Opinion
Appeal No. 3-17-0279
01-30-2018
In re MARRIAGE OF MARCY JANE MOORE n/k/a MARCY JANE GEORGE, Petitioner-Appellee, and PAUL ANTHONY MOORE, Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit Nos. 06-D-440 and 06-OP-559 Honorable Timothy J. Cusack, Judge, Presiding. JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Lytton and Wright concurred in the judgment.
ORDER
¶ 1 Held: (1) Alleged violations of the Mental Health and Developmental Disabilities Confidentiality Act did not result in reversible error. (2) Neither the petitioner's attorney nor the court committed fraud on the court. (3) The delay of the trial did not result in reversible error. ¶ 2 Petitioner, Marcy Jane George, and respondent, Paul Anthony Moore, were divorced. Marcy was granted custody of the parties' children and Paul was granted visitation. Paul, proceeding pro se, appeals the circuit court's order granting Marcy's emergency motion to suspend Paul's visitation. Specifically, Paul argues that (1) the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2016)) was violated in various ways, (2) Marcy's counsel and the circuit court committed fraud on the court, and (3) his constitutional right to a speedy trial was violated by delays caused by Marcy.
¶ 3 FACTS
¶ 4 On August 23, 2006, Marcy filed a petition for dissolution of marriage against Paul. The parties had two children, P.M. and K.M., who were born during the marriage. A few days later, Marcy filed a verified petition for an emergency order of protection. The court granted the emergency order of protection and later granted a plenary order of protection. The court initially restricted Paul's visitation with his children, allowing Paul limited supervised visitation. In 2011, the court modified the order of protection to allow Paul unsupervised visitation. ¶ 5 On January 21, 2015, Paul filed a pro se petition to modify custody on the basis that Marcy's husband, Steve George, had abused the children. Paul obtained counsel and filed an amended petition to modify custody and an emergency petition for a temporary restraining order seeking custody of the children. The court appointed a guardian ad litem. ¶ 6 On May 26, 2015, Marcy filed an emergency motion to suspend Paul's visitation with the children. The motion alleged that Dr. Shobha R. Nookala, P.M.'s psychiatrist, issued a report stating that all visitation between Paul and P.M. should cease until further evaluation. The motion also stated that Martin Hanson, the children's therapist, had concluded that it was in the best interest of both children to cease visitation with Paul. Reports by Nookala and Hanson regarding their psychological treatment of the children were attached to the motion. The court entered an order temporarily suspending Paul's visitation with the children. The court set the matter for a hearing. The matter was continued, however, because Paul filed a motion to substitute judge for cause on the day the hearing was set to commence. The motion to substitute judge was denied approximately four months later. During the substitution proceedings, Paul's counsel withdrew and Paul proceeded pro se. Paul withdrew his petition to modify custody. ¶ 7 On November 5, 2015, Paul filed a motion for child visitation evaluation and/or investigation relating to Marcy's motion to suspend visitation. The motion requested that the children be evaluated by an independent mental health professional. A hearing was held on the motion. The court noted that Paul cited both sections 604(b) and 604.5 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604(b), 604.5 (West 2014)). Paul said that he contemplated paying for the evaluation himself, and the court indicated that it would construe Paul's motion as requesting an evaluation under section 604.5. The court granted Paul's motion and ordered Paul to pay for the evaluation. ¶ 8 On March 28, 2016, Marcy filed a motion to define the scope of the psychological evaluation. The motion alleged that the Act had been amended such that the relevant section governing the psychological evaluation ordered by the court was section 604.10 rather than section 604.5. A hearing was held on the motion. Dr. John Day, the therapist appointed to conduct the visitation evaluation, was present at the hearing. The court instructed Day to investigate the case and render an opinion as to what would be in the best interests of the children in terms of restrictions on visitation. The court asked Day if he was familiar with the new version of the Act and stated that section 604.10(b) was the applicable section. Day stated that he believed that Paul and his wife, Jodi Moore, should be evaluated, as well as the children. The court entered a written order stating that Day was to perform a psychological assessment on Paul, Jodi, and the children. ¶ 9 The trial commenced on January 10, 2017. Marcy testified that she lived with her children, 19-year-old J.T.; 14-year-old P.M.; 12-year-old K.M.; and 7-year-old S.G. J.T. was born during Marcy's first marriage, P.M. and K.M. were Paul's children, and S.G. was the child of Steve, Marcy's third husband. ¶ 10 In March 2014, Marcy took P.M. to therapist Jay Hubbs for treatment because P.M. had been having anxiety and "blackout rages." During P.M.'s "rages," his eyes would change, his voice would deepen a bit, and he would make accusations against Marcy using profanity and vulgar language. P.M. would say things like: "You can't protect your children. You choose your husband over your children. You can't be a mom. You suck so much cock you can't keep them straight." After his rages, P.M. would fall into a deep sleep for a few minutes. When P.M. woke up, he would act like the fit of rage never happened. ¶ 11 In July 2014, Marcy took P.M. to the hospital for a mental health assessment after he had a fit of rage. When P.M. was discharged, he was referred to Nookala for treatment. ¶ 12 On November 6, 2014, K.M. told Marcy's mother that Steve choked her while Marcy was at work. Marcy and her mother talked to K.M. and P.M. separately, and they both said that Steve choked them. Marcy never witnessed Steve abusing the children. The next day, P.M. had an appointment with Nookala. Marcy told Nookala about the abuse allegations, and Nookala recommended that Marcy get an order of protection. Marcy agreed because she wanted to protect the children and find out if their allegations were true. Marcy obtained an emergency order of protection. A few days later, a detective told Marcy that he had investigated the abuse allegations and determined them to be unfounded. The guardian ad litem recommended that the order of protection be dismissed. Marcy agreed, and the court dismissed the order of protection. Paul and Jodi never contacted Marcy to discuss the abuse allegations. Marcy and Steve had been living apart during the proceedings on the order of protection, and they decided to reconcile after the order of protection was dismissed. ¶ 13 Marcy testified that, on November 30, 2014, P.M. returned from a visit at Paul's house. P.M. told Marcy that she was an alcoholic and did not take care of her children or feed them. P.M. began hitting the wall with a walking stick, nearly hitting S.G. He picked up a bowl and threatened to throw it. Marcy texted Jodi and