NO. 4-07-0192

Filed 6/26/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JAMES FRANK,

 Petitioner-Appellee,

 v.

BRENT D. HAWKINS,

 Respondent-Appellant.

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 Appeal from

 Circuit Court of 

 Macon County

 No. 07OP7

 Honorable

 Lisa Holder White,

 Judge Presiding.

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In January 2007, petitioner, James Frank, filed a

petition for an emergency order of protection on behalf of his

children, Donovan and Hayli Frank, requesting that the trial

court enter the order against respondent, Brent D. Hawkins, who

shared a common household with petitioner's children. The court

entered an emergency order of protection. In February 2007, the

court entered a plenary order of protection (order) against

respondent. Respondent appeals the entry of the order. We

affirm entry of the order but remand with directions that the

order be corrected on its face.

I. BACKGROUND

In January 2007, petitioner filed a petition for an

emergency order of protection on behalf of his children, Donovan

Frank, age 14, and Hayli Frank, age 10. In the form petition,

petitioner checked the box indicating that the relationship

between the children and respondent was "shared/common dwelling." 
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 An attachment indicated that the petition for the emergency

order of protection stemmed from an incident that occurred late

at night on December 21, 2006, at the home of Donovan, Hayli,

their mother Ronette Frank (Ronette), and respondent. Respondent

allegedly destroyed the Christmas tree, broke many items in the

house, and threatened to kill the family pets. The petition also

alleged that the children were frightened of respondent. Additionally, the petition stated that respondent had other orders of

protection against him which he had violated, he had previous

battery charges on his record, and he had pleaded guilty to

domestic battery of Ronette in 2000.

On January 3, 2007, petitioner appeared for an ex parte

hearing on the petition for an emergency order of protection. He

testified that respondent was Ronette’s boyfriend and Ronette was

the mother of Donovan and Hayli. The trial court entered an

emergency order of protection. The form order indicated that the

petition was being brought by petitioner on behalf of the

"[c]hild(ren) as noted on page 6, [p]art C of this order." The

jurisdiction section of the form order indicated that the persons

protected by the order were "[m]inor child(ren) who are so

identified on page 6 of 11, [p]art C of this order" and that the

court had jurisdiction over the minor children. The general

findings section of the form order indicated that "[t]he

[r]espondent has abused the [p]etitioner and/or the child(ren) so

identified in [p]art C (page 6 of 11) of this order and/or the

protected person(s)." No names are written in part C of the
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order. Summons was served on respondent on January 3, 2007. The

summons reflected the action was brought on behalf of Donovan

Frank and Hayli Frank.

In February 2007, a hearing was held to determine

whether a plenary order of protection would be entered. Respondent testified that up until entry of the January 2007 emergency

order of protection, he had lived at 708 East Van Buren with

Ronette, Donovan, and Hayli. Respondent acknowledged that

previously three orders of protection had been entered against

him by three different people. Respondent did not recall having

pleaded guilty to three violations of orders of protection. He

acknowledged that he had pleaded guilty to a 2000 domestic

battery committed against Ronette. Respondent did not believe

the children had been present when he had battered Ronette. 

Respondent denied ever holding a knife to Ronette's throat. He

admitted he had a misdemeanor theft conviction.

On December 21, 2006, respondent stopped by a bar on

his way home from work. Ronette was not home when he arrived

home. She and the children arrived home several hours later. 

Respondent was asleep on the couch when they got home and claimed

he stayed asleep the rest of the evening. They did not speak

that night because he was asleep.

Respondent denied he "trashed" the upstairs (main

floor) of the house. Respondent claimed he fell into the Christmas tree while he was trying to get his change jar off the mantel

behind the tree. Respondent slipped in the cords, tried to grab
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the tree to catch himself, and the tree fell apart. Respondent

admitted he was a "little upset" by the tree falling. Respondent

knocked over the television. The television fell onto a vase and

broke it. Respondent did not pick up anything because he was

tired and it was a big mess. He planned to pick it up the next

day. Respondent denied smashing the dishes and dishware in the

kitchen.

Respondent called Ronette's grandmother's house around

10:30 or 11 p.m., but Ronette was not there. Respondent denied

that he threatened to kill the pit bull dog that night. He

admitted having done so on a previous occasion three or four

weeks before December 21, 2006.

Respondent denied having "trashed" the basement of the

house that evening. Respondent denied having destroyed anything

when Ronette and the children were there. He stated that the

only thing that was broken was the vase and that the tree had

been knocked over. Respondent denied yelling at, swearing at, or

threatening the children that night. Respondent stated he had

never laid a hand on Donovan or Hayli.

Ronette testified that her address was 708 East Van

Buren, Decatur, Illinois. She is the mother of Donovan and

Hayli. She is divorced from petitioner. Ronette maintained that

respondent is Hayli's father but that in the divorce proceedings

petitioner was named the father of both children. Ronette and

respondent had been together going on 12 years, and they had been

together for a solid 7 years.
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Ronette denied ever having an order of protection

against respondent. Ronette did not recall having been the

victim of domestic battery at the hands of respondent in 2000. 

