Appeal from the Circuit Court of McHenry County. No. 12-DV-520 Honorable James S. Cowlin, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.
¶ 1 The parties are currently engaged in an action for dissolution of marriage. They have one adult daughter and five minor children, four of whom are adopted and have special needs. Respondent, Douglas Young, appeals from a plenary order of protection entered pursuant to the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/214(a) (West 2010)). The order names the following as protected persons: petitioner, Christine Young; the minor children; and Brittany Zell, a household respite worker who helps with the children. The trial court found that Douglas had emotionally abused and harassed Christine by viewing child pornography Internet sites on an iPad inside the family residence. The order enjoins Douglas from committing further abuse and restricts his access to the children to supervised visitation.
¶ 2 On appeal, Douglas argues that the order of protection must be reversed because (1) his alleged viewing of pornography on the iPad is not "harassment" or other abuse under the Act; (2) his parenting rights should not be restricted, because he did not harass or otherwise abuse the children and there is no indication of a risk of future abuse of the children; and (3) there is no evidence that Brittany was abused or is at risk of future abuse. We conclude that the trial court's finding that Douglas was accessing numerous child pornography sites on the iPad was not against the manifest weight of the evidence. However, we reverse the order of protection because Douglas's conduct is not "harassment" under the Act. We emphasize that the trial court's attempt to protect the children was not unreasonable and may be revisited through the pendency of the dissolution action.
¶ 4 The parties were married on April 3, 1987. Christine filed a petition for dissolution of marriage on June 14, 2012. Two children were born to the parties: Courtney Shilkus, age 21 at the time of the filing, and Madison, age 16. In addition, the parties adopted four children, Isabella, age 11, Elijah, age 9, Caeden, age 8, and Kyler, age 6. Isabella suffers from fetal alcohol syndrome, and Elijah, Caeden, and Kyler have Down's syndrome.
¶ 5 In October 2011, before petitioning for marriage dissolution, Christine moved from the marital residence to an apartment. Douglas continued to reside in the marital residence with the five minor children. Christine returned to the residence in July 2012.
¶ 6 On August 9, 2012, Christine petitioned for an order of protection, requesting that (1) Douglas stay at least 50 feet from Christine and the minor children and (2) Douglas be prohibited from entering the marital property, the children's schools, and places where the children receive therapy. Christine alleged that on August 4, 2012, she attempted to access the wireless network at the marital residence with her own iPad, but she could not because she lacked the correct password. Christine activated another iPad in the home, in search of the password. While searching for the password, Christine viewed the iPad's Internet browser history, which contained a long list of sites that appeared to be pornographic. Christine observed that several of the sites in the iPad's history appeared to contain child pornography. The trial court held an ex parte hearing, and, based on Christine's allegations, it entered an emergency order of protection.
¶ 7 On August 16, 2012, the trial court conducted a hearing on Christine's petition for a plenary order of protection. Brittany testified that she was employed by the State of Illinois as a respite worker. In that role, Brittany worked about 50 hours per week in the parties' home, providing assistance and support for the family, given the special needs of four of the five minor children. Brittany started working in the home in March 2012. During her time in the residence, Brittany observed three iPads, one that Elijah brings home from school, one that belongs to Christine, and one that is used by Isabella, Madison, and Douglas. Brittany observed that Isabella and Madison used this iPad most frequently, but Douglas used it in the evening to play video games. Brittany never observed Douglas view pornography on the iPad or any other way. Brittany became aware that Christine owned an iPad on August 15, 2012, when she saw Christine's boyfriend using it at the marital residence.
¶ 8 Julie Pirtle, an employee of the law firm that represents Christine in this case, testified that on August 8, 2012, Christine brought an iPad to the law firm's offices. Pirtle, who admitted that she has no training or experience in analyzing Internet data, accessed the device's settings menu, opened the browser settings, and reviewed the Internet browser history. Pirtle spent two hours reviewing the browser settings and taking "snapshots," which depicted the iPad screen as it appeared when the snapshot was taken. Pirtle testified that she took more than 50 snapshots of the browser settings, connected the device to a computer, and printed the images. The iPad and the printed images of the browser history list were admitted into evidence as Exhibits A and B, respectively.
¶ 9 Christine's counsel called Douglas as a witness. Douglas testified that, since the emergency order of protection required him to vacate the marital residence, he was residing by himself in his car. Douglas was employed as the administrator of a facility that provides therapy for special needs children. Christine's counsel asked several questions regarding the purchase, ownership, and use of the iPad at issue, including questions about the browser history cited in the petition. In response to each question, Douglas asserted his fifth amendment right against self-incrimination and declined to answer.
¶ 10 Christine testified that she lived outside the marital home from October 2011 until July 2012. In January 2012, the family purchased an iPad for the children. Christine owned another iPad, which she kept in a case that made it distinguishable from the children's iPad. Christine testified that she never used the iPad at issue and that only Douglas, Madison, and Isabella used it. Christine estimated that Madison and Isabella used the iPad almost every day, ...