Erika Rahden, NIU-COL Class of 2003, recently prevailed on appeal before the Second District in the case In Re Marriage of Holtorf, 02-09-0872 (January 19, 2010).
Erika represented Mr. Holtorf. Mr. Holtorf petitioned for emergency and plenary orders of protection against Mrs. Holtorf on behalf of their children. He alleged that his wife suffered from an "addiction and compulsion to shoplifting" and that she "routinely" shoplifted while the children were with her.
The central inquiry in any proceeding to obtain an order of protection is whether the protected party has been abused. After a contested hearing, the court entered a plenary order of protection against Mrs. Holtorf. The court found that the children had been abused due to the "neglect" of Mrs. Holtorf.
After some discussion of whether an order of protection can issue based solely on allegations of neglect, the appellate court actually found that the trial court erred in ruling that neglect was a proper basis for the issuance of the plenary order of protection in this case.
However, the court noted that it was not limited by either the trial court's rationale or by the parties' arguments and that it could affirm the trial court on any basis supported by the record. After a review of the facts, the appellate court found that the allegations of repeated shoplifting actually rose to the level of physical abuse as defined by the Domestic Violence Act. Physical abuse includes any "knowing or reckless conduct which creates an immediate risk of physical harm." The court noted that the potential for immediate physical harm, in either bringing the children into the store while shoplifting or leaving them in a running car while committing a theft, is manifest.
Good win Erika! I'm sure your client was pleased.
Erika represented Mr. Holtorf. Mr. Holtorf petitioned for emergency and plenary orders of protection against Mrs. Holtorf on behalf of their children. He alleged that his wife suffered from an "addiction and compulsion to shoplifting" and that she "routinely" shoplifted while the children were with her.
The central inquiry in any proceeding to obtain an order of protection is whether the protected party has been abused. After a contested hearing, the court entered a plenary order of protection against Mrs. Holtorf. The court found that the children had been abused due to the "neglect" of Mrs. Holtorf.
After some discussion of whether an order of protection can issue based solely on allegations of neglect, the appellate court actually found that the trial court erred in ruling that neglect was a proper basis for the issuance of the plenary order of protection in this case.
However, the court noted that it was not limited by either the trial court's rationale or by the parties' arguments and that it could affirm the trial court on any basis supported by the record. After a review of the facts, the appellate court found that the allegations of repeated shoplifting actually rose to the level of physical abuse as defined by the Domestic Violence Act. Physical abuse includes any "knowing or reckless conduct which creates an immediate risk of physical harm." The court noted that the potential for immediate physical harm, in either bringing the children into the store while shoplifting or leaving them in a running car while committing a theft, is manifest.
Good win Erika! I'm sure your client was pleased.
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