She remembered an argument that resulted in the police being

called, but she did not recall that respondent pleaded guilty to

domestic battery. Ronette maintained that respondent had never

abused her, hit her, or laid a hand on her. Ronette denied that

respondent drank or came home drunk.

Regarding the incident on December 21, 2006, shortly

after 9 p.m. Ronette picked up her children from petitioner's

house and took them to her grandmother's while she went to finish

up her Christmas shopping. At approximately 12:30 a.m., Ronette

went to the house to drop off the presents she had purchased. 

When she arrived home, she noticed that the Christmas tree was

all messed up. No furniture was knocked over. Respondent was

asleep on the couch so she did not talk to him. Ronette put the

gifts in Donovan's bedroom and left to pick up the children. 

They arrived back home about 1 a.m.

Ronette denied receiving a phone call from respondent

after she returned to her grandmother's or that respondent had

threatened to kill the pets if she did not get home. Ronette

thought her grandmother may have received a call from respondent

inquiring if she was there to get the children.

When Ronette arrived back home with the children, the

house was in the same condition. Respondent was still asleep on

the couch, so she nudged him and asked what had happened to the
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tree. He said something about getting caught up in the cords,

and grabbing hold of the tree, and coming down with it. Ronette

said she would worry about it in the morning. The house had only

two bedrooms, one for Donovan and one for Hayli. Respondent

slept on the couch when the children were there and Ronette slept

on another couch. When the children were gone, sometimes Ronette

slept in Donovan's room because she got tired of sleeping on the

couch. Ronette stated that the basement was where the dogs

stayed and where the laundry room was located. The basement was

a mess with unpacked boxes. They rarely went down into the

basement. Ronette and the children went to bed in Hayli's room. 

Ronette maintained that was because she had hidden the Christmas

presents in Donovan's room. Ronette claimed she did not sleep on

the other couch because she did not want to step on any of the

debris from the Christmas tree if she got up to use the bathroom

in the middle of the night.

Ronette denied getting into an argument with respondent

or that she went down in the basement with him. Ronette further

maintained that respondent had not done any damage to the basement of the house later that night.

Ronette testified that respondent had never laid a hand

on either of the children. She stated that she had never seen

respondent hit, push, or use the belt on the children. Ronette

denied offering her children money and to buy them things in

exchange for their false testimony at the hearing. She testified

that her son lies to her, has behavioral problems, and gets into
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trouble.

Virginia Spires testified that she is Ronette's grandmother. On the evening of December 21, 2006, Spires watched the

children while Ronette finished her Christmas shopping. Ronette

dropped the children off around 9 p.m. and returned around 12:30

a.m. During that time period, respondent called to inquire if

Ronette had been there to pick up the children. Spires did not

speak to respondent again that evening. Spires testified that

when Ronette came to pick up the children, Ronette did not say

anything about respondent messing up the Christmas tree or 

destroying items in the house.

Donovan and Hayli Frank were called to testify by

petitioner. At the request of petitioner's counsel, and without

objection by defense counsel, the testimony was given in chambers

with only the judge and attorneys present.

Donovan testified that he was 14 years old and was in

the eighth grade. He attended Thomas Jefferson Middle school. 

Donovan lived at his father's house every Monday, Thursday, and

every other weekend. The rest of the time he lived at his

mother's house along with his sister Hayli and respondent.

Late on December 21, 2006, Donovan was at his grandmother's (technically great-grandmother's) house because his

mother was out Christmas shopping. Before Ronette came to pick

up Donovan, she stopped by their house to tell respondent she was

done Christmas shopping and was going to go pick up the children. 

When Ronette arrived at her grandmother's house, she was crying. 
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Ronette told them that the house "was destroyed." She said that

the Christmas tree had been thrown and the entertainment center

had been broken.

Before they left their grandmother's house, respondent

called five times. Respondent apparently told Ronette she needed

to hurry up and get home or he was going to kill their pets

because Donovan heard Ronette say, "[y]ou better not kill my dog,

or I'll call the cops on you." When they arrived home, respondent was acting like he was asleep. According to Donovan, the

television had been thrown into his room from the living room,

the entertainment center had been broken, candles that had been

on a table were all over the floor, and a glass-topped table had

been thrown across the room bending the frame. In the hallway, a

box of screws had been thrown so screws were everywhere. The

computer mouse and keyboard had been thrown and the keyboard had

been broken. Papers had been thrown on the floor. In the

kitchen, glasses, bowls, plates, and the coffee pot had been

smashed on the floor. A small compact disc player had also been

broken in the kitchen.

