Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois, No. 99--OP--22 Honorable Patricia A. Walton, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Slater
Respondent Erica Lashawn Jackson appeals from the orders of the trial court granting emergency, interim and plenary orders of protection in favor of petitioner Robby Joe Wilson. We reverse.
Petitioner and respondent lived together from approximately September of 1997 to April of 1998. Shortly before they broke up, respondent became pregnant. According to respondent, she broke up with petitioner because he was overbearing, possessive and controlling. Petitioner did not want respondent to have friends, he would go through her drawers and purse and get mad when she locked the bathroom door. Respondent described an incident where petitioner cut his wrist with a razor blade after an argument. On another occasion, petitioner prevented respondent from calling the police by yanking the phone from its socket. He then picked respondent up and threw her down. Petitioner denied that this incident occurred. After respondent ended the relationship, petitioner would repeatedly call her at work to talk about getting back together. When respondent refused to reconcile with petitioner, he threatened to take her to court and get custody of the baby.
On December 9, 1998, a week before the baby was born, petitioner came to respondent's home. He had not been invited. According to petitioner, he had come to tell respondent that he wanted to be present at the child's birth and he wanted to be involved in the child's life. According to respondent, petitioner talked about getting back together. Respondent repeatedly told petitioner to leave, but he refused. Respondent grabbed petitioner and began pushing him out the door. Petitioner testified that he did not resist. Respondent testified that petitioner tried to push the door open and come back in. According to petitioner, respondent hit him in the face, chest and shoulders. Respondent admitted hitting petitioner's "hands and stuff" because he was trying to prevent her from closing the door.
On December 16, 1998, respondent gave birth to a son, Ansley Elijah Wilson. While she was in labor, respondent tried unsuccessfully to contact petitioner, and she eventually called petitioner's mother and informed her of the impending birth. Petitioner arrived at the hospital shortly after the baby was born. The next day, petitioner signed a document acknowledging paternity. Eight days later, on Christmas Eve, respondent allowed petitioner to take Ansley for an unsupervised visitation. When the child was returned, he smelled of cigarette smoke and was congested. Thereafter, although no order of visitation had been entered by any court, respondent allowed petitioner to visit with Ansley, usually at her home, on or about January 2, 1999, January 7, January 14, January 25, February 13, February 16 and February 26.
On February 16, 1999, petitioner came to respondent's apartment for a prearranged visit with Ansley. Petitioner offered to give respondent $40 for some baby pictures, but respondent refused. According to petitioner, he told respondent that she should not keep saying that he did not do anything for the baby if she was going to refuse his offers. Respondent became angry and upset and screamed at petitioner, telling him to leave. Petitioner sat on the couch holding the baby, telling him how much he loved him. Respondent then "jerked" Ansley out of petitioner's hands and told him to leave.
According to respondent, after she refused the $40, petitioner started telling Ansley, "Your mother better never say that I haven't tried to give her anything" and, "Your mother is crazy" and, "Your mother needs to see somebody." She told petitioner to stop saying such things or leave. Petitioner then told respondent that he was going to take her to court and take the baby from her. Respondent told petitioner to give Ansley to her and he refused. After she said it again, he handed Ansley to her and eventually left.
A few days later, after talking to counselors and support groups, petitioner decided to obtain an emergency order of protection the next time he had possession of Ansley. He was scheduled to visit Ansley on Saturday, February 27, but respondent agreed to change it to Friday, February 26. After petitioner picked Ansley up, he filed a petition for an emergency order of protection. Petitioner alleged that respondent physically assaulted him December 9, 1998, and continually harassed, intimidated, exploited and manipulated petitioner and the child. Petitioner also asserted that on February 16, 1999, respondent screamed and used profane language and ripped Ansley from petitioner's hands. Petitioner also claimed that respondent deprived him of visitation with Ansley and had left him in the care of known drug and alcohol abusers. Petitioner further alleged that respondent had abused her other children. Following an ex parte hearing, the trial court issued an emergency order of protection placing Ansley in petitioner's care.
When petitioner did not return Ansley to respondent that evening, she telephoned petitioner. Petitioner told respondent that he would not be returning Ansley. According to respondent, when she asked why, petitioner stated, "You have hurt me so now it is my turn."
On Monday, March 1, 1999, respondent filed a petition for rehearing pursuant to section 224(d) of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act or the Act) (750 ILCS 60/224(d) (West 1998)). Respondent alleged that she had not received prior notice of the initial hearing in which the emergency order of protection was entered and that she had a meritorious defense to the order. Respondent denied petitioner's allegations and set forth her version of the events of December 9 and February 16.
On March 8, 1999, petitioner filed a petition for temporary custody, permanent custody and child support. This was not part of the domestic violence case, but was a separate action filed pursuant to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (see 750 ILCS 5/601 (West 1998)) and the Illinois Parentage Act of 1984 (Parentage Act) (see 750 ILCS 45/6 (West 1998)). On the same day, a hearing was held on respondent's petition for rehearing. No report of proceedings of the hearing is contained in the record. The court's order stated that a home study should be conducted by the Department of Children and Family Services (DCFS) and that the court would request the study. The court ordered the parties to cooperate with the study and continued the matter until March 17.
On March 17 the parties agreed that, rather than continue the hearing on the petition for rehearing, they would proceed with the hearing on the petition for an order of protection because the emergency order expired that day. Petitioner called respondent as a witness and she testified about the events of December 9, 1998, and February 16, 1999, as previously described. Petitioner then testified to his version of the events occurring on those dates. He also testified that a visitation had been planned for February 20 but respondent canceled it on the 19th. Petitioner admitted that he could not give a date when respondent had ever left Ansley in the care of a drug or alcohol abuser. Petitioner also explained that he had claimed that respondent deprived him of his right to see Ansley because respondent would not agree to establish a regular visitation schedule.
After a recess, petitioner's attorney indicated that he had one more witness, but that he would accede to the request of respondent's attorney to call a witness out of turn. The court responded:
"THE COURT: Before we get to that, as I listened to testimony, I have been considering this, and I've, I guess my major concern is that I ordered there to be cooperation and that there would be a DCFS home study of both homes, and Ms. Scott [respondent's attorney] tells me she disagreed. It is a court order. I don't really care what your personal opinions are. Those concerns were never voiced, and I am not going to make a final determination until I have a home study of both homes.
So I'm going to continue the order of protection on an interim basis. I want that home study completed, and I want counsel to work out a shared arrangement regarding the child, and until I have that ...