Opinion
1-21-0305
09-30-2021
In re K.C., K.C., K.C., K.C., KB., and KB., Minors, Appellees, v. Kinyata B., Respondent-Appellant, The People of the State of Illinois, Petitioner-Appellee, and William C. and Marty J., Respondents-Appellees).
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. Nos. 19 JA 1406, 19 JA 1407, 19 JA 1408, 19 JA 1409, 19 JA 1410, 19 JA 1411 Honorable Bernard J. Sarley, Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
ROCHFORD, JUSTICE
¶ 1 Held: The circuit court's findings are affirmed; the adjudication and dispositional hearings conducted by video conference did not violate the mother's rights to confrontation, to be represented by counsel, or to due process and the court did not abuse its discretion in denying the mother's motion for continuance of the hearings.
¶ 2 Respondent-appellant, Kinyata B. (the mother), appeals from adjudication and dispositional orders entered on February 17, 2021. The orders included findings that her minor daughters (the minors), Ki. C, born on September 21, 2005; Kay. C, born on March 22, 2007; Kar. C. and Ke. C, twins born on January 6, 2009 (the older daughters); as well as Kh. B., born on August 7, 2015; and Ka. B., born on October 9, 2017 (the younger daughters); were abused and neglected and that she was unfit and unable to parent the minors. The orders further directed that pursuant to orders of protection, the older daughters were to remain in the custody of their father, William C, and the younger daughters were to remain in the custody of their father, Marty J. (the fathers). The adjudication and dispositional hearings that gave rise to these orders were held by video conference, using an internet-based video conferencing platform, Zoom Video Communications (Zoom). At that time, court operations were limited and subject to mandates issued by the Governor of the State of Illinois in response to the global COVID-19 pandemic. On appeal, the mother maintains that her constitutional rights to confrontation, effective assistance of counsel, and due process were violated when the circuit court held the adjudication and dispositional hearings by video conference and that the circuit court abused its discretion in denying her request for a continuance of the hearings. We affirm.
¶ 3 In 2019, the minors did not reside with the fathers, but resided with the mother in Chicago, Illinois. William C. lived in Texas and, during the proceedings, moved to California. Marty J. lived in Wisconsin. On May 9, 2019, the mother, at the direction of the Department of Children and Family Services (DCFS), brought the minors to the emergency room of the University of Chicago Hospital (UChicago) due to a report made by Ki. C.'s school that she had a mark on her arm. Subsequently, on November 26, 2019, the mother, again at the direction of DCFS, brought the minors to UChicago. After this second hospital visit, DCFS took the minors into protective custody.
¶ 4 On December 2, 2019, the State filed petitions against the mother and the fathers to adjudicate the minors wards of the court (petitions). The petitions contended that the older daughters were neglected or abused pursuant to sections 405/2-3(1)(b) [injurious environment], 405/2-3(2)(ii) [substantial risk of physical injury], and 405/2-3(2)(v) [excessive corporal punishment] of the Juvenile Court Act (Act) (705 ILCS 405/2-3(1)(b), (2)(ii), (2)(v) (West 2018)), and that the younger daughters were neglected or abused pursuant to sections 2-3(1)(b) [injurious environment] and 2-3(2)(ii) [substantial risk of physical injury] of the Act (id). The State also filed motions for temporary custody. The State alleged as to each minor:
"Mother has two prior indicated reports for substantial risk of physical injury and cuts, bruises, welts, abrasions, and oral injuries. [Ki. C] states that mother hits her with an electrical cord. Mother admits to hitting minor with an electrical cord. Minor has marks and bruises consistent with corporal punishment. [Ki. C] states that mother hits her three other siblings. Intact services were offered but mother did not complete services. Mother admits to smoking marijuana."
¶ 5 Based upon the allegations, the court found that probable cause existed that the minors were abused, neglected, or dependent and placed the minors in the temporary guardianship of DCFS and appointed a guardian ad litem (GAL) for the minors.
¶ 6 After entering paternity orders finding that William C. was the father of the older daughters and that Marty J. was the father of the younger daughters and finding that the fathers were noncustodial during the relevant time period, the court placed the minors in the care and custody of their respective fathers.
