NOTICE 2023 IL App (4th) 230351-U FILED This Order was filed under December 28, 2023 Supreme Court Rule 23 and is NO. 4-23-0351 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
TARA S., ) Appeal from the Petitioner-Appellee, ) Circuit Court of v. ) Adams County CHRISTINA COX, ) No. 22OP407 Respondent-Appellant. ) ) Honorable ) John C. Wooleyhan, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Zenoff and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed, concluding a plenary stalking no contact order should not have been issued where the evidence failed to show respondent knew or should have known her course of conduct would cause a person in petitioner’s circumstances with petitioner’s knowledge of respondent and respondent’s prior acts to fear for her safety or the safety of her child or suffer significant mental suffering, anxiety, or alarm.
¶2 Pursuant to the Stalking No Contact Order Act (Act) (740 ILCS 21/1 to 135 (West
2022)), petitioner, Tara S., filed a petition for a stalking no contact order against respondent,
Christina Cox. The circuit court entered the requested order on an emergency basis and then,
following a hearing, entered the order on a plenary basis to expire one year from the date of entry
of the emergency order. Respondent appeals, arguing the plenary order should not have been
issued based upon the evidence presented. For the reasons that follow, we agree and reverse the
court’s judgment. ¶3 I. BACKGROUND
¶4 A. Petition for a Stalking No Contact Order
¶5 In October 2022, petitioner, proceeding pro se, filed a verified petition for a
stalking no contact order against respondent. In the petition, petitioner alleged respondent, the
former foster mother of one of petitioner’s children, K.S., continued to contact her and K.S. after
she “regained custody” of K.S. in July 2022. Specifically, petitioner alleged respondent
(1) repeatedly contacted her via “[p]hone” and “text message” and (2) sent K.S. a letter at her
school requesting continued communication. With respect to the contact via text message,
petitioner alleged she received messages on July 5, 14, 22, 27, and 29; August 3; and September
18 and 24. Petitioner further alleged the contact occurred despite representatives from involved
agencies addressing the issue with respondent and the existence of a “fostering contract” stating
respondent was to have no contact with petitioner or K.S. after K.S. was returned to petitioner’s
care. Petitioner requested the stalking no contact order be entered in favor of herself and K.S.
¶6 B. Issuance of an Emergency Order
¶7 Also in October 2022, the circuit court, Judge Amy C. Lannerd presiding,
conducted a hearing on the petition for a stalking no contact order. Petitioner appeared pro se,
while respondent, who had not been served with the petition, did not appear. A representative from
the Quincy Area Network Against Domestic Abuse (Quanada) was also present at the hearing. On
inquiry of the court, petitioner testified the allegations in her petition were true, correct, and
accurate. When asked for a brief explanation why she was requesting a stalking no contact order,
petitioner testified:
“[K.S.] did really good [when temporarily placed with respondent]. [K.S.] was to
be returned to me July 4th of this year and she was. Prior from July 4th, [respondent]
-2- was given notice from four agencies that, for the best interest of [K.S.], that she
would leave me and [K.S.] alone. It was verbal. She won’t do it. She is now in the
public school system and this lady has—she’s a principal in a different school
district. They are now sending letters through third parties to [K.S.] in a different
school district. We can’t get any authority to get her to understand it.”
The court, based upon the evidence presented, entered the requested stalking no contact order on
an emergency basis. Thereafter, respondent was served with the petition and emergency order and
obtained representation by counsel. The matter was then continued until March 2023.
¶8 C. Issuance of a Plenary Order
¶9 In March 2023, the circuit court, Judge John C. Wooleyhan presiding, conducted a
hearing on the petition for a stalking no contact order. Petitioner appeared pro se, while respondent
appeared with counsel.
¶ 10 1. Petitioner’s Case
¶ 11 Petitioner presented testimony from multiple witnesses, including herself, her
therapist, and involved caseworkers. The following is gleaned from the testimony presented.
