Sherwin v. Roberts , 2023 IL App (4th) 220904-U ( 2023 )

NOTICE 2023 IL App (4th) 220904-U FILED
This Order was filed under Su- April 14, 2023
preme Court Rule 23 and is not NO. 4-22-0904 Carla Bender
precedent except in the limited 4th District Appellate
circumstances allowed under IN THE APPELLATE COURT Court, IL
Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
MARK SHERWIN, ) Appeal from the
Petitioner-Appellee, ) Circuit Court of
v. ) Knox County
BRANDIE ROBERTS, ) No. 22OP213
Respondent-Appellant. )
) Honorable
) Andrew J. Doyle,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER
¶ 1 Held: The appellate court reversed the trial court’s judgment granting an order of
protection and vacated the order because petitioner did not establish abuse by a
preponderance of the evidence.
¶2 In July 2022, petitioner, Mark Sherwin, filed a verified petition for an order of
protection seeking to prohibit respondent, Brandie Roberts, from having contact with their
six-year-old child, L.S. Following a September 2022 hearing, the trial court granted Sherwin’s
petition.
¶3 Roberts appeals, arguing that the trial court erred by issuing the order of protection
because the record contained no evidence of abuse or harassment. Roberts, representing herself in
this appeal, asserts several other arguments that we need not reach because we agree that the
court’s order was not supported by the evidence. Accordingly, we reverse the judgment of the trial
court and vacate the order of protection.
¶4 I. BACKGROUND
¶5 A. The Petition for a Plenary Order of Protection
¶6 In July 2022, Sherwin filed a petition for an order of protection, asking the trial
court to prevent Roberts from having any contact with their six-year-old child, L.S. In the petition,
Sherwin alleged that he was the primary responsible party for L.S. and that there was another
pending court case in Knox County involving the “[allocation] of parental responsibilities”
between Sherwin and Roberts.
¶7 In the body of the petition, Sherwin alleged that an order of protection was
necessary because on July 21, 2022, “Leola Schlaf called Cara Boynton to let her know [Roberts’s]
bus was parked in front of Brad Galloway[’]s house ***. [(We note that Roberts owned a school
bus that she used as a personal vehicle, and Galloway was her boyfriend.)] Cara called Barb
Sherwin [(petitioner’s mother)] who called the police for a well[-]being check on [L.S.] at that
location.” However, before the police arrived, the bus departed.
¶8 Sherwin also alleged that, earlier that same day, Roberts informed him she was
keeping L.S. “[until] August 7th for a vacation request [Sherwin] had denied multiple times.”
Sherwin called the police for a “police standby to pick up [L.S.]” and went to Roberts’s house.
When he arrived, he “saw the front door wide open to the house, empty beer cans [and] trash all
around the yard.” He found Roberts and L.S. in the bus parked in the backyard. He wrote, “Trash
and an illegal fire pit were the first noticeable things.” Sherwin further alleged that the responding
police officer told him that (1) “L.S. was present at another call where Brad Galloway was present”
and (2) Roberts told the officer that Roberts “believed [Galloway] would kill her and [L.S.]”
¶9 Sherwin also alleged the following additional incidents, taken from police reports
that he attached as exhibits to his petition:
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(1) In July 2022, a “third party” called the police to report that Galloway
was present at Roberts’s residence in violation of an order of protection. Galloway
ran from the police. Roberts was initially uncooperative with the police but later
admitted she was aware of the order of protection and that she was the protected
party. She told the police that Galloway had problems with drugs and his mental
health. The police report did not mention L.S. However, Sherwin alleged that his
mother, Barb, was the caller and she called to request a “well[-]being” check on
L.S.
(2) In April 2022, Roberts called the police to report that Galloway was
present in violation of an order of protection. The police found Galloway hiding
under a blanket and told police that Roberts let him come over every day. Roberts
told the police that Galloway “has mental problems and he does drugs,” and she
was scared of him. Neither the police report nor Sherwin’s written allegations
mentioned L.S.