Donovan, Hayli, and Ronette went into Hayli's bedroom

and went to bed. All three of them went into Hayli's bedroom

because Ronette was afraid that if Donovan went in his own room

to sleep respondent would "mess with" him.

About 20 minutes later, respondent started yelling at

them and calling Ronette a "cheater." Respondent went down to

the bedroom in the basement, and they heard "stuff being thrown
- 9 -

down there." At Ronette's request, Donovan went down to the

basement to peek at what respondent was doing. Donovan saw

respondent pull out the dresser drawers and search them. Donovan

saw respondent throw the mattress to Ronette's bed across the

room. Respondent knocked over the vanity. Donovan went upstairs

and told Ronette what respondent was doing. Ronette went down to

the basement. She and respondent argued.

The next morning, Ronette and Donovan got up and

cleaned the upstairs. Respondent cleaned up the basement. 

Respondent did not want her to leave and things escalated into an

argument. Respondent said he had been looking for any letters

Ronette may have received from her ex-boyfriend since respondent

had come back to live with them.

Donovan stated that when he was younger he was a "bad

kid" and got into trouble a lot. Respondent disciplined Donovan,

including whipping Donovan with respondent's hands or a belt. 

Donovan had not been in trouble recently so respondent had not

meted out any discipline. Donovan stated that Hayli was "the

good kid," and respondent did not spank her.

Donovan said Ronette promised him that she would pay

him $100, buy him a "PS 3 [PlayStation 3]," and buy him minutes

on his cell phone if he would lie to the judge and say that

respondent never destroyed the house, took them out to eat all

the time, never went out drinking, and never came home drunk. 

However, Donovan stated that respondent got drunk every day and

in the past three months had taken them out to eat about four
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times.

Donovan admitted having spoken with defense counsel on

an occasion prior to the hearing. He admitted that he had

previously told defense counsel that respondent never hit or

yelled at anyone.

Hayli testified that she was 10 years old and lived at

708 East Van Buren Street. She attended South Shores Elementary

school. Hayli lived with her mother most of the time but had a

regular schedule of living some of the time with her father. 

Others who lived in her mother's house were Donovan and respondent. Respondent had lived with them when Hayli was younger and

then had moved back in a few months ago.

When Hayli was younger, respondent had spanked her. 

She had also seen respondent hit Donovan with a belt and spank

him.

Hayli stated that right before Christmas, respondent

had "supposedly" messed up or "trashed" the house. Hayli explained that she said "supposedly" because most of the damage had

occurred while she was at her grandmother's (technically greatgrandmother's) house. On the evening of the damage, Ronette told

Hayli that respondent had destroyed items in the house. However,

the next day Ronette said she herself may have done so. Ronette

told Hayli that respondent said he was going to kill the animals.

Respondent was asleep on the couch when they got home. 

Hayli thought that respondent was really faking being asleep and

acting like nothing had happened. Hayli, Donovan, and Ronette
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went up to Hayli's bedroom shortly after they arrived home. As

they were falling asleep, Hayli heard respondent go down into the

basement where Ronette had her bedroom and heard him throwing

things around and tearing the drawers out of her mother's

dresser. Donovan saw respondent tearing up the basement. A few

minutes later, Ronette went down to the basement. Before she

went down to the basement, she told the children "'[i]f you hear

me scream, then call the cops.'" Ronette and respondent argued

in the basement.

The next morning, Hayli saw the damage that had been

done upstairs. Glass was all over the place. A glass picture

that had been in the kitchen was broken, a stand that held cans

in the kitchen had been knocked over, the keyboard and other

"stuff" had been knocked over, papers from the computer desk were

all over the place, the computer desk chair had been knocked

over, and the Christmas tree had been knocked over and torn

apart.

The day before the hearing, Ronette had promised to (1)

give Hayli $100, (2) buy her a cell phone, and (3) give her

permission to go out and buy whatever she wanted if she would

testify that nothing bad had happened and that respondent had not

done anything except trip over the Christmas tree.

The trial court admitted petitioner's exhibit No. 2

into evidence. The exhibit contained the information charging

respondent with domestic battery against Ronette on or about July

6, 2000, and a copy of the August 8, 2000, docket entry indicat-
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ing respondent's guilty plea to that charge.

After hearing arguments of counsel, the trial court

stated:

"We'll show witnesses sworn. Evidence heard. 

[Defense counsel] is correct in that, of

course, the [c]ourt does have to first make a

finding that there is some abuse, and at

times there is a misconception that there has

to be actual physical abuse, that someone has

to be hit or struck or something of that

nature, but the [c]ourt believes that the

statute is clear in that it's not appropriate

and it is harassment and abuse for an individual to be subjected to treatment that's

been described here in terms of coming home

and finding your house in disarray or being

threatened that your animals will be hurt if

you don't come home, someone repeatedly coming to the home intoxicated and yelling and

causing a disruption. All those things constitute abuse and harassment, and the [c]ourt

does find that the testimony of the minor

child, Hayli, was credible. There has been

no one who's questioned her credibility. 

