Frank v. Hawkins ( 2008 )

NO. 4-07-0192
Filed 6/26/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JAMES FRANK, ) Appeal from
Petitioner-Appellee, ) Circuit Court of
v. ) Macon County
BRENT D. HAWKINS, ) No. 07OP7
Respondent-Appellant. )
) Honorable
) Lisa Holder White,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In January 2007, petitioner, James Frank, filed a
petition for an emergency order of protection on behalf of his
children, Donovan and Hayli Frank, requesting that the trial
court enter the order against respondent, Brent D. Hawkins, who
shared a common household with petitioner's children. The court
entered an emergency order of protection. In February 2007, the
court entered a plenary order of protection (order) against
respondent. Respondent appeals the entry of the order. We
affirm entry of the order but remand with directions that the
order be corrected on its face.
I. BACKGROUND
In January 2007, petitioner filed a petition for an
emergency order of protection on behalf of his children, Donovan
Frank, age 14, and Hayli Frank, age 10. In the form petition,
petitioner checked the box indicating that the relationship
between the children and respondent was "shared/common dwelling."
An attachment indicated that the petition for the emergency
order of protection stemmed from an incident that occurred late
at night on December 21, 2006, at the home of Donovan, Hayli,
their mother Ronette Frank (Ronette), and respondent. Respondent
allegedly destroyed the Christmas tree, broke many items in the
house, and threatened to kill the family pets. The petition also
alleged that the children were frightened of respondent. Addi-
tionally, the petition stated that respondent had other orders of
protection against him which he had violated, he had previous
battery charges on his record, and he had pleaded guilty to
domestic battery of Ronette in 2000.
On January 3, 2007, petitioner appeared for an ex parte
hearing on the petition for an emergency order of protection. He
testified that respondent was Ronette’s boyfriend and Ronette was
the mother of Donovan and Hayli. The trial court entered an
emergency order of protection. The form order indicated that the
petition was being brought by petitioner on behalf of the
"[c]hild(ren) as noted on page 6, [p]art C of this order." The
jurisdiction section of the form order indicated that the persons
protected by the order were "[m]inor child(ren) who are so
identified on page 6 of 11, [p]art C of this order" and that the
court had jurisdiction over the minor children. The general
findings section of the form order indicated that "[t]he
[r]espondent has abused the [p]etitioner and/or the child(ren) so
identified in [p]art C (page 6 of 11) of this order and/or the
protected person(s)." No names are written in part C of the
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order. Summons was served on respondent on January 3, 2007. The
summons reflected the action was brought on behalf of Donovan
Frank and Hayli Frank.
In February 2007, a hearing was held to determine
whether a plenary order of protection would be entered. Respon-
dent testified that up until entry of the January 2007 emergency
order of protection, he had lived at 708 East Van Buren with
Ronette, Donovan, and Hayli. Respondent acknowledged that
previously three orders of protection had been entered against
him by three different people. Respondent did not recall having
pleaded guilty to three violations of orders of protection. He
acknowledged that he had pleaded guilty to a 2000 domestic
battery committed against Ronette. Respondent did not believe
the children had been present when he had battered Ronette.
Respondent denied ever holding a knife to Ronette's throat. He
admitted he had a misdemeanor theft conviction.
On December 21, 2006, respondent stopped by a bar on
his way home from work. Ronette was not home when he arrived
home. She and the children arrived home several hours later.
Respondent was asleep on the couch when they got home and claimed
he stayed asleep the rest of the evening. They did not speak
that night because he was asleep.
Respondent denied he "trashed" the upstairs (main
floor) of the house. Respondent claimed he fell into the Christ-
mas tree while he was trying to get his change jar off the mantel
behind the tree. Respondent slipped in the cords, tried to grab
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the tree to catch himself, and the tree fell apart. Respondent
admitted he was a "little upset" by the tree falling. Respondent
knocked over the television. The television fell onto a vase and
broke it. Respondent did not pick up anything because he was
tired and it was a big mess. He planned to pick it up the next
day. Respondent denied smashing the dishes and dishware in the
kitchen.
Respondent called Ronette's grandmother's house around
10:30 or 11 p.m., but Ronette was not there. Respondent denied
that he threatened to kill the pit bull dog that night. He
admitted having done so on a previous occasion three or four
weeks before December 21, 2006.
Respondent denied having "trashed" the basement of the
house that evening. Respondent denied having destroyed anything
when Ronette and the children were there. He stated that the
only thing that was broken was the vase and that the tree had
been knocked over. Respondent denied yelling at, swearing at, or
threatening the children that night. Respondent stated he had
never laid a hand on Donovan or Hayli.
Ronette testified that her address was 708 East Van
Buren, Decatur, Illinois. She is the mother of Donovan and
Hayli. She is divorced from petitioner. Ronette maintained that
respondent is Hayli's father but that in the divorce proceedings
petitioner was named the father of both children. Ronette and
respondent had been together going on 12 years, and they had been
together for a solid 7 years.
