In re Portillo

2021 IL App (3d) 200221

193 N.E.3d 125

456 Ill.Dec. 157

IN RE MARRIAGE OF Julie PORTILLO, Petitioner-Appellee, AND Daniel Josue PORTILLO MARTINEZ, Respondent-Appellant.

Appeal No. 3-20-0221

Appellate Court of Illinois, Third District.

Opinion filed September 23, 2021

James R. Angel, of Princeton, for appellant.

Morgan K. Strow, of Strow Law LLC, of Ottawa, for appellee.

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Julie Portillo filed a petition for an order of protection and a separate emergency petition for supervised parenting time against her former husband, Daniel, on behalf of herself and the parties’ two minor children. The Bureau County circuit court granted both petitions, entering an emergency order under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) ( 750 ILCS 5/603.10(a) (West 2018)) and a plenary order under the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) ( 750 ILCS 60/219 (West 2018) ). Both orders limited Daniel's contact with the children to supervised two-hour visits on the first and third Saturdays of each month. Daniel appealed the plenary order. We reverse and remand the matter to the circuit court with directions to consider, prior to rehearing, whether the time, content, and circumstances of the children's statements provided sufficient safeguards of reliability and whether the children were unavailable to testify.

¶ 2 I. BACKGROUND

¶ 3 On November 2, 2018, the trial court entered a "Judgment for Dissolution of Marriage and Final Allocation Judgment: Allocation of Parental Responsibilities and Parenting Plan" for Julie and Daniel (Parenting Plan). The Parenting Plan designated the parties as joint decision makers for their two minor children, M.J.P. (born October 25, 2014) and M.C.P. (born August 19, 2016). As part of the Parenting Plan, a schedule was created that specified dates and times when each parent was responsible for the care of the minor children. On June 4, 2019 (later amended on September 4, 2019), Daniel filed a petition to modify parenting times and responsibilities with the trial court. Julie responded with a motion to dismiss Daniel's petition on July 15 (later amended on September 5). That matter was set for mediation, but the mediation order was later dismissed.

¶ 4 On October 21, Julie filed a separate verified petition for a plenary order of protection under the Domestic Violence Act. That same day, an emergency order of protection was entered, and a date was scheduled to conduct a hearing on Julie's request that the emergency order be made plenary. On November 4, Julie filed an emergency parental termination petition, captioned "Emergency Petition to Terminate Daniel Portillo's Parenting Time, or in the Alternative, Petition to Modify Judgment for Supervised Parenting Time on Both a Temporary and Permanent Basis." Julie also filed a motion to admit hearsay testimony and notice of intent to offer hearsay evidence, "pursuant to Section 213.1 of the [Domestic Violence Act] and Section 606.5 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), or in the alternative, Section 2601 of the Code of Civil Procedure" (Code). The parties were also present that day, with counsel, for a hearing before the circuit court. The trial judge continued the cause to December 16 "for [the] motion hearing to coincide with hearing on [the] Order of Protection." The October 21 emergency order of protection was extended until that day.

¶ 5 On December 16 and 17, during the plenary hearing, the trial court heard evidence pertaining to both Julie's plenary order of protection against Daniel and the emergency parental termination petition submitted by Julie to the court on November 4. At that hearing, numerous witnesses (including Julie and Daniel) testified as to several events that had disrupted the successful implementation of the Parenting Plan. These events included numerous altercations and incidents that occurred during child drop-offs and pickups, prompting Daniel to install a camera to record the events. Eventually, the parties started to exchange the children at the Bureau County Sheriff's Office in an attempt to avoid further incidents. Julie testified that on June 2 the children came back from a visit at Daniel's home with sore bottoms. Two days later, on June 4, Daniel filed a petition to modify parenting time and responsibilities (later amended on September 4), which claimed, inter alia , that Julie failed to share extracurricular activity schedules or coach information, unilaterally signed the children up for private school, and took the children to therapy without notifying him or allowing him to participate.

¶ 6 Julie testified that on August 25, 2019, after picking up the children from Daniel's residence, M.J.P. told her that he and his brother can go to Daniel's room but are only allowed to sleep with him one at a time when he gets off his computer. In mid-October, M.J.P. began having nightmares, which lasted for several weeks. On October 17, while changing M.C.P.’s diaper, Julie discovered the tip of his penis was unusually red, as well as the area surrounding his rectum. M.C.P. complained of pain as Julie changed his diaper. When Julie asked M.C.P. what happened to cause the redness, M.C.P. told her that "daddy did it." Julie then asked M.C.P., "Did daddy touch your pee-pee and hurt you?" M.C.P. responded, "Yes."