asked if she and Paul would come pick P.M. up because he was out of control. Jodi and Paul picked up P.M., and P.M. spent the night at their house. Marcy learned that when P.M. went to Paul's house that night, Paul and Jodi showed him court documents from Marcy and Paul's divorce. The next evening, Marcy sent Jodi a text message saying that P.M. had been talking about the court papers and asking Jodi not to bring him in to "adult issues." Records of the text messages were admitted into evidence. ¶ 14 On December 8, 2014, Marcy took P.M. to a counseling session with Hubbs. Paul and Jodi attended the appointment. Hubbs asked P.M. what he wanted to talk about. Paul put his arm around P.M. and said "why don't you tell [Hubbs] how you want to come live with me." P.M.'s eyes got big and he started shaking. Hubbs said he did not believe the conversation was therapeutic, and he asked Paul and Jodi to leave. Paul and Jodi left, and Hubbs followed them. Marcy heard Paul tell Hubbs that he had a right to be there and he could take away Hubbs's license. P.M. also heard Paul say this to Hubbs. P.M. was upset to hear Paul say these things because P.M. liked Hubbs. After that appointment, Hubbs said he was no longer comfortable treating P.M. ¶ 15 On January 20, 2015, Paul returned K.M. to Marcy's house after visitation, but he refused to bring P.M. Marcy called the police to report that Paul was refusing to return P.M. after visitation. The next day, Paul filed a petition for an emergency order of protection against Marcy alleging that the children had been abused by Steve. The court granted the emergency order of protection. While the emergency order of protection was in effect, P.M. lived with Paul and K.M. lived with Marcy. ¶ 16 Marcy testified that on February 5, 2015, she had a visit with P.M. in her home. P.M. immediately began looking through the refrigerator and cabinets for alcohol, but he did not find any. P.M. told Marcy that as a condition of him being there, Marcy could not have alcohol in the house. Later that day, at Marcy's mother's house, P.M. put his phone in the middle of the table and said he was recording everyone's conversation for Paul. The next day, P.M. told Marcy that everything that happened the night before had been written down and would be "wildly distorted." ¶ 17 Three days later, a hearing was held on the petition for a plenary order of protection Paul filed against Marcy. Paul and Jodi brought P.M. to the hearing, and the court directed P.M. to wait outside the courtroom. At the conclusion of the hearing, the court dismissed the order of protection and ordered that P.M. be returned to Marcy's custody. Paul told P.M. that he had lost the case, and P.M. would have to go home with Marcy. P.M. had a meltdown and began to cry. P.M. refused to leave with Marcy. The court security officer talked to P.M. and tried to calm him down. Emergency response services (ERS) arrived. After a few hours, Marcy convinced P.M. to get into her vehicle. P.M. told Marcy that he would burn the house down with her in it and he would jump out of her vehicle. ¶ 18 Marcy drove to her residence. P.M. walked inside, pushed his sister into a wall, went to his room, packed a backpack, and ran out the front door. Marcy or Steve called the police, and the officers found P.M. at a neighbor's house. Paul, who was in the neighborhood after dropping off P.M.'s school books, called the Department of Children and Family Services (DCFS), and DCFS called ERS. ERS personnel arrived on the scene and transported P.M. to the hospital. ¶ 19 P.M. was admitted to the mental health ward on an inpatient basis. P.M. did not make progress during his hospitalization. P.M. was fixated on his accusations of his stepfather's abuse and where he would live when he was released from the hospital. P.M.'s treatment records indicated that a new counselor had to be assigned to him at the hospital because Paul made threats toward his former counselor. P.M. was discharged from the hospital to Marcy's care on February 23, 2015. Steve moved back in with Marcy the next day. ¶ 20 On March 8, 2015, P.M. returned to Marcy's house from visitation at Paul's house. P.M. immediately began "screaming accusations, profanities." Marcy tried to calm him down but was unsuccessful. Marcy sent Jodi a text message asking her to come get P.M. or help her. P.M. went outside and refused to enter Marcy's house. J.T. took a coat out to P.M. P.M. grabbed the coat and punched J.T. in the stomach. J.T. reflexively lifted his elbow and bumped P.M.'s chin. Paul arrived at Marcy's house, and P.M. entered his vehicle. Paul called 911 regarding the alleged injuries P.M. suffered when J.T. struck his chin. Two fire trucks, approximately seven squad cars, and an ambulance arrived at the house. The ERS personnel found that P.M. had no injuries and sent him home with Paul. Marcy learned that Paul also called DCFS that night to report the incident with J.T. DeAnn Freesmeyer, the DCFS investigator assigned to investigate the incident, told Marcy that Paul was the individual who had called. Freesmeyer advised Marcy to stop calling Paul and Jodi for help with P.M. DCFS determined the report of abuse to be unfounded. ¶ 21 After the incident, Marcy instructed P.M. to spend the night at Paul's house but return to her house the next day after school on the bus. P.M. told Marcy that if he could not go to Paul's house the next day after school, he would tell the principal he was afraid to go to Marcy's house. P.M. said that the principal could not legally make him go to Marcy's house if he said he was afraid. Marcy told Freesmeyer what P.M. had said. The next day after school, P.M. told the principal that he was afraid to go to Marcy's house. The principal called the police and DCFS, and DCFS advised the principal that P.M. had preplanned the incident. ¶ 22 When P.M. arrived at Marcy's house that evening, he had a phone that Paul had given him. P.M. tried to pick a fight with Marcy, but it was unsuccessful. P.M. took out the phone and said he would call the police and say they got into a fight. Marcy told P.M. he needed to stop calling the police. P.M. then called the police and went out to the driveway. P.M. got very calm and then went into a rage. The police arrived approximately 45 minutes later. The police called ERS, and ERS took P.M. to the emergency room. P.M. was released the next day. ¶ 23 A video recording of P.M.'s fit of rage on March 9, 2015, was admitted into evidence. In the video, only Marcy's feet could be seen. However, there was an audio recording of Marcy and P.M.'s conversation. P.M. yelled profanities at Marcy and cried throughout the encounter. He told her he hoped she died so he could live with Paul. P.M. said: "You can't raise your kids. You can't move on from your exes." Marcy replied: "I can't move on? Who is at my house all the time? Who is constantly calling the cops on me? And who's calling DCFS on me?" P.M. responded: "Who's allowing their kid to punch their other kid in the fucking face?" P.M. said he was hoping J.T. would leave a bruise so he could go to the police station and have pictures taken. P.M. said Marcy raised two kids that would probably become prostitutes. ¶ 24 Marcy testified that P.M. had many fits of rage like the one in