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Ronette denied ever having an order of protection
against respondent. Ronette did not recall having been the
victim of domestic battery at the hands of respondent in 2000.
She remembered an argument that resulted in the police being
called, but she did not recall that respondent pleaded guilty to
domestic battery. Ronette maintained that respondent had never
abused her, hit her, or laid a hand on her. Ronette denied that
respondent drank or came home drunk.
Regarding the incident on December 21, 2006, shortly
after 9 p.m. Ronette picked up her children from petitioner's
house and took them to her grandmother's while she went to finish
up her Christmas shopping. At approximately 12:30 a.m., Ronette
went to the house to drop off the presents she had purchased.
When she arrived home, she noticed that the Christmas tree was
all messed up. No furniture was knocked over. Respondent was
asleep on the couch so she did not talk to him. Ronette put the
gifts in Donovan's bedroom and left to pick up the children.
They arrived back home about 1 a.m.
Ronette denied receiving a phone call from respondent
after she returned to her grandmother's or that respondent had
threatened to kill the pets if she did not get home. Ronette
thought her grandmother may have received a call from respondent
inquiring if she was there to get the children.
When Ronette arrived back home with the children, the
house was in the same condition. Respondent was still asleep on
the couch, so she nudged him and asked what had happened to the
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tree. He said something about getting caught up in the cords,
and grabbing hold of the tree, and coming down with it. Ronette
said she would worry about it in the morning. The house had only
two bedrooms, one for Donovan and one for Hayli. Respondent
slept on the couch when the children were there and Ronette slept
on another couch. When the children were gone, sometimes Ronette
slept in Donovan's room because she got tired of sleeping on the
couch. Ronette stated that the basement was where the dogs
stayed and where the laundry room was located. The basement was
a mess with unpacked boxes. They rarely went down into the
basement. Ronette and the children went to bed in Hayli's room.
Ronette maintained that was because she had hidden the Christmas
presents in Donovan's room. Ronette claimed she did not sleep on
the other couch because she did not want to step on any of the
debris from the Christmas tree if she got up to use the bathroom
in the middle of the night.
Ronette denied getting into an argument with respondent
or that she went down in the basement with him. Ronette further
maintained that respondent had not done any damage to the base-
ment of the house later that night.
Ronette testified that respondent had never laid a hand
on either of the children. She stated that she had never seen
respondent hit, push, or use the belt on the children. Ronette
denied offering her children money and to buy them things in
exchange for their false testimony at the hearing. She testified
that her son lies to her, has behavioral problems, and gets into
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trouble.
Virginia Spires testified that she is Ronette's grand-
mother. On the evening of December 21, 2006, Spires watched the
children while Ronette finished her Christmas shopping. Ronette
dropped the children off around 9 p.m. and returned around 12:30
a.m. During that time period, respondent called to inquire if
Ronette had been there to pick up the children. Spires did not
speak to respondent again that evening. Spires testified that
when Ronette came to pick up the children, Ronette did not say
anything about respondent messing up the Christmas tree or
destroying items in the house.
Donovan and Hayli Frank were called to testify by
petitioner. At the request of petitioner's counsel, and without
objection by defense counsel, the testimony was given in chambers
with only the judge and attorneys present.
Donovan testified that he was 14 years old and was in
the eighth grade. He attended Thomas Jefferson Middle school.
Donovan lived at his father's house every Monday, Thursday, and
every other weekend. The rest of the time he lived at his
mother's house along with his sister Hayli and respondent.
Late on December 21, 2006, Donovan was at his grand-
mother's (technically great-grandmother's) house because his
mother was out Christmas shopping. Before Ronette came to pick
up Donovan, she stopped by their house to tell respondent she was
done Christmas shopping and was going to go pick up the children.
When Ronette arrived at her grandmother's house, she was crying.
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Ronette told them that the house "was destroyed." She said that
the Christmas tree had been thrown and the entertainment center
had been broken.
Before they left their grandmother's house, respondent
called five times. Respondent apparently told Ronette she needed
to hurry up and get home or he was going to kill their pets
because Donovan heard Ronette say, "[y]ou better not kill my dog,
or I'll call the cops on you." When they arrived home, respon-
dent was acting like he was asleep. According to Donovan, the
television had been thrown into his room from the living room,
the entertainment center had been broken, candles that had been
on a table were all over the floor, and a glass-topped table had
been thrown across the room bending the frame. In the hallway, a
box of screws had been thrown so screws were everywhere. The
computer mouse and keyboard had been thrown and the keyboard had
been broken. Papers had been thrown on the floor. In the
kitchen, glasses, bowls, plates, and the coffee pot had been
smashed on the floor. A small compact disc player had also been
broken in the kitchen.
Donovan, Hayli, and Ronette went into Hayli's bedroom
and went to bed. All three of them went into Hayli's bedroom
because Ronette was afraid that if Donovan went in his own room
to sleep respondent would "mess with" him.
