No. 2--01--0554

Petitioner, Michelle Flannery, filed a petition for order ofprotection on behalf of her minor daughter, Amanda, againstrespondent, Kevin Flannery, Amanda's father. Following a hearing,the trial court entered a plenary order of protection. On appeal,respondent argues (1) the trial court erred in admitting Amanda'shearsay allegations of sexual abuse; (2) Amanda's hearsaystatements lacked sufficient corroboration; (3) he was not givenreasonable notice of Amanda's hearsay statements; (4) the trialcourt abused its discretion with respect to certain evidentiaryrulings; and (5) the trial court's decision was against themanifest weight of the evidence and an abuse of discretion. Forthe reasons that follow, we reverse.

I. BACKGROUND

On March 14, 2001, petitioner filed a verified petition for anorder of protection against respondent. Petitioner alleged thather then three-year-old daughter told social worker Regina Lumpkinsthat "daddy put his finger in my buddy butt (vagina) and hurt me." Among other things, petitioner requested that respondent stay awayfrom Amanda and that she (petitioner) be granted "physical care" ofthe child. A hearing on the petition commenced on April 3, 2001. At the hearing, petitioner, petitioner's mother, petitioner'sfather, and Lumpkins testified about statements made to them byAmanda between August 2000 and April 2001 regarding the allegedsexual abuse.

At the close of petitioner's case, respondent moved to strikethe hearsay statements attributed to Amanda. Respondent assertedthat there were three possible bases for the admission of thehearsay statements: (1) section 213.1 of the Illinois DomesticViolence Act of 1986 (Domestic Violence Act) (750 ILCS 60/213.1(West 2000)); section 606(e) of the Illinois Marriage andDissolution of Marriage Act (Marriage Act) (750 ILCS 5/606(e) (West2000)); or (3) section 8--2601 of the Code of Civil Procedure(Code) (735 ILCS 5/8--2601 (West 2000)). However, respondentsuggested that none of these statutory provisions applied to theinstant case. Section 213.1 of the Domestic Violence Act did notapply because that section pertains exclusively to hearsaystatements made by high-risk adults with disabilities. Respondentargued that neither section 606(e) of the Marriage Act nor section8--2601 of the Code applied because both of those statutoryprovisions allow the admission of hearsay statements only if thereis corroboration. Respondent contended that there was no physicalor other corroboration of the statements attributed to Amanda. Inaddition, respondent pointed out that section 8--2601 of the Coderequires that any statement have sufficient safeguards ofreliability, which the hearsay statements in this case lacked. Inresponse, petitioner, relying on Daria W. v. Bradley W., 317 Ill.App. 3d 194 (2000), argued that section 606(e) of the Marriage Actallows the admission of a child's hearsay statements of abuse at anorder-of-protection hearing.

The trial court ruled that the hearsay statements wereadmissible under section 606(e) of the Marriage Act. The courtcommented that in Daria W. the appellate court "made it clear thatit is [section] 606(e) that controls hearsay statements of a childdealing with abuse." Accordingly, the trial court deniedrespondent's motion to strike Amanda's hearsay statements. Respondent then presented his case. At the close of the evidence,the court ruled that there was sufficient evidence to corroborateAmanda's hearsay statements. Specifically, the court noted thatthere were two types of corroborating evidence, "physical evidence"and "testimony of the physical actions of the child when that childrelayed statements of abuse." The court issued a plenary order ofprotection against respondent for two years. The order allowedrespondent to have supervised visitation with Amanda. This appealfollowed.

II. ANALYSIS

A. Applicable Statute

Respondent first argues that the trial court erred inadmitting Amanda's out-of-court statements under section 606(e) ofthe Marriage Act. According to respondent, section 8--2601 of theCode (735 ILCS 5/8--2601 (West 2000)) governs the admissibility ofa minor's hearsay statements in cases brought pursuant to theDomestic Violence Act. Section 8--2601 requires (1) the court toconduct a hearing to establish the reliability of the statementsand (2) corroborative evidence of the act which is the subject ofthe statement if the child is unavailable to testify. Respondentasserts that Amanda's statements were not admissible under section8--2601 because the trial court failed to determine whetherAmanda's statements were reliable. Petitioner responds that thetrial court properly admitted Amanda's hearsay statements pursuantto section 606(e) of the Marriage Act and Daria W.