the video. They usually occurred after P.M. returned from visitation with Paul. Sometimes the fits of rage occurred right before P.M. was leaving for visitation. Marcy began taking P.M. to see Hanson for counseling upon Freesmeyer's recommendation. ¶ 25 In March and April 2015, P.M. complained of seeing bright lights and hearing loud bangs in his head. This would typically occur right before or right after a visit with Paul. Marcy was afraid P.M. was having seizures, so she took him to a doctor. The doctor performed an electroencephalogram test and determined P.M. was not having seizures. The doctor said P.M. was likely experiencing "pseudo seizures" as a result of the stress he was under and that these could turn into real seizures. ¶ 26 On May 17, 2015, P.M. and K.M. returned to Marcy's house from a visit with Paul. At that time, Marcy was paying P.M. $5 per day to take his medication. P.M. told Marcy he wanted his money. Marcy told P.M. the money was in his bank account. P.M. demanded to see his bank statement. K.M. then told Marcy that she could not believe that Marcy had taken her shopping for "essentials" like clothing for her birthday a couple weeks earlier. K.M. stated that "essentials" were "necessities" and should not have been given as birthday gifts. Marcy testified that K.M. enjoyed the birthday shopping trip at the time; K.M. picked the store and what she wanted to buy. ¶ 27 The children continued to taunt Marcy and Steve. Marcy called her parents. She was concerned because K.M. had never behaved that way before. P.M. repeatedly told Steve to hit him and leave a mark. P.M. held his phone out and said that Paul could hear everything they were saying. Marcy's parents arrived at the house. Marcy's parents tried to calm P.M. down. One of them took the phone away from P.M. Marcy's father put his hand on P.M.'s shoulder. P.M. then accused Marcy's father of abusing, molesting, and raping him. ¶ 28 The police arrived. They said Paul called them and reported that Marcy and Steve were intoxicated and abusing the children. The officers did not observe any bruises on the children. One of the officers asked P.M. if he was okay staying at Marcy's house. P.M. laughed and said yes. The children thought it was funny that the police were there. The police officers advised Marcy to take the children's cell phones away so they would not continue to call the police. Marcy took the phones away. ¶ 29 Marcy's counsel played an audio recording of part of the incident, which K.M. recorded on her cell phone. In the recording, the children argued with Marcy and Steve about various issues, including their bedtimes, money that Marcy was supposed to give P.M., and Marcy drinking and smoking. K.M. said she wanted to move in with Paul. One of the children asked Marcy if she wanted to see their evidence. The children then started talking about Marcy's cigarettes and empty beer bottles. Marcy then said, "What are you going to do, call the cops? I have beer in my house, I'm 36 years old. This is my house, I'm not driving, I can." P.M. then said he had two intoxicated parents and asked who was there to take care of him. K.M. said she had some battery left in her phone, so "he'll be able to listen to some evidence for a little bit longer." The children continued to argue with Steve and Marcy. At the end of the recording, K.M. said: "All right, dad, [P.M.'s] calling you. I'll send you the thing that I have for now. It's already been a half an hour. So, I hope you're ready to listen to all of it. Trust me, it's bad." ¶ 30 The next day, Paul took the children to the police station during his visitation time. When the children returned home, they said they had their pictures taken. A DCFS complaint was filed that day alleging that Steve abused K.M. DCFS determined the report of abuse to be unfounded. ¶ 31 On May 19, 2015, Marcy and the children had two counseling sessions with Hanson regarding the incident on May 17. Marcy also told Nookala about the incident. Both Hanson and Nookala said that the children needed to stop having contact with Paul. Nookala, Hanson, and Freesmeyer told Marcy that the children were being emotionally abused. ¶ 32 On May 26, 2015, Marcy obtained a court order prohibiting Paul from contacting the children. After the order was entered, P.M. stopped having rages, no one called DCFS or the police, and the children stopped threatening Marcy. Steve moved out August 22, 2015, and Steve and Marcy got divorced. Marcy believed their marriage would have survived if Paul had not had so much influence over it. ¶ 33 Marcy testified that, in the summer of 2016, she and the children moved to another town. K.M. was adjusting well to her new school and did not have behavioral problems. P.M. attended public high school as a freshman for five days and did very well. After the fourth day, he had his court-ordered psychological evaluation, which lasted for five hours. The next day at school, P.M. had a panic attack and Marcy had to pick him up early. Marcy spoke with Nookala about the incident, and they decided P.M. should be homeschooled. He had been homeschooled the year before as well. Marcy reported that P.M. was doing well, but it was very hard for him to leave the house. P.M. still saw Hanson and Nookala for treatment. ¶ 34 Hanson testified that he was a psychotherapist, a licensed clinical professional counselor, and a certified dialectical behavioral therapist. Hanson was referred to Marcy in March 2015. Hanson had 25 counseling sessions with P.M. and 5 counseling sessions with K.M. In addition, Hanson had many family counseling sessions involving P.M., K.M., and Marcy. Sometimes the children's grandparents attended family counseling. Hanson met with Paul and Jodi on an individual basis, but not with the children. Hanson had also met with Steve. ¶ 35 Hanson stated that P.M.'s primary psychiatric diagnosis was anxiety. When Marcy first brought P.M. to see Hanson, she reported that P.M. was highly defiant and in need of a therapist following his psychiatric hospitalization. Hanson observed P.M. being defiant with his mother and grandparents. Hanson was told that P.M. had fits of rage, especially after visits with Paul. P.M. would also question Marcy's authority after having visitation with Paul. Hanson caught P.M. exaggerating complaints about Marcy, and P.M. explained that he was "on strike" because he wanted to live with Paul. ¶ 36 Paul and P.M. told Hanson that Steve had abused the children. As a result, Hanson wanted "to get to the truth of the matter," so he investigated P.M.'s claims of abuse. He spoke with a DCFS investigator and learned that DCFS had determined the report of abuse to be unfounded. Hanson then questioned many of P.M.'s statements. P.M. eventually admitted that he exaggerated the intimidation he felt from Steve. P.M. initially told Hanson that Steve choked him, but later told Hanson that Steve only stepped on his foot and yelled at him. P.M. would tell Hanson that Steve was dangerous and that he was afraid of him, but later P.M. would say he wanted to shoot arrows with Steve or drive alone with him to get away from his younger sister. When Hanson confronted P.M. with the inconsistencies in his claims of abuse by Steve, P.M. said Marcy had put Paul through hell