There's been no testimony regarding her having problems with telling the truth or being
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in trouble or anything of that nature, and so

the [c]ourt does find that the petitioner has

sustained his burden of proof. The prayer of

the petition is granted."

The trial court entered the written order. The form

order indicated that it was being brought by petitioner on behalf

of "[c]hild(ren) as noted on page 6, [p]art C of this order." 

The jurisdiction section of the form order indicated that the

persons protected by the order were petitioner and "the [m]inor

child(ren) identified in [p]art C, (page 6 of 13) of this order"

and that the court had jurisdiction over "the minor child(ren)

and/or other protected persons." The general finding section of

the form order indicated that "[r]espondent has abused the

[p]etitioner and/or the child(ren) so identified on [p]art C

(page 6 of 13) of this order and/or the protected person(s)

listed on [p]age 1 of 13 of this order." No names are written in

part C of the order.

The order prohibited respondent from committing acts of

abuse or threats of abuse against "all protected persons,"

including harassment, interference with personal liberty, physical abuse, stalking, intimidation of a dependent, willful deprivation, neglect, and exploitation. Further, respondent was

ordered to stay 100 feet away from "[p]etitioner and/or other

protected person(s)," stay 500 feet away from the residence of

"[p]etitioner and/or other protected person(s), currently located

at 708 [East] Van Buren, Decatur, [Illinois], while children are
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present." Respondent was prohibited from "entering or remaining

while [p]etitioner and/or protected person(s) is/are present at:

*** [t]heir school, located at Thomas Jefferson, Decatur, [Illinois], So[uth] Shores, Decatur, [Illinois]." Respondent was also

prohibited from entering or remaining in the residence or household while under the influence of drugs or alcohol and constituting a threat to the safety or well-being of petitioner or petitioner's children.

The docket entry for the hearing on the order stated:

"Cause called for hearing on the request

for [p]lenary [o]rder of [p]rotection. Witnesses sworn, evidence heard. Motion by the

[r]espondent for directive [sic] finding at

the close of the [p]etitioner's evidence. 

Arguments of counsel heard. Motion denied. 

*** Petitioner's exhibit [No.] 2 admitted

into evidence. Witnesses sworn. Evidence

heard to conclusion. Finding by the [c]ourt

that the [p]etitioner has sustained his burden of proof. Prayer of the [p]etition

granted. Order entered and extended for two

years."

The circuit clerk certified she mailed a copy of the order to

respondent on February 9, 2007. This appeal followed.

II. ANALYSIS

Respondent appeals entry of the order, arguing that (1)
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the order of protection as entered failed to comply with statutory requirements, (2) the trial court's finding of abuse was

against the manifest weight of the evidence, and (3) the trial

court abused its discretion in entering the order of protection.

A. No Appellee Brief Was Filed

Petitioner has failed to file 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

*** court can easily decide them without the aid of an appellee's

brief, [the] court should decide the merits of the appeal." 

Benjamin v. McKinnon, 379 Ill. App. 3d at 1019, 887 N.E.2d at

14. On the other hand, if the appellant's brief demonstrates

prima facie reversible error and the contentions in the brief

find support in the record, the trial court's judgment may be

reversed. First Capitol Mortgage Corp. v. Talandis Construction

Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

B. The Domestic Violence Act Is To Be Liberally Construed

In the text of the Illinois Domestic Violence Act of

1986 (Act) (750 ILCS 60/102 (West 2006)), the legislature specifically provides the Act's provisions are to be liberally construed to "promote its underlying purposes." The Act states:

"This Act shall be liberally construed

and applied to promote its underlying pur-
- 16 -

poses, which are to:

(1) Recognize domestic violence as a

serious crime against the individual and

society which produces family disharmony in

thousands of Illinois families, promotes a

pattern of escalating violence which frequently culminates in intra-family homicide,

and creates an emotional atmosphere that is

not conducive to healthy childhood development;

* * *

(4) Support the efforts of victims of

domestic violence to avoid further abuse by

promptly entering and diligently enforcing

court orders which prohibit abuse and, when

necessary, reduce the abuser's access to the

victim and address any related issues of

child custody and economic support, so that

victims are not trapped in abusive situations

by fear of retaliation, loss of child, financial dependence, or loss of accessible housing or services[.]" 750 ILCS 60/102(1), (4)

(West 2006).

C. The Record Supports the Conclusion That the 

Trial Court Intended the Children To Be

Protected Parties Under the Order

Respondent argues that the order entered in this case
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failed to comply with the statutory requirements of the Act. 

First, respondent argues that the trial court's failure to check

certain boxes on page one of the form order left the court's

intentions unknown regarding whether respondent was (1) prohibited from committing further acts of abuse or threats of abuse,

or (2) to stay away from petitioner and other protected persons.