Our task is to determine whether section 606(e) of theMarriage Act or section 8--2601 of the Code applies in assessingthe admissibility of a minor child's hearsay statements where aparty seeks an order of protection. The resolution of this issueinvolves a question of statutory construction, a question of lawthat is subject to de novo review. Overlin v. Windmere CovePartners, Inc., 325 Ill. App. 3d 75, 77 (2001). The cardinal ruleof statutory construction is to ascertain and give effect to theintent of the legislature. Forest Preserve District v. Loren &Gisela Brown Family Trust, 323 Ill. App. 3d 686, 692 (2001). Thebest indication of the legislature's intent is the plain languageof the statute. Westcon/Dillingham Microtunneling v. WalshConstruction Co. of Illinois , 319 Ill. App. 3d 870, 875 (2001). After carefully reviewing the applicable statutory provisions, weconclude that section 8--2601 applies in determining theadmissibility of Amanda's out-of-court statements of sexual abuseby respondent.

The Domestic Violence Act (750 ILCS 60/101 et seq. (West2000)) governs orders of protection. Section 205(a) of theDomestic Violence Act (750 ILCS 60/205(a) (West 2000)) provides inpertinent part:

"Any proceeding to obtain, modify, reopen or appeal anorder of protection, whether commenced alone or in conjunctionwith a civil or criminal proceeding, shall be governed by therules of civil procedure of this State. The standard of proofin such a proceeding is proof by a preponderance of theevidence, whether the proceeding is heard in criminal or civilcourt. The Code of Civil Procedure [(735 ILCS 5/1--101 etseq. (West 2000))] and Supreme Court and local rulesapplicable to civil proceedings, as now or hereafter amended,shall apply, except as otherwise provided by this law." (Emphasis added.) 750 ILCS 60/205(a) (West 2000).

Initially, we note that section 8--2601 is a part of the Code ofCivil Procedure. Furthermore, use of the term "shall" ordinarilydenotes a mandatory obligation. In re Marriage of Takata, 304 Ill.App. 3d 85, 95 (1999). Accordingly, we find that the plainlanguage of section 205(a) mandates the application of section 8--2601 in assessing the admissibility of a minor's out-of-courtstatements in cases brought under the Domestic Violence Act.

We point out that nothing in the Domestic Violence Actprovides that the Marriage Act applies in determining theadmissibility of a minor's hearsay statements in order-of-protection cases. Notably, section 214(b) of the Domestic ViolenceAct (750 ILCS 60/214(b) (West 2000)) contains 18 subsectionslisting various remedies that a court may grant in issuing an orderof protection. Seven of those subsections refer to the MarriageAct in some capacity. See 750 ILCS 60/214(b)(2), (b)(6), (b)(7),(b)(10), (b)(11), (b)(12), (b)(13) (West 2000). However, none ofthose subsections require application of section 606(e) in a casebrought under the Domestic Violence Act.

Section 214(b)(2) provides that, in deciding whether to grantexclusive possession of the marital residence to the petitioner,the court shall not be limited by the standards set forth insection 701 of the Marriage Act (750 ILCS 5/701 (West 2000)). Section 214(b)(6) provides that a court may award temporary legalcustody of the child to the petitioner in accordance with, interalia, the Marriage Act. However, in her petition, petitioner didnot seek "temporary legal custody" of Amanda. Section 214(b)(7)pertains to visitation rights and provides that the court shall notbe limited by section 607.1 of the Marriage Act (750 ILCS 5/607.1(West 2000)) in deciding whether to grant visitation to therespondent. Section 214(b)(10) provides that a court may awardmarital property to the petitioner only if a proper proceeding hasbeen filed under the Marriage Act. Similarly, section 214(b)(11)provides that a court may enter an order protecting the parties'marital property only if a proper proceeding has been filed underthe Marriage Act. Section 214(b)(12) allows the trial court toorder the respondent to pay child support in accordance with theMarriage Act. Finally, section 214(b)(13) allows the court toorder the respondent to pay certain losses as authorized by section501(a)(3) of the Marriage Act (750 ILCS 5/501(a)(3) (West 2000)).

Conceding that she did not seek "temporary legal custody" ofAmanda, petitioner nevertheless notes that she did request"physical care" of the minor in her petition. Petitioner equates"physical care" with the term "temporary legal custody" as found insection 214(b)(6) of the Domestic Violence Act. Thus, she positsthat the trial court correctly determined that provisions of theMarriage Act, including section 606(e), governed this case. Wedisagree.