throughout the years with the supervised visits. P.M. said the claims of abuse were a way of protecting Paul and getting back at Marcy. ¶ 37 Hanson opined that P.M.'s claims of abuse seemed scripted, as P.M. used terms like "medically neglectful," which would not normally be used by a child P.M.'s age. Hanson stated that P.M. attributed a lot of negative behaviors to Marcy, which appeared scripted. For example, P.M. said Marcy was drunk and medically neglected him. Also, P.M. was very critical of Marcy's decision to homeschool him. P.M. said "what kind of parent doesn't send their kid to school." However, the reason Marcy decided to homeschool P.M. was that P.M. was defiant and refused to go to school. ¶ 38 Hanson stated that P.M. showed animosity toward Marcy's parents as well. After a visit with Paul, P.M. told his grandmother that she was hiding a criminal record. He then dared his grandfather to touch him. P.M. said if his grandfather touched him, he could call the authorities and report physical abuse. P.M. told Hanson that he tried to record the family fighting with his cell phone so that Paul could hear it and call the police. ¶ 39 Hanson opined that P.M. suffered from a severe case of parental alienation syndrome. Hanson stated that parental alienation syndrome occurred when a child aligned with one parent who confronts or questions the safety or love of another parent by making the other parent appear "evil or unsafe." Hanson said P.M. displayed signs of all the parental alienation criteria. Hanson explained: "[P.M.] was alienated from his mother. At one time he had a very loving relationship with her, and that all changed after he had these numerous visits with his father and the unsupervised time." Because P.M.'s case of parental alienation was severe, Hanson recommended that he have no contact with Paul until interventions were made. Hanson stated that parental alienation was emotional abuse because it put "a ton of pressure on kids." Hanson opined that the children's contact with Paul should be limited to avoid further psychological damage. ¶ 40 Hanson was aware that the court entered an order in May 2015 barring contact between Paul and the children. Hanson stated that the children were upset, confused, and concerned by the order. Overall, however, P.M.'s behavior and rage improved a great deal after the order was in place. Hanson reduced the frequency of his sessions with the children because they were doing better. The children missed their father and wanted to see him. However, they also "recognized that there was a lot of pressure on them as well as their mother, and that pressure was *** caused by them visiting their father." Hanson noted that Marcy and Steve had separated, and P.M.'s attitude improved a great deal after Steve moved out. However, P.M.'s attitude had already improved before that point. P.M. told Hanson that he wished Paul would stop trying to fight for the children and just do what was necessary to get his visitation restored. P.M. also told Hanson that the custody fight was very stressful, and it made him miss a year of school. P.M.'s relationship with Marcy had improved, and they appeared to have a loving relationship. A few weeks before the trial, P.M. told Hanson he was afraid to see Paul because of all the stress and pressure Paul previously placed on him. ¶ 41 Hanson testified that K.M. currently had a good relationship with Marcy, and her behavior was generally pretty good. Hanson had diagnosed K.M. with an adjustment disorder. Hanson testified that K.M. met the criteria for parental alienation syndrome, but P.M.'s case was more severe. Hanson was concerned that if Paul were to see K.M. but not P.M. she would become more of a victim of parental alienation. ¶ 42 Hanson met with Paul on October 29, 2015, and discussed his findings. Paul said he wanted to stop challenging the custody arrangement and focus on having visitation with his children and moving forward. On a later occasion, Paul told Hanson that he wanted justice, and he did not make any derogatory statements to his children about Marcy. These statements showed Hanson that Paul was not willing to take ownership of his alienating behaviors. ¶ 43 Hanson proposed a plan to work toward Paul receiving visitation again. Hanson recommended that Paul undergo a psychological evaluation and psychological testing followed by individual counseling. When Paul had made sufficient process in individual counseling, family therapy with the children could begin. After Paul and the children had made sufficient progress in family therapy, Paul could begin having supervised visitation. If Paul was practicing boundaries and not engaging in alienating behaviors during supervised visits, Paul could begin to have unsupervised visitation. ¶ 44 Hanson stated that he had seen the report prepared by Day, the psychologist who performed the independent psychological evaluation of Paul, Jodi, K.M., and P.M. Hanson disagreed with Day's recommendation that Paul have unsupervised visitation immediately. Hanson explained that Day's report did not include information regarding Paul's past behavior, so Hanson questioned whether Day had addressed those issues. Hanson stated that he believed the best predictor of future behavior was past behavior. Hanson noted that Paul was likely to continue his alienating behaviors until they were addressed in therapy. ¶ 45 Nookala testified that she was a child psychiatrist. She had treated P.M. for approximately two years for an anxiety disorder and attention deficit hyperactivity disorder. On February 9, 2015, P.M. was admitted to the mental health ward at Unity Point Methodist Hospital. Nookala was the head of P.M.'s treatment team. At that time, P.M. had depression and "a lot of anxiety." ¶ 46 During P.M.'s treatment with Nookala, issues arose regarding P.M.'s contact with Paul. During Paul's visitation with P.M., Paul would tell P.M. negative information about Marcy that P.M. would not have otherwise known. Marcy and P.M. reported to Nookala that Paul would call the police when P.M. was at Marcy's house. Paul told P.M. that Marcy's house was unsafe, and he gave P.M. cell phones so he could call the police. This created an extremely stressful situation for P.M. P.M.'s anxiety increased, and he was very angry with Marcy as a result of the information Paul told him. ¶ 47 Nookala testified that P.M. struggled with inflexible and concrete thinking. That is, P.M. saw things as being either good or bad. There was a period of time in which P.M. believed that Paul was good and Marcy was bad. During that period, P.M. did not want anything to do with Marcy. Often, this occurred after P.M.'s visits with Paul. P.M. would become defiant and disruptive, refuse to go to school, and refuse to listen to Marcy. P.M. began having panic attacks. ¶ 48 Nookala opined that P.M. was being negatively influenced by Paul. P.M. showed signs of splitting, or idealizing one person and devaluing another. There were periods of time where P.M. would idealize Paul and devalue Marcy. Nookala attributed P.M.'s splitting to his immaturity and rigid thinking. Marcy's counsel asked Nookala if P.M. was a victim of parental alienation by Paul. Nookala responded: "There was a phase of that, but in total, his