¶ 12 In early 2022, K.S. was in the temporary care of respondent, her foster mother.
Petitioner was unaware of how long K.S. had been in respondent’s care. Around July 2022, K.S.
was returned to the care of petitioner. The court case which brought K.S. into temporary care was
closed on October 5, 2022, the same day petitioner sought a stalking no contact order against
respondent.
¶ 13 With respect to the verified petition filed in this case, petitioner testified she relied
upon the assistance of a representative from Quanada to complete the petition. As for the allegation
about a “fostering contract” in the petition, petitioner asserted she knew “nothing about that.” As
-3- for the allegation about respondent sending a letter to K.S., petitioner asserted “someone
misinterpreted what was said.” Petitioner acknowledged the letter, which was the subject of the
allegation, was not, in fact, sent to K.S. by respondent.
¶ 14 Petitioner testified respondent continued to contact her after K.S. was returned to
her care. Specifically, petitioner asserted she “kept getting phone calls and text messages from
[respondent].” Petitioner indicated she received “five to eight of them all pertaining to [K.S.].” The
text messages, she explained, concerned “asking about seeing [K.S.], how they miss [K.S.], how
they want to be involved with her.” Petitioner acknowledged the text messages never contained
any “threats.” She asserted the continued contact from respondent “was making [her] mental
[health] bad” and “stressed [her].”
¶ 15 Petitioner testified she had wanted “no communication whatsoever” from
respondent after K.S. was returned to her care and was “under the understanding that there would
be no [such] communication.” She acknowledged she never directly conveyed to respondent that
the contact should be halted. Petitioner testified she never responded to respondent’s phone calls
or text messages; however, she also acknowledged communicating with respondent about a
bracelet K.S. had left in respondent’s home, as well as K.S. being involved in a dance program.
Petitioner asserted she spoke with the involved caseworkers and her therapist about her desire for
the contact by respondent to be halted and then relied upon those individuals to convey her desire
to respondent.
¶ 16 Petitioner’s therapist testified she contacted involved caseworkers about
respondent’s continued contact with petitioner. One of the caseworkers, according to petitioner’s
therapist and over no objection, indicated in response, “[T]hey had conversations before and that
she would take care of it again.” The caseworker also reportedly indicated respondent would not
-4- be “reaching out” to the petitioner further. Petitioner’s therapist did not recall when the caseworker
had given these responses.
¶ 17 The caseworker whom petitioner’s therapist spoke with testified she spoke with
respondent and conveyed “that it would not be in the best interest of [K.S.] specifically to have
in-person visitation.” The caseworker indicated respondent was upset but agreed she would not
reach out for in-person contact. The caseworker acknowledged petitioner had conveyed to her
instances where respondent “reach[ed] out” and made “inquiries” about K.S.’s well-being. The
caseworker was not aware of any “threats or nasty messages” from respondent. The caseworker
testified she and respondent did not discuss “texting and calling.” The caseworker acknowledged
the parties had difficulties “get[ting] along” while the case which brought K.S. into care was
ongoing.
¶ 18 Another caseworker recalled a conversation with petitioner around August or
September 2022 about petitioner wanting contact by respondent to halt. The caseworker observed
text messages on petitioner’s phone. The caseworker indicated the text messages were primarily
“just concerns about [K.S.],” such as asking “how [K.S.] was” and if there was “anything they
needed.” The caseworker did not see any threatening messages. The caseworker advised petitioner
he would talk to his supervisor about the unwanted contact, which he then did. The caseworker
testified he also advised petitioner to tell respondent to stop contacting her. The caseworker never
spoke with respondent about the unwanted contact. Later, in October 2022, the caseworker advised
petitioner to seek a no contact order if the contact was still occurring.
¶ 19 2. Motion for a Directed Finding
¶ 20 At the close of petitioner’s case, respondent moved for a directed finding. The
circuit court denied respondent’s motion.
