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Sandberg v. Brian B.

Court of Appeals of Illinois, Second District

July 18, 2018

JESSICA SANDBERG, Petitioner-Appellee,
BRIAN B., Respondent-Appellant.

          Appeal from the Circuit Court of McHenry County. No. 09-FA-190 Honorable Mary H. Nadar, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.



         ¶ 1 Pro se respondent, Brian B., appeals from an order denying his motion to reconsider the trial court's entry of a plenary order of protection in favor of petitioner, Jessica Sandberg. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The record reflects that Brian and Jessica are the parents of a son, J.B., who was born on August 1, 2005. The parties were never married. From 2013 until the event that gave rise to the issuance of the plenary order of protection, Brian had residential custody of J.B. On October 16, 2017, Jessica filed a verified petition for an emergency order of protection in Lake County. The matter was designated as No. 17-OP-2040. In the petition, Jessica explained why she wanted the trial court to issue an order of protection for her and J.B. against Brian:

"On 10-12-17 Brian [B.] took me to court trying to ask for full custody and child support for our son [J.B.]. The judge threw out the motion due to Brian not completing the motion right. Brian got very upset and went to my son's school in Chicago and demanded the principal to give him [J.B.], so the principal called me and asked me if Brian can take [J.B.] from the school and the police were there with Brian because Brian called the police and the police said that they [couldn't] allow Brian to take [J.B.] out. I am wanting this order of protection on Brian because I don't know what he is going to try to do next. My son is terrified of him. Even more than he was. Brian keeps texting me [and] accusing me of taking our son pics [sic] from his old school. He is also calling my 9-year-old daughter to try to get a hold of me. I'm terrified that he is going to try to come to the school when [J.B.] gets out and try to get him. I'm worried that my son is having a hard time at school because he is scared that his dad could come up there and take him. Also when me and Brian were together he put his hands on me quite a few times."

         ¶ 4 Based upon the allegations in Jessica's petition, the Lake County circuit court entered an emergency order of protection. Two days later, Jessica filed a motion to modify the allocation of parental responsibilities in McHenry County. That matter was designated as No. 09-FA-190, the case number that was assigned in 2009 when Jessica had residential custody of J.B. and she filed a petition against Brian for child support. In the motion to modify the allocation of parental responsibilities, Jessica alleged that Brian had "put his hands" on J.B. and pushed him to the ground. She also alleged that Brian had been arrested in Lake County and that there was an order of protection requiring Brian to stay away from her and J.B. Jessica requested that Brian receive supervised visitation with J.B. and be ordered to attend anger management classes.

         ¶ 5 On October 19, 2017, the McHenry County circuit court ordered the parties to notify the Lake County circuit court of the proceedings in case No. 09-FA-190 and to seek to have the Lake County case transferred to McHenry County. The next day, the Lake County court transferred case No. 17-OP-2040 to McHenry County.

         ¶ 6 On October 25, 2017, the parties were present in McHenry County for a hearing on the extension of Jessica's emergency order of protection to a plenary order of protection. At the hearing, Jessica testified that she lived in Chicago and that Brian lived in Vernon Hills. On September 18, 2017, one of Brian's neighbors called her and told her that she saw Brian push J.B. against a wall. Jessica called the police, and the police took J.B. to the police station. Brian was charged with domestic battery in Lake County case No. 17-CM-2763. The Department of Children and Family Services (DCFS) and the police told Jessica that she had to take J.B. to her home in Chicago. After that, Brian was served with an order prohibiting him from having any contact with J.B., as a condition of his bond. On October 12, 2017, Brian went to the school in Chicago that Jessica had enrolled J.B. in, tried to take him out of the school, and demanded that J.B. come home with him. The police were called. It was a huge scene. Therefore, she filed a petition for an emergency order of protection.

         ¶ 7 Jessica said that she wanted a plenary order of protection entered against Brian because J.B. was scared for his life. He was terrified that Brian was going to get him and hurt him again. Jessica was concerned about J.B.'s safety. The September 18 incident was not the first time that Brian had hurt J.B. There had been numerous DCFS cases involving Brian and J.B. that were dropped, which surprised Jessica. There was currently a case pending with DCFS relating to Brian's domestic battery charge.

         ¶ 8 Brian then cross-examined Jessica and asked her why, if she feared for J.B.'s life or safety, she waited "five or seven years" to do anything about it, since J.B. had been in his care since 2012.[1] Jessica said that Brian had put his hands on J.B. only last March and that he had also hit J.B. in the head with a cell phone, which was why she called DCFS. Jessica said that the last five to seven years she had been struggling and she needed Brian to be a good father to J.B., and he was, but that when Brian put his hands on J.B. "that's when it got real" and she had to protect J.B. Brian asked her why she had called DCFS three times in less than 30 days, and she said that she called DCFS only once, last March.

         ¶ 9 In Brian's case-in-chief, he said that J.B. had been living with him for five years because Jessica got kicked out of her house and she called him for help with J.B. He took J.B. in, and he never asked Jessica for anything. However, after a while he started asking Jessica for child support, but she never paid him any. The only reason Jessica filed for an order of protection was that he "served her at the school in front of officers." He gave the officers the papers right in front of Jessica. Brian said that he could have J.B. at any time because the papers said that he had residential custody of J.B. So he went to the school to get J.B. and he called the police himself and showed them the papers that indicated that he was the residential custodian of J.B. He went to that school to take J.B. out only because Jessica took J.B. out of the school that he had enrolled J.B. in. "And he was doing fine. It was all her doing that she-it got to the point of me getting arrested. I never had no type of cases against me, nothing." After he left the school, he went to his attorney's office. His attorney told him that there was no reason why he should not have residential custody of J.B.

         ¶ 10 Brian testified that he was arrested on September 18, 2017, but on October 5, 2017, "that's when we had the-that's when they lifted that. And so I asked the attorney, I'm like because I have this [(the 2014 order giving Brian residential custody of J.B.)], does that mean does he come back? He says, yes, because the DCFS never took him out of the house. The police did." ...

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