¶ 7 In March 2020, the Governor of the State of Illinois declared a state of emergency in response to the global COVID-19 pandemic and issued mandates limiting indoor and outdoor gatherings where social distancing measures could not be maintained. In response, the Illinois Supreme Court and lower courts issued orders to mitigate health risks associated with in-person court appearances. Due to the fluidity of the circumstances, the courts periodically changed such orders in response to public health data. Relevant here, on March 23, 2020, the Circuit Court of Cook County entered a general order, amended on September 3, 2020, providing that: "all matters *** shall be conducted by video conference to the extent reasonably possible, subject to the limitations imposed by the Constitutions of the United States and the State of Illinois; at the discretion of the judge presiding, after considering party objections, proceedings may be conducted by teleconference, videoconference, in person, or a combination of those means ***." September 3, 2020-02 Cook County Cir. Ct. G.A.O.
¶ 8 During this time period, the Illinois Supreme Court amended Rule 241, to read: "The court may, upon request or on its own order, for good cause shown and upon appropriate safeguards, allow a case participant to testify or otherwise participate in a civil trial or evidentiary hearing by video conferencing from a remote location." Ill. S.Ct. R. 241 (eff. May 22, 2020). A "case participant includes any individual involved in a civil case including the judge presiding over the case, parties, lawyers, guardians ad litem, minors in the care of [DCFS], witnesses, experts, interpreters, treatment providers, law enforcement officers, DCFS caseworkers, and court reporters." Ill. S.Ct. R. 241, Committee Comments (rev. 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." Ill. S.Ct. R. 241, Committee Comments (rev. May 22, 2020).
¶ 9 As a result, the courts began hearing matters remotely and the circuit court in this case began holding its proceedings by video conference. The court set this case for a status on October 20, 2020. The court also set the adjudication and dispositional hearings for December 16, 2020, noting that a permanency hearing on that date was also possible.
¶ 10 Prior to the scheduled status date, on October 19, 2020, the mother filed objections to conducting the adjudication and dispositional hearings by video conference. The mother argued that there was no "good cause," under Illinois Supreme Court Rule 241 (eff. May 22, 2020), to conduct the hearings by video conference and that such hearings would deprive her of her rights to cross-examine witnesses, to effective assistance of counsel, and to due process. In the alternative, the mother sought a continuance until the matter could be heard in person.
¶ 11 At the status hearing, after lengthy discussions, the circuit court denied the mother's motion. The next day, at another status hearing, the court vacated its denial and set a briefing schedule on the motion.
¶ 12 After a hearing on the motion, the circuit court, on December 16, 2020, again denied the mother's motion. Because the mother only had a cell phone, which allowed her to see only one or two people at a time, the court granted a continuance of the adjudication and dispositional hearings to February 17, 2021 in order for her to gain access to a computer.
¶ 13 On that date, all counsel and parties, except for the mother, were present on the Zoom platform, using audio and video. The mother's counsel sought a continuance, which the court denied stating, "I granted the continuance last time." Throughout the ensuing adjudication and dispositional hearings, the mother's counsel participated in the proceedings; conducted cross- examination of the State's witnesses; conducted examination of the mother; and raised objections, which were fully considered by the court.
¶ 14 At the outset of the adjudication hearing, over the mother's objection, May 9 and November 26, 2019 UChicago medical records for the older daughters and 2005 and 2006 Indiana juvenile court records involving the mother and Ki. C. were admitted into evidence.
In 2005, the Lake County Department of Child Services filed a petition in the Lake County Superior Court, Juvenile Division in Crown Point, Indiana against the mother and William C. contending that Ki. C.'s "physical or mental condition [was] seriously impaired or seriously endangered." The petition alleged that Ki. C. had multiple skull fractures. The court granted the petition as to the mother and William C. After a dispositional hearing, the Lake County Superior Court entered an order making Ki. C. a ward of the State and adopted a permanency plan of reunification with the mother. The mother was allowed weekend visitations in the grandmother's home.
¶ 15 The May 9, 2019 UChicago records revealed that the older daughters arrived at the hospital in response to a DCFS request, after Ki. C.'s school noticed a bruise on her arm. Ki. C. reported that the mother hit the older daughters with a cord. The mother explained that they received a "spanking" to punish them for not completing household chores. The mother stated she hit the older daughters with a belt on their buttocks. Ki. C. sustained a bruise to her right arm while attempting to protect herself. Kay. C, Kar. C, and Ke. C. stated the mother hit them on the buttocks with a belt. Ke. C. had loop marks on her buttock. A care plan was put in place for the minors to go home with their grandfather and his girlfriend.
¶ 16 The November 26, 2019 UChicago medical records revealed that Ki. C. had multiple excoriations over her extremities and torso and an almost 6 centimeters bruise with a linear welt in her left upper thigh. Kay C. had fading marks on her buttock. Kar. C. had two scars on her right arm measuring 4.5 centimeters and 5.5 centimeters, a bruise on her left buttock, and "two [.9 centimeter] linear red marks" on her lower back. Ke. C. had a scar on her right knee, two "linear welts," measuring 20 centimeters and 22 centimeters, on her right forearm, and a 13-centimeter bruise on her right buttock.
