In re Marriage of Holtorf, Ill. App. Ct. 2nd Dist., No. 2–09–0872 (per McLaren)
Appellant was arrested for the third time for retail theft, while she had her two minor children with her. During the previous arrests, Appellant had either left her children unattended in a running car or had at least one of the children with her in a store. After receiving an order of protection, Appellee filed a petition for dissolution of marriage with an amended petition for an order of protection and a motion to consolidate the initial order of protection with the dissolution, which the court granted. The court then entered a plenary order of protection. Appellant argues the trial court erred as a matter of law in entering both the emergency and plenary orders of protection solely on the basis of a finding of child neglect because the trial court could issue an order of protection upon a finding of neglect only if the petitioner were a high-risk adult with disabilities.
Did the trial court err as a matter of law by entering emergency and plenary orders of protection based on its determination of a finding of child neglect rather than abuse under 750 ILCS 60/201(a)(ii),(b)(ii) and then by denying a motion to vacate the orders of protection?
Although the trial court erred in ruling that neglect was a proper basis for the issuance of the emergency and plenary order of protection, it did not commit reversible error in issuing the orders of protection or in denying the motion to vacate the orders of protection. Affirmed.
The trial court’s issuance of the plenary order of protection based on a finding of neglect was improper because the only mention of “neglect” in the Illinois Domestic Violence Act of 1986 (Act) is in the context of high-risk adults with disabilities. See 750 ILCS 60/201(a)(ii), (b)(ii)(West 2008). However, in affirming the trial court’s judgment, the appellate court stated it was not limiting itself to the trial court’s rationale or the parties’ arguments. The appellate court found the allegations against Appellant, if proved, rose to the level of physical abuse as defined in section 103(14)(iii) of the Act as “knowing or reckless conduct which creates an immediate risk of physical harm.” 750 ILCS 60/103(14)(iii) (West 2008). The court noted that the potential for immediate physical harm, in either bringing the children into the store, or leaving them in a running car while committing a theft, is “manifest.”
Commentary: This is a strained analysis intended to get to the desired result. The court specifically found it was not limited to the rationale of the trial court or the parties’ arguments. True–but it seems a bit too proactive to me. The appellant was right but lost anyway.