-5- ¶ 21 3. Respondent’s Case
¶ 22 Respondent presented testimony from multiple witnesses, including herself, her
sister, a former teacher of K.S., the director of an involved agency, a caseworker, and a teacher at
K.S.’s current school. Respondent also presented the letter sent to K.S. which was the subject of
the allegation in the petition, as well as screenshots of multiple text messages sent between the
parties. The following is gleaned from the evidence presented.
¶ 23 Respondent, a school principal and an experienced foster parent, testified K.S. came
into her temporary care on June 6, 2021, and then lived with her through July 13, 2022.
¶ 24 With respect to the allegations in the verified petition, respondent testified she never
sent a letter to K.S. after K.S. was returned to the care of petitioner. She also testified she was not
aware of any fostering contract indicating she was to have no contact with petitioner or K.S. after
K.S.’s return. The contents of the letter sent to K.S., as well as the testimony from other witnesses,
confirmed respondent had no involvement in its drafting or transfer. Testimony from the director
of an involved agency confirmed the absence of any fostering contract indicating respondent was
to have no contact with petitioner or K.S. after K.S.’s return to the care of petitioner.
¶ 25 Respondent acknowledged continued contact with petitioner after K.S. was
returned to petitioner’s care. Respondent asserted said contact was encouraged by a caseworker
to provide additional support for K.S. That caseworker testified and indicated she told petitioner
during the summer of 2022 “that communication between [K.S.] and the foster parents would be
beneficial to [K.S.] [as well as ] the rest of the family as *** extra support.” The caseworker further
indicated petitioner did not express any opposition to this suggestion at the time. The caseworker
also testified about an instance where she, in response to an inquiry from petitioner’s therapist,
informed petitioner’s therapist “[t]hat it would be beneficial for [K.S.] to still have that
-6- communication” with respondent. The caseworker testified she never told respondent that her
contact with petitioner should be halted.
¶ 26 Respondent testified about text messages she sent to petitioner between July and
September 2022. Respondent took screenshots of the text messages sent and received on or about
the dates listed in the verified petition. On July 5, respondent sent petitioner a message about an
appointment for K.S., to which petitioner responded. On July 14, petitioner sent respondent a
message about a missing bracelet, to which respondent responded and a lengthy discussion
occurred. On July 22, 27, and 29, respondent sent petitioner messages, to which petitioner did not
respond. The first two messages concerned respondent “checking in” on K.S. The last message
concerned respondent sharing information about a dance class for K.S. and offering to provide
both funds and transportation for the class.
¶ 27 In late August or early September 2022, respondent contacted a caseworker about
the absence of any recent communication from petitioner. Respondent testified the caseworker
advised against in-person contact with K.S. due to an incident which occurred during the last
overnight visit K.S. had with respondent. Respondent further testified the caseworker stated she
hoped they could have in-person contact in the future. On September 18 and 24, respondent sent
petitioner text messages, to which petitioner did not respond. In the first message, respondent
conveyed a desire to be involved in K.S.’s life and again made the offer concerning the dance
class. In the second message, respondent conveyed that a picture K.S. had drawn was in the news.
Respondent testified she was never told to have no further contact with petitioner following K.S.’s
return to petitioner’s care.
¶ 28 4. Circuit Court’s Decision and Order
¶ 29 Following arguments, the circuit ruled as follows:
-7- “The record in this case shows that the petition was filed by [petitioner] on
behalf of herself and also showed [K.S.] as another protected person because [K.S.]
is a part of the household of [petitioner]. The—based on the evidence, the Court
can find it does have jurisdiction over the parties and the subject matter. The Court
has been able to review the exhibits that have been brought into court today and
also observe all the witnesses who testified and to determine the weight and
credibility to be assigned to each of them.
There are some statements, parts of the statement in the petition have been
proven. Others have not. It doesn’t really revolve around the—whether the child
was in foster care or not. That really doesn’t help determine the issues. That was
part of what the circumstances were but the way that stalking is defined under the
statute is it refers to a course of conduct, not one single thing. Not one single act.