¶ 7 Additional evidence was presented during the plenary hearing regarding Daniel's history of inappropriate sexual behavior, including, inter alia , (1) that in August 2016, a teenage babysitter for Julie and Daniel's children reported to her parents that Daniel had spanked her; (2) that as a teenage orphan in Guatemala, Daniel engaged in inappropriate contact with a female child at the orphanage; (3) that Daniel admitted to watching pornography; (4) that Daniel had sexually assaulted Julie's sister, Tricia; (5) that Daniel was fired from the post office after making unwanted trips to the home of a woman he met on his mail route; and (6) that Daniel had sexually assaulted Julie.

¶ 8 The cause was continued for a further plenary hearing on January 31, 2020. At that hearing, the trial judge specifically weighed the credibility of the witnesses, discussed the weight of the evidence, and asserted that, as it pertains to his decision in this case, all evidence was viewed in the aggregate. Pertaining to witness credibility, the judge found, inter alia , that (1) Julie "was a credible witness in terms of what she testified to"; (2) numerous aspects of Daniel's testimony "didn't seem logical"; (3) Julie's mom, Cindy, was generally believable; and (4) Julie's sister, Tricia, "seemed to be a credible person."

¶ 9 At the conclusion of that hearing, the trial judge announced that the following two orders would be entered: (1) an order granting Julie's plenary order of protection protecting Julie and the parties’ two minor children, M.J.P. and M.C.P., from Daniel; and (2) an order granting Julie's emergency parental termination petition. On February 7, 2020, the trial court entered two separate written orders granting specific remedies as a result of Julie's two separate petitions. On March 9, 2020, Daniel filed a motion to reconsider, which challenged only the plenary order of protection against him and was denied by the trial court on June 5, 2020. Daniel then filed a timely notice of appeal, which, again, references only the plenary order of protection against him.

¶ 10 II. ANALYSIS

¶ 11 Daniel argues that the circuit court erred by granting Julie's plenary order of protection and emergency petition for supervised parenting time. Specifically, Daniel asserts the following: (1) that this court has jurisdiction to review the circuit court's order granting Julie's emergency petition for supervised parenting time, (2) that the trial court applied the wrong legal standard to determine whether the children's hearsay statements were admissible at the plenary hearing, (3) that Daniel properly preserved review of the children's hearsay statements, and (4) that there was insufficient evidence to support the trial court's orders granting Julie's plenary order of protection and emergency petition for supervised parenting time.

¶ 12 A. Jurisdiction

¶ 13 In his brief to the court, Daniel argues that there was insufficient evidence to justify the trial court's orders restricting his parenting time under both the plenary order of protection, addressed under the Domestic Violence Act, and the emergency parental termination petition, addressed under the Marriage Act. He has, however, specifically appealed only one of the two orders he attacks in his argument, giving rise to a question about the extent of our jurisdiction.

¶ 14 On February 7, 2020, the trial court entered two separate orders granting specific remedies as a result of Julie's two separate petitions under the two different acts. Both orders required supervised parenting time, but the plenary order of protection granted relief beyond that of the emergency parental termination petition. Each ruling was distinct, separate, and appealable in its own right.

¶ 15 On March 9, 2020, Daniel filed a motion to reconsider referencing only the plenary order of protection against him, which was denied by the trial court on June 5, 2020. Daniel then filed a timely notice of appeal, which, again, referred only to the plenary order of protection against him. Consequently, Julie, in her response brief, challenges this court's jurisdiction to consider the trial court's decision on the emergency parental termination petition.

¶ 16 Matters of jurisdiction present questions of law and are reviewed de novo. Gardner v. Mullins , 234 Ill. 2d 503, 508, 334 Ill.Dec. 617, 917 N.E.2d 443 (2009). Our supreme court has held "that a notice of appeal is to be liberally construed." Burtell v. First Charter Service Corp. , 76 Ill. 2d 427, 433, 31 Ill.Dec. 178, 394 N.E.2d 380 (1979)....