCS
405/1-5(1) (West 2018). As the State notes in its brief to this court, “ ‘[d]ue process is flexible
and calls for such procedural protections as the particular situation demands.’ ” In re R.D.,
2021 IL App (1st) 201411, ¶ 19 (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
¶ 24 To the extent that the issues on this appeal require us to interpret what the Act requires,
our review is clearly de novo. Thornley v. Board of Trustees of the River Forest Police Pension
Fund, 2022 IL App (1st) 210835, ¶ 15. The Public Guardian argues that our review is de novo
and cites in support In re J.V., 2018 IL App (1st) 171766, ¶ 191 (an appellate court reviews
de novo whether a mother was denied due process in a hearing that determined her parental
fitness). In contrast, T.S. argues that we review only for an abuse of discretion but cites in
support only federal criminal cases. The State agrees with T.S. concerning the standard of
10 No. 1-21-1505
review. We are persuaded by the public guardian’s cite to In re J.V., in which this court found
that a trial court’s finding of parental unfitness is reversed only if it is against the manifest
weight of the evidence, 5 but that we review de novo the issue of whether a parent received due
process. In re J.V., 2018 IL App (1st) 171766, ¶¶ 191, 236. As noted above, in our state, a
statute dictates what due process requires, and statutory interpretation is “always” governed by
de novo review. People v. Kohl, 364 Ill. App. 3d 495, 499 (2006) (“a trial court’s interpretation
of a statute” is “entitled to no deference”). However, under either standard of review, our
conclusions would be the same.
¶ 25 Prior to addressing the issue of whether T.S. was rightly removed from the proceeding,
we must first address the State’s contention that we do not have a sufficient record to decide
the matter. T.S. asserts that the trial court’s on-the-record description of the off-the-record
events and justification for expelling T.S. created a sufficient record. 6 However, the State in
its responding brief claims, repeatedly, that T.S.’s misconduct “occurred primarily during an
off-the-record recess” and that this court cannot decide her claim without a bystander’s report
describing her off-the-record conduct. Since T.S. did not provide a bystander’s report, the State
argues that the record before us is incomplete and, thus, we cannot rule in her favor.
¶ 26 For reasons explained in more detail below, we do not find persuasive the State’s
argument that the appellate record is incomplete because it does not contain material that the
trial court specifically ruled would be off of it and that the trial court later summarized on the
record.
5 A trial court’s “determination is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or the determination is unreasonable, arbitrary, or not based on the evidence presented.” In re J.V., 2018 IL App (1st) 171766, ¶ 164. 6 The trial court stated that it was expelling T.S. primarily because she had repeatedly unmuted herself and interrupted the court. However, the Zoom host had muted T.S., when instructed to do so by the trial court. 11 No. 1-21-1505
¶ 27 The State argues, first, that the trial court removed T.S. primarily for conduct that
occurred off the record and that, since T.S. did not provide a bystander’s report describing this
alleged off-the-record conduct, our record is incomplete and we, therefore cannot consider her
claim. We agree that the substance of off-the-record conferences and proceedings may be later
placed on the record through the means of a bystander’s report. Allen v. Sarah Bush Lincoln
Health Center, 2021 IL App (4th) 200360, ¶ 84 (the substance of an off-the-record jury
instruction conference was “set forth in a bystander’s report”); Bennett v. GlaxoSmithKline
LLC, 2020 IL App (5th) 180281, ¶ 34 (the appellate court noted the failure to memorialize off-
the-record, in-chambers proceedings in a bystander’s report); Tirado v. Slavin, 2019 IL App
(1st) 181705, ¶ 26 (appellants could have utilized a bystander’s report to memorialize “events
that occurred during the recess”). Pursuant to Illinois Supreme Court Rule 323(c) (eff. July 1,
2017), when “no verbatim transcript” is “obtainable,” a party “may prepare a proposed report
of proceedings from the best available sources, including recollection.” A report may include
any “proceedings that the party submitting it desires to have incorporated in the record on
appeal.” Ill. S. Ct. R. 323(a) (eff. July 1, 2017).