About 20 minutes later, respondent started yelling at
them and calling Ronette a "cheater." Respondent went down to
the bedroom in the basement, and they heard "stuff being thrown
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down there." At Ronette's request, Donovan went down to the
basement to peek at what respondent was doing. Donovan saw
respondent pull out the dresser drawers and search them. Donovan
saw respondent throw the mattress to Ronette's bed across the
room. Respondent knocked over the vanity. Donovan went upstairs
and told Ronette what respondent was doing. Ronette went down to
the basement. She and respondent argued.
The next morning, Ronette and Donovan got up and
cleaned the upstairs. Respondent cleaned up the basement.
Respondent did not want her to leave and things escalated into an
argument. Respondent said he had been looking for any letters
Ronette may have received from her ex-boyfriend since respondent
had come back to live with them.
Donovan stated that when he was younger he was a "bad
kid" and got into trouble a lot. Respondent disciplined Donovan,
including whipping Donovan with respondent's hands or a belt.
Donovan had not been in trouble recently so respondent had not
meted out any discipline. Donovan stated that Hayli was "the
good kid," and respondent did not spank her.
Donovan said Ronette promised him that she would pay
him $100, buy him a "PS 3 [PlayStation 3]," and buy him minutes
on his cell phone if he would lie to the judge and say that
respondent never destroyed the house, took them out to eat all
the time, never went out drinking, and never came home drunk.
However, Donovan stated that respondent got drunk every day and
in the past three months had taken them out to eat about four
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times.
Donovan admitted having spoken with defense counsel on
an occasion prior to the hearing. He admitted that he had
previously told defense counsel that respondent never hit or
yelled at anyone.
Hayli testified that she was 10 years old and lived at
708 East Van Buren Street. She attended South Shores Elementary
school. Hayli lived with her mother most of the time but had a
regular schedule of living some of the time with her father.
Others who lived in her mother's house were Donovan and respon-
dent. Respondent had lived with them when Hayli was younger and
then had moved back in a few months ago.
When Hayli was younger, respondent had spanked her.
She had also seen respondent hit Donovan with a belt and spank
him.
Hayli stated that right before Christmas, respondent
had "supposedly" messed up or "trashed" the house. Hayli ex-
plained that she said "supposedly" because most of the damage had
occurred while she was at her grandmother's (technically great-
grandmother's) house. On the evening of the damage, Ronette told
Hayli that respondent had destroyed items in the house. However,
the next day Ronette said she herself may have done so. Ronette
told Hayli that respondent said he was going to kill the animals.
Respondent was asleep on the couch when they got home.
Hayli thought that respondent was really faking being asleep and
acting like nothing had happened. Hayli, Donovan, and Ronette
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went up to Hayli's bedroom shortly after they arrived home. As
they were falling asleep, Hayli heard respondent go down into the
basement where Ronette had her bedroom and heard him throwing
things around and tearing the drawers out of her mother's
dresser. Donovan saw respondent tearing up the basement. A few
minutes later, Ronette went down to the basement. Before she
went down to the basement, she told the children "'[i]f you hear
me scream, then call the cops.'" Ronette and respondent argued
in the basement.
The next morning, Hayli saw the damage that had been
done upstairs. Glass was all over the place. A glass picture
that had been in the kitchen was broken, a stand that held cans
in the kitchen had been knocked over, the keyboard and other
"stuff" had been knocked over, papers from the computer desk were
all over the place, the computer desk chair had been knocked
over, and the Christmas tree had been knocked over and torn
apart.
The day before the hearing, Ronette had promised to (1)
give Hayli $100, (2) buy her a cell phone, and (3) give her
permission to go out and buy whatever she wanted if she would
testify that nothing bad had happened and that respondent had not
done anything except trip over the Christmas tree.
The trial court admitted petitioner's exhibit No. 2
into evidence. The exhibit contained the information charging
respondent with domestic battery against Ronette on or about July
6, 2000, and a copy of the August 8, 2000, docket entry indicat-
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ing respondent's guilty plea to that charge.
After hearing arguments of counsel, the trial court
stated:
"We'll show witnesses sworn. Evidence heard.
[Defense counsel] is correct in that, of
course, the [c]ourt does have to first make a
finding that there is some abuse, and at
times there is a misconception that there has
to be actual physical abuse, that someone has
to be hit or struck or something of that
nature, but the [c]ourt believes that the
statute is clear in that it's not appropriate
and it is harassment and abuse for an indi-
vidual to be subjected to treatment that's
been described here in terms of coming home
and finding your house in disarray or being
threatened that your animals will be hurt if
you don't come home, someone repeatedly com-
ing to the home intoxicated and yelling and
causing a disruption. All those things con-
stitute abuse and harassment, and the [c]ourt
does find that the testimony of the minor
child, Hayli, was credible. There has been
no one who's questioned her credibility.
There's been no testimony regarding her hav-
ing problems with telling the truth or being
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in trouble or anything of that nature, and so
the [c]ourt does find that the petitioner has
sustained his burden of proof. The prayer of
the petition is granted."
The trial court entered the written order. The form
order indicated that it was being brought by petitioner on behalf
of "[c]hild(ren) as noted on page 6, [p]art C of this order."
