People v. E.R. (In re Es. C.)

2021 IL App (1st) 210197

192 N.E.3d 110

455 Ill.Dec. 693

IN RE ES. C., El. C., and C.M., Minors-Appellees,

(The People of the State of Illinois, Petitioner-Appellee,

v.E.R., Respondent-Appellant.)

No. 1-21-0197

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed November 22, 2021

Sharone R. Mitchell Jr., Public Defender, of Chicago (Marsha Watt, Assistant Public Defender, of counsel), for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak, Gina DiVito and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Christopher J. Williams, of counsel), for appellee.

JUSTICE COGHLAN delivered the judgment of the court, with opinion.

¶ 1 Mother-respondent E.R. appeals from the trial court's order terminating her parental rights to three of her minor children, Es. C., El. C., and C.M. E.R. asserts that conducting part of the termination of parental rights (TPR) trial on Zoom violated her rights to effective assistance of counsel, confrontation, and due process. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 Initially, we note that E.R. does not challenge the evidence presented during the TPR proceedings or argue that the court's findings were against the manifest weight of the evidence. We set forth here only those facts necessary to resolve the issues raised in this appeal.

¶ 4 In April 2017, the State brought petitions for adjudication of wardship and moved for temporary custody of Es. C., El. C., and C.M.¹ The petitions alleged that the minors were abused and neglected.

¶ 5 On April 13, 2017, following a stipulated adjudication hearing, the trial court found probable cause that the minors were abused/neglected and an immediate and urgent necessity to place temporary custody of the minors in the Department of Children and Family Services (DCFS) guardianship administrator. On September 27, 2017, the trial court found the minors to be abused or neglected due to an injurious environment and at substantial risk of physical injury. On February 7, 2018, the trial court entered a disposition order finding the minors to be wards of the court with placement to remain with the DCFS guardianship administrator.

¶ 6 On May 6, 2019, the State filed TPR petitions on behalf of the minors and a supplemental petition for the appointment of a guardian with the right to consent to adoption, alleging that E.R. was an unfit parent. The trial commenced in person on December 27, 2019. E.R. was found to be unfit for a number of reasons, including her failure to maintain a reasonable degree of interest, concern, or responsibility and failure to make reasonable progress towards the return of the children from September 2017 to April 2019.

¶ 7 The best interests hearing commenced immediately after the trial court's unfitness ruling, but was continued to a later date for completion. In early March 2020, in-person court appearances in the circuit court of Cook County were canceled and/or restrictions were imposed due to the COVID-19 pandemic. In order to address public health risks, Chief Judge Timothy C. Evans entered General Administrative Order 2020-07, providing, in part, "except in extraordinary or compelling circumstances, all matters in all Districts and Divisions of the court shall be conducted by videoconference, subject to the limitations imposed by the constitutions of the United States and the State of Illinois." Cook County Cir. Ct. Gen. Adm. Order 2020-07 (Nov. 23, 2020). After a number of continuances, the trial court ordered that the matter would proceed via Zoom audio-video conferencing.

¶ 8 E.R. objected to a Zoom hearing, arguing that under Illinois Supreme Court Rule 241 (eff. May 22, 2020) and the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/1-1 et seq. (West 2020)), she had the right to be physically present in court, that counsel could not effectively cross-examine witnesses over Zoom, and that trial by Zoom constituted a due process violation.

¶ 9 The trial court ruled that conducting the hearing virtually "would not deprive any of the parties of their right to a full and fair hearing," noting:

"My ability to evaluate the credibility of witnesses has not been negatively impacted by remote versus in-person hearing. *** This hearing will be conducted to as to ensure that the due process rights of the parties are maintained. This Court will do everything within its power and authority to ensure that all witnesses called to testify are alone and not subject to being coached and that witnesses are not using notes. *** This Court will give counsel every opportunity to confer with their client before, during and after witness examinations so that effective assistance of counsel will be provided."

¶ 10 The TPR trial proceeded on February 8, 2021, over Zoom. The court heard the testimony of a former caseworker, the foster care supervisor, and E.R. At the conclusion of the trial, the court terminated E.R.’s parental rights, finding that it was in the best interests of the minors to allow the appointment of a guardian to consent to adoption.

¶ 11 ANALYSIS

¶ 12 E.R. argues that the Zoom hearing violated her rights to effective assistance of counsel, confrontation, and due process.