Stalking does include certain things which are listed in the statute such as following
someone from place to place or keeping someone under surveillance, going to a
person’s home or place of work. It also includes stalking behavior does include
making unwanted telephone calls, sending unwanted emails, or text messages along
with other behavior.
In this situation, it has been proven that [the petitioner] did receive text
messages from the respondent on several occasions that she had not solicited. They
came from the respondent to the petitioner regarding the minor child that’s been
referred to in this case and some of those text messages came after the child was
back living with the petitioner, the mother.
Under the statute, there is—there is no requirement listed in the statute that
-8- someone has to inform another party to say that they don’t want to be contacted by
that person. Those contacts don’t—do not have to contain threats of any kind to be
considered stalking if the communication is something that’s unwanted or
unsolicited and that’s really as far as we have to look here. The petitioner received
unwanted communications from the respondent and based on that and the exhibits
and all the information that it would constitute a course of conduct or a series of
events that would constitute stalking so there’s been a sufficient amount of proof
offered on some of these allegations in the petition to say that or find that the
petition has been proven by the evidence and would be a basis for continuing the
stalking no-contact order in place.”
The court entered a plenary stalking no contact order. The order was set to expire on October 6,
2023.
¶ 30 This appeal followed.
¶ 31 II. ANALYSIS
¶ 32 On appeal, respondent argues the plenary stalking no contact order should not have
been issued based upon the evidence presented. Specifically, respondent argues the circuit court’s
failure to properly apply the requirements of the Act resulted in it erroneously denying her motion
for a directed finding at the close of petitioner’s case and issuing the plenary order.
¶ 33 A. Lack of an Appellee Brief
¶ 34 Petitioner has not filed an appellee brief. Nevertheless, the record on appeal is
simple and the claimed error is such that this court can easily decide it without the aid of an
appellee’s brief. Accordingly, we will proceed to the merits of this appeal. See First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).
-9- ¶ 35 B. Mootness
¶ 36 Before reaching the merits of this appeal, we must consider the matter of mootness,
a matter which we note was not addressed by respondent despite the likelihood the plenary order
would expire before this appeal could be resolved. “An appeal is moot when the issues involved
in the [circuit] court no longer exist because intervening events have made it impossible for the
reviewing court to grant the complaining party effectual relief.” In re Benny M., 2017 IL 120133,
¶ 17, 104 N.E.3d 313. Even assuming the expiration of the plenary order rendered this appeal
formally moot, we find the issue presented is reviewable under the public interest exception to the
mootness doctrine. “The public interest exception applies when (1) the question presented is of a
public nature, (2) there is a need for an authoritative determination for the future guidance of public
officers, and (3) there is a likelihood of future recurrence of the question.” In re Lance H., 2014
IL 114899, ¶ 13, 25 N.E.3d 511. Here, it is of public interest that the underlying purpose of the
Act, which is to address the societal problem of stalking (740 ILCS 21/5 (West 2022)), be
achieved. This can only be done by courts properly applying the requirements of the Act. See
Whitten v. Whitten, 292 Ill. App. 3d 780, 784, 686 N.E.2d 19, 22 (1997). Guidance on this issue
would, furthermore, be beneficial for future litigation under the Act.
¶ 37 C. The Circuit Court’s Judgment
¶ 38 On the merits, respondent argues the circuit court’s failure to properly apply the
requirements of the Act resulted in it erroneously denying her motion for a directed finding at the
close of petitioner’s case and issuing the plenary order.
¶ 39 We initially decline to consider petitioner’s argument to the extent it attacks the
circuit court’s ruling on her motion for a directed finding. As respondent acknowledges on appeal,
she moved a directed finding at the close of petitioner’s case pursuant to section 2-1110 of the
- 10 - Code of Civil Procedure (735 ILCS 5/2-1110 (West 2022)). Section 2-1110 states: “If the ruling
on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support
of his or her defense, in which event the motion is waived.” Id. Because respondent adduced
evidence in support of her defense following the denial of her motion, she has “waived” any issue
with the court’s ruling on the motion. See, e.g., Dwyer v. Love, 346 Ill. App. 3d 734, 737-38, 805
N.E.2d 719, 722-23 (2004) (applying section 2-1110’s waiver provision).