¶ 28 In her reply brief, T.S. argues that the trial court’s statement of reasons was complete
but that, if this court finds the State’s argument persuasive, we have the power, pursuant to
Illinois Supreme Court Rule 366(a)(3) (eff. Feb. 1, 1994), to order a bystander’s report. Rule
366(a)(3) provides, in relevant part, that “the reviewing court may, in its discretion, and on
such terms as it deems just *** permit the record to be amended *** by adding matters that
should have been included.” Ill. S. Ct. R. 366(a)(3) (eff. Feb. 1, 1994); see also Ill. S. Ct. R.
329 (eff. July 1, 2017) (material omissions to the record may be corrected by the reviewing
court).
12 No. 1-21-1505
¶ 29 Although an appellant has the burden to provide a sufficiently complete record to
support her claims, an appellee also has the burden to supplement the record if it believes our
record is inadequate to support its own claims. People v. Vernón, 396 Ill. App. 3d 145, 151
(2009); People v. Majka, 365 Ill. App. 3d 362, 369-70 (2006).
¶ 30 As previously stated, we are not persuaded by the State’s argument that the appellate
record is incomplete because it does not include material that the trial court specifically deemed
would be off the record and that the trial court summarized on the record. Majka, 365 Ill. App.
3d at 369-70 (“despite the burden on the appellant to provide a record complete enough for
review, the appellee cannot force the appellant to provide an exhaustive record by speculating
that a partial record is misleading”). Parties often speak and act differently when the trial court
states that their words and actions will be off the record. That is part of the point of going off
the record in the first place. In the case at bar, once back on the record, the trial court
summarized what had taken place off the record, thereby placing the key facts on the record—
deliberately putting those facts before us, the reviewing court. If the State believed that the trial
court had erred by providing an incomplete summary, it was up to the State to supplement the
record to support its allegation of error by the trial court in providing a summary. 7 Thus, we
do not find persuasive the State’s claim that the record before us is insufficiently complete to
adjudicate T.S.’s appellate claims. Tirado, 2019 IL App (1st) 181705, ¶ 26 (claim is
reviewable, despite the absence of a “bystander’s report of the events that occurred during the
recess,” where “the judge and the attorneys for the parties recount[ed]” on the record “the
circumstances that occurred off the record”); United Services Auto Ass’n v. Gobenciong Selina,
7 In addition, the trial court specifically forbid any recording of the proceeding, except for transcription by the court reporter. 13 No. 1-21-1505
2019 IL App (1st) 182275, ¶ 31 (although appellant did not provide bystander’s report, the
record was sufficient where “nothing in the record” indicated that the trial court “considered
any basis for the sanction other than” what it stated on the record).
¶ 31 The State argues that T.S. is “ask[ing] this Court to assume that the absence of a record
documenting her disruptive conduct during the court recess” means that her conduct was not
sufficiently disruptive “to justify her removal.” However, it is the State that is asking this court
for an assumption. The State is asking this court to assume that the trial court’s summary of
events and its statement of reasons was incomplete, and this we decline to do.
¶ 32 The State cites various cases in which there was material missing from the record and
the appellate court, therefore, ruled against the appellant. For example, in People v. Threatte,
2017 IL App (2d) 160161, ¶¶ 15-16, cited by the State, the trial court stated on the record that
it had considered alternatives to declaring a mistrial. The appellate court noted that there had
been an earlier, off-the-record discussion where the parties discussed the matter. Threatte, 2017
IL App (2d) 160161, ¶ 17. The appellate court concluded that, “without knowing what was
said during the off-record discussion,” it must presume that the trial court’s statement was
correct. Threatte, 2017 IL App (2d) 160161, ¶ 17. Similarly, in the case at bar, we presume
that the trial court’s statement summarizing the events that occurred off-the-record is correct.