(3) In July 2020, the police responded to a 911 hangup call from Roberts’s
residence. Officers arrived and saw “[marks] and signs of a struggle on [Roberts’s]
face, chest, shoulders, and back.” Roberts refused to answer questions and said only
that she “ ‘just want[ed] to get [her child] home safe.’ ” The police report made no
further mention of L.S., but Sherwin alleged in the petition that L.S. was present.
(4) In March 2020, the police were dispatched to the hospital because
Roberts had been stabbed in the inner thigh. Roberts would not name the perpetrator
but said the injury was caused by the person who had harmed her in the past. L.S.
was not mentioned.
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(5) In December 2019, Roberts called the police to report that Galloway had
choked, punched, and kicked her and had threatened to kill her and L.S. When
Galloway fell asleep, she dropped L.S. off at a grandparent’s house and then went
to the hospital for treatment. (We note that the police report redacted the name of
the child who was present, but Sherwin alleged in the petition that the child was
L.S.)
¶ 10 Sherwin also attached to his petition text messages from November 2021 between
Roberts’s mother and Sherwin’s mother expressing concern for L.S. Specifically, Sherwin alleged
that Roberts’s mother told Sherwin’s mother that “someone told [Roberts’s mother’s] son that
[L.S.] had taken drugs accidentally.” Sherwin also attached text messages he received in August
2021 from Roberts’s adult daughter expressing concern for L.S.’s well-being when with Roberts.
¶ 11 Roberts was served with a summons ordering her to appear for a hearing on the
petition in August 2022. Roberts moved to continue the hearing for the purpose of obtaining
counsel, and the trial court granted her request.
¶ 12 B. The Hearing on the Petition
¶ 13 In September 2022, the matter proceeded to a hearing on the petition. Sherwin was
represented by counsel, and Roberts represented herself.
¶ 14 At the beginning of the hearing, Sherwin’s attorney told the trial court that, the
week prior, he had filed “in the family case a motion to restrict parental responsibilities, which sort
of goes hand in hand with the request in the [order of protection].” Counsel told the court that the
motion had not yet been set for hearing and inquired whether the court wished to continue the
order of protection hearing to consolidate it with the motion filed in the family case. The court
responded that it had not yet set the motion to restrict parental responsibilities and it would do so
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“today while [Roberts] is here,” but opted to “proceed on the order of protection in the meantime.”
¶ 15 The trial court asked whether the issues in the motion to restrict overlapped with
issues in the order of protection. Sherwin’s counsel responded that “[t]here would be some
overlap” and referred to an ongoing Illinois Department of Children and Family Services (DCFS)
investigation. The court stated that it believed the cases should be consolidated, but it would leave
it up to Sherwin’s counsel whether to proceed that day or not. Counsel replied that he and Sherwin
wished to proceed that day.
¶ 16 1. Sherwin’s Testimony
¶ 17 Sherwin testified that he and Roberts are the parents of L.S. and they had a pending
family case, Knox County No. 21-F-90. The following colloquy occurred between Sherwin and
his attorney regarding the allegations in the petition:
“Q. Okay. You have made a number of allegations in the—in the petition
for order of protection; is that right?
A. Correct.
Q. And these are based upon personal knowledge and confirmation that you
were able to obtain prior to coming in here and signing those allegations in the
petition?
A. Correct.
Q. You have become aware of additional circumstances that even took place
since the July petition; is that right?
A. Yes.
Q. And that prompted the filing of the motion to restrict [parental
responsibilities]?
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A. Correct.
Q. Recently in August when [L.S.] was with [Roberts], was [Roberts’s]
vehicle stopped?
A. Yes
Q. And there was some issue with regard to [Roberts’s] vehicle being
stopped. The vehicle had unusual plates, the trailer that was being hauled had stolen
plates, and there was a charge against [Roberts] for possession of meth, correct?
A. Correct.
Q. And your son was in the vehicle at that time?
A. Correct.
Q. Has DCFS investigated into that incident?
A. Yes.
Q. And have they made an indication one way or the other?
A. Yeah. They told me it was basically ruled as indicated, which means
there’s enough evidence to consider it true.