Second, respondent argues that the "fatal defect" in

the order was its failure to comply with the requirements of

section 221(b)(1) of the Act requiring that an order of protection shall state "[t]he name of each petitioner that the court

finds was abused, neglected, or exploited by respondent, and that

respondent is a member of the family or household of each such

petitioner, and the name of each other person protected by the

order and that such person is protected by this Act." 750 ILCS

60/221(b)(1) (West 2006).

Because nowhere in the order entered in this case are

petitioner's children identified specifically by name as protected persons under the order, respondent maintains that the

only protected person who was identified within the order of

protection is petitioner, James Frank, and that the record does

not support entry of an order for petitioner.

Third, respondent argues that reversal of the order is

required because the order "cannot be appropriately amended or

corrected or 'fixed' on remand." Respondent maintains this is

because the record is insufficient to establish or to "constitute

a memorandum" (1) of what remedies the trial court intended to
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grant, or (2) that the court exercised the judgment and judicial

discretion necessary to determine the appropriate remedies or

prohibitions to incorporate into the order. We disagree.

The duty of the reviewing court is to "consider the

trial record as a whole and to ignore errors that are harmless." 

People v. Robinson, 368 Ill. App. 3d 963, 977, 859 N.E.2d 232,

247 (2006). When reviewing the record as a whole in the case sub

judice, clearly the persons to be protected by these proceedings

are Donovan and Hayli Frank. Clearly, the trial court intended

that respondent be prohibited from committing further acts of

abuse or threats of abuse against Donovan and Hayli and that

respondent stay away from Donovan and Hayli. The emergency order

of protection entered and served on respondent on January 3,

2007, listed 708 East Van Buren Street as respondent's address

and also the children’s address. The order specifically ordered

respondent to stay 500 feet away from 708 East Van Buren Street

"when children are present" and prohibited him from entering or

remaining at the children’s respective schools "while

[p]etitioner and/or other protected person(s) are present." The

summons served on respondent after entry of the emergency order

of protection reflected that the action was brought on behalf of

the children.

At the February 2007 hearing on the order, respondent

testified that he had lived at 708 East Van Buren until entry of

the emergency order of protection. It can be inferred that he

understood that per the emergency order of protection he could
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not live at 708 East Van Buren because he could not be around the

children who lived there. Moreover, respondent was present at

the plenary hearing where the evidence clearly pertained to the

children.

In the trial court's statements after hearing the

evidence, the court indicated that petitioner had met his burden

by a showing that the members of the household, i.e., Donovan and

Hayli Frank, had been harassed and abused. Even though the court

did not state that the petitioner had met the burden specifically

as it related to Donovan and Hayli Frank, it is obvious from the

record as a whole that they were the subject of the petition for

the order of protection and the persons intended to be protected

under the order.

Admittedly, the form order is missing information. 

However, it contains sufficient information as to the type of

remedies the trial court intended to order and, therefore, it is

not fatally defective. Within the body of the order, the court

checked boxes in the area of "remedies involving personal protection" with respect to all protected persons. The court checked

boxes ordering respondent to stay 100 feet away from those

protected persons and stay 500 feet away from the residence of

those protected persons while those protected persons were

present. Further, the court checked boxes prohibiting respondent

from entering or remaining at the schools of those protected

persons while those protected person were present. The court

also checked boxes prohibiting respondent from entering or
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remaining in the residence or household of those protected

persons while under the influence of drugs or alcohol that would

constitute a threat to the safety or well-being of those protected persons.

The preprinted form order is missing information. Such

omissions are harmless error and can be corrected ministerially. 

Therefore, the trial court is advised to amend the order on its

face to include the inadvertently omitted check marks on page one

under "[t]he court orders," and on page six to set forth specifically the names of Donovan and Hayli Frank as protected parties

under the order of protection.

D. The Trial Court's Findings Were Not Against the

Manifest Weight of the Evidence

Respondent next argues that the trial court's findings

were against the manifest weight of the evidence. Specifically,

respondent maintains that the court's characterization of respondent's conduct as "harassment and abuse" is against the manifest

weight of the evidence because (1) the court relied upon the

unsworn testimony of Donovan and Hayli; (2) the court relied upon

Donovan's testimony, which was "laden with hearsay and was

completely impeached by his admissions concerning the statements

he had made to [respondent's] attorney," and even though the

court contrasted his credibility by noting that Hayli's testimony

was "credible"; (3) even if the testimony of Donovan and Hayli

was properly considered, neither child (a) testified that they

had "suffered or felt any adverse consequences from [respon-
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dent's] conduct, or (b) claimed to have been "fearful or frightened, anxious, worried[,] or even 'uncomfortable'"; (4) no

evidence suggested that respondent "intended for either child to

be fearful or frightened, anxious, worried[,] or uncomfortable";

and (5) the children's statements were "inherently suspect"

because they were premised upon "the notion that [respondent] was

rip-roaring drunk and on a rampage that night, except that he was

on the couch, appearing to them to be doing a pretty good job of

feigning sleep, a pose he maintained for 20 minutes or more after

the children arrived home, and then--like flipping a switch--he

was rampaging again."