The jurisdiction section of the form order indicated that the
persons protected by the order were petitioner and "the [m]inor
child(ren) identified in [p]art C, (page 6 of 13) of this order"
and that the court had jurisdiction over "the minor child(ren)
and/or other protected persons." The general finding section of
the form order indicated that "[r]espondent has abused the
[p]etitioner and/or the child(ren) so identified on [p]art C
(page 6 of 13) of this order and/or the protected person(s)
listed on [p]age 1 of 13 of this order." No names are written in
part C of the order.
The order prohibited respondent from committing acts of
abuse or threats of abuse against "all protected persons,"
including harassment, interference with personal liberty, physi-
cal abuse, stalking, intimidation of a dependent, willful depri-
vation, neglect, and exploitation. Further, respondent was
ordered to stay 100 feet away from "[p]etitioner and/or other
protected person(s)," stay 500 feet away from the residence of
"[p]etitioner and/or other protected person(s), currently located
at 708 [East] Van Buren, Decatur, [Illinois], while children are
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present." Respondent was prohibited from "entering or remaining
while [p]etitioner and/or protected person(s) is/are present at:
*** [t]heir school, located at Thomas Jefferson, Decatur, [Illi-
nois], So[uth] Shores, Decatur, [Illinois]." Respondent was also
prohibited from entering or remaining in the residence or house-
hold while under the influence of drugs or alcohol and constitut-
ing a threat to the safety or well-being of petitioner or peti-
tioner's children.
The docket entry for the hearing on the order stated:
"Cause called for hearing on the request
for [p]lenary [o]rder of [p]rotection. Wit-
nesses sworn, evidence heard. Motion by the
[r]espondent for directive [sic] finding at
the close of the [p]etitioner's evidence.
Arguments of counsel heard. Motion denied.
*** Petitioner's exhibit [No.] 2 admitted
into evidence. Witnesses sworn. Evidence
heard to conclusion. Finding by the [c]ourt
that the [p]etitioner has sustained his bur-
den of proof. Prayer of the [p]etition
granted. Order entered and extended for two
years."
The circuit clerk certified she mailed a copy of the order to
respondent on February 9, 2007. This appeal followed.
II. ANALYSIS
Respondent appeals entry of the order, arguing that (1)
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the order of protection as entered failed to comply with statu-
tory requirements, (2) the trial court's finding of abuse was
against the manifest weight of the evidence, and (3) the trial
court abused its discretion in entering the order of protection.
A. No Appellee Brief Was Filed
Petitioner has failed to file a brief on appeal. "A
reviewing court is not compelled to serve as an advocate for the
appellee and is not required to search the record for the purpose
of sustaining the trial court's judgment." Benjamin v. McKinnon,
379 Ill. App. 3d 1013, 1019, 887 N.E.2d 14, 19 (2008). "However,
if the record is simple and the claimed errors are such that the
*** court can easily decide them without the aid of an appellee's
brief, [the] court should decide the merits of the appeal."
Benjamin v. McKinnon, 379 Ill. App. 3d at 1019, 887 N.E.2d at
14. On the other hand, if the appellant's brief demonstrates
prima facie reversible error and the contentions in the brief
find support in the record, the trial court's judgment may be
reversed. First Capitol Mortgage Corp. v. Talandis Construction
Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).
B. The Domestic Violence Act Is To Be Liberally Construed
In the text of the Illinois Domestic Violence Act of
1986 (Act) (750 ILCS 60/102 (West 2006)), the legislature specif-
ically provides the Act's provisions are to be liberally con-
strued to "promote its underlying purposes." The Act states:
"This Act shall be liberally construed
and applied to promote its underlying pur-
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poses, which are to:
(1) Recognize domestic violence as a
serious crime against the individual and
society which produces family disharmony in
thousands of Illinois families, promotes a
pattern of escalating violence which fre-
quently culminates in intra-family homicide,
and creates an emotional atmosphere that is
not conducive to healthy childhood develop-
ment;
* * *
(4) Support the efforts of victims of
domestic violence to avoid further abuse by
promptly entering and diligently enforcing
court orders which prohibit abuse and, when
necessary, reduce the abuser's access to the
victim and address any related issues of
child custody and economic support, so that
victims are not trapped in abusive situations
by fear of retaliation, loss of child, finan-
cial dependence, or loss of accessible hous-
ing or services[.]" 750 ILCS 60/102(1), (4)
(West 2006).
C. The Record Supports the Conclusion That the
Trial Court Intended the Children To Be
Protected Parties Under the Order
Respondent argues that the order entered in this case
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failed to comply with the statutory requirements of the Act.
First, respondent argues that the trial court's failure to check
certain boxes on page one of the form order left the court's
intentions unknown regarding whether respondent was (1) prohib-
ited from committing further acts of abuse or threats of abuse,
or (2) to stay away from petitioner and other protected persons.
