from the Circuit Court of Champaign County, No. 18-OP-809;
the Hon. Wm. Hugh Finson, Judge, presiding.
Attorneys for Appellant: Angela K. Skinner, of Allison &
Mosby-Scott, of Bloomington, for appellant.
Attorneys for Appellee: Anne M. Martinkus, of Erwin,
Martinkus & Cole, Ltd., of Champaign, for appellee.
JUSTICE TURNER delivered the judgment of the court, with
opinion. Justices DeArmond and Harris concurred in the
judgment and opinion.
1 In December 2018, petitioner, Arika M., filed a verified
petition for an order of protection on behalf of herself and
her three daughters, Av. M. (age 7), Al. M. (age 13), and Au.
M. (age 11), against respondent, Christopher M., her
estranged husband and the father of the three girls. After a
two-day hearing, the Champaign County circuit court granted
petitioner a plenary order of protection on behalf of the
minor children against respondent, which expires on July 29,
2019. The order of protection reduced respondent's
visitation with the minor children to four hours every Sunday
to be supervised by "Jack or Patty [M.],"
respondent's parents. Respondent was also allowed one
telephone call per week per child.
2 Respondent appeals, asserting the circuit court erred by
(1) admitting the minor children's hearsay statements,
(2) failing to make the required findings in entering the
order of protection, and (3) granting the plenary order of
protection. We reverse and remand for new proceedings.
3 I. BACKGROUND
4 Since April 2016, the parties have had a pending petition
for dissolution of their marriage in Champaign County.
Petitioner had primary residential custody of the
parties' three daughters, and respondent had parenting
time overnight on Wednesdays and every other weekend.
Respondent resides in the former marital residence.
5 In the December 2018 petition for an order of protection,
petitioner alleged, inter alia, Au. M. did not want
to be around respondent at Al. M.'s December 4, 2018,
band concert and was not acting normally. After the concert,
petitioner asked Al. M. what was going on, and Al. M. cried
and refused to say anything because respondent was her dad.
Later that night, petitioner read Au. M.'s diary. The
next day, petitioner took the diary to the Illinois State
Police. On December 7, 2018, all three daughters were
interviewed at the Children's Advocacy Center. Petitioner
attached to her petition a letter from Illinois State Trooper
Corrine Mead, detailing what the girls disclosed during the
interviews. Trooper Mead noted the girls stated respondent
touched them in their private areas and took baths with them.
They also stated respondent walked in the bathroom and opened
the curtain while they showered, even after they had
requested him to leave. The girls reported feeling
uncomfortable and unsafe while in respondent's custody.
Thereafter, the Department of Children and Family Services
(DCFS) opened a case. Petitioner alleged respondent
voluntarily agreed not to be a caretaker for the minor
children until the DCFS and criminal investigations were
over. In support of that allegation, petitioner attached a
letter from Carla Jones, a DCFS child protection
investigator, to the minor children's school, advising a
school official respondent had agreed not to be a caretaker
during the pending investigation and that the school should
not release the minor children to respondent. However,
respondent changed his mind and wanted visitation with his
daughters. Petitioner alleged she did not think it was safe
for her daughters to be alone with respondent, and the
daughters were scared of respondent. In the petition,
petitioner asked for physical care and possession of the
minor children, temporary custody of the minor children, the
court to reserve visitation until a further hearing, and an
order prohibiting respondent from having any contact
whatsoever with her and the girls.
6 On December 19, 2018, the circuit court issued an emergency
order of protection against respondent, reserving visitation
until further order of the court and prohibiting respondent
from having any contact with petitioner and the girls. The
emergency order of protection remained in effect until the
completion of the hearing on the plenary order of protection.
7 On January 28, 2019, the circuit court commenced the
hearing on petitioner's request for a plenary order of
protection. Petitioner testified on her own behalf and called
respondent as an adverse witness. She also presented the
testimony of Kate Wheeler, the girls' counselor.
Respondent testified on his own behalf and presented the
testimony of the following: (1) Robert Jacobson, the limited
guardian ad litem in the divorce case; (2) John
Kelly, respondent's friend; (3) Dustin Ehler, who used to
work for respondent's family; (4) Patricia M.,
respondent's mother; and (5) John M., respondent's
father. He also presented (1) an August 2, 2018, report by
the limited guardian ad litem, (2) text messages
between the parties, and (3) photographs of respondent and
8 During the direct examination of Wheeler, respondent's
counsel raised a hearsay objection to a question asking
Wheeler to disclose what Au. M. told her regarding abuse
during a counseling session on November 20, 2018.
Respondent's counsel asserted admissibility of the
minor's out-of-court statements was governed by section
8-2601 of the Code of Civil Procedure (Procedure Code) (735
ILCS 5/8-2601 (West 2018)) and petitioner had not established
the requirements for admissibility. Specifically, the child
was not present to testify, and petitioner had not made a
showing of the child's unavailability. Petitioner's
counsel argued section 606.5(c) of the Illinois Marriage and
Dissolution of Marriage Act (Dissolution Act) (750 ILCS
5/606.5(c) (West 2018) (formerly section 606(e) of the
Dissolution Act)) applied. Respondent's counsel asserted
that, even if section 606.5(c) applied, the statements were
not admissible unless corroborated. In response,
petitioner's counsel suggested the circuit court should
reserve ruling until additional evidence corroborating the
out-of-court statements could be presented. The court
reserved ruling on the objection to "wait and see what
corroboration there is and what indicia of reliability there
is." Both Wheeler and petitioner then gave testimony
that included out-of-court statements made by the three
9 After the close of petitioner's evidence, the circuit
court took up the issue on the admissibility of the
girls' out-of-court statements. Respondent's counsel
argued petitioner did not present any corroborating evidence
and noted petitioner failed to present any medical evidence
of abuse. Petitioner's counsel asserted the girls'
demeanors and actions were corroborative evidence. The court
admitted the statements, agreeing with petitioner's
counsel the girls' actions and demeanors corroborated
their out-of-court statements. In admitting the statements,
the court never specified the statute it relied upon. Once
the court admitted the evidence, respondent's counsel