Petitioner's contention ignores another principle of statutoryconstruction. It is well settled that a statute should beconstrued so that no word or phrase is rendered superfluous ormeaningless. Khan v. Van Remmen, Inc., 325 Ill. App. 3d 49, 61(2001); Village of Mundelein v. Franco, 317 Ill. App. 3d 512, 520(2000); People v. Lueloff, 161 Ill. App. 3d 432, 435 (1987). Thelegislature has differentiated between "temporary legal custody"and "physical care." Section 214(b)(5) of the Domestic ViolenceAct (750 ILCS 60/214(b)(5), (b) (6) (West 2000)) expressly providesthat, in issuing an order of protection, a court may award"physical care and possession of the minor child." Unlike section214(b)(6) of the Domestic Violence Act, which governs the remedy of"temporary legal custody," section 214(b)(5), by its own terms,does not incorporate any provisions of the Marriage Act. Obviously, the legislature meant to distinguish between "physicalcare and possession" and "temporary legal custody" or it would nothave included both provisions in the statute. Adoptingpetitioner's position would require us to ignore section 214(b)(5).

We recognize that in Daria W., 317 Ill. App. 3d 194, the ThirdDistrict concluded that section 606(e) of the Marriage Actcontrolled the admission of a child's hearsay statement in anorder-of-protection case. Daria W., 317 Ill. App. 3d at 200. Thecourt reasoned that section 606(e) of the Marriage Act was morespecific than section 8--2601 of the Code because (1) section606(e) addresses the admission of hearsay statements of a minorchild when the alleged abuser is the parent and (2) section 606(e)applies to hearings concerning visitation with the child. DariaW., 317 Ill. App. 3d at 199-200. However, the Daria W. court neverdiscussed the effect of section 205(a) of the Domestic ViolenceAct. While petitioner points out that the trial court was bound tofollow Daria W., we are not required to follow a decision renderedby another district of this appellate court. See Appelhans v.McFall, 325 Ill. App. 3d 232, 239 (2001). Therefore, to the extentthat Daria W. differs with our conclusion in this case, we declineto follow it.

We now turn to the statutory provisions at hand. The trialcourt found Amanda's hearsay statements admissible under section606(e) of the Marriage Act, which provides:

"Previous statements made by the child relating to anyallegations that the child is an abused or neglected childwithin the meaning of the Abused and Neglected Child ReportingAct, or an abused or neglected minor within the meaning of theJuvenile Court Act of 1987, shall be admissible in evidence ina hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subjectto cross-examination, shall be sufficient in itself to supporta finding of abuse or neglect." 750 ILCS 5/606(e) (West2000).

We, on the other hand, have concluded that section 8--2601 isapplicable to cases seeking an order of protection under theDomestic Violence Act. Section 8--2601 of the Code provides:

"An out-of-court statement made by a child under the ageof 13 describing any act of child abuse or any conductinvolving an unlawful sexual act performed in the presence of,with, by, or on the declarant child, or testimony by such ofan out-of-court statement made by such child that he or shecomplained of such acts to another, is admissible in any civilproceeding, if: (1) the court conducts a hearing outside thepresence of the jury and finds that the time, content, andcircumstances of the statement provide sufficient safeguardsof reliability; and (2) the child either: (i) testifies at theproceeding; or (ii) is unavailable as a witness and there iscorroborative evidence of the act which is the subject of thestatement." 735 ILCS 5/8--2601 (West 2000).

While both statutory provisions require corroboration, section 8--2601 of the Code adds the further requirement that, in order forthe statements to be admissible, the court must conduct a hearingand find sufficient indicia of reliability. See In re Marriage ofRudd, 293 Ill. App. 3d 367, 373-74 (1997) (noting that in order fora child's hearsay statements to be admissible under section 8--2601of the Code, the court must conduct a reliability hearing and thestatements must be corroborated). In Idaho v. Wright, 497 U.S.805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990), the Supreme Courtheld that the "indicia of reliability" requirement may be met (1)where the statement falls in a " 'firmly rooted hearsayexception' " or (2) where it is supported by " 'a showing ofparticularized guarantees of trustworthiness.' " Wright, 497 U.S.at 816, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147, quoting Ohio v.Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531,2539 (1980). This court has applied the Wright guidelines forreliability in assessing the admissibility of hearsay statementsunder section 115--10 of the Code of Criminal Procedure of 1963(725 ILCS 5/115--10 (West 2000)), the criminal counterpart tosection 8--2601. See People v. Edwards, 224 Ill. App. 3d 1017,1028-29 (1992). As a result, such guidelines also apply inassessing the admissibility of hearsay statements under section 8--2601.

As discussed, the trial court found that Amanda's statementswere admissible under section 606(e) of the Marriage Act. Section606(e) does not require the trial court to conduct a reliabilityhearing. Thus, it necessarily follows that the trial court did notconsider whether the "time, content, or circumstances of thestatement[s] provide sufficient safeguards of reliability" asrequired by section 8--2601 of the Code.