Second, respondent argues that the "fatal defect" in
the order was its failure to comply with the requirements of
section 221(b)(1) of the Act requiring that an order of protec-
tion shall state "[t]he name of each petitioner that the court
finds was abused, neglected, or exploited by respondent, and that
respondent is a member of the family or household of each such
petitioner, and the name of each other person protected by the
order and that such person is protected by this Act." 750 ILCS
60/221(b)(1) (West 2006).
Because nowhere in the order entered in this case are
petitioner's children identified specifically by name as pro-
tected persons under the order, respondent maintains that the
only protected person who was identified within the order of
protection is petitioner, James Frank, and that the record does
not support entry of an order for petitioner.
Third, respondent argues that reversal of the order is
required because the order "cannot be appropriately amended or
corrected or 'fixed' on remand." Respondent maintains this is
because the record is insufficient to establish or to "constitute
a memorandum" (1) of what remedies the trial court intended to
- 17 -
grant, or (2) that the court exercised the judgment and judicial
discretion necessary to determine the appropriate remedies or
prohibitions to incorporate into the order. We disagree.
The duty of the reviewing court is to "consider the
trial record as a whole and to ignore errors that are harmless."
People v. Robinson, 368 Ill. App. 3d 963, 977, 859 N.E.2d 232,
247 (2006). When reviewing the record as a whole in the case sub
judice, clearly the persons to be protected by these proceedings
are Donovan and Hayli Frank. Clearly, the trial court intended
that respondent be prohibited from committing further acts of
abuse or threats of abuse against Donovan and Hayli and that
respondent stay away from Donovan and Hayli. The emergency order
of protection entered and served on respondent on January 3,
2007, listed 708 East Van Buren Street as respondent's address
and also the children’s address. The order specifically ordered
respondent to stay 500 feet away from 708 East Van Buren Street
"when children are present" and prohibited him from entering or
remaining at the children’s respective schools "while
[p]etitioner and/or other protected person(s) are present." The
summons served on respondent after entry of the emergency order
of protection reflected that the action was brought on behalf of
the children.
At the February 2007 hearing on the order, respondent
testified that he had lived at 708 East Van Buren until entry of
the emergency order of protection. It can be inferred that he
understood that per the emergency order of protection he could
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not live at 708 East Van Buren because he could not be around the
children who lived there. Moreover, respondent was present at
the plenary hearing where the evidence clearly pertained to the
children.
In the trial court's statements after hearing the
evidence, the court indicated that petitioner had met his burden
by a showing that the members of the household, i.e., Donovan and
Hayli Frank, had been harassed and abused. Even though the court
did not state that the petitioner had met the burden specifically
as it related to Donovan and Hayli Frank, it is obvious from the
record as a whole that they were the subject of the petition for
the order of protection and the persons intended to be protected
under the order.
Admittedly, the form order is missing information.
However, it contains sufficient information as to the type of
remedies the trial court intended to order and, therefore, it is
not fatally defective. Within the body of the order, the court
checked boxes in the area of "remedies involving personal protec-
tion" with respect to all protected persons. The court checked
boxes ordering respondent to stay 100 feet away from those
protected persons and stay 500 feet away from the residence of
those protected persons while those protected persons were
present. Further, the court checked boxes prohibiting respondent
from entering or remaining at the schools of those protected
persons while those protected person were present. The court
also checked boxes prohibiting respondent from entering or
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remaining in the residence or household of those protected
persons while under the influence of drugs or alcohol that would
constitute a threat to the safety or well-being of those pro-
tected persons.
The preprinted form order is missing information. Such
omissions are harmless error and can be corrected ministerially.
Therefore, the trial court is advised to amend the order on its
face to include the inadvertently omitted check marks on page one
under "[t]he court orders," and on page six to set forth specifi-
cally the names of Donovan and Hayli Frank as protected parties
under the order of protection.
D. The Trial Court's Findings Were Not Against the
Manifest Weight of the Evidence
Respondent next argues that the trial court's findings
were against the manifest weight of the evidence. Specifically,
respondent maintains that the court's characterization of respon-
dent's conduct as "harassment and abuse" is against the manifest
weight of the evidence because (1) the court relied upon the
unsworn testimony of Donovan and Hayli; (2) the court relied upon
Donovan's testimony, which was "laden with hearsay and was
completely impeached by his admissions concerning the statements
he had made to [respondent's] attorney," and even though the
court contrasted his credibility by noting that Hayli's testimony
was "credible"; (3) even if the testimony of Donovan and Hayli
was properly considered, neither child (a) testified that they
had "suffered or felt any adverse consequences from [respon-
- 20 -
dent's] conduct, or (b) claimed to have been "fearful or fright-
ened, anxious, worried[,] or even 'uncomfortable'"; (4) no
evidence suggested that respondent "intended for either child to
be fearful or frightened, anxious, worried[,] or uncomfortable";
and (5) the children's statements were "inherently suspect"
because they were premised upon "the notion that [respondent] was
rip-roaring drunk and on a rampage that night, except that he was
on the couch, appearing to them to be doing a pretty good job of
feigning sleep, a pose he maintained for 20 minutes or more after
the children arrived home, and then--like flipping a switch--he
was rampaging again."