¶ 17 The records further showed that, during this hospital visit, the mother was restricted from being alone with the minors. The aunt would leave for long periods of time and leave the mother alone with the minors. After a hospital employee addressed this violation, the aunt yelled at the minors to "keep our business in the family, stop talking about your mom to these people."
¶ 18 A hospital social worker interviewed the older daughters. The mother declined to participate. Two of the minors reported that they did not feel safe going home with the aunt. Ke. C. stated that "I only feel safe when my mom is not here, she whoops me all the time. She never stops." The mother hit her with a belt and Ke. C. called out for help; the aunt laughed and said she deserved it. Kay. C. said that the mother hit her with a cord. Kar. C. stated that she feels safe, but the mother "whoops us a lot with a belt." Ki. C. stated that the mother hits the older daughters. Most recently, the mother hit Ki. C. on her buttock with a cord. The aunt was present two times and did not intervene.
¶ 19 Bridget Jackson, a DCFS investigator, testified for the State that she was assigned to investigate an allegation of "risk of harm" to the minors on November 26, 2019.
¶ 20 Jackson interviewed Kay C, 12 years old, and Kar. C. and Ke. C, 10 years old, at their schools. At the time, the family had an open intact case. Kar. C. stated that the minors were often left home alone and both she and Ke. C. were afraid. The mother often "whipped" the older daughters. Kay. C. disclosed that the mother hit her with an extension cord and she had marks on her buttock. Kay. C. disclosed that the minors were hit often by the mother. The mother hit Kh. B., 4 years old, on November 24, but she no longer had any marks. Jackson also interviewed Kh. B., and Ka. B., 2 years old. Kh. B. stated that the mother hit her but did not have any marks.
¶ 21 Jackson instructed the mother to take the minors to UChicago to be examined.
¶ 22 During this portion of Jackson's testimony, the mother joined the video conference, by phone, using video and audio. Her attorney stated that she was texting him that she could not hear anything. After some technical difficulties and with some help from the court coordinator, the mother was connected to the hearing and could be heard by the parties. The court noted that the mother was connected to the audio. Thereafter, the mother stated that her screen kept going in and out and that she sent pictures to her attorney that said she was connecting. The court coordinator reiterated that the mother was connected, and the court then directed the mother to mute herself so the State could continue its examination of Jackson.
¶ 23 Jackson went on to testify that the mother admitted to hitting the minors with a cord to discipline them, including for failing to clean the home.
¶ 24 On cross-examination by the fathers, Jackson testified that, at the time of the investigation, Marty J. and William C. were non-custodial parents of the minors.
¶ 25 On cross-examination by the mother, Jackson testified that Kh. B. and Ka. B. had no bruises on November 26 and that if her contact notes stated that Kar. C. and Ke. C. were not afraid of the mother, then it is correct that was what they had said.
¶ 26 The State, the GAL, and the fathers rested.
¶ 27 The mother testified on her own behalf. Before she began her testimony, the court made sure that her video was turned on so she could be seen on Zoom.
¶ 28 The mother stated that she needed the older daughters' help to keep their small home clean. If the older daughters did not do what she asked, the mother would use a belt to discipline them. As examples, the mother explained that she would discipline the older daughters when they would sweep the trash under the beds, dressers, or refrigerator. The mother denied leaving the minors at home alone; she would leave the minors with neighbors, friends, or the minors' aunt.
¶ 29 On cross-examination by the State, the mother answered affirmatively when asked if she struck the minors with a belt. She admitted to "spanking" and hitting the older daughters with an HDMI cord, not an extension cord, but tried "to do everything within reason." The older daughters would cry when the mother hit them. The mother had noticed that Ki. C. had a red welt on her arm after Ki. C. "put her arm in the way, and her arm got hit." The mother had not hit the younger daughters due to their ages and inability to help around the house, but she has "tapped" Kh. B. with her hand.
¶ 30 The mother explained that she has to do everything herself, including dropping off and picking up the older daughters from three different schools. Marty J. would call the younger daughters, but William C. would not call the older daughters.
¶ 31 On cross-examination by Marty J., the mother admitted that an HDMI cord is an electrical cord.
¶ 32 The mother rested.