Q. And that was for endangerment of a child?
***
A. Correct.
Q. And is that investigation ongoing?
A. When it’s considered indicated, I think that’s a ruling, but I’m not sure.
As far as I know, it’s—she’s supposed to be getting me a—a copy of the report.
***
Q. Okay. The—the allegations without going into detail identifies four
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specific incidents which—and these are included in your handwriting on the
petition, correct?
A. Correct.
Q. And these are true to the best of your ability and knowledge?
A. Correct.
Q. Have you received any information from [Roberts] denying any of these
allegations?
A. No.
Q. You’re not asking for the order of protection to cover yourself. You’re
asking for the order of protection to cover your [child, L.S.], correct?
A. Correct.
Q. And until this can get ironed out and possibly through the motion to
restrict, you’re asking that there be an order of protection in place where [L.S.] is
in your possession?
A. Correct.
Q. Do you feel that if he remains in [Roberts’s] custody, that his safety could
be jeopardized?
A. Yes, absolutely.
***
Q. When [Roberts] was stopped recently in August and the search found
meth, the issue with the license plate, were you called to come and retrieve your
son?
A. No. No. I—luckily, a bad force of habit, unfortunately, my mom had
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seen basically that there had been an arrest and did digging and found out what
happened. I wasn’t contacted by the police. I was the one that actually had to contact
DCFS. They failed to even do that. So…
Q. Okay. So you had to track down your son?
A. Yeah. Yep.
Q. [Roberts] didn’t call you and say—
A. No.
Q. —hey, come pick up your son from the scene?
A. No.
Q. Thank you. Nothing further.”
¶ 18 During Roberts’s cross-examination of Sherwin, the following colloquy occurred:
“ROBERTS: When has [L.S.] ever been harmed in my care in the last six
years and five of them being where I’ve had sole custody?
[SHERWIN’S ATTORNEY]: I’m going to object as to the relevance of
that. I mean, the allegations are the allegations. It doesn’t have to identify anything
within the last six years.
THE COURT: Yeah. I’ll sustain the objection. You’re going to have to ask
a different question.
ROBERTS: Okay. No further.”
¶ 19 2. Roberts’s Testimony
¶ 20 Roberts testified, presenting her testimony in narrative fashion due to her
self-representation. Roberts stated, in relevant part, the following:
“If [this hearing is] all based on [the allegations in] that initial order of
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protection request, then I can address those. If it’s based on the allegations of drugs
found in my bus, I can address those. But I’m not sure what the—what the cause is
with the—the cause of me to have an order of protection with my son.”
¶ 21 The trial court stopped Roberts from speaking and the following exchange
occurred:
“THE COURT: Just to answer those questions, so there was a petition filed,
okay, which you’ve seen the petition.
ROBERTS: Yes.
THE COURT: But also there was obviously additional allegations that were
raised today. So, those can be—the Court can take those into consideration as well.
And then, furthermore, before you get into saying too much, I need to make
you aware for the record that if you say anything involving any criminal charges or
anything that could ultimately lead to a DCFS investigation—but more—more so
the criminal charges—that anything that you say here is being made of record. It’s
all getting recorded right here. So, it could be used against you in a criminal trial—
ROBERTS: Okay.
THE COURT: —okay? So, I just want to caution you before you get too
deep in there that you’re potentially making yourself culpable for something that—
ROBERTS: Okay.
THE COURT: —you’ve been charged with.
ROBERTS: I’ve been told that case will be dismissed, but (unintelligible).”
¶ 22 Roberts then testified as follows:
“There are several allegations of me being around [Galloway], and
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unfortunately there have been several times that I have been. [L.S.] has not.
[Galloway] will show up at my place or find me wherever I am at, it seems, and
cause some problems. So I typically call the police. I typically don’t want him to
be arrested because he needs mental help, but I called them to arrest him. I wish
that wasn’t the only option because I don’t feel that it’s going to get any better, and
it’s been a really strange—strange trip.