anxieties, immaturity, and parents, I would say, disagreements, intense disagreements between the parents, caused him a lot of problems." ¶ 49 Nookala acknowledged that she had written a letter several months before stating that P.M.'s visits with Paul should be discontinued. Marcy's counsel asked Nookala if that was still her opinion, and Nookala said that it would depend on Paul's emotional condition. If nothing had changed, then she would still recommend that Paul have no visitation. She stated that when she last saw P.M. in July 2016, he was doing better and had a better relationship with Marcy. ¶ 50 Marcy's counsel called Paul as a witness. Paul testified that he contacted Steve and supported him after Marcy obtained an order of protection against Steve. Paul told Steve he did not believe Steve abused the children. Steve shared information with Paul to help Paul obtain custody of the children, and Paul may have also shared information with Steve. Eventually, Paul came to believe that the children's allegations of abuse were true because the children continued to bring up the matter for months after their original accusation. Paul denied threatening any of P.M.'s counselors. ¶ 51 Paul testified that he took the children to the State Police headquarters on May 19, 2015, because he did not believe that the officer who responded on May 17, 2015, had done a thorough child abuse investigation. A police report stated that an officer at the State Police headquarters asked K.M. where she was injured. K.M. pointed to the underside of her wrists and said "they told me it was here and here." The report said that the officer was unable to see any signs of injury on K.M. The officers observed a faint mark on P.M.'s arm. The police report stated that an officer asked P.M. if he was okay with returning to Marcy's residence, and P.M. said it was not a problem. ¶ 52 A two-month break was taken in the middle of the trial. During this time, Marcy filed a motion to prohibit Dr. Day and Dr. Luke Dalfiume, a psychologist who worked with Day, from testifying because they had failed to comply with her subpoena for records. Marcy had issued a subpoena to Day and Dalfiume seeking discovery of their files; copies of notes of any interviews, meetings, or encounters with Paul, Jodi, P.M., or K.M.; copies of the test answer sheets and test answer scores for all psychological tests performed on Paul, Jodi, P.M., and K.M.; copies of all documentation they reviewed, utilized, or considered in the evaluation; and Day's curriculum vitae. Day refused to provide any of the subpoenaed materials other than his curriculum vitae, claiming they were exempt from disclosure under the Confidentiality Act. ¶ 53 A hearing was held on the motion at which Day was present. Day stated that the Confidentiality Act prevented him from turning over raw test data. Marcy argued that the Confidentiality Act did not apply because Day was not a treating professional. The court ordered that Day would have a week to submit all the documents requested in the subpoena. If he did not comply, Day and Dalfiume would be barred from testifying. Marcy's counsel prepared a written order for the court's signature. The written order stated that Day and Dalfiume were Paul's controlled expert witnesses rather than treating professionals. ¶ 54 Paul moved to vacate the order, arguing that Marcy's counsel committed fraud on the court when he added to the written order that the court had found that Day was Paul's controlled expert witness. Paul also argued that the Confidentiality Act had been amended such that records and communications were protected regardless of whether they were made in the course of a therapeutic relationship. The court denied Paul's motion. ¶ 55 Also during the break in the trial, Paul filed motions to bar Hanson's and Nookala's testimony on the basis that Marcy did not make the proper pretrial disclosures regarding those witnesses. The motion to bar Hanson's testimony also alleged that Hanson improperly received and reviewed copies of Day and Dalfiume's evaluations of Paul, Jodi, and the children without signed releases in violation of the Confidentiality Act. The court denied the motions. ¶ 56 Paul also filed several petitions for rule to show cause against Marcy and Marcy's counsel arguing that they disclosed the mental health records of Paul, Jodi, and the children related to their evaluation by Day and Dalfiume to Hanson in violation of Confidentiality Act. The court denied the petitions. The court noted that Day and Dalfiume's evaluations were generated for litigation. The court found that fundamental fairness warranted an exception to the Confidentiality Act and that the records were probative and not unduly prejudicial. The court also found that Paul did not have standing to object to the disclosure of the children's records. ¶ 57 The trial resumed. Day testified as Paul's witness. Day stated that he became involved in the case through a court order. Day completed the testing of Paul and Jodi, and Dalfiume completed an evaluation of the children. Day explained that when he examined Paul and Jodi, "it was just a matter of visitation and looking at whether or not [Paul and Jodi] were okay with the kids in terms of, is there any psychopathology." Day did not speak with Hanson and Nookala. Day left a message at Nookala's office, but no one returned his call. Day explained that he did not believe that he needed to interview Hanson and Nookala. Day stated that his objective was merely to analyze Paul's personality psychological structure and determine whether Paul presented a danger to the children. Day did not attempt to determine the history of the events of the past few years "because it becomes, he said, she said." ¶ 58 Day first performed a psychodiagnostic interview and then performed testing to assess Paul and Jodi's personality features, psychological adjustment, and issues with violence. The testing showed that Paul and Jodi had a strong interest to do what was best for the children. The testing did not indicate that Paul or Jodi had any diagnosis of major psychopathology. Day concluded that there was "no sense of dangerousness in [Paul's] visitation with his children, and visitation should be resumed as soon as possible for *** the best interests of the children." Day believed it was important for the children to have access to both parents, as long as there was no threat of danger. ¶ 59 Day testified that parental alienation syndrome as a diagnosis was not accepted in the field of psychology, but a behavioral pattern of parental alienation was accepted. Day opined that if a parent was engaging in severe parental alienating behaviors, it could be a reason to restrict or suspend the alienating parent's visitation. Day stated that parental alienating behavior could be a form of child abuse. ¶ 60 On cross-examination, Marcy's counsel asked Day questions regarding the computer-generated interpretive report of Paul's Millon Clinical Multiaxial Inventory-III (MCMI-III) test results. Counsel confronted Day with various statements from the computer-generated report and asked Day why he did not include the information in his own report. Day stated that he did not put this specific information in his final report because the