Arika M. v. Christopher M.

• Decision Date: 18 July 2019
• Docket Number: NO. 4-19-0125,4-19-0125
• Citation: 2019 IL App (4th) 190125,433 Ill.Dec. 434,131 N.E.3d 1279
• Parties: ARIKA M., Petitioner-Appellee, v. CHRISTOPHER M., Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (4th) 190125

131 N.E.3d 1279

433 Ill.Dec. 434

ARIKA M., Petitioner-Appellee,

v.CHRISTOPHER M., Respondent-Appellant.

NO. 4-19-0125

Appellate Court of Illinois, Fourth District.

Filed July 18, 2019

Angela K. Skinner, of Allison & Mosby-Scott, of Bloomington, for appellant.

Anne M. Martinkus, of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellee.

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

¶ 1 In December 2018, petitioner, Arika M., filed a verified petition for an order of protection on behalf of herself and her three daughters, Av. M. (age 7), Al. M. (age 13), and Au. M. (age 11), against respondent, Christopher M., her estranged husband and the father of the three girls. After a two-day hearing, the Champaign County circuit court granted petitioner a plenary order of protection on behalf of the minor children against respondent, which expires on July 29, 2019. The order of protection reduced respondent's visitation with the minor children to four hours every Sunday to be supervised by "Jack or Patty [M.]," respondent's parents. Respondent was also allowed one telephone call per week per child.

¶ 2 Respondent appeals, asserting the circuit court erred by (1) admitting the minor children's hearsay statements, (2) failing to make the required findings in entering the order of protection, and (3) granting the plenary order of protection. We reverse and remand for new proceedings.

¶ 3 I. BACKGROUND

¶ 4 Since April 2016, the parties have had a pending petition for dissolution of their marriage in Champaign County. Petitioner had primary residential custody of the parties' three daughters, and respondent had parenting time overnight on Wednesdays and every other weekend. Respondent resides in the former marital residence.

¶ 5 In the December 2018 petition for an order of protection, petitioner alleged, inter alia , Au. M. did not want to be around respondent at Al. M.'s December 4, 2018, band concert and was not acting normally.

After the concert, petitioner asked Al. M. what was going on, and Al. M. cried and refused to say anything because respondent was her dad. Later that night, petitioner read Au. M.'s diary. The next day, petitioner took the diary to the Illinois State Police. On December 7, 2018, all three daughters were interviewed at the Children's Advocacy Center. Petitioner attached to her petition a letter from Illinois State Trooper Corrine Mead, detailing what the girls disclosed during the interviews. Trooper Mead noted the girls stated respondent touched them in their private areas and took baths with them. They also stated respondent walked in the bathroom and opened the curtain while they showered, even after they had requested him to leave. The girls reported feeling uncomfortable and unsafe while in respondent's custody. Thereafter, the Department of Children and Family Services (DCFS) opened a case. Petitioner alleged respondent voluntarily agreed not to be a caretaker for the minor children until the DCFS and criminal investigations were over. In support of that allegation, petitioner attached a letter from Carla Jones, a DCFS child protection investigator, to the minor children's school, advising a school official respondent had agreed not to be a caretaker during the pending investigation and that the school should not release the minor children to respondent. However, respondent changed his mind and wanted visitation with his daughters. Petitioner alleged she did not think it was safe for her daughters to be alone with respondent, and the daughters were scared of respondent. In the petition, petitioner asked for physical care and possession of the minor children, temporary custody of the minor children, the court to reserve visitation until a further hearing, and an order prohibiting respondent from having any contact whatsoever with her and the girls.

¶ 6 On December 19, 2018, the circuit court issued an emergency order of protection against respondent, reserving visitation until further order of the court and prohibiting respondent from having any contact with petitioner and the girls. The emergency order of protection remained in effect until the completion of the hearing on the plenary order of protection.

¶ 7 On January 28, 2019, the circuit court commenced the hearing on petitioner's request for a plenary order of protection. Petitioner testified on her own behalf and called respondent as an adverse witness. She also presented the testimony of Kate Wheeler, the girls' counselor. Respondent testified on his own behalf and presented the testimony of the following: (1) Robert Jacobson, the limited guardian ad litem in the divorce case; (2) John Kelly, respondent's friend; (3) Dustin Ehler, who used to work for respondent's family; (4) Patricia M., respondent's mother; and (5) John M., respondent's father. He also presented (1) an August 2, 2018, report by the limited guardian ad litem , (2) text messages between the parties, and (3) photographs of respondent and the girls.