1. Donovan and Hayli Gave Sworn Testimony
The testimony of Donovan and Hayli was taken in cham-
bers in the presence of the State and defense counsel. The
record reflects that their testimony was not taken down by a
court reporter but was recorded by a system in a control room on
another floor of the courthouse. Before ruling on the petition
for the order, the trial court noted witnesses were sworn.
Further, the docket entry for the order twice indicated that
witnesses were sworn. Therefore, the record strongly suggests
that the children were sworn before giving their testimony in
chambers.
Moreover, respondent was represented by counsel. No
objection was made at the hearing about Donovan and Hayli not
being sworn. Counsel cannot stand by and permit such an irregu-
lar proceeding to take place and then argue such irregularity is
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error. People v. Dahlin, 184 Ill. App. 3d 59, 64, 539 N.E.2d
1293, 1296 (1989). Counsel cross-examined Donovan and Hayli
without reservations. Consequently, even if it could be deter-
mined with certainty that Donovan and Hayli had not been sworn,
the issue has been forfeited because of counsel's failure to
bring this irregularity to the attention of the trial court. The
court's judgment cannot be reversed on that ground. Dahlin, 184
Ill. App. 3d at 64, 539 N.E.2d at 1296, citing People v. Krotz,
341 Ill. 214, 220, 172 N.E. 135, 138 (1930).
2. The Trial Court's Finding of Abuse Was
Not Against the Manifest Weight of the Evidence
Respondent argues that (1) Donovan's testimony was not
credible; and (2) even if the trial court properly considered the
testimony of Donovan and Hayli, their testimony did not support
the court's finding of abuse of the children by respondent. The
standard of proof in a proceeding under the Act is by a prepon-
derance of the evidence. 750 ILCS 60/205(a) (West 2006). "When
a trial court makes a finding by a preponderance of the evidence,
this court will reverse that finding only if it is against the
manifest weight of the evidence." Best v. Best, 223 Ill. 2d 342,
348-49, 860 N.E.2d 240, 244 (2006). When reviewing a trial
court's decision under the manifest-weight-of-the-evidence
standard, courts of review "give deference to the trial court as
the finder of fact because it is in the best position to observe
the conduct and demeanor of the parties and the witnesses and has
a degree of familiarity with the evidence that a reviewing court
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cannot possibly obtain." In re D.F., 201 Ill. 2d 476, 498-99,
777 N.E.2d 930, 943 (2002). Therefore, determinations as to the
credibility of witnesses, weight of the evidence, and inferences
drawn therefrom are uniquely within the province of the trial
court, and this court must not substitute our judgment for that
of the trial court. In re D.F., 201 Ill. 2d at 499, 777 N.E.2d
at 943.
Respondent maintains that neither child testified that
they had "suffered or felt any adverse consequences from [respon-
dent's] conduct" nor claimed to have been "fearful or frightened,
anxious, worried[,] or even 'uncomfortable.'" The record demon-
strates otherwise. Before Donovan began his testimony in cham-
bers, the following colloquy occurred between him and the court:
"THE COURT: I'll tell you what, if you
would put him here so that we can pick up his
voice.
Good morning.
DONOVAN FRANK: Where's that be?
THE COURT: I'm sorry?
DONOVAN FRANK: Is that being out there?
THE COURT: No. Absolutely not. No.
The reason we have you here is so that--
DONOVAN FRANK: So they can't hear what
I'm saying out there?
THE COURT: No, they cannot.
DONOVAN FRANK: All right.
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THE COURT: We have a control room here
in the courthouse on the sixth floor, and it
allows them to record what's going on in
here, but not in the courtroom. No one can
hear you."
This colloquy permits the inference that Donovan was fearful,
frightened, anxious, worried, and uncomfortable about respondent
hearing his testimony. The inference could be drawn that Donovan
feared reprisal from respondent for testifying against him, fear
that was not unwarranted given respondent's violent history.
Respondent further maintains that Donovan's testimony
was not credible because it was either impeached by what Donovan
had told defense counsel on an earlier occasion, or laden with
hearsay. Again, the record shows otherwise. Respondent was
represented by counsel who did not raise any objection to the
hearsay testimony. The failure to object to hearsay testimony
not only constitutes forfeiture of the issue on appeal, "but
allows the evidence to be considered by the trier of fact and to
be given its natural probative effect." People v. Ramsey, 205
Ill. 2d 287, 293, 793 N.E.2d 25, 29 (2002). Much of Donovan's
testimony was corroborated by that of Hayli. Both Donovan and
Hayli testified that in the past Donovan had been whipped by
respondent with either a belt or respondent's hands. Donovan
testified about his own observation of his mother crying on
December 21, 2006, when she returned to her grandmother's house
to pick up the children. Donovan testified that his mother "told
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us that, like, the Christmas tree was thrown and our entertain-
ment center was broke and all that." Hayli testified that her
mother told her that respondent had destroyed items in the house;
however, the next day her mother said she may have done it.