¶ 33 In closing argument, the State sought findings of neglect and abuse based on injurious environment, substantial risk of injury, and excessive corporal punishment for the older daughters. As for the younger daughters, the State sought findings of neglect and abuse due to injurious environment and substantial risk of injury.
¶ 34 The GAL agreed with the State's requests. The GAL noted that the mother had the option to use one of the courthouse computers, which were made available for video proceedings, but chose to appear using her phone.
¶ 35 Marty J. and William C. agreed with the State's request as to the minors and sought findings that they were non-custodial as to their respective daughters.
¶ 36 In its oral rulings, the court found the mother credible. The court noted that the mother "was operating under enormous stress," but found that the minors were abused and neglected, based, in part, on the mother's admissions that she hit the older daughters. The court found that the fathers were non-custodial parents at all relevant times.
¶ 37 The circuit court entered written adjudication orders finding that the older daughters were abused and neglected based on injurious environment, substantial risk of physical injury, and excessive corporal punishment, and that the younger daughters were abused and neglected due to injurious environment and substantial risk of physical injury.
¶ 38 The court proceeded to a dispositional hearing.
¶ 39 Gabrielle Joseph, a DCFS caseworker assigned to this case in November 2020, testified for the State that she conducted virtual visits with the minors, who lived with their respective fathers. During a January visit, Joseph spoke with each of the older daughters and found the placement to be safe and appropriate; there was no corporal punishment, no signs of abuse or neglect, and nothing unusual to report. During a visit with the younger daughters, Joseph found the placement to be safe and appropriate; there was no corporal punishment, no signs of abuse or neglect, and nothing unusual to report.
¶ 40 Joseph testified that the July 16, 2019 integrated assessment, which was admitted into evidence, had been completed by a previous caseworker. The integrated assessment revealed that the family came to the attention of DCFS on March 13, 2019, based on a report that the mother made the minors stand in the corner for hours as a form of punishment. The minors explained that they have to bend over and touch their toes for hours and if they move, the mother would "whoop" them. The minors were afraid to go home. On May 9, 2019, a report was made that Ki. C, who has cerebral palsy, came to school with visible loop marks on her arm. Ki. C. stated that the mother hit her with a cord or a belt because the older daughters did not clean up their room. The mother has been involved with DCFS since 2005 and has had unfounded reports and two indicated reports.
¶ 41 The July 23, 2019 service plan was also admitted into evidence, which recommended individual counseling for Ki. C. with a target completion date of December 31, 2019. The plan recommended that the mother meet "minimum parenting standards," attend parenting classes, and attend family and individual counseling.
¶ 42 Joseph testified that the mother did not complete any of the required services. In January 2021, the mother asked Joseph which services were needed. The mother talks to the minors on the phone and the minors do not have concerns about those phone calls.
¶ 43 After consulting with her supervisor, Joseph found it was in the best interest of the minors that they be made wards of the court and placed in the custody of their respective fathers with orders of protection. Since she has been assigned the case, there have been no safety concerns, the minors are in school, and their medical and dental needs are up to date. The minors have been with their fathers since December 2019 without incident. The older daughters are happy and would like to remain with William C.
¶ 44 On cross-examination by the mother, Joseph testified that the previous case worker assessed the mother for services and made referrals, the last being in July 2020. Joseph has talked to the mother a few times to discuss services. Joseph did not re-refer her to any services.
¶ 45 The State and the GAL rested.
¶ 46 Before the mother's testimony, the court took steps to assure that she was visible and could be heard. The mother testified that the prior case worker only referred her to one service, which she started, but did not complete. In January 2021, the mother asked Joseph about services because she wanted to get the minors back. The mother would call the minors, but eventually started having a hard time contacting the older daughters. She was being "threatened" and "hung up on."
¶ 47 On cross-examination by Marty J., the mother testified that he allowed her to call the younger daughters, but she was concerned about not seeing them in person. On cross-examination by William C, the mother testified that she "got into it" with William C. and was no longer able to talk to the older daughters.
¶ 48 The mother rested.
¶ 49 The State sought a ruling that the minors be made wards of the court and sole custody be given to the fathers. The GAL, Marty J., and William C. agreed. The mother did not state her position during arguments.
¶ 50 The court entered written dispositional orders finding that the mother was unable to care for, protect, or discipline the minors and ordered the minors to be wards of the court. The court found the fathers fit, able, and willing to care for, protect, train, and discipline the minors. The court ordered that the minors remain in the care and custody of the fathers under orders of protection, which allow the mother to have visits with the minors. The court denied the fathers' request for closure of the case and continued the matter to a later date for status. The mother has appealed.