¶ 13 Initially, we note that E.R.’s brief does not comply with Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) because her argument does not contain any citations to the record in support of her claims.² While this alone is grounds for forfeiture (see In re Davon H. , 2015 IL App (1st) 150926, ¶ 61, 398 Ill.Dec. 732, 44 N.E.3d 1144 ), "because the merits of the case can be ascertained from the record and we have the benefit of *** cogent brief[s]" from the State and the Public Guardian, we will consider the merits of E.R.’s arguments. Antonson v. Department of Human Services , 2021 IL App (1st) 192272-U, ¶ 18, 2021 WL 614280 ; see also Twardowski v. Holiday Hospitality Franchising, Inc. , 321 Ill. App. 3d 509, 511, 254 Ill.Dec. 776, 748 N.E.2d 222 (2001) (finding that plaintiff's insufficient brief did not preclude "meaningful review" and the "merits of the present case can be readily ascertained from the record on appeal").

¶ 14 First, E.R. maintains that "trial by zoom denied [her] effective assistance of counsel" because the sixth amendment "encompasses meaningful in-person interaction between respondent and counsel, before trial and simultaneously during trial."

¶ 15 The sixth amendment right to counsel applies to criminal defendants (see U.S. Const., amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defense")), whereas E.R.’s right to counsel originates from the Act ( 705 ILCS 405/1-5(1) (West 2020)). "Though the statutory right to counsel in proceedings under the Juvenile Court Act lacks constitutional footing *** that right is closely linked to its constitutional counterpart ***." In re Br. M. , 2021 IL 125969, ¶ 42, 450 Ill.Dec. 881, 182 N.E.3d 693 (citing In re R.G. , 165 Ill. App. 3d 112, 127, 116 Ill.Dec. 69, 518 N.E.2d 691 (1988) ). Claims of ineffective assistance of counsel in parental rights proceedings are assessed using the test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Br. M. , 2021 IL 125969, ¶ 43, 450 Ill.Dec. 881, 182 N.E.3d 693.

¶ 16 E.R. does not claim that counsel was ineffective. Rather, E.R. erroneously relies on Powell v. Alabama , 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and Glasser v. United States , 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), in asserting that effective assistance of counsel requires "meaningful in-person interaction" with counsel at every stage of the proceedings. Neither case stands for that proposition. See Powell , 287 U.S. at 71, 53 S.Ct. 55 (failure of the trial court to give defendants "reasonable time and opportunity to secure counsel was a clear denial of due process"); Glasser , 315 U.S. at 70, 62 S.Ct. 457 (addressing whether defendant received ineffective assistance of counsel due to counsel's conflict of interest).

¶ 17 E.R. also asserts a denial of her right to confront witnesses under the sixth amendment. Again, this right applies in criminal prosecutions (see U.S. Const., amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right to *** be confronted with the witnesses against him")), whereas child protection proceedings under the Act are civil in nature. See In re J.S. , 2020 IL App (1st) 191119, ¶ 41, 442 Ill.Dec. 613, 160 N.E.3d 475. The sixth amendment confrontation clause has been applied to civil cases "involving procedures before administrative agencies" where there has been "gross" deviation from fair procedure. In re K.L.M. , 146 Ill. App. 3d 489, 495, 100 Ill.Dec. 197, 496 N.E.2d 1262 (1986). To the extent that "confrontation rights may be an aspect of due process in civil proceedings, the confrontation clause need not be applied strictly." Id. In her brief, E.R. fails to distinguish between civil and criminal proceedings, much less explain how her sixth amendment rights have been violated in this case.

¶ 18 E.R. also relies on her right to be present and to cross-examine witnesses under the Act (see 705 ILCS 405/1-5(1) (West 2020)), but the right to be present, in-person or otherwise, is not absolute. See, e.g. , In re M.R. , 316 Ill. App. 3d 399, 403, 249 Ill.Dec. 325, 736 N.E.2d 167 (2000) ; In re P.S. , 2021 IL App (5th) 210027, ¶ 73, 452 Ill.Dec. 779, 186 N.E.3d 503 (finding that while Rule 241 "does not specifically state that remote participation is the same as the statutory right to be ‘present’ at a hearing, such a finding is implicit in the Rule's provision allowing persons to ‘participate’ remotely").

¶ 19 Moreover, even in criminal proceedings, the requirement of face-to-face, in-person confrontation "is not absolute." People v. Lofton , 194 Ill. 2d 40, 59, 251 Ill.Dec. 496, 740 N.E.2d...