¶ 8 During the direct examination of Wheeler, respondent's counsel raised a hearsay objection to a question asking Wheeler to disclose what Au. M. told her regarding abuse during a counseling session on November 20, 2018. Respondent's counsel asserted admissibility of the minor's out-of-court statements was governed by section 8-2601 of the Code of Civil Procedure (Procedure Code) ( 735 ILCS 5/8-2601 (West 2018) ) and petitioner had not established the requirements for admissibility. Specifically, the child was not present to testify, and petitioner had not made a showing of the child's unavailability. Petitioner's counsel argued section 606.5(c) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) ( 750 ILCS 5/606.5(c) (West 2018) (formerly section 606(e) of the Dissolution Act)) applied. Respondent's counsel asserted that, even if section 606.5(c) applied, the statements were not admissible unless corroborated. In response, petitioner's counsel suggested the circuit court should reserve ruling until additional evidence corroborating the out-of-court statements could be presented. The court reserved ruling on the objection to "wait and see what corroboration there is and what indicia of reliability there is." Both Wheeler and petitioner then gave testimony that included out-of-court statements made by the three girls.

¶ 9 After the close of petitioner's evidence, the circuit court took up the issue on the admissibility of the girls' out-of-court statements. Respondent's counsel argued petitioner did not present any corroborating evidence and noted petitioner failed to present any medical evidence of abuse. Petitioner's counsel asserted the girls' demeanors and actions were corroborative evidence. The court admitted the statements, agreeing with petitioner's counsel the girls' actions and demeanors corroborated their out-of-court statements. In admitting the statements, the court never specified the statute it relied upon. Once the court admitted the evidence, respondent's counsel made a motion for a directed finding. The court granted a directed finding in respondent's favor as to petitioner but denied a directed finding as to the parties' minor children.

¶ 10 At the conclusion of the hearing, the circuit court found "it's not clear at all when the incidents that have been described occurred; however, the court is satisfied that the incidents did occur." The court also noted it rejected the suggestion petitioner made up the allegations, in response to the limited guardian ad litem 's August 2018 report, and stated a plenary order of protection would issue. The court then addressed the remedies to be included in the plenary order of protection. As to visitation, the court stated respondent's visitation needed to be supervised by one or both of respondent's parents. The court also found the duration of the plenary order should be six months. On January 29, 2019, the circuit court entered the written plenary order of protection, to expire on July 29, 2019, on behalf of the minor children against respondent. It gave respondent visitation with the girls for four hours every Sunday to be supervised by respondent's parents. Respondent was also allowed one telephone call per week per child.

¶ 11 On February 25, 2019, respondent filed a timely notice of appeal from the circuit court's order granting the plenary order of protection in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017). See Ill. S. Ct. R. 307(a) (eff. Nov. 1, 2017) (providing the appeal must be perfected within 30 days of the interlocutory order and the notice of appeal must conform substantially to the notice of appeal in other cases). Accordingly, we have jurisdiction of this appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). See In re Marriage of Sanchez , 2018 IL App (1st) 171075, ¶ 34, 423 Ill.Dec. 265, 105 N.E.3d 70 (noting "[a]n order of protection is injunctive in substance" and applying Rule 307(a)(1) to an appeal from an order on a motion to vacate a plenary order of protection).

¶ 12 II. ANALYSIS

¶ 13 A. Admissibility of the Minor Children's Statements

¶ 14 1. Applicable Statute

¶ 15 As the parties note, the different districts of the Illinois Appellate Court disagree on the statute that governs the admissibility of a child's out-of-court statements regarding abuse in order of protection cases when the alleged abuser is a parent. The two possible statutes are section 606.5(c) of the Dissolution Act ( 750 ILCS 5/606.5(c) (West 2018) (formerly section 606(e) of the Dissolution Act)) and section 8-2601 of the Procedure Code ( 735 ILCS 5/8-2601 (West 2018) ). In this case, the circuit court found the minor children's statements were corroborated but did not expressly state under which statute the children's statements were admissible. Regardless, we review an issue of statutory interpretation de novo . Barragan v. Casco Design Corp. , 216 Ill. 2d 435,...