¶ 51 On appeal, the mother argues that circuit court committed reversible error in denying her motion for in-person adjudication and dispositional hearings, and in the alternative, that the court abused its discretion in denying her motion for a continuance of those hearings.
¶ 52 The Act provides a "step-by-step" process for deciding whether a child should be removed from his or her parents, made a ward of the court, and whether parental rights should be terminated. In re Arthur H., 212 Ill.2d 441, 462 (2004). After a petition for wardship has been filed and a child has been placed in temporary custody, the circuit court must determine whether a child is abused, neglected, or dependent before it conducts an adjudication of wardship and dispositional hearing. Id.; 705 ILCS 405/2-21(1), (2) (West 2018). In all stages, the court's main concern is the best interest of the minor. In re KG., 288 Ill.App.3d 728, 734-35 (1997).
¶ 53 A circuit court's finding of neglect or abuse will not be disturbed unless it is against the manifest weight of the evidence, meaning only if the opposite conclusion is clearly evident. In re Zion M., 2015 IL App (1st) 151119, ¶ 27. The trier of fact is afforded broad discretion. In re Jaber W., 344 Ill.App.3d 250, 258 (2003) (citing In re E.S., 324 Ill.App.3d 661, 667 (2001)). The unfitness determination will only be reversed if its factual findings at the dispositional hearing are against the manifest weight of the evidence. In re Malik B.-N., 2012 IL App (1st) 121706, ¶ 56.
¶ 54 The mother in her brief on appeal failed to challenge the circuit court's determinations of abuse and neglect and findings of unfitness. Therefore, any objections to those findings and orders have been forfeited. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see also In re R.D., 2021 IL App (1st) 201411, ¶ 5; In re Julieanna M., 2018 IL App (1st) 172972, ¶ 3 (where consideration of the court's findings were not necessary where respondents solely argued constitutional issues).
¶ 55 Despite forfeiture, the GAL argues that the court's adjudicatory and dispositional findings were supported by the manifest weight of the evidence. For the reasons to follow, we agree.
¶ 56 The older daughters were found to be abused based on excessive corporal punishment pursuant to section 2-3(2) (v) of the Act (705 ILCS 405/2-3 (2)(v)). The Act does not define "excessive corporal punishment." Malik B.-N., 2012 IL App 121706, ¶ 38. (citing In re J.P., 294 Ill.App.3d 991, 1002 (1998)). "A parent has a 'right' to corporally discipline his or her child, but this right, like any other, must be exercised in a 'reasonable' manner." Id. Some factors courts consider include: the severity and location of the injury; the use of an instrument; the pattern and chronicity of similar incidents of harm; the minors' ages, medical conditions, developmental, physical, mental, or emotional disabilities; and the parent's history of reports of abuse or neglect. J.P., 294 Ill.App.3d at 1004.
¶ 57 Here, the circuit court found the mother credible and based its decision, in part on her admission to hitting the minors with a belt and an HDMI cord on numerous occasions. Consistent with this admission, the hospital records show that the older daughters suffered multiple injuries including loop marks, welts, cuts, and bruises. The mother admitted that she noticed some of these injuries and that the older daughters would cry when she hit them. The older daughters told a social worker that the mother often hit or "whoop[ed]" them with a belt or extension cord. Some of the older daughters were scared to go home to the mother. At the time of the most recent incident, the older daughters were 10 to 14 years of age and the oldest daughter, Ki. C, has been diagnosed with a developmental disorder, cerebral palsy. Based on the circumstances, the circuit court could certainly find that the punishments were excessive in light of the fact that the older daughters' failures to complete household chores did not warrant the mother to hit them with a belt or cord causing multiple injuries. See In re F. W., 261 Ill.App.3d 894, 903 (1994) ("parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable"). Therefore, we cannot say that the trial court's findings of abuse due to corporal punishment were against the manifest weight of the evidence.
¶ 58 Next, the minors were found to be abused under section 2-3(2)(ii) of the Act, which provides that those who are abused include any minor whose parent: "(ii) creates a substantial risk of physical injury to such minor by other than accidental means which would be likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of any bodily function ***." 705 ILCS 405/2-3(2)(ii).
¶ 59 As discussed above, the mother admitted to striking the older daughters, which caused numerous physical injuries and made the older daughters afraid of the mother. The mother also had two prior indicated reports for substantial risk of physical injury and had a history of striking the older daughters for failure to follow her directions. Thus, the evidence supports findings that, if the minors remained in the mother's care, there would be a substantial risk that they would suffer a physical injury that would likely cause impairment of their bodily functions or emotional health. Therefore, we cannot say the court's findings of abuse due to substantial risk of physical injury were against the manifest weight of the evidence.