computer-generated report merely included "suggestions that just give you clinical indicators." Day interpreted the results of the test in light of his professional experience. Day stated that his report noted that Paul's response patterns indicated defensiveness, which was normal when testing was done for forensic purposes. Day opined that the level of defensiveness indicated in Paul's testing was not so high that it would invalidate the test results. ¶ 61 Day also acknowledged that the computer-generated test results indicated that Paul exhibited obsessive compulsive personality traits, histrionic personality traits, and narcissistic personality features. Day stated that he did not include this information in his final report. Day explained that the personality traits or features described in the computer-generated results were not pathological or of psychological concern. ¶ 62 Day acknowledged that the computer-generated test results stated that Paul's scores were adjusted to compensate for his defensiveness, but his overall profile may remain partially distorted. Counsel then asked Day: "[Y]ou did not share any of the information in your report about the fact that the profile that he presented may be partially distorted, did you?" Day responded:
"Please understand, this is a hypothesis. You're doing what really the [Confidentiality Act] was trying to prevent, and that is, as a person with a different discipline, you're trying to interpret how psychological data of this nature is utilized, generated, and how you analyze it and the implications of it.Counsel moved to strike Day's answer on the basis that it was narrative and not responsive to his question. The court responded: "I think the doctor is expressing his concern over—well, I'm going to leave it. I'm not going to strike it. Let's move along." ¶ 63 The parties indicate in their briefs that Dalfiume also testified at the trial. His testimony is not included in the record on appeal. However, his evaluations of the children are included in the record. The evaluations concluded that the children should resume visitation with Paul unless there were significant concerns to suggest otherwise. ¶ 64 During closing argument, Marcy's counsel argued:
This is simply not acceptable. In my profession, there would be people that generally would just say, I won't respond to your questions, because you're stepping out of mythical [sic] boundaries."
"But it's clear that [Paul's] focus is not on the children's well-being or what is best for the children. His focus is Paul Moore. And that's the element of the narcissistic personality trait that came out on the interpretation of his MCMI-III test done by John Day, which Dr. Day didn't mention as part of his diagnosis on [Axis] II in his report. But I think it's apparent to everyone having seen that that [Paul] is only looking to retaliate against Marcy."¶ 65 During Paul's closing argument, he argued that Marcy's counsel improperly used his MCMI-III test results against him. Paul contended that, under the Confidentiality Act, the computer-generated report should not have been released to Marcy's counsel. ¶ 66 The guardian ad litem opined that she believed that there had been serious endangerment to the mental and emotional welfare of the children by the parental alienating behaviors of Paul. She did not believe that Paul could see or understand his alienating behaviors, and therefore he might not even realize that he was doing it. The guardian ad litem met with P.M. a couple weeks prior to the trial, and P.M. was calmer than she had ever seen him. P.M. told her that he was angry with Paul because he believed Paul manipulated him into causing havoc with Marcy. K.M. reported that she missed Paul and wanted to see him. The guardian ad litem said she feared that K.M. would be next in line for the parental alienation behaviors caused by Paul. The guardian ad litem argued that Hanson's plan for reunification with Paul should be implemented. ¶ 67 The court granted Marcy's emergency motion to suspend Paul's visitation, finding that Marcy established by a preponderance of the evidence that Paul posed a risk of serious endangerment to the children's physical, mental, moral, and emotional wellbeing. The court stated that it believed Paul had "caused a campaign *** to wreak havoc upon" the children and Marcy's family. The court reasoned:
"I do find from the evidence that this was a concerted effort by you [(Paul)]. You caused the police to be called. You caused the firefighters to be called. And quite frankly, with your behavior in court, I believe you enjoyed that. You enjoyed creating this disturbance. But I agree again with [the guardian ad litem] that maybe you didn't understand that. Maybe in some fashion you thought that you were doing this for the best interest of your kids. But while you were doing this, it wasn't working to the betterment of their health. [P.M.] went into a mental hospital. [P.M.] has terrible serious issues which cause him to not be able to function like a regular little 14-year-old kid. Both of the children. What 12-year-old child walks around and videotapes their mother and father in order to get evidence to show someone else? How can you say that you had nothing to do with that? I doubt that a 10-year-old and a 12-year-old thought that up all by themselves."¶ 68 The court accepted the treatment recommendations proposed by Hanson and ordered Paul to contact Dr. Steven Hammond to schedule complete psychological testing. The court ordered Paul to comply with all Hammond's treatment recommendations. Once Paul made sufficient progress in treatment, family counseling could begin. The court found that its order was final and appealable pursuant to Illinois Supreme Court Rule 303(a) (eff. Mar. 8, 2016).
Marcy actually testified after the break in the trial. We included her testimony first for the purposes of organization. --------
¶ 69 ANALYSIS
¶ 70 Initially, we note that Paul has proceeded pro se in this appeal. Paul's appellate brief raised many points, which we have attempted to distill and address. Some points Paul raised were conclusory and unsupported by legal argument, and we have not addressed those points in this order. Eckiss v. McVaigh, 261 Ill. App. 3d 778, 786 (1994) ("Mere contentions without argument or citation of authority do not merit consideration on appeal ***.").
¶ 71 I. Violations of the Confidentiality Act
¶ 72 Paul argues that the Confidentiality Act was violated when the court ordered Day and Dalfiume to comply with Marcy's subpoena by disclosing the psychological tests, test answers, personal notes, and their entire files on Paul, Jodi, and the children. Paul also argues that the Confidentiality Act was violated when Marcy's counsel disclosed Day and Dalfiume's reports to Marcy, and Marcy disclosed the reports to Hanson. In considering these arguments, we address Paul's claims that the Confidentiality Act was violated only insofar as the alleged violations affected the proceedings in this case. We acknowledge that the Confidentiality Act provides for civil remedies and criminal penalties for violations. 740 ILCS 110/15, 16 (West 2016). However, such matters are outside the scope of this appeal and therefore would have to be addressed in separate proceedings.