Donovan testified that respondent called his mother while they
were still at her grandmother's house. Donovan understood that
respondent had told his mother they had better get home quickly
or respondent was going to hurt their pets because Donovan heard
his mother on the phone say, "[y]ou better not kill my dog, or
I'll call the cops on you." Hayli testified that her mother told
her respondent threatened to kill the animals.
Donovan testified that when they returned home he
observed that the house was in total disarray and many items were
broken throughout the living room, hallway, and kitchen. Respon-
dent was, in Donovan's opinion, pretending to be asleep on the
couch. Donovan testified that he, his sister, and his mother all
went to sleep in Hayli's bedroom because his mother was afraid if
Donovan went to his bedroom respondent would "mess with" him.
Donovan testified that shortly after they went to bed, he heard
respondent yelling at them. Respondent went down to the base-
ment, and Donovan testified they "heard the stuff being thrown
down there." Hayli testified that shortly after they got home,
she heard respondent go down to the basement and start throwing
things around. Hayli stated she did not see what damage respon-
dent did in the basement but Donovan did because he went down and
peeked. Donovan testified that he went down to the basement at
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his mother's request and witnessed respondent upending the
mattress, pulling drawers out of the dresser and rifling through
its contents, and knocking over the vanity. Donovan testified
that his mother went down to the basement, and Donovan heard them
arguing. Hayli testified that as her mother went down to the
basement she told the children, "[i]f you hear me scream, then
call the cops." Hayli heard her mother and respondent arguing.
Donovan testified that the next morning, he and his mother
cleaned up the mess. Hayli testified that the next morning she
saw all the damage that had been done upstairs with glass every-
where and everything in disarray.
Donovan did admit to defense counsel that he had
previously told defense counsel that respondent never yelled or
cussed at anyone, never hit him, and that respondent was always
nice to him. The trial court could have reasonably inferred that
Donovan’s apprehension and fear of respondent may have led him to
deny being abused by respondent to respondent’s own attorney.
Both children testified to the fact that their mother
had offered them money and other items if they would testify
falsely at the hearing.
"A finding is against the manifest weight of the
evidence only if the opposite conclusion is clearly evident or if
the finding itself is unreasonable, arbitrary, or not based on
the evidence presented." Best, 223 Ill. 2d at 350, 860 N.E.2d at
245. "Abuse" as defined under section 103(1) of the Act means
"physical abuse, harassment, intimidation of a dependent, inter-
- 26 -
ference with personal liberty[,] or willful deprivation but does
not include reasonable direction of a minor child by a parent or
person in loco parentis." 750 ILCS 60/103(1) (West 2006).
"Harassment" as defined under the Act "means knowing conduct
which is not necessary to accomplish a purpose that is reasonable
under the circumstances; would cause a reasonable person emo-
tional distress; and does cause emotional distress to the peti-
tioner." 750 ILCS 60/103(7) (West 2006). "Harassment does not
necessarily require an overt act of violence." People v.
Whitfield, 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265 (1986).
The Act recognizes that domestic violence is a serious crime
against individuals and society and that domestic violence
produces family disharmony and "creates an emotional atmosphere
that is not conducive to healthy childhood development[.]" See
750 ILCS 60/102(1) (West 2006).
The evidence presented in the case sub judice supported
the trial court's finding of abuse. The testimony of Donovan was
corroborated by Hayli's testimony and vice-versa. Ronette's
testimony was incredible. Respondent's testimony proved that he
has a serious history of violence against others with whom he has
had an intimate relationship. During the December 21, 2006,
incident, respondent's actions were violent. For the children to
come home to find their home in shambles and their personal
belongings smashed and thrown around, then to witness and/or hear
respondent throwing and destroying things in the basement, and
then to see the aftermath of his rampage, could only have led to
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an atmosphere of emotional distress and anxiety. Respondent's
past history of domestic battery against the children's mother,
and respondent's rampage on the evening of December 21, 2006,
could only have led the children to fear that more was in store
for their mother or even them. Respondent's conduct constituted
psychological abuse, harassment, and intimidation.
Moreover, respondent's actions also constituted physi-
cal abuse under the Act. Respondent's first rampage of destruc-
tion was not enough. He pretended to be asleep as Ronette,
Donovan, and Hayli came in the house. They went to bed. Moments
later, respondent took up his rampage again and destroyed addi-
tional household items by throwing them across Ronette's bedroom
and upending her bedroom furniture. The Act defines "physical
abuse" to include "knowing or reckless use of physical force,
confinement or restraint" and "knowing or reckless conduct which
creates an immediate risk of physical harm." 750 ILCS
60/103(14)(i), (iii) (West 2006). Respondent's destructive
rampage while the children were present in the home constituted
knowing and reckless use of physical force and created an immedi-
ate risk of physical harm to Donovan and Hayli. Further, respon-
dent previously abused Donovan physically when he whipped Donovan
with his hands and a belt.
The court's finding of abuse in this case was neither
unreasonable nor arbitrary, nor was the opposite conclusion
clearly evident. Therefore, the court's finding was not against
the manifest weight of the evidence.