1. Donovan and Hayli Gave Sworn Testimony

The testimony of Donovan and Hayli was taken in chambers in the presence of the State and defense counsel. The

record reflects that their testimony was not taken down by a

court reporter but was recorded by a system in a control room on

another floor of the courthouse. Before ruling on the petition

for the order, the trial court noted witnesses were sworn. 

Further, the docket entry for the order twice indicated that

witnesses were sworn. Therefore, the record strongly suggests

that the children were sworn before giving their testimony in

chambers.

Moreover, respondent was represented by counsel. No

objection was made at the hearing about Donovan and Hayli not

being sworn. Counsel cannot stand by and permit such an irregular proceeding to take place and then argue such irregularity is
- 22 -

error. People v. Dahlin, 184 Ill. App. 3d 59, 64, 539 N.E.2d

1293, 1296 (1989). Counsel cross-examined Donovan and Hayli

without reservations. Consequently, even if it could be determined with certainty that Donovan and Hayli had not been sworn,

the issue has been forfeited because of counsel's failure to

bring this irregularity to the attention of the trial court. The

court's judgment cannot be reversed on that ground. Dahlin, 184

Ill. App. 3d at 64, 539 N.E.2d at 1296, citing People v. Krotz,

341 Ill. 214, 220, 172 N.E. 135, 138 (1930).

2. The Trial Court's Finding of Abuse Was

Not Against the Manifest Weight of the Evidence

 Respondent argues that (1) Donovan's testimony was not

credible; and (2) even if the trial court properly considered the

testimony of Donovan and Hayli, their testimony did not support

the court's finding of abuse of the children by respondent. The

standard of proof in a proceeding under the Act is by a preponderance of the evidence. 750 ILCS 60/205(a) (West 2006). "When

a trial court makes a finding by a preponderance of the evidence,

this court will reverse that finding only if it is against the

manifest weight of the evidence." Best v. Best, 223 Ill. 2d 342,

348-49, 860 N.E.2d 240, 244 (2006). When reviewing a trial

court's decision under the manifest-weight-of-the-evidence

standard, courts of review "give deference to the trial court as

the finder of fact because it is in the best position to observe

the conduct and demeanor of the parties and the witnesses and has

a degree of familiarity with the evidence that a reviewing court
- 23 -

cannot possibly obtain." In re D.F., 201 Ill. 2d 476, 498-99,

777 N.E.2d 930, 943 (2002). Therefore, determinations as to the

credibility of witnesses, weight of the evidence, and inferences

drawn therefrom are uniquely within the province of the trial

court, and this court must not substitute our judgment for that

of the trial court. In re D.F., 201 Ill. 2d at 499, 777 N.E.2d

at 943.

Respondent maintains that neither child testified that

they had "suffered or felt any adverse consequences from [respondent's] conduct" nor claimed to have been "fearful or frightened,

anxious, worried[,] or even 'uncomfortable.'" The record demonstrates otherwise. Before Donovan began his testimony in chambers, the following colloquy occurred between him and the court:

"THE COURT: I'll tell you what, if you

would put him here so that we can pick up his

voice.

Good morning.

DONOVAN FRANK: Where's that be?

THE COURT: I'm sorry?

DONOVAN FRANK: Is that being out there?

THE COURT: No. Absolutely not. No. 

The reason we have you here is so that--

DONOVAN FRANK: So they can't hear what

I'm saying out there?

THE COURT: No, they cannot.

DONOVAN FRANK: All right.
- 24 -

THE COURT: We have a control room here

in the courthouse on the sixth floor, and it

allows them to record what's going on in

here, but not in the courtroom. No one can

hear you."

This colloquy permits the inference that Donovan was fearful,

frightened, anxious, worried, and uncomfortable about respondent

hearing his testimony. The inference could be drawn that Donovan

feared reprisal from respondent for testifying against him, fear

that was not unwarranted given respondent's violent history.

Respondent further maintains that Donovan's testimony

was not credible because it was either impeached by what Donovan

had told defense counsel on an earlier occasion, or laden with

hearsay. Again, the record shows otherwise. Respondent was

represented by counsel who did not raise any objection to the

hearsay testimony. The failure to object to hearsay testimony

not only constitutes forfeiture of the issue on appeal, "but

allows the evidence to be considered by the trier of fact and to

be given its natural probative effect." People v. Ramsey, 205

Ill. 2d 287, 293, 793 N.E.2d 25, 29 (2002). Much of Donovan's

testimony was corroborated by that of Hayli. Both Donovan and

Hayli testified that in the past Donovan had been whipped by

respondent with either a belt or respondent's hands. Donovan

testified about his own observation of his mother crying on

December 21, 2006, when she returned to her grandmother's house

to pick up the children. Donovan testified that his mother "told
- 25 -

us that, like, the Christmas tree was thrown and our entertainment center was broke and all that." Hayli testified that her

mother told her that respondent had destroyed items in the house;

however, the next day her mother said she may have done it. 