¶ 60 Lastly, the minors were found to be neglected based on injurious environment pursuant to section 2-3(1) (b) of the Act. "[A]s a general rule, neglect is 'the failure to exercise the care that circumstances justly demand and encompasses both willful and unintentional disregard of parental duty.'" Malik B.-N., 2012 IL App (1st) 121706, ¶ 52 (quoting In re J.P., 331 Ill.App.3d 220, 235 (2002)). The same evidence that supports abuse due to excessive corporal punishment and substantial risk of physical injury also supports the court's finding of neglect due to an injurious environment. Malik B.-N., 2012 IL App (1st) 121706, ¶ 53. Accordingly, we conclude that based on the above discussion of abuse, that we cannot say that the circuit court's findings of neglect were against the manifest weight of the evidence.
¶ 61 Once a court has found a minor abused or neglected, it "may commit a minor to wardship upon a determination that the parent is unable, for some reason, other than financial circumstances alone, to care for, protect, train, or discipline the minor and that the health, safety, and best interests of the minor will be jeopardized if the minor remains in the custody of the parent." Malik B.-N., 2012 IL App (1st) 121706, ¶ 52.
¶ 62 The evidence at the dispositional hearing established that the mother did not complete her required services and showed little interest in knowing which services were referred. The mother did not reach out to Joseph until January 2021, over a year after the filing of the petition, with an inquiry about services. Further, the record shows that the minors are doing well at their respective fathers' homes and there are no outstanding issues to address as to the minors. The older daughters voiced their happiness and desires to remain with William C. Therefore, we cannot find that the circuit court's findings that the mother was unable to care for, protect, train, or discipline the minors and that the fathers were fit, able, and willing to care for, protect, train, and discipline the minors were against the manifest weight of the evidence.
¶ 63 Nonetheless, the mother argues that her sixth amendment rights to confront witnesses and to effective assistance of counsel were violated when the circuit court held the hearings by video conference, which, in turn, deprived her of her fundamental right as a parent without due process.
¶ 64 The mother provides this court with general assertions and does not provide a clear analysis of the law and in doing so failed to comply with Illinois Supreme Court 341(h)(7) (eff. Oct. 1, 2020). "A reviewing court is entitled to the benefit of clearly defined issues with pertinent authority cited and a cohesive legal argument. *** The appellate court is not a depository in which an appellant may dump the entire matter of argument and research." Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 11. Despite the mother's failure to clearly define the issues, we will address her claims that her rights were violated.
¶ 65 The sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) and article I, section 8, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8), guarantee the right to confront witnesses and the right to effective assistance of counsel in criminal proceedings. In re Br. M., 2021 IL 125969, ¶ 41. The mother cites In re K.L.M., 146 Ill.App.3d 489 (1986), and In re N.T., 2015 IL App (1st) 142391, ¶ 59, as support that the sixth amendment also applies to civil cases.
¶ 66 However, in proceedings governed by the Act, these rights are, instead, provided by statute. Br. M., 2021 IL 125969, ¶ 41; In re Charles W., 2014 IL App (1st) 131281, ¶ 44 (citing In re Ch. W., 408 Ill.App.3d 541, 550 (2011)). Section 1-5(1) of the Act provides:
"[T]he minor who is the subject of the proceeding and [their] parents *** have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and *** to be represented by counsel." 705 ILCS 405/1-5(1) (West 2020). These rights are not absolute. In re M.R., 316 Ill.App.3d 399, 402 (2000) (the mother's absence from the termination hearing due to an indefinite psychiatric hospitalization was not a violation of her statutory right to be present). We review de novo questions of statutory compliance. In re H.P., 2019 IL App (5th) 150302, ¶ 24; People v. Thompson, 383 Ill.App.3d 924, 929 (2008).
¶ 67 This court, in a consolidated appeal, recently considered a similar confrontation challenge to parental termination proceedings, which were conducted by video conference as a result of COVID-19 restrictions. In re R.D., 2021 IL App (1st) 201411. In In re R.D., this court examined the confrontation issue under the "more expansive criminal standard" articulated in People v. Lofton, 194 Ill.2d 40 (2000). Under Lofton, when evaluating whether there was a violation of the confrontation clause, a court should consider whether the procedure at issue: (1) impinged upon the truth-seeking purpose of the clause and (2) was necessary to further an important state interest. R.D., 2021 IL App (1st) 201411, ¶ 14 (citing Lofton, 194 Ill.2d at 58).
