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______________________________________________________________________________ 2019 IL App (5th) 180137 NOTICE Decision filed 07/23/19. The text of this decision may be NO. 5

- 18 -0137 changed or corrected prior to the filing of a Peti ion for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

RACHEL LANDMANN , ) Appe al from the ) Circuit Court of Petitioner

- Appellee, ) Bond County. ) v. ) No. 17- OP -101 ) KATLIN LANDMANN , ) Honorable ) Ronald R. Slemer, Respondent-Appellant. ) Judge, presiding.

JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Overstreet and Justice Chapman concurred in the judgment and opinion. OPINION ¶ 1 The r espondent, Katlin Landmann, appeals from the circuit court’s plenary order of protection entered on December 20, 2017, in which the court ordered the respondent to stay 500 feet away from the p etitioner, Rachel Landmann, and her four minor children for a p eri od of one year. On appeal, the respondent argues that the circuit court erred in admitting into evidence certain hearsay statements, failing to apply the adverse inference rule against the p etitioner, and finding that he abused the p etitio ner or other person. We reverse and vacate the circuit court’s judgment. ¶ 2 BACKGROUND ¶ 3 The petitioner and the r espondent are ex

- spouses and have three children together. On December 1, 2017, the p etitioner filed a petition seeking an emergency ex parte order of

p rotection against the r espondent pursuant to the Illinois Domestic Violence Act of 1986 (Act)(750 ILCS 60/101 et seq. (West 2016)). The petitioner sought protection for the parties’ three children as well as the p etitioner’s one- year - old child by another man. At t he time of the plenary hearing, O.L. was 10 years old, N.L. was 8 years old, and I.L. was 5 years old. The petition alleged that the r espondent spanked O.L., causing injury, because O.L. “did not know the answer to a math problem.” The p etitioner asserted she took O.L. to the emergency room for treatment, where the hospital staff and the police took photographs of O.L.’s injuries. Based on the allegations in the petition, the circuit court issued the ex parte order. ¶ 4 On December 20, 2017, the circuit court conducted a plenary hearing on the petition. At the hearing, the p etitioner testified that on November 30, 2017, the children returned home from

visitation with the r espondent. When they came home, O.L. was crying and “whining” that her

“butt hurt [ ] .” Over the r espo ndent’s hearsay objection, the p etitioner testifi ed that O.L. told her

that the r espondent spanked her 27 times because she did not know the answer to a math problem. The petitioner testified she observed on O.L.’s bottom a large red mark with br uising, which worsened over time. The petitioner took O.L. to the hospital f or treatment that evening. The p etitioner testified the hospital took photographs of O.L.’s injuries and contacted the police. During cross

- examination, the p etitioner denied recen tly seeking additional monthly support or a

vehicle from the r espo ndent or offering to allow the respondent additional parenting time in exchange for a vehicle. ¶ 5 The r espondent also testified at the hearing. During direct examination, the r espondent

deni ed spanking O.L. 27 times. The respondent stated he spanked O.L. three times and sent her to the corner because “she was having problems with her math homework.” The r espondent testified he spanked O.L. because she wanted him to give her the answer and she was not applyin g herself to her homework. The r espondent emphasized t hat he has “ rules in [his] house” and that O.L. “continued to ignore [him] and not try and not apply herself.” The respondent

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-testified the p etitioner recently requested ad ditional child support from him and attempted to bargain with him to obtain a c ar from him or his father. The respondent denied hurting O.L. but testified he was not aware whether the spanking left marks on O.L. ¶ 6 At the c onclusion of the evidence, the p etit ioner’s counsel requested the court enter a plenary order of protection, asserting that the respondent’s spanking of O.L. constituted abuse

because it resulte d in bruises lasting days. The respondent’s counsel requested the court dismiss the order of protection because the spanking constituted the “reasonable direction of a minor by a parent” and, therefore, fell within the statutory exclusion to abuse. The respondent also requested that the court apply the rule of adverse inference with regard to the alleged photographs of the bruising because the petitioner did not produce the photographs at the hearing and he believed that she had exclusive access to the photographs. ¶ 7 The circuit court, stating it “heard the evidence [and] considered t he credibility of the witnesses, ” entered a plenary order of protection for one year. The court entered a written order utilizing a preprinted form. In the written order, the court found the respondent “abused Petitioner and/or the children, ” that the actions of the r espondent would likely cause irreparable harm or continued abuse unless they are stopped, and that it was necessary to grant the r equested relief to protect the p etitioner and other abused persons. The preprinted order defined “abuse” as “physical abuse *** b ut doe s not include reasonable direction of a minor child by a parent.” ¶ 8 The r espondent filed a motion for relief after judgment pursuant to section 2