The State asks us to speculate that there would be something in a bystander’s report, certified
by the trial court, that would be different than the summary of events and justifications that
were already provided by the trial court on the record before us. However, instead, we choose
to rely on the trial court’s stated reasons and summary of events. Majka, 365 Ill. App. 3d at
369-70 (mere “speculating” by the appellee cannot force the appellant to provide a more
14 No. 1-21-1505
exhaustive record); People v. Davis, 405 Ill. App. 3d 585, 600-01(2010) (“speculation” that a
transcript or bystander’s report would reveal errors is “insufficient”).
¶ 33 Second, the State argues that the trial court’s statement of events and reasons justified
the complete removal of T.S. from attending and viewing the Zoom proceeding. Unlike the
trial court in Threatte, the trial court in the case at bar did not state that it had considered
possible alternatives. Threatte, 2017 IL App (2d) 160161, ¶¶ 15-16.
¶ 34 To recap, after the proceeding started, T.S. asked for a break-out room to confer with
her attorney, which the trial court granted. Back on the record, the trial court almost
immediately stated: “Somebody please mute the mother again, and if she’s come [sic] back
without invitation from this court, remove her from this courtroom, and we will proceed.” The
trial court then summarized for the record what had happened off-the-record, namely, that T.S.
had asked for alternative counsel because there were documents which she wanted on the
record that her counsel had not presented. The trial court stated that, off the record, it had
denied her request, but it now “invited” her “in the future” to bring up any alleged inadequacies
with her counsel’s representation to its attention “by way of a motion.” Indicating her
understanding, T.S. replied: “I’ve got that.” The trial court continued, noting that T.S.’s
counsel was an APD. T.S. said “I—” and was immediately removed by the trial court. Stating
its reasons for the removal, the trial court explained that it had “advised the mother several
times while we were off the record that if she continued to interrupt this court, that she would
be removed. She has already been silenced in terms of her microphone being muted more than
once, and she continued to interrupt the court, so she is hereby removed.”
¶ 35 The State argues that, with the Zoom format, only one person may speak at a time and
that, by repeatedly speaking, T.S. disrupted the proceeding and prevented it from going
15 No. 1-21-1505
forward. However, the Zoom format also permits the host to mute all other participants besides
the one permitted speaker and to allow other participants to “chat” with each other by typing
messages to each other. The trial court’s statement of reasons does not show that it explored
any alternatives before expelling T.S. from viewing or attending the proceeding in any form.
Its complete removal of T.S. from any form of attendance or viewing or contact with her
attorney, without first exploring the other options provided by the Zoom format, did not
comport with the statutory requirements of due process guaranteed by our state. 705 ILCS
405/1-5(1) (West 2018) (every parent who is a party respondent has “the right to be present
[and] to be heard” and “the right to be represented by counsel”).
¶ 36 It is hard for this court to imagine what an incarcerated and muted parent could have
done to disrupt a Zoom hearing to the point where her remote attendance and viewing of the
proceeding was no longer possible. T.S. was (1) incarcerated, (2) physically distanced from
the trial court, (3) subject to a mute button, and (4) relying on a connection initialized and
controlled by the authority at the jail.
¶ 37 It is imperative to note that we do not imply or intend any criticism of the trial court.