¶ 68 As to the first Lofton consideration, this court, in R.D., found that termination hearings conducted by video conference, on Zoom, did not impinge on the truth-seeking process as all of the parties were present, represented by counsel, and could view and hear the witnesses as they testified. R.D., 2021 IL App (1st) 201411, ¶ 15. In addition, the R.D. court recognized that the circuit court in conducting the hearings by video conference, implemented safeguards, and found that its ability to weigh the credibility of the witnesses was not negatively impacted. Id.
¶ 69 As for the second Lofton factor, this court found that conducting the termination hearings by video conference was necessary to further important state interests, the interests in protecting the health of the public and in assuring the welfare of minors. As to the public health considerations, the remote proceedings were reasonable in light of the fact that at the time of the termination hearings in R.D., the nation was "in the grips of the COVID-19 pandemic" and a vaccine was not available. Id. ¶ 16. This court further noted that, even at the time of its decision, despite the existence of vaccines, the pandemic remained uncertain as "new variants threaten to dismantle plans for reopening the courts for in-person hearings." Id. Additionally, by conducting the termination hearings by video conference, the court advanced the interests of the minors in having a stable and caring environment. The R.D. court reasoned that keeping the minors in limbo until the end of the pandemic would not have furthered the state's interest in their welfare. Id. The R.D. court concluded that to the extent the parents had confrontation rights, the termination hearings conducted by Zoom did not infringe upon these rights.
¶ 70 Here, similar to R.D., the hearings by video conference did not impinge upon the truth-seeking purpose of the confrontation clause. All of the parties were present, represented by counsel, and had the ability to view and hear the witnesses as they testified. Although the mother had difficulties in connecting to Zoom when she first joined the adjudication hearing, she does not identify this as a factor that caused an infringement on her rights. Further, the court, prior to the mother's testimony made sure that she could be seen and heard. The mother's counsel, at both the adjudication and dispositional hearings, cross-examined the State's witnesses and raised numerous objections. Further, not only did the mother testify at both hearings, the court found her credible. At no time did the mother's attorney object to any conditions of the cross-examination or argue that the video conference format hindered his questioning or presentation of evidence in any way.
¶ 71 As for the second Lofton factor, we find that the use of video conferencing was necessary to further important state interests in public health. The circuit court held the hearings by Zoom for the health and safety of the parties and court participants due to the COVID-19 pandemic, and at the time, a vaccine was not readily available. Even now, as noted in R.D., with a readily available vaccine, the health dangers from the pandemic remain uncertain. Further, the State had an interest in assuring the creation of a stable home environment for the minors and to not keep them in limbo until the end of the pandemic. Therefore, conducting the hearings by video conference was necessary to further important state interests.
¶ 72 After considering the Lofton factors, we find that to the extent the mother had constitutional or statutory rights to confrontation, the hearings conducted by Zoom did not infringe upon those rights.
¶ 73 Next, we consider the mother's claim that conducting the hearings by video conference violated her right to effective assistance of counsel.
¶ 74 Both the sixth amendment and the statutory right to counsel under section 1-5(1) of the Act (705 ILCS 405/1-5(1)) imply a right to effective assistance of counsel. In re Br. M., 2021 IL 125969, ¶ 42 (citing, inter alia, In re D.M., 258 Ill.App.. 3d 669, 673 (1994)). Ineffective assistance of counsel claims are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Br. M., 2021 IL 125969, ¶ 43 (citing People v. Albanese, 104 Ill.2d 504, 526 (1984)). Under that standard, a defendant must show both that counsel's representation fell below an objective standard of reasonableness and the resulting prejudice. Br. M., 2021 IL 125969, ¶ 43. The prejudice prong requires a reasonable probability, not just a mere possibility, of a different outcome. In re K.O., 336 Ill.App.3d 98, 111 (2002).
¶ 75 Although the mother makes general arguments, she does not raise specific instances in which her counsel's performance fell below the objective standard of reasonableness as a result of the hearings being conducted by video conference. Further, as discussed above, the mother does not challenge the trial court's findings and therefore has not demonstrated a reasonable probability that the result would have been different if the proceedings were conducted in person. The mother has not shown that she was deprived of her right to effective assistance of counsel.
¶ 76 The mother also contends that that the video conference hearings violated her right to procedural due process. She argues that the manner of conducting the hearings "deprived her attorney from effectively representing her in the truth-seeking process."