¶ 40 We will, however, consider respondent’s argument to the extent it attacks the
ultimate issuance of the plenary order. Among other things, respondent argues the circuit court
failed to properly consider the requisite mental state set forth in the Act before finding she had
committed an act of stalking.
¶ 41 Under the Act, a victim of stalking may commence a civil proceeding seeking an
order barring the stalker from making any further contact. 740 ILCS 21/5, 15 (West 2022). A
circuit court must issue a stalking no contact order where the petitioner proves by a preponderance
of the evidence the respondent engaged in an act of stalking. Id. §§ 30, 80. The decision to issue a
stalking no contact order will generally not be reversed on appeal unless it is against the manifest
weight of the evidence. Piester v. Escobar, 2015 IL App (3d) 140457, ¶ 12, 36 N.E.3d 344.
¶ 42 The Act defines “ ‘Stalking’ ” as “[(1)] engaging in a course of conduct directed at
a specific person, and [(2)] he or she knows or should know that this course of conduct would
cause a reasonable person to fear for his or her safety, the safety of a workplace, school, or place
of worship, or the safety of a third person or suffer emotional distress.” 740 ILCS 21/10 (West
2022). With respect to the latter, the Act further defines “ ‘[r]easonable person,’ ” as “a person in
the petitioner’s circumstances with the petitioner’s knowledge of the respondent and the
- 11 - respondent’s prior acts.” Id. The Act also defines “ ‘[e]motional distress’ ” as “significant mental
suffering, anxiety or alarm.” Id.
¶ 43 After reviewing the circuit court’s ruling, the pertinent definitions provided in the
Act, and the evidence presented, we are left with the conclusion the court failed to properly
consider the requisite mental state before finding respondent had committed an act of stalking. In
its ruling, the court did not address the pertinent definitions. As they apply here, petitioner had to
prove by a preponderance of the evidence respondent knew or should have known her continued
contact would cause a person in petitioner’s circumstances with petitioner’s knowledge of
respondent and respondent’s prior acts to fear for her safety or the safety of K.S. or suffer
significant mental suffering, anxiety, or alarm.
¶ 44 We find the evidence presented could not have satisfied petitioner’s burden, and
any finding to the contrary would be against the manifest weight of the evidence. The evidence
showed, shortly before K.S. was returned to petitioner’s care, the parties were encouraged to
maintain contact with each other. Respondent testified she was, with the exception of in-person
contact, never told otherwise. The initial complained-of contact was reciprocated by petitioner.
The continued complained-of contact, although not reciprocated, concerned K.S.’s well-being. It
was neither threatening, intimidating, harassing, nor incessant.
¶ 45 While petitioner presented testimony over no objection suggesting respondent
continued to contact her despite having knowledge of petitioner’s desire for the contact to halt,
that testimony was ambiguous and hearsay. Petitioner also presented testimony indicating the
parties had difficulty getting along while the case involving K.S. was ongoing. This testimony, by
itself, is insufficient to show respondent knew or should have known her continued contact about
K.S.’s well-being would cause a person in petitioner’s circumstances with petitioner’s knowledge
- 12 - of respondent and respondent’s prior acts to fear for her safety or the safety of K.S. or suffer
¶ 46 Upon properly considering the requisite mental state, it is evident petitioner has
failed to show respondent committed an act of stalking as it is defined by the Act. Accordingly,
the plenary stalking no contact order should not have been issued, and the circuit court’s judgment
must be reversed.
¶ 47 III. CONCLUSION
¶ 48 We reverse the circuit court’s judgment.
¶ 49 Reversed.
- 13 -