¶ 73 A. Disclosure of Certain Materials
¶ 74 We first address Paul's argument that the circuit court's order suspending his visitation should be reversed because the court ordered Day and Dalfiume to violate the Confidentiality Act when it ordered them to comply with Marcy's subpoena by disclosing the psychological tests, test answers, personal notes, and their entire files on Paul, Jodi, and the children Paul argues that he was prejudiced by this alleged error because Marcy's counsel improperly attempted to interpret psychological test data during his cross-examination of Day. ¶ 75 The circuit court may suspend a parent's visitation, or eliminate a parent's parenting time, "if the court finds by a preponderance of the evidence that [the] parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development." 750 ILCS 5/603.10(a) (West 2016). "[E]rror in the admission of evidence does not require reversal if the evidence does not materially affect the outcome." In re Marriage of Willis, 234 Ill. App. 3d 156, 161 (1992); In re Marriage of Brudd, 307 Ill. App. 3d 57, 62 (1999) ("To constitute reversible error, the [appellant] must prove that [he] was prejudiced to the extent that the evidence materially affected the outcome."). ¶ 76 Even if we were to accept Paul's argument that the disclosure of the information requested in Marcy's subpoena was improper, any error resulting from the disclosure was harmless because counsel's cross-examination of Day concerning the psychological test data did not materially affect the outcome of the trial. The circuit court did not heavily rely upon this testimony in reaching its determination that Paul's visitation should be suspended. The court did not even mention this testimony during the pronouncement of its ruling. Rather, the court expressly relied on the substantial evidence that Paul created a disturbance in the children's lives through his alienating behaviors. Specifically, the court noted that Paul caused the police, firefighters, and DCFS to be called on various occasions and encouraged his children to videotape Marcy. The court focused on Paul's alienating behavior and the psychological harm it caused P.M., especially his hospitalization in a mental health ward. ¶ 77 The circuit court's findings were supported by the evidence. At the trial, Marcy testified as to various occasions when P.M. returned from visitation at Paul's house and accused her of various things he would not have known unless Paul had told him. She testified that there were multiple DCFS investigations into allegations that she and Steve abused the children, and all reports of abuse were determined to be unfounded. The police and ERS were called to Marcy's house multiple times by Paul and P.M. regarding these allegations of abuse. P.M. later admitted that he exaggerated his allegations of abuse. Specifically, P.M. told Hanson that Marcy had put Paul through hell over the years and his allegations of abuse were a way to protect Paul and get back at Marcy. Hanson testified that the allegations seemed scripted, as P.M. was describing the abuse with language that was not age-appropriate. P.M. threatened to record Marcy on various occasions to obtain evidence for Paul. A recording that K.M. made on her cell phone to obtain evidence for Paul was introduced into evidence. ¶ 78 Marcy presented evidence that this behavior had a significant negative psychological impact on P.M. Nookala testified that P.M. suffered from an anxiety disorder. Marcy testified that P.M. had fits of rage and pseudo seizures, usually right before or after his visitation with Paul. When the court denied the petition for an order of protection that Paul filed on P.M.'s behalf, P.M. had a meltdown that led to a two-week psychiatric hospitalization. Nookala and Hanson testified that Paul's behavior put a lot of stress on P.M. and caused him great anxiety. Hanson testified that P.M. suffered from a severe case of parental alienation. Hanson opined that if only K.M. had contact with Paul, she would likely be next in line to receive his alienating behaviors. ¶ 79 Additionally, we note that Marcy's, Hanson's, and Nookala's testimony was supported by P.M.'s statement to the guardian ad litem that he was angry with Paul because he believed Paul had manipulated him into causing havoc with Marcy. ¶ 80 Given the strength of the above evidence, it is unlikely that the court would not have found that Marcy established serious endangerment by a preponderance of the evidence had Day and Dalfiume not been ordered to disclose the allegedly improper materials. Thus, any error resulting from the disclosure of these materials was harmless.
¶ 81 B. Disclosure to Hanson
¶ 82 Paul also argues that the Confidentiality Act was violated when Marcy's counsel improperly disclosed the evaluation reports generated by Day and Dalfiume to Marcy, who then improperly disclosed them to Hanson. Paul argues:
"[Paul] believes that [Marcy's counsel's] lack of judgement [sic] in this matter breached his position as a Court Agent as pertaining to this case and such disclosure had not only caused great mental distress to [Paul and Jodi], as the reports also disclosed a medical diagnosis, it was also a violation of mental health rights under HIPAA and 740ILCS110."Paul also notes that he filed a petition for rule to show cause against Marcy's counsel requesting that counsel be dismissed from this case and all future cases involving Paul and his children "due to his complete lack of judgement [sic] and disregard with following State and Federal laws and Acts related to the Mental Health privacy of the parties." ¶ 83 We find that counsel's alleged disclosure of the reports to Marcy were not improper. Paul and Marcy disagree as to whether Day and Dalfiume were Paul's retained experts under section 604.10(c) of the Act (750 ILCS 5/604.10(c) (West 2016)) or the court's experts under section 604.10(b) of the Act (Id. § 604.10(b)). Under either section, their reports were to be disclosed to the parties' attorneys. Id. §§ 604.10(b), (c). There is nothing in the Act that would prevent the attorneys from showing the reports to their clients. Indeed, if Marcy were representing herself, the report would have been disclosed directly to her. ¶ 84 Paul also notes that he filed a motion to bar Hanson's testimony, which was denied. Paul states:
"It is [Paul's] belief that Marty Hanson LCPC whose testimony *** was opinion based was modified in light of the reports he illegally obtained, to purposefully discredit the court ordered independent evaluation of Dr. John R Day. It is also [Paul's] belief that the lack of judgement [sic] shown by LCPC Marty Hanson in violating the 740ILCS110 Act and knowingly and willfully violating the HIPPAA [sic] law also exposes that he was clearly hired by the plaintiff for court purposes, and is bias [sic] against the defendant and that his testimony, which is an opinion based testimony cannot be deemed true or reliable."¶ 85 There is nothing in the record that would substantiate Paul's "belief" that Hanson altered his testimony after reading Day's report. Beyond Paul's alleged belief that Hanson altered his testimony, Paul does not allege that he was prejudiced by Marcy's allegedly improper disclosure of Day and Dalfiume's reports to Hanson. Even if we were to accept Paul's argument that Marcy improperly disclosed Day and Dalfiume's reports to Hanson, this does not provide a basis to reverse the court's order suspending Paul's visitation absent a showing that it materially affected the proceedings. See Brudd, 307 Ill. App. 3d at 62. As we previously discussed, any error would be harmless in light of the significant evidence regarding Paul's alienating behaviors and the effect these behaviors had on the children. Supra ¶¶ 76-79.
¶ 86 II. Fraud On The Court
¶ 87 A. Marcy's Counsel
¶ 88 Paul argues that Marcy's counsel committed fraud upon the court when he drafted a court order stating that the court found that Day and Dalfiume were Paul's controlled expert witnesses rather than treating professionals. Paul contends that the court made no such finding. Paul further contends that Day and Dalfiume were the court's expert witnesses pursuant to section 604.10(b) of the Act (750 ILCS 5/604.10(b) (West 2016)). ¶ 89 "Fraud consists of the misrepresentation of material facts or, under some circumstances, the failure to disclose facts." (Emphasis in original.) McCarthy v. Pointer, 2013 IL App (1st) 121688, ¶ 17. " 'A misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and, in acting, the other party must rely on the truth of the statement.' " Id. (quoting Roth v. Roth, 45 Ill. 2d 19, 23 (1970)). ¶ 90 Here, the record is somewhat unclear on the matter of whether Day and Dalfiume were the court's expert witnesses or Paul's expert witnesses. When Paul initially brought the motion for an independent psychological evaluation of the children, the court indicated that it was considering the motion pursuant to section 604.5 of the Act (750 ILCS 5/604.5 (West 2014)) rather than section 604(b) of the Act (Id. § 604(b)). Section 604.5 provided that the court could order an evaluation concerning the best interest of the child as it related to visitation, and the evaluation could be requested by a party, parent, the child's custodian, the attorney for the child, the child's guardian ad litem, or the child's representative. Id. § 604.5. The person requesting the evaluation was to pay for it unless otherwise ordered by the court. Id. On the other hand, section 604(b) provided that the court could seek the advice of a professional and provide the written advice of the professional to counsel. Id. § 604(b). Under section 604(b), the court was to allocate the fees of the professional between the parties. Id. ¶ 91 After the court ordered the independent psychological evaluation, but before the evaluation was completed, the Act was amended such that section 604 and 604.5 were repealed. See id. §§ 604, 604.5; Pub. Act 99-90, § 5-20 (eff. Jan. 1, 2016). These sections were replaced with section 604.10 of the Act (750 ILCS 5/604.10 (West 2016)). Section 604.10(b) provides for the appointment of the court's professional and is most closely analogous to former section 604(b). Id. § 604.10(b). Section 604.10(c) provides for evaluations by a party's retained professional and is most analogous to former section 604.5. Id. § 604.10(c). Sections 604.10(b) and (c) provide identical criteria for the information that must be set forth in an evaluator's report. Id. § 604.10(b), (c). ¶ 92 The court advised Day at the hearing on the motion to define the scope of the psychological evaluation that section 604.10(b), which most closely corresponds to former section 604(b), was the applicable subsection. However, the court had previously ruled that former section 604.5 was the applicable section, which most closely corresponds to section 604.10(c). In any event, whether Day and Dalfiume were the court's professionals or Paul's retained professionals, they were court-ordered experts rather than treating professionals. Under these circumstances, we find that Paul has failed to show that counsel's statement that Day and Dalfiume were Paul's controlled experts rather than treating professionals was false and known to be false by counsel. Thus, Paul has failed to establish that counsel committed fraud on the court.
¶ 93 B. The Court
¶ 94 Paul also argues that the court committed fraud on itself when it denied his motion to vacate the court's order directing Day and Dalfiume to comply with Marcy's subpoena. Paul contends that in denying his motion to vacate, the court violated the Confidentiality Act, "which shows Fraud on the behalf of Judge Cusack to undermine the laws of Supreme Court of Illinois." Paul essentially argues that that the court's ruling on his motion to vacate was legally incorrect. However, "[a] mistake of law is not fraud." (Emphasis in original.) McCarthy, 2013 IL App (1st) 121688, ¶ 17. Thus, the court's denial of the motion on what Paul believed to be an incorrect legal basis did not constitute fraud on the court.
¶ 95 III. Delay
¶ 96 Finally, Paul argues that his constitutional right to a speedy trial was violated. While the sixth amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial," ((emphasis added) U.S. Const., amend. VI), it does not provide the same right to civil litigants. ¶ 97 In coming to this conclusion, we note that Paul cites Illinois Supreme Court Rule 922 (eff. Mar. 8, 2016), which provides:
"All allocation of parental responsibilities proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay. The 18-month time limit shall not apply if the parties, including the attorney representing the child, the guardian ad litem or the child representative, agree in writing and the trial court makes a written finding that the extension of time is for good cause
shown. In the event the parties do not agree, the court may consider whether an extension of time should be allowed for good cause shown."¶ 98 At the outset, we note that Rule 922 does not concern the constitutional right to a speedy trial but rather provides guidelines for resolving disputes as to allocations of parental responsibilities. In the instant case, the trial commenced approximately 20 months after the petition to restrict visitation was filed. The court never made written findings as to the reasons for the delay or expressly considered whether there was good cause for an extension of time. However, the record shows that the delay in the proceedings was caused by numerous motions filed by both parties. Although the visitation issue should have been resolved more quickly, Rule 922 does not provide a basis to invalidate the court's ruling on the motion to restrict visitation.
¶ 99 CONCLUSION
¶ 100 The judgment of the circuit court of Tazewell County is affirmed. ¶ 101 Affirmed.