¶ 77 Due process requires an opportunity to be heard "at a meaningful time and in a meaningful manner." R.D., 2021 IL App (1st) 201411, ¶ 19 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). "Due process is flexible and calls for such procedural precautions as the particular situation demands." Id. Courts have used the factors as discussed in Mathews, 424 U.S. at 319 in determining whether parental rights proceedings satisfied the requirements of due process. See R.D., 2021 IL App (1st) 201411, ¶¶ 19-21 (termination proceeding by video conference did not violate due process); M.R., 316 Ill.App.3d at 402 (termination proceeding in absence of the respondent did not violate her due process rights). The Mathews factors are: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used; and (3) the government's interest. 424 U.S. at 334-35. In re J.M., 2020 IL App (2d) 190806, ¶ 41.
¶ 78 As to the first factor, the mother has a fundamental interest in maintaining a parental relationship with the minors. Br. M., 2021 IL 125969, ¶ 40; In re D.R., 307 Ill.App.3d 478, 483 (1999). The minors also have a protected interest in being raised in a "loving, stable, and safe home environment." Julieanna M., 2018 IL App (1st) 172972, ¶ 25 (quoting In re D.T., 212 Ill.2d 347, 363 (2004)).
¶ 79 As for the second factor, the mother suggests that the video conference hearings deprived her attorney from effectively cross-examining the witnesses and simultaneously communicating with her. The mother, however, has not identified any cross-examination her counsel was unable to perform, any testimony or evidence her counsel was not able to present, or any discussion she was unable to hold with her counsel. We have already found that the use of the Zoom platform satisfied section 1-5(1) of the Act (705 ILCS 405/1-5(1)) and that nothing in the record established that the mother's attorney was not able to cross-examine the witnesses as he wished. Further, according to the record, the mother was able to simultaneously communicate with her attorney where he was receiving text messages and pictures from her during the proceedings.
¶ 80 As for the third factor, as discussed, the challenged procedures accomplished important public goals. The government had an interest in avoiding additional delay in finding permanency for the minors. See Lassiter v. Department of Social Services, 452 U.S. 18, 32 (1981) ("Child-custody litigation must be concluded as rapidly as is consistent with fairness."); In re D.L., 191 Ill.2d 1, 13 (2000) (finding that keeping a child in limbo for an extended period of time is not in her best interest); and N. T., 2015 IL App (1st) 142391, ¶ 57 (finding that further delay would also have imposed additional fiscal costs and administrative burdens on the State). Further, the government had an interest in avoiding in-person hearings to mitigate the public health risk posed by the global pandemic. When balancing these factors, we find that the use of video conferencing to conduct the hearings did not violate the mother's procedural due process rights.
¶ 81 Lastly, the mother argues that the court abused its discretion in denying her motion for a continuance of the adjudication and dispositional hearings until in-person hearings could be held.
¶ 82 The mother does not have an absolute right to a continuance in a proceeding under the Act. In re S. W., 2015 IL App (3d) 140981, ¶ 31. We will not overturn the trial court's decision as to a continuance absent an abuse of discretion. Id. An abuse of discretion occurs if the ruling is arbitrary, fanciful, or unreasonable. In re D.M., 2020 IL App (1st) 200103, ¶ 20. The denial of a request for a continuance will be grounds for a reversal only "where the complaining party has been prejudiced by the denial." In re M.R., 305 Ill.App.3d 1083, 1086 (1999).
¶ 83 Again, our decision in R.D. provides guidance. R.D., 2021 IL App (1st) 201411, ¶ 30. In that case, this court found that the court did not abuse its discretion in denying a motion for continuance during the global COVID-19 pandemic, until in-person termination hearings could be held. R.D., 2021 IL App (1st) 201411, ¶ 30; see also In re P.S., 2021 IL App (5th) 210027, ¶ 63 (also finding the circuit court did not abuse its discretion in denying a motion for a continuance of termination proceedings during the COVID-19 pandemic until an in-person hearing could be held). The R.D. court, citing M.R., 305 Ill.App.3d at 1086, noted that even if there was an abuse of discretion, the respondents did not show prejudice and therefore there were no grounds for reversal. R.D., 2021 IL App (1st) 201411, ¶ 30. Here, similar to R.D., the court's denial was based on the health risks associated with the global COVID-19 pandemic and the uncertainties as to when in-person hearings could be done safely. Thus, we find that the trial court did not abuse its discretion in denying the mother's motion for a continuance. Even if the trial court abused its discretion, the mother makes no argument that she was prejudiced by the denial. Therefore, we find that there are no grounds for reversal in the denial of the mother's motion for a continuance.
¶ 84 Affirmed.