I haven’t put myself or my son in danger voluntarily with [Galloway]. I’ve
done everything I can to stay away, including last year I moved out of town. I got
a school bus, and my son and I left town in last September, and we came back here
to fight the custody battle. And when we did return, these same problems started
happening again, and I knew that they would and they probably always will. But
the—I guess I don’t understand the other allegations against me of what I’ve done
to harm my son or to show that I would harm my son.
I’m a good mom. I love my kid more than anything. The day that I got
arrested, we were homeschooling on farms. We went in grain silos and learned
about augers. Then we went to the river. We were on our way to the fair, and the
reason that I didn’t call [Sherwin] to pick up [L.S.] was because my friend that we
were going to the fair with was a block away. He was right there. And as soon as I
called him and told him I had problems, he was already there. So he took [L.S.] for
me, and at that point I didn’t have a chance to do anything.”
¶ 23 Regarding the new allegations concerning the August 2022 arrest, Roberts testified
as follows:
“[T]here were supposedly drugs found on my school bus that I’m being charged
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with possession of? That is an allegation but I’m not guilty of that yet. DCFS has
been unable to—I haven’t heard anything about indicated. They in fact—[Sherwin]
held [L.S.] from me for several weeks, and I talked to them, talked to the supervisor,
talked to the area administrator; and they ended up telling me that they didn’t have
any responsibility for having him keep [L.S.] from me. And so I went two weeks
without seeing and talking to my son.”
¶ 24 Sherwin’s attorney then cross-examined Roberts, and the following exchange
occurred:
“Q. [Y]ou said that when you were stopped, when [L.S.] was with you, you
were on your way to the fair?
A. We were going over to the fair. He had fallen asleep. We were running
a little late, wanted to see if we could still make it.
Q. That was 11:30 at night, Saturday night, August 27th?
A. We were going over to the fair at about 10:00 o’clock. I had to stop and
get gas for the generator, and, like I said, [L.S.] fell asleep, so we ended up kind of
driving around.
Q. You were charged with possession of meth, no valid registration on the
vehicle and the trailer, is that right? ***
A. You said the trailer plates were stolen. There were no plates on the trailer
because it was borrowed. The registration on the—on the bus, we’ll deal with that
when the traffic case comes, but that’s a misunderstanding.”
¶ 25 C. The Arguments of the Parties
¶ 26 After Sherwin and Roberts testified, the trial court allowed the parties to make brief
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arguments. Sherwin’s attorney argued that L.S. was “in need of this order of protection for a couple
of different reasons”—namely, (1) he was in a vehicle that was charged to have been stolen, in
which “meth” was found and (2) L.S. was not in school. (We note that Roberts had testified she
was homeschooling L.S.) Sherwin’s attorney argued that he “could probably get *** the resolution
primarily in the motion to restrict in the family case where this could probably be, but *** I think
an [order of protection] is necessary because I think there needs to be some immediate relief. ***
[L.S.] needs to be registered in school and kind of have the train put back on the tracks.” Sherwin’s
attorney asked for a six-month order of protection for L.S. so he could “get this case consolidated
with the [family] case and [the family court judge] can resolve both.”
¶ 27 Roberts also made a brief argument. Regarding L.S.’s schooling, she argued that
she had contacted the school for screening to determine if he could split up homeschooling and
public school. Regarding the August 27, 2022, arrest, she stated, “So whatever was on that bus
wasn’t mine. The trailer wasn’t stolen or I would definitely have a charge for a stolen trailer. It
was returned to me in impound. *** I’m not a thief and I’m not a drug addict and I have no history
of drug abuse or criminal activity.” (We note that neither Sherwin nor Roberts made any argument
relating to the original allegations contained within the petition.)
¶ 28 D. The Trial Court’s Ruling
¶ 29 The trial court granted petitioner an “interim” three-month order of protection,
stating as follows:
“I am going to find that there is enough evidence to grant the petition for
order of protection. There is undisputed testimony there’s a DCFS indicated report
and that the child was present in a vehicle at such time when the mother was placed
under arrest for possession of methamphetamine that was also found within the
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vehicle. Therefore, I’m going to grant again the order of protection. I’m going to
do it for a term of three months, though. I think that’s going to give the parties
enough time to get the family case in front of Judge Lane and for him to look at the
entirety of the circumstances and to make a decision at that point whether the order
of protection should be continued or ideally that there’s some type of agreement or
hearing held on the restricted parenting issue.”
(We note that the above statements constitute the entirety of the court’s remarks supporting its
ruling.)
¶ 30 After the trial court ruled, the following exchange occurred:
“ROBERTS: Where is the indicated report from DCFS? I haven’t seen
that—
THE COURT: I haven’t either, but—
ROBERTS: You’re going to take their word for it?
THE COURT: That’s all I have at this point.
ROBERTS: That kept them—
THE COURT: I’m not going to get into this right now, so you need to wait
outside until you get the order of protection and then make sure that the child is
turned over by noon, okay?”
¶ 31 At that point, the proceedings ended. The trial court issued a written order of
protection valid from September 27, 2022, through December 27, 2022, naming L.S. as the
protected party. The order (1) placed physical care and possession of L.S. with Sherwin and
(2) prohibited Roberts from being within 300 feet of L.S. The court reserved the issue of parenting
time, noting in the margin of the order that parenting time would be “addressed in [Knox County
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case No.] 21[-]F[-]90.”
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 Roberts appeals, arguing that the trial court erred by issuing the order of protection
because the record contained no evidence of abuse or harassment. Roberts asserts several other
arguments that we need not reach because we agree that the court’s order was not supported by
the evidence. Accordingly, we reverse the judgment of the trial court and vacate the order of
protection.
¶ 35 A. Lack of Appellee Brief
¶ 36 Sherwin has not filed 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
reviewing court can easily decide them without the aid of an appellee’s brief, that court should
decide the merits of the appeal.” Id.¶ 37 Because a primary issue in this appeal is whether the record supports the trial
court’s finding that Sherwin proved by a preponderance of the evidence that L.S. was abused, we
conclude that we can easily determine the merits of this appeal without an appellee’s brief.
¶ 38 B. Mootness
¶ 39 Although Sherwin failed to file a brief, we sua sponte address the mootness of
Roberts’s appeal because the order of protection expired on December 27, 2022.
¶ 40 “A case on appeal becomes moot when the issues involved no longer exist because
events occurring after the filing of appeal make it impossible for the appellate court to grant
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effective relief.” Lutz v. Lutz, 313 Ill. App. 3d 286, 288, 728 N.E.2d 1234, 1236 (2000). In the
present case, Roberts requests that the order of protection be vacated, which is relief this court can
grant, despite the expiration of the order of protection.
¶ 41 Moreover, this case involves a pending family case with overlapping issues. The
Knox County circuit court’s online docket shows that, before the order of protection expired in
this case, the trial court entered a “Temporary Order,” which it also filed in the pending family
case between the parties. Accordingly, the record is unclear whether the order of protection has
been extended or modified, or to what extent the order of protection affects the family case.
¶ 42 Even assuming the expiration of the order of protection rendered this case formally
moot, the issues presented are still reviewable under the public interest exception to the mootness
doctrine. Id. “Under the public interest exception, a court may review a moot issue on the merits
if (1) the moot question is public in nature, (2) it is desirable to provide an authoritative
determination so as to offer guidance for public officers, and (3) it is likely that the question will
reappear.” (Internal quotation marks omitted.) Landmann v. Landmann, 2019 IL App (5th)
180137, ¶ 12, 133 N.E.3d 117.
¶ 43 In the present case, all three requirements are met. First, courts have held that the
Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 2020)) “addresses
a grave societal problem and it is of public interest that the underlying purpose of the Act be
achieved.” Whitten v. Whitten, 292 Ill. App. 3d 780, 784, 686 N.E.2d 19, 22 (1997); Landmann,
2019 IL App (5th) 180137, ¶ 12. Second, achieving the purpose of the Act “can only be
accomplished if courts properly apply the requirements of the Act.” Whitten, 292 Ill. App. 3d at
784. Third, and perhaps most importantly, the present case involves an issue important to the public
beyond mere sufficiency of the evidence. In this case, the petitioner misused the Act to litigate
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family custody issues, and the trial court, by issuing the order of protection, gave its imprimatur to
that misuse. The resolution of this case might discourage other litigants and trial courts from
similarly misusing the Act. In other words, guidance on this issue for public officials is in the
public interest and is necessary for future litigants. See Landmann, 2019 IL App (5th) 180137,
¶ 12 (“The Act addresses issues of great public interest [that can] only be accomplished if the
courts properly apply the statutory requirements,” and if “questions as to the Act’s requirements
are likely to reappear, [it is] desirable [for reviewing courts to provide] guidance.”).
¶ 44 Additionally, this case is reviewable under the collateral consequences exception,
which has primarily been applied in involuntary commitment proceedings. The collateral
consequences exception applies when a party has “suffered, or [is] threatened with, an actual injury
traceable to the defendant and [is] likely to be redressed by a favorable judicial determination.”
(Internal quotation marks omitted.) In re Alfred H.H., 233 Ill. 2d 345, 361, 910 N.E.2d 74, 83
(2009); see also In re Splett, 143 Ill. 2d 225, 228, 572 N.E.2d 883, 885 (1991) (Although the
respondent had been released from involuntary admission, “[r]eview [was] nonetheless
appropriate, as the collateral consequences related to the stigma of an involuntary admission may
confront [the] respondent in the future.”); In re Daryll C., 401 Ill. App. 3d 748, 753, 930 N.E.2d
1048, 1053 (2010) (applying the collateral consequences exception because the “collateral
consequences of having been involuntary committed will attach to the respondent and could be
used against him in future proceedings”).
¶ 45 In Carryl v. Fraser, 2016 IL App (1st) 152376-U, the First District reviewed an
order of protection under the collateral consequences exception because “the [plenary order of
protection], which involves his minor daughters and is based on a finding of abuse ***, has ***
ramifications on his personal, family, and legal relationships.” Carryl, 2016 IL App (1st)
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152376-U, ¶ 47.
¶ 46 Likewise, in the present case, the order of protection entered against Roberts, which
was (1) not supported by any evidence of abuse to L.S. and (2) the result of misuse of the Act to
litigate custody issues, would likely have ramifications in Roberts’s family case.
¶ 47 Accordingly, we will review the merits of this appeal.
¶ 48 C. The Applicable Law
¶ 49 Orders of protection are governed by article II of the Act. 750 ILCS 60/201 et seq.
(West 2020). The persons protected by the Act include “any person abused by a family or
household member” (id. § 201(a)(i)), and a petition for an order of protection may be filed “by any
person on behalf of a minor child.” Id. § 201(b)(i).
¶ 50 The central issue in a proceeding to obtain an order of protection is whether the
petitioner (or, in this case, the minor child) has been abused. Best v. Best, 223 Ill. 2d 342, 348, 860
N.E.2d 240, 244 (2006). The petitioner must prove abuse by a preponderance of the evidence. Id.¶ 51 “ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent,
interference 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 2020).
“ ‘Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is
reasonable under the circumstances; would cause a reasonable person emotional distress; and does
cause emotional distress to the petitioner.” Id. § 103(7).
¶ 52 A trial court’s finding that a petitioner has been abused is reversed only if it is
against the manifest weight of the evidence. Best, 223 Ill. 2d at 350. 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. Id.- 17 -
¶ 53 D. This Case
¶ 54 The trial court’s judgment granting Sherwin’s petition for an order of protection
was against the manifest weight of the evidence because there was no evidence of abuse or
harassment of L.S.
¶ 55 1. The Trial Court’s Stated Bases for Granting the Order of Protection
¶ 56 We first address the trial court’s stated bases for granting Sherwin’s petition for an
order of protection. When ruling, the court provided only two bases for its finding that there was
“enough evidence” to grant the petition for an order of protection, remarking that there was
“undisputed testimony” (1) “there’s a DCFS indicated report” and (2) L.S. “was present in a
vehicle at such time when the mother was placed under arrest for possession of methamphetamine
that was also found within the vehicle.” The court’s findings are not supported by the evidence.
¶ 57 a. The Alleged Indicated DCFS Report
¶ 58 First, the trial court is simply incorrect that there was undisputed testimony that a
DCFS indicated report existed. Sherwin testified that DCFS initiated an investigation into child
endangerment following Roberts’s August 2022 arrest. His counsel asked whether the
investigation was “indicat[ed] one way or the other.” Sherwin answered that he was told (by an
unidentified person) “it was basically ruled as indicated, which means there’s enough evidence to
consider it true.” Counsel then asked whether the investigation was ongoing, and Sherwin’s answer
was far from clear: “When it’s considered indicated, I think that’s a ruling, but I’m not sure. As
far as I know *** she’s supposed to be getting me a *** copy of the report.”
¶ 59 Even if Sherwin’s testimony was the only evidence regarding the DCFS
investigation, it would fail to establish that a DCFS investigation into child endangerment was
“indicated.” Sherwin’s testimony established that he did not know (1) what precisely it meant for
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a DCFS report to be indicated or (2) whether the investigation was completed. Not only did he fail
to present the trial court with any document proving a DCFS investigation was indicated, Sherwin
stated he had not yet received “a copy of the report.”
¶ 60 Roberts, on the other hand, testified that she had been in contact with DCFS
personnel and she had not “heard anything about indicated.” The trial court’s finding that there
was “undisputed testimony” of an indicated DCFS report is simply incorrect. Sherwin presented
no evidence of the existence of an indicated report of child endangerment, and Roberts denied the
existence of any such report.
¶ 61 In addition, even if Sherwin had proven that Roberts’s arrest resulted in an indicated
DCFS report for child endangerment, Sherwin would still have failed to prove, even by a
preponderance of the evidence, that L.S. had suffered any abuse.
¶ 62 b. L.S.’s Alleged Presence at Roberts’s Arrest
¶ 63 Second, and similarly, L.S.’s presence when Roberts was arrested for possession of
methamphetamine does not constitute “abuse” or “harassment” within the meaning of the Act.
“Abuse” may occur in the form of “harassment,” which requires conduct that “cause[s] emotional
distress to the petitioner” (or, in this case, the minor child). 750 ILCS 60/103(7) (West 2020).
Sherwin offered no evidence that L.S. was distressed. Roberts testified that when she was stopped
by the police (1) it was after 11:30 p.m., (2) she was driving her school bus, and (3) L.S. had fallen
asleep. Roberts stated that she called her friend, who was a block away, to pick up L.S. No evidence
was presented that L.S. was even awake to witness Roberts’s arrest. See In re Marriage of Young,
2013 IL App (2d) 121196, ¶ 28, 990 N.E.2d 788 (holding the respondent’s conduct of using his
computer to view pornography did not constitute “harassment” to support the trial court’s granting
an order of protection on behalf of the respondent’s child because no evidence existed his child
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ever used the computer or witnessed the respondent viewing pornography). We reiterate that
Sherwin, as the petitioner, had the burden to prove abuse by a preponderance of the evidence. Best,
223 Ill. 2d at 348.
¶ 64 Moreover, even assuming that the substance found in Roberts’s vehicle was indeed
methamphetamine (which Sherwin also failed to prove), Roberts’s exposing L.S. to illicit drugs or
substance abuse would have constituted neglect, not abuse. The plain language of the Act permits
a court to issue an order of protection based on “neglect” only for “high-risk adult[s] with
disabilities.” 750 ILCS 60/201(a)(ii) (West 2020). Because L.S. does not fall into this limited class,
neglect could not have been a proper basis for the issuance of an order of protection.
¶ 65 2. The Remaining Evidence
¶ 66 Under the manifest weight of the evidence standard, this court may affirm the trial
court’s ruling on any basis supported by the record. Baumgartner v. Greene County State’s
Attorney’s Office, 2016 IL App (4th) 150035, ¶ 41, 52 N.E.3d 654. However, after thoroughly
reviewing the allegations in the petition and the evidence presented at the hearing, we conclude
that none of Sherwin’s allegations find evidentiary support upon which this court could affirm the
trial court’s judgment.
¶ 67 Sherwin’s petition for an order of protection contained written allegations of several
incidents spanning a time period from 2019 through July 2022. These allegations went largely
unaddressed at the hearing on the petition, except for the following exchange between Sherwin
and his attorney during Sherwin’s direct examination:
“Q. Okay. You have made a number of allegations in the—in the petition
for order of protection; is that right?
A. Correct.
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Q. And these are based upon personal knowledge and confirmation that you
were able to obtain prior to coming in here and signing those allegations in the
petition?
A. Correct.
***
Q. Okay. The—the allegations without going into detail identifies four
specific incidents which—and these are included in your handwriting on the
petition, correct?
A. Correct.
Q. And these are true to the best of your ability and knowledge?
A. Correct.”
¶ 68 A review of the police reports Sherwin attached as exhibits to his petition shows
that Sherwin had no firsthand knowledge of the events described therein. And Sherwin did not
present any testimony from a witness who had personal knowledge, such as a responding police
officer. In fact, Sherwin presented no evidence in support of the incidents alleged in his petition,
and Roberts made no admissions. Ironically, when Roberts attempted to question Sherwin about
any incidents occurring over the past six years that harmed L.S., Sherwin’s counsel objected on
relevance grounds, stating “the allegations are the allegations.” The trial court sustained the
objection.
¶ 69 We repeat counsel’s observation here: allegations are merely allegations; they are
not evidence. Although Sherwin certified that everything in his petition was “true and correct”
under penalty of perjury, verified allegations do not constitute evidence except by way of
admission (735 ILCS 5/2-605 (West 2020)), and Roberts never made any such admissions.
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¶ 70 Accordingly, the record demonstrates that no basis exists for this court to affirm the
trial court’s ruling, regardless of the trial court’s reasoning.
¶ 71 3. Misuse of the Act
¶ 72 Roberts argues on appeal that Sherwin “misused the Domestic Violence Act in an
attempt at retaliation over a dispute about vacation parenting time.” Because we have concluded
that the trial court’s order granting Sherwin’s petition was not supported by any evidence of abuse
to L.S., we need not reach this argument. However, we briefly address the misuse of the Act
because, in this case, during argument, Sherwin’s attorney admitted that he could “probably get
*** the resolution primarily in the motion to restrict in the family case where this could probably
be.” (Emphasis added.) And the trial court itself issued only a three-month order, acknowledging
that the family court was in a better position to address “the entirety of the circumstances.”
Moreover, Sherwin largely abandoned the serious allegations he included in his written petition
by not presenting any evidence supporting them at the hearing, instead pursuing primarily
(1) Roberts’s August 2022 arrest and (2) L.S.’s schooling.
¶ 73 In this case, Sherwin failed to present any evidence that would justify the issuance
of an order of protection. Instead, he improperly utilized the Act to litigate custody issues.
Accordingly, we remind the trial court and the parties that “[o]btaining an order of protection is
not the proper procedure for resolving child custody or visitation issues.” Radke v. Radke, 349 Ill.
App. 3d 264, 269, 812 N.E.2d 9, 13 (2004). “Those issues should be resolved under the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 20[20])).” Id.; see also
Wilson v. Jackson, 312 Ill. App. 3d 1156, 1164-65, 728 N.E.2d 832, 839 (2000).
¶ 74 4. Roberts’s Remaining Arguments on Appeal
¶ 75 Because we have determined that the order of protection is not supported by the
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evidence and is vacated, we need not address Roberts’s remaining arguments on appeal.
¶ 76 III. CONCLUSION
¶ 77 For the reasons stated, we conclude that the trial court’s judgment granting the order
of protection was against the manifest weight of the evidence. Because the court’s determination
that petitioner proved by a preponderance of the evidence that L.S. was abused was without an
evidentiary basis, we (1) reverse the court’s judgment and (2) vacate the order of protection.
¶ 78 Reversed and vacated.
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