Donovan testified that respondent called his mother while they

were still at her grandmother's house. Donovan understood that

respondent had told his mother they had better get home quickly

or respondent was going to hurt their pets because Donovan heard

his mother on the phone say, "[y]ou better not kill my dog, or

I'll call the cops on you." Hayli testified that her mother told

her respondent threatened to kill the animals.

Donovan testified that when they returned home he

observed that the house was in total disarray and many items were

broken throughout the living room, hallway, and kitchen. Respondent was, in Donovan's opinion, pretending to be asleep on the

couch. Donovan testified that he, his sister, and his mother all

went to sleep in Hayli's bedroom because his mother was afraid if

Donovan went to his bedroom respondent would "mess with" him. 

Donovan testified that shortly after they went to bed, he heard

respondent yelling at them. Respondent went down to the basement, and Donovan testified they "heard the stuff being thrown

down there." Hayli testified that shortly after they got home,

she heard respondent go down to the basement and start throwing

things around. Hayli stated she did not see what damage respondent did in the basement but Donovan did because he went down and

peeked. Donovan testified that he went down to the basement at
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his mother's request and witnessed respondent upending the

mattress, pulling drawers out of the dresser and rifling through

its contents, and knocking over the vanity. Donovan testified

that his mother went down to the basement, and Donovan heard them

arguing. Hayli testified that as her mother went down to the

basement she told the children, "[i]f you hear me scream, then

call the cops." Hayli heard her mother and respondent arguing. 

Donovan testified that the next morning, he and his mother

cleaned up the mess. Hayli testified that the next morning she

saw all the damage that had been done upstairs with glass everywhere and everything in disarray.

Donovan did admit to defense counsel that he had

previously told defense counsel that respondent never yelled or

cussed at anyone, never hit him, and that respondent was always

nice to him. The trial court could have reasonably inferred that

Donovan’s apprehension and fear of respondent may have led him to

deny being abused by respondent to respondent’s own attorney.

Both children testified to the fact that their mother

had offered them money and other items if they would testify

falsely at the hearing.

"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." Best, 223 Ill. 2d at 350, 860 N.E.2d at

245. "Abuse" as defined under section 103(1) of the Act means

"physical abuse, harassment, intimidation of a dependent, inter-
- 27 -

ference 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 2006). 

"Harassment" as defined under the Act "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." 750 ILCS 60/103(7) (West 2006). "Harassment does not

necessarily require an overt act of violence." People v.

Whitfield, 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265 (1986). 

The Act recognizes that domestic violence is a serious crime

against individuals and society and that domestic violence

produces family disharmony and "creates an emotional atmosphere

that is not conducive to healthy childhood development[.]" See

750 ILCS 60/102(1) (West 2006).

The evidence presented in the case sub judice supported

the trial court's finding of abuse. The testimony of Donovan was

corroborated by Hayli's testimony and vice-versa. Ronette's

testimony was incredible. Respondent's testimony proved that he

has a serious history of violence against others with whom he has

had an intimate relationship. During the December 21, 2006,

incident, respondent's actions were violent. For the children to

come home to find their home in shambles and their personal

belongings smashed and thrown around, then to witness and/or hear

respondent throwing and destroying things in the basement, and

then to see the aftermath of his rampage, could only have led to
- 28 -

an atmosphere of emotional distress and anxiety. Respondent's

past history of domestic battery against the children's mother,

and respondent's rampage on the evening of December 21, 2006,

could only have led the children to fear that more was in store

for their mother or even them. Respondent's conduct constituted

psychological abuse, harassment, and intimidation.

Moreover, respondent's actions also constituted physical abuse under the Act. Respondent's first rampage of destruction was not enough. He pretended to be asleep as Ronette,

Donovan, and Hayli came in the house. They went to bed. Moments

later, respondent took up his rampage again and destroyed additional household items by throwing them across Ronette's bedroom

and upending her bedroom furniture. The Act defines "physical

abuse" to include "knowing or reckless use of physical force,

confinement or restraint" and "knowing or reckless conduct which

creates an immediate risk of physical harm." 750 ILCS

60/103(14)(i), (iii) (West 2006). Respondent's destructive

rampage while the children were present in the home constituted

knowing and reckless use of physical force and created an immediate risk of physical harm to Donovan and Hayli. Further, respondent previously abused Donovan physically when he whipped Donovan

with his hands and a belt.

The court's finding of abuse in this case was neither

unreasonable nor arbitrary, nor was the opposite conclusion

clearly evident. Therefore, the court's finding was not against

the manifest weight of the evidence.
- 29 -

E. The Trial Court Did Not Abuse Its Discretion

in Entering the Order

Respondent also argues that the trial court abused its

discretion in entering the order and in granting the remedies

requested. Respondent maintains that no evidentiary basis

supported the finding that "the conduct or actions of the

[r]espondent, unless prohibited, will likely cause irreparable

harm or continued abuse" based upon respondent's conduct on

December 21, 2006. Regarding the remedies granted, respondent

argues that the only remedy supported by the evidence is that

which prohibited respondent from "entering or remaining in the

residence or household while under the influence of drugs or

alcohol and constituting a threat to the safety or well-being of

[p]etitioner or [p]etitioner's children." Respondent maintains

that "[a]nything beyond that simple prohibition constitutes

'overkill,' contravenes the specific provisions of the Act, goes

without any evidentiary support in the record, and constitutes an

abuse of judicial discretion." Respondent argues the court

abused its discretion because the court did not "employ conscientious judgment in the drafting and in the entry of the [o]rder." 

We disagree.

When a trial court crafts an order of protection after

finding abuse, it "acts as a shaper of remedies" and, in that

capacity, the court has "true discretion." Best v. Best, 358

Ill. App. 3d 1046, 1053, 832 N.E.2d 457, 463 (2005). Therefore,

we review the court's granting of remedies in the order of
- 30 -

protection under an abuse-of-discretion standard.

After a finding of abuse, the statute provides that "an

order of protection prohibiting the abuse, neglect, or exploitation shall issue" provided that the petitioner also satisfies the

requirements of section 219 of the Act relating to plenary orders

of protection. (Emphasis added.) 750 ILCS 60/214(a) (West

2006). (Respondent raised no issue whether petitioner satisfies

the requirements of section 219 of the Act.)

The Act provides a nonexclusive list of factors that

the trial court needs to consider when determining whether to

grant specific remedies other than payment of support. They

include:

"(i) the nature, frequency, severity,

pattern[,] and consequences of respondent's

past abuse, neglect[,] or exploitation of the

petitioner or any family or household member,

including the concealment of his or her location in order to evade service of process or

notice, and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner's or respondent's family or household; and

(ii) the danger that any minor child

will be abused or neglected or improperly

removed from the jurisdiction, improperly

concealed within the State or improperly
- 31 -

separated from the child's primary

caretaker." 750 ILCS 60/214(c)(1) (West

2006).

The best indicator of a person's future conduct is his

past conduct. See People v. Henderson, 142 Ill. 2d 258, 339, 568

N.E.2d 1234, 1272 (1990). That maxim applies to judicial functions where a person's future conduct is at issue, such as

determining whether to enter an order of protection. In those

certain situations, the trial court is free to consider a respondent's past conduct. Therefore, once the court found abuse, its

duty was to determine whether petitioner or others protected

under the Act were in need of future protection, and in doing so,

the court was free to consider respondent's past acts.

As noted previously, respondent's conduct on December

21, 2006, clearly constituted abuse under the Act. Respondent

had a history of domestic violence against the children's mother

and had used the belt on Donovan, other orders of protection had

been entered against him, and he had violated those orders of

protection. In accordance with the stated purpose of the Act to

support victims of domestic violence and avoid further abuse,

once the trial court found respondent had abused the children,

the court did not abuse its discretion in finding that (1) unless

prohibited from doing so, respondent would likely cause irreparable harm or continued abuse, and (2) it was necessary to grant

the relief requested in order to protect the children.

On the form order, the trial court checked the boxes
- 32 -

for remedies prohibiting respondent from committing acts of abuse

or threats of abuse against all protected persons, including (1)

harassment, interference with personal liberty, physical abuse,

or stalking; (2) intimidation of a dependent; (3) willful deprivation; (4) neglect; and (5) exploitation. Respondent was

further ordered to (1) stay 100 feet away from petitioner and the

children, (2) stay 500 feet away from the children's residence

when they are present, (3) not enter or remain at the children's

respective schools while they are present, and (4) not enter or

remain in the residence or household while under the influence of

drugs or alcohol and constituting a threat to the safety or wellbeing of the children.

Respondent need not have previously exhibited behavior

that would fit squarely into each of the remedies granted herein

before the trial court could order that he be prohibited from

doing so in the future. The only remedy imposed that appears to

be inappropriate is "neglect" because it is defined to apply

specifically to "high-risk adult[s] with disabilities." 750

ILCS 60/103(11)(A) (West 2006). Otherwise, the trial court did

not abuse its discretion in imposing the other remedies. Therefore, the trial court is directed to amend the order to delete

the neglect remedy on its face. In all other respects, we find

that the court did not abuse its discretion in entering the

order.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's
- 33 -

judgment as modified and remand with directions that the order be

corrected on its face.

Affirmed as modified and cause remanded with directions.

KNECHT and TURNER, JJ., concur.