Petitioner claims that the court's failure to hold areliability hearing does not require reversal because the recordsuggests that the court considered the time, content, andcircumstances under which Amanda's statements were made. Petitioner notes that, at the close of the evidence, the courtstated that "the hearsay statements of the child in this case wereclear and concise to various different people. There were somevariants of those statements, but the main elements were alwaysclear and consistent." Petitioner reads these comments out ofcontext. These remarks related to the court's discussion regardingwhether there was any evidence to corroborate Amanda's hearsaystatements. In any event, to the extent that the court's remarksrelate to the reliability of Amanda's hearsay statements, we findthat they only pertain to the statements' content as opposed to thetime and circumstances under which they were made.

Ordinarily, we would remand the proceeding so that the trialcourt could hold a reliability hearing. However, respondent raisesthe additional argument that Amanda's hearsay statements lackedcorroboration. As noted above, both section 606(e) of the MarriageAct and section 8--2601 of the Code require corroboration of thechild's hearsay statements where the minor is unavailable totestify. If we find that Amanda's hearsay statements lackcorroboration, a remand would be unnecessary.

B. Corroboration

As previously discussed, the trial court found two types ofcorroborating evidence: (1) "physical evidence" and (2) "testimonyof the physical actions of the child when that child relayedstatements of abuse." Respondent argues that there wasinsufficient corroboration of Amanda's hearsay statements. Respondent's argument is twofold. First, he claims that there wasinsufficient physical evidence to corroborate Amanda's hearsaystatements. Second, he argues that testimony of the physicalactions of the child upon relaying statements of abuse does notconstitute corroboration. We first address whether there wassufficient physical evidence to corroborate Amanda's hearsaystatements.

In In re A.P., 179 Ill. 2d 184 (1997), our supreme courtdiscussed the evidence necessary to corroborate a minor's hearsaystatement of sexual abuse. The purpose of presenting corroboratingevidence, the court wrote, was to balance the welfare interests ofminors and the rights of those accused of abuse or neglect. A.P.,179 Ill. 2d at 197. The court noted that sufficient corroborationrequires more than witnesses testifying that a minor relatedinstances of abuse to them. A.P., 179 Ill. 2d at 198. The courtstated:

"[C]orroborating evidence of *** abuse or neglect requiresthere to be independent evidence which would support a logicaland reasonable inference that the act of abuse or neglectdescribed in the hearsay statement occurred. In essence,corroborating evidence is evidence that makes it more probablethat a minor was abused or neglected. The form of thecorroboration will vary depending on the facts of each caseand can include physical or circumstantial evidence." A.P.,179 Ill. 2d at 199.

In A.P., the court concluded that the minor's hearsaystatements were sufficiently corroborated by the medical evidencepresented. A.P., 179 Ill. 2d at 199. In A.P., the medicalevidence showed that the minor's hymen was torn, it was stretchedpast its point of elasticity, and its opening was larger thannormal for a girl A.P.'s age. A.P., 179 Ill. 2d at 199. Based onthis evidence, the examining physician concluded that A.P.'s vaginahad been penetrated by a finger or foreign object approximately twoweeks before the examination. A.P., 179 Ill. 2d at 199-200. Thesupreme court held that this evidence was sufficient to corroborateA.P.'s hearsay statements of sexual abuse. A.P., 179 Ill. 2d at200.

A.P. involved the interpretation of what is now section 2--18(4)(c) of the Juvenile Court Act of 1987 (Juvenile Court Act)(705 ILCS 405/2--18(4)(c) (West 2000)). Section 2--18(4)(c)governs the admission of a minor's out-of-court statementsregarding allegations of abuse or neglect. Like section 2--8601 ofthe Code and section 606(e) of the Marriage Act, section 2--18(4)(c) of the Juvenile Court Act requires corroboration of thechild's hearsay statements. Given the similarity of these threestatutory provisions, we find the reasoning of A.P. applicablehere.

In the instant case, the only testimony regarding Amanda'sphysical condition came from Dr. Michelle Reinstein, a board-certified pediatrician practicing at Pediatric Care Associates. Petitioner testified that she took Amanda to see Dr. Reinstein inAugust 2000, after Amanda allegedly had an unusual conversationwith petitioner's mother. However, Reinstein testified thatpetitioner brought Amanda to her office on July 26, 2000, fortreatment of vaginal redness. Reinstein stated that she ismandated by state law to report any allegations of physical orsexual abuse. Accordingly, whenever a child suffers from vaginalredness, she asks the parent if he or she suspects anyinappropriate touching. Reinstein asked petitioner whether shesuspected any inappropriate touching with respect to Amanda. Petitioner responded in the negative.

Reinstein further testified that the presence of vaginalredness does not indicate sexual abuse and that vaginal redness is"quite common" among 2