On October 22, 2021, when this dispositional hearing was held, Zoom hearings were still in
their infancy and we were all embarking into new territory, struggling to adapt a new platform
to due process concerns. In the case at bar, the transcript discloses that practically everyone at
the hearing was having difficulties navigating the Zoom technology. The sheriff had to inform
the mother’s APD that the mother was, in fact, present, after the APD stated that he was still
waiting for her. In turn, the court informed the mother that her APD was present, suggesting
that the mother would not have known this fact without being told. The court noted how faint
the foster mother’s voice was, and the court reporter had to interrupt when she could not hear
16 No. 1-21-1505
what the foster mother said. The court was unsure if the Zoom host could accommodate a
request for a break-out room. M.M.’s father had repeated difficulties accessing the hearing on
his computer and so was instructed to call in on his phone, although this limited his access to
audio only. The father also had no idea how to mute himself, until he was specifically instructed
what to press. Like the mother, the father was admonished repeatedly with the threat of being
removed from the proceeding. The mother’s APD had difficulty interjecting with an objection
to the mother’s absence and had to try twice in order to place his objection on the record.
Although the father was told exactly how to mute himself, there is no indication that the mother
was provided with this information or that she knew how to mute herself or that she even could,
in light of the fact that the sheriff controlled her access. After reviewing this particular
transcript, which reveals that almost every participant was struggling with the new technology,
equity requires that we remand for a new dispositional hearing.
¶ 38 While appellate courts have repeatedly endorsed the use of Zoom proceedings in
termination cases during the COVID-19 pandemic, we have done so because the trial courts in
those cases took measures to ensure that the rights of the parent to be present and to confer
with counsel were safeguarded. In re Es. C., 2021 IL App (1st) 210197, ¶¶ 9, 28 (affirming a
Zoom parental termination where the trial court safeguarded the parent’s due process rights by
providing her with regular and frequent opportunities to confer with counsel in breakout
rooms); In re R.D., 2021 IL App (1st) 201411, ¶¶ 8, 15 (affirming Zoom parental terminations
where respondents received “ ‘every opportunity’ ” to confer with counsel and could view and
hear the witnesses as they testified); In re P.S., 2021 IL App (5th) 210027, ¶¶ 60, 63 (affirming
a Zoom parental termination where the father was virtually present and was heard and the court
repeatedly stopped the proceeding to permit him to confer privately with counsel). The case at
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bar differs from our precedent in that the mother received only one opportunity to confer with
counsel before being removed entirely from the proceeding. In sum, we take no issue with the
fact that the hearing was remote via Zoom; our issue is strictly with the haste with which T.S.
was removed from the remote hearing.
¶ 39 The public guardian argues that the result of the dispositional hearing would have been
the same whether or not T.S. was present because it is undisputed that she was unable to parent
while in jail. The public guardian argues that, as a result, any due process or statutory violation
is harmless. We observe that the public guardian’s argument would apply to any parent in jail.
Thus, it is like saying that a parent has no right to be present when in jail. If the statute intended
to carve out such a large exception, then it would have said so. It would have said that
incarcerated parents have no right to be present, or to consult with an attorney, at a dispositional
hearing. We will not read into a statute such a blanket exception that it does not contain.
Sigcho-Lopez v. Illinois State Board of Elections, 2022 IL 127253, ¶ 27 (a court “will not read
into” a statute “exceptions *** that the legislature did not express”).
¶ 40 As a final matter, T.S. claims that the trial court should have made a more extensive
inquiry during the dispositional hearing when she claimed that her attorney was ineffective.
Since, for reasons explained above, we are reversing and remanding for a new dispositional
hearing, her claim can be addressed at that time by the trial court, if she seeks to renew it on
remand. T.S. also asks us to direct the trial court to find, at the new dispositional hearing, that
she is not unwilling to parent. Appearing to agree somewhat with T.S., the public guardian
states in its appellate brief: “The public guardian is not asking this Court to affirm the trial
court’s finding that [T.S.] is unwilling” to parent. (Emphasis added.) However, upon granting
18 No. 1-21-1505
T.S.’s request for a new hearing, we decline her request to prejudge the outcome of that
hearing.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we reverse and remand for a new dispositional hearing.
¶ 43 Reversed and remanded.
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No. 1-21-1505
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-JA-942; the Hon. Levander Smith Jr., Judge, presiding.
Attorneys for Appellant:
Attorneys for Appellee: