MOUNT VERNON – Hearings on Zoom provide due process, Fifth District appellate judges Judy Cates and Thomas Welch ruled on July 26.
They affirmed Madison County Associate Judge Martin Mengarelli, who terminated a father’s parental rights through Zoom last November.
Cates wrote that Mengarelli conducted a hearing that protected the rights of the parties as well as the integrity of the judicial process.
“Even though Father was not able to be in the same physical space as every other participant at the hearing, the video conferencing platform allowed Father to be present, virtually,” she wrote.
“He was able to testify and was able to be heard, present evidence, and cross examine witnesses.”
Dissenting judge Milton Wharton wrote, “I cannot agree with the majority that due process never requires an in-person hearing.”
“The ability to observe both witnesses and parties in person can be crucial and should not be understated,” Wharton wrote.
The case caption identifies the father as “Charlie.”
He and a woman lived with a child born in 2014.
At a second birth, in 2019, doctors detected illegal drugs in the baby.
The mother admitted she took the drugs.
Investigators found an active warrant on her for domestic battery.
They found convictions on Charlie for aggravated battery and domestic battery.
The state petitioned for wardship, claiming the environment was injurious to the welfare of the children.
Mengarelli removed them from their parents and granted temporary custody to Children and Family Services.
In October 2019, he made them wards of the state.
The parents saw them for an hour each week, under supervision.
The state petitioned to terminate Charlie’s rights last August, finding he didn’t try to correct the conditions that led to the removal of the children.
Mengarelli set a double hearing on Charlie’s fitness and the best interests of the children for Oct. 1, in person.
He held proceedings on that date, in person, but by then all parties had moved to continue the double hearing.
Mengarelli set it Nov. 24, in person.
Later he decided to convert it to Zoom.
As the hearing began, Charlie’s attorney, Anthony Swarringin of Glen Carbon, moved to continue it until Mengarelli could conduct it in person.
Swarringin said it was Charlie’s preference, “given the difference in cross examining the witnesses.”
He said participants in person could see the witness, what the witness was doing, and who the witness was with.
An assistant state’s attorney, not identified in the opinion, stated she was fully prepared to move forward.
Mengarelli denied Charlie’s motion, and Swarringin moved to keep the date but hold it in person as originally scheduled.
Mengarelli denied the motion, finding a Zoom conference wouldn’t infringe on constitutionally protected rights.
He said he didn’t believe permanency for the children should be further delayed.
As caseworker Gretchen Truax testified for the state, Swarringin objected.
“Every time the witness answers she appears to be looking off camera down at something,” he said.
He said he didn’t believe she testified from memory or personal knowledge.
Mengarelli told Truax, “I don’t know if you’re reading anything but don’t refer to any notes or anything unless specifically requested to.”
Truax said Charlie hadn’t made any progress.
She said the parents acted appropriately with the children in the weekly visit.
She said Charlie was very good at making the children laugh.
Mengarelli ended the fitness hearing by finding Charlie unfit, and started the hearing on best interests.
Swarringin again moved to continue, and Mengarelli again denied it.
Truax testified that the children were thriving in foster placement.
She said the older child expressed desire to be adopted by the foster parents, and the foster parents signed permanency commitments.
She said the older child didn’t always feel safe living with her parents.
Charlie testified that he worked as a forklift driver.
He said he and the older child had a great relationship.
He said he had three adult children he helped raise.
Mengarelli terminated his rights, finding that the children strongly bonded to their foster family and that their needs were being met.
Charlie moved for reconsideration, asserting the right to a hearing in person.
Mengarelli denied it and Charlie appealed.
According to Cates, he provided no analysis as to his belief regarding the nature of this alleged right.
She found he didn’t provide analysis of how conducting the hearing via a platform interfered with his due process.
She found no evidence that Zoom inhibited Mengarelli’s ability to view witnesses, hear them, and weigh the evidence.
She found nothing in Supreme Court Rule 241, a virus measure, requiring a party to consent or approve of a court’s decision to conduct a hearing remotely.
“Any argument that Rule 241 requires the consent of a party or other case participant, is simply not supported by the plain reading of the rule itself,” she wrote.
Dissenter Wharton called it a parental death sentence and quoted a precedent that, “Few forms of state action are both so severe and so irreversible.”
“As such, parents enjoy many of the procedural protections accorded to criminal defendants,” he wrote.
On Zoom, he wrote, a judge only sees what takes place within the frame.
He wrote that it’s harder to watch reactions when parties and witnesses appear in separate boxes.
“I cannot find that the state’s legitimate interests required an entirely virtual hearing at all, much less that these interests outweighed Father’s interests,” he wrote.
Madison County State’s Attorney Tom Haine and appellate prosecutor Jennifer Camden represented the state.