- 1203 of the Code of Civil Procedure (735 ILCS 5/2

- 1203 (West 2016)). The court denied the post judgment motion, stating it had weighed the believability of the witnesses in entering the plenary order. This appeal follows.

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-¶ 9 ANALYSIS ¶ 10 Mootness ¶ 11 Before addressing the merits of the appeal, we must first address the issue of mootness.

“ An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party.” In re J.T. , 221 Ill. 2d 338, 349

- 50 (2006). The issues raised by the r espondent on appeal are moot because the plenary order of protection expired on December 20, 2018. See Hedrick -Koroll v. Bagley , 352 Ill. App. 3d 590, 592 (2004). ¶ 12 While reviewing courts generally do not decide moot questions, a reviewing court will review a moot question if the question falls within one of the recognized exceptions to the

mootness doctrine. In re Christopher C. , 2018 IL App (5th) 150301 , ¶ 13. One of those exceptions is the public interest excep tion. In re Christopher C. , 2018 IL App (5th) 150301, ¶ 13. Under the public interest exception, a court may review a moot issue on the merits if “ (1) the moot question is public in nature, (2) it is desirable to provide an authoritative determination so

a s to offer guidance for public officers, and (3) it is likely that the question will reappear. ” Whitten v. Whitten , 292 Ill. App. 3d 780, 784 (1997). The Act addresses issues of great public interest, and its purposes can only be accomplished if the courts properly apply the statutory requirements. Whitten , 292 Ill. App. 3d at 784. Furthermore, questions as to the Act’s requirements are likely to reap pear, and we find it desirable to offer guidance as to those requirements. As such, we will address the merits of this case under the public interest exception

to the mootness doctrine.

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-¶ 13 Sufficiency of the Trial Court’s Factual Findings ¶ 14 In proceedings to obtain an order of protection, the central inquiry is whether the petitioner has been abused. Best v. Best , 223 Ill. 2d 342, 348 (2006). Under section 214(a) of the Act, the trial court shall issue an order of protection if it finds that the petitioner has been abused. 750 ILCS 60/214(a) (West 2016). Before issuing an order of protection, however, the trial court is required to make certain findings in “a n official record or in writing. ” 750 ILCS 60/214(c)(3) (West 2016). We will reverse t he trial court’s entry of an order of protection if it fails to make the required findings. People ex rel. Minteer v. Kozin , 297 Ill. App. 3d 1038, 1043 (1998). ¶ 15 Section 214(c) (3) provides:

“ (3) Subject to the exceptions set forth in paragraph (4) of this subsection, the court shall make its findings in an official record or in writing, and shall at a minimum set forth the following: (i) That the court has considered the applicable relevant factors described in paragraphs (1) and (2) of this subsection. (ii) Whether the conduct or actions of respondent, unless prohibited,

will likely cause irreparable harm or continued abuse. (iii) Whether it is necessary to grant the requested relief in order to protect petitioner or other alleged abused pe rsons. ” 750 ILCS 60/214(c)(3) (West 2016). ¶ 16 Under the facts of this case, the circuit court needed to consider the “relevant factors” set forth in section 214(c)(1) in order to comply with the dictates of section 214(c)(3)(i). Section 214(c)(1) states as f ollows:

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-“(1) In determining whether to grant a specific remedy, other than payment of support, the court shall consider relevant factors, including but not limited to the following: (i) the nature, frequency, severity, pattern and consequences of the

res pondent’s past abuse, neglect or exploitation of the petitioner *** and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner’s *** family or household; and (ii) the danger that any minor child will b e abused or neglected or improperly relocated from the jurisdiction, improperly concealed within the State or improperly separated from the child’s primary caretaker. ” 750 ILCS 60/214(c)(1) (West 2016). ¶ 17 Here, the circuit court’s written order consisted of a preprinted form on which the court

checked off boxes and handwrote certain orders. The court boxes that were checked on the preprinted form indicated that, “[a]fter reviewing the Petition and hearing the evidence and testimony of Petitioner, the Court m akes findings which: are stated on page 11 of this Order, or

w ere made orally and videotaped or recorded by a court reporter and are incorporated into this Order.” The “Findings” section of the order, beginning on page 11, included the following optional f indings: “[t]he actions of Respondent will likely cause irreparable harm or continued abuse unless they are prohibited” and “[i]t is necessary to grant the requested relief in this Order to protect Petitioner or other abused persons.” The trial court checked the boxes next to each of these findings, thus satisfying sections 214(c)(3)(ii) and (iii). See In re Marriage of McCoy , 253 Ill. App. 3d 958, 964

- 65 (1993) (trial court order satisfied the minimum statutory requirements where it included a provision st ating the court had considered the relevant statutory factors). The order does not, however, include any language satisfying section 214(c)(3)(i).

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-¶ 18 Section 214(c)(3)(i) requires, “at a minimum, ” that the court make findings regarding its consideration of the relevant factors listed in section 214(c)(1) in “an of ficial record or in writing. ” 750 ILCS 60/214(c)(3)(i) (West 2016). These required findings do not explicitly appear anywhere in the record, including as part of the court’s oral pronouncements on the record or in the written order. Furthermore, neither the trial court’s oral pronouncement that it “heard the evidence [and] considered t he credibility of the witnesses,” nor the court’s written order stating it had reviewed the petition and heard the evid ence, satisfies the statute’s requirement that the court set forth, in granting a specific remedy, that the court had considered the nature, frequency, severity, pattern , and consequences of the respondent’s past abuse; the likelihood of danger of future abuse; and the danger that any minor child will be abused. See Kozin , 297 Ill. App. 3d at 1043-44; In re Marriage of Henry , 297 Ill. App. 3d 139, 143-44 (1998); In re Marr iage of Healy , 263 Ill. App. 3d 596, 601-02 (1994); and Bagley , 352 Ill. App. 3d at 592-94. ¶ 19 In this case, the circuit court made no findings, written or oral, regarding the relevant factors as required by section 214(c)(3)(i). We are somewhat concerned tha t the preprinted form relied upon by the court may have been inadequate to comply with the statutory mandates of section 214(c)(3)(i). We have little doubt that the trial court considered the evidence as it related to the findings required by section 214(c)(3)(i), but there is simply no record of this finding available for our review. Therefore, we reverse the circuit court judgment and vacate the order of protection based on the court’s failure to make the specific findings required by the Act. As our

reso lution on this issue controls our disposition on a ppeal, we need not address the r espondent’s arguments on appeal. 1

1 The petitioner filed with this court a motion to correct statement at oral argument, indicating that petitioner’s counsel mistakenly represented to the court during oral argument that the form order used by the circuit court was a standardized form that ha d been adopted by the Illinois Supreme Court Access to Justice Commission. In her motion, counsel clarified that the form had not been adopted by the Access to

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-¶ 20 Reversed; order vacated.

Justice Commission Forms Committee. The petitioner’s motion was originally taken with the case, and the respondent was granted 10 days to file a response. The respondent elected not to file a response. The petitioner’s motion is now granted.

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______________________________________________________________________________ 2019 IL App (5th) 180137

NO. 5 -18-0137

I N THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

RACHEL LANDMANN, ) Appeal from the ) Circuit Court of Petitioner

- Appellee, ) Bond County. ) v. ) No. 17- OP -101 ) KATLIN LANDMANN, ) Honorable ) Ronald R. Slemer, Respondent-Appellant. ) Judge, presiding.

Opinion Filed: July 23, 2019

Justices: Honorable Judy L. Cates, J. Honorable David K. Overstreet, P. J., and Honorable Melissa A. Chapman, J. Concur

Attorney David M. Fahrenkamp, Law Office of David M. Fahrenkamp, 205 North for Second Street, P.O. Box 625, Edwardsville, IL 62025-0625 Appellant

Attorneys Andre a Neubauer Schrader, Susan M. Simone, Land of Li ncoln Legal for Assistance Foundation, Inc., 310 Easton Street, Suite 330, Alton, IL Appellee 62002