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E. The Trial Court Did Not Abuse Its Discretion
in Entering the Order
Respondent also argues that the trial court abused its
discretion in entering the order and in granting the remedies
requested. Respondent maintains that no evidentiary basis
supported the finding that "the conduct or actions of the
[r]espondent, unless prohibited, will likely cause irreparable
harm or continued abuse" based upon respondent's conduct on
December 21, 2006. Regarding the remedies granted, respondent
argues that the only remedy supported by the evidence is that
which prohibited respondent from "entering or remaining in the
residence or household while under the influence of drugs or
alcohol and constituting a threat to the safety or well-being of
[p]etitioner or [p]etitioner's children." Respondent maintains
that "[a]nything beyond that simple prohibition constitutes
'overkill,' contravenes the specific provisions of the Act, goes
without any evidentiary support in the record, and constitutes an
abuse of judicial discretion." Respondent argues the court
abused its discretion because the court did not "employ conscien-
tious judgment in the drafting and in the entry of the [o]rder."
We disagree.
When a trial court crafts an order of protection after
finding abuse, it "acts as a shaper of remedies" and, in that
capacity, the court has "true discretion." Best v. Best, 358
Ill. App. 3d 1046, 1053, 832 N.E.2d 457, 463 (2005). Therefore,
we review the court's granting of remedies in the order of
- 29 -
protection under an abuse-of-discretion standard.
After a finding of abuse, the statute provides that "an
order of protection prohibiting the abuse, neglect, or exploita-
tion shall issue" provided that the petitioner also satisfies the
requirements of section 219 of the Act relating to plenary orders
of protection. (Emphasis added.) 750 ILCS 60/214(a) (West
2006). (Respondent raised no issue whether petitioner satisfies
the requirements of section 219 of the Act.)
The Act provides a nonexclusive list of factors that
the trial court needs to consider when determining whether to
grant specific remedies other than payment of support. They
include:
"(i) the nature, frequency, severity,
pattern[,] and consequences of respondent's
past abuse, neglect[,] or exploitation of the
petitioner or any family or household member,
including the concealment of his or her loca-
tion in order to evade service of process or
notice, and the likelihood of danger of fu-
ture abuse, neglect, or exploitation to peti-
tioner or any member of petitioner's or re-
spondent's family or household; and
(ii) the danger that any minor child
will be abused or neglected or improperly
removed from the jurisdiction, improperly
concealed within the State or improperly
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separated from the child's primary
caretaker." 750 ILCS 60/214(c)(1) (West
2006).
The best indicator of a person's future conduct is his
past conduct. See People v. Henderson, 142 Ill. 2d 258, 339, 568
N.E.2d 1234, 1272 (1990). That maxim applies to judicial func-
tions where a person's future conduct is at issue, such as
determining whether to enter an order of protection. In those
certain situations, the trial court is free to consider a respon-
dent's past conduct. Therefore, once the court found abuse, its
duty was to determine whether petitioner or others protected
under the Act were in need of future protection, and in doing so,
the court was free to consider respondent's past acts.
As noted previously, respondent's conduct on December
21, 2006, clearly constituted abuse under the Act. Respondent
had a history of domestic violence against the children's mother
and had used the belt on Donovan, other orders of protection had
been entered against him, and he had violated those orders of
protection. In accordance with the stated purpose of the Act to
support victims of domestic violence and avoid further abuse,
once the trial court found respondent had abused the children,
the court did not abuse its discretion in finding that (1) unless
prohibited from doing so, respondent would likely cause irrepara-
ble harm or continued abuse, and (2) it was necessary to grant
the relief requested in order to protect the children.
On the form order, the trial court checked the boxes
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for remedies prohibiting respondent from committing acts of abuse
or threats of abuse against all protected persons, including (1)
harassment, interference with personal liberty, physical abuse,
or stalking; (2) intimidation of a dependent; (3) willful depri-
vation; (4) neglect; and (5) exploitation. Respondent was
further ordered to (1) stay 100 feet away from petitioner and the
children, (2) stay 500 feet away from the children's residence
when they are present, (3) not enter or remain at the children's
respective schools while they are present, and (4) not enter or
remain in the residence or household while under the influence of
drugs or alcohol and constituting a threat to the safety or well-
being of the children.
Respondent need not have previously exhibited behavior
that would fit squarely into each of the remedies granted herein
before the trial court could order that he be prohibited from
doing so in the future. The only remedy imposed that appears to
be inappropriate is "neglect" because it is defined to apply
specifically to "high-risk adult[s] with disabilities." 750
ILCS 60/103(11)(A) (West 2006). Otherwise, the trial court did
not abuse its discretion in imposing the other remedies. There-
fore, the trial court is directed to amend the order to delete
the neglect remedy on its face. In all other respects, we find
that the court did not abuse its discretion in entering the
order.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
- 32 -
judgment as modified and remand with directions that the order be
corrected on its face.
Affirmed as modified and cause remanded with direc-
tions.
KNECHT and TURNER, JJ., concur.
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