In re M.D.H.
State: Illinois
Court: 4th District Appellate
Docket No: 4-98-0038
Case Date: 06/26/1998
NO. 4-98-0038
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of M.D.H., a Minor, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Pike County
Petitioner-Appellee, ) No. 97JA6
v. )
JOHNNY RAY HOWELL, )
Respondent-Appellant, )
and ) Honorable
CHERYL BAXTER, ) Michael R. Roseberry,
Respondent. ) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In September 1997, the State filed an amended petition
for adjudication of wardship, alleging that M.D.H. (born November
13, 1981), the minor child of respondent father, Johnny Howell,
and respondent mother, Cheryl Baxter, was neglected and abused.
In November 1997, the trial court conducted a hearing and found
that M.D.H. was a neglected and abused minor, pursuant to sec-
tions 2-3(1)(b) and 2-3(2)(iii) of the Juvenile Court Act of 1987
(Act) (705 ILCS 405/2-3(1)(b),(2)(iii) (West 1996)). After a
December 1997 dispositional hearing, the court formally adjudi-
cated M.D.H. a ward of the court and appointed the Department of
Children and Family Services (DCFS) as her guardian with the
power to place her.
Respondent father appeals, arguing that (1) the trial
court erred by allowing M.R.H., M.D.H.'s 13-year-old brother, to
testify outside of respondent father's presence; (2) the court
erred by refusing to strike a certain witness' testimony; and (3)
the court's findings of neglect and abuse were against the
manifest weight of the evidence. We affirm.
I. BACKGROUND
Because the parties are familiar with the evidence, we
discuss it only to the extent necessary to put respondent
father's arguments in context. In its September 1997 amended
petition, the State alleged that (1) respondent father had
neglected M.D.H. because he created an environment injurious to
her welfare in that he put her at risk of sexual harm by sexually
abusing S.H., M.D.H.'s minor brother, and L.G., M.D.H.'s minor
stepsister (count I) (705 ILCS 405/2-3(1)(b) (West 1996)); and
(2) respondent father had abused M.D.H. because he committed a
sex offense against M.D.H. by having sexual intercourse with her
(count II) (705 ILCS 405/2-3(2)(iii)).
At the November 1997 adjudicatory hearing, the evidence
showed the following. Sheila Catron, a social service worker in
Lewis County, Missouri, testified that in May 1997, she inter-
viewed S.H. (born June 15, 1991) pursuant to a report that he had
attempted to kiss his female cousin's "crotch area" during an
after-school program. During the interview, S.H. told her that
respondent father had taught him how to kiss respondent father's
private area. S.H. told Catron that respondent father asked him
"to get under his father to kiss his private area." S.H. also
correctly identified the genital area using a stuffed animal.
Catron stated that, based upon S.H.'s responses, these incidents
took place when S.H. was between three and six years of age.
David Parrish, a juvenile officer in Lewis County,
testified substantially the same as Catron regarding what S.H.
said during the May 1997 interview.
On cross-examination, Catron testified that S.H.'s
mother had told her that "with [S.H.'s] age and stuff[,] he did
like to tell stories." S.H.'s counselor also indicated that he
had "a very large imagination."
S.H. testified that he used to live with respondent
father, but he moved out because respondent father tried "to do
the sex" with S.H. when S.H. visited him. S.H. stated that
respondent father was "going to try to touch [S.H.'s] private and
[S.H.] didn't want him to do it." Respondent father also wanted
S.H. to touch respondent father's "private," but S.H. never did.
S.H. also stated that the incident happened in June, "a long time
ago." S.H. further stated that M.D.H. was there and tried to
stop respondent father.
On cross-examination, S.H. testified that the incident
happened when he was two years old. S.H. stated that he did not
know the present year or month. Upon questioning by the trial
court, S.H. testified that he knew the difference between the
truth and a lie.
Dr. Shari Marshall, the superintendent of schools for
the Barry, Illinois, school system (where M.D.H. was a junior
high school student during 1996), testified that in March 1996,
M.D.H. came to her office and asked to speak with Marshall.
M.D.H. was "very upset and crying." During that conversation,
M.D.H. told Marshall that "[s]he felt that she was being required
to do many, many, many chores, her homework, take care of her
little brother[,] *** [and] [s]he just felt like she was just
being required to be a wife." Marshall stated that because of an
earlier conversation, she asked M.D.H. if by being a wife M.D.H.
meant that she also slept with respondent father. M.D.H. re-
sponded "sometimes." Marshall also stated that because of the
earlier conversation, she thought M.D.H. meant that she slept
with respondent father "in a sexual manner." Marshall acknowl-
edged that M.D.H. recanted within a week of their conversation
and that M.D.H. "told DCFS that that's not what she meant."
On cross-examination, Marshall testified that she
instructed the school principal to report to DCFS the possible
sexual relationship between M.D.H. and respondent father.
Marshall stated that in May 1996, DCFS sent the principal a
letter indicating that it had investigated the report and deter-
mined that it was "unfounded."
On redirect examination, Marshall testified that when
she asked M.D.H. what she meant by having to do "everything else
a wife has to do," M.D.H. began crying harder and responded, "you
know, everything."
M.R.H., M.D.H.'s brother and respondent father's
biological child, testified that during the summer of 1995, he
lived with respondent father and M.D.H. for a period of two to
three months. M.R.H. stated that, one evening during that
period, he came home and noticed that the television was on at a
loud volume. He turned the television off and then looked in
respondent father's room because he thought he heard M.D.H. say
"help." He saw respondent father on top of M.D.H., "moving up
and down." Respondent father and M.D.H. were covered up to their
backs, and neither was wearing any clothing that M.R.H. could
see.
On cross-examination, M.R.H. testified that he did not
tell anyone about the incident because he did not think it was
anyone's business. M.R.H. also stated that he observed respon-
dent father and M.D.H. for about one minute. M.R.H. further
stated that he takes Prozac, Ritalin, and a blood pressure
medication, and he attends classes for students with behavior
disorders. He also acknowledged that he did not like respondent
father, and he moved out of respondent father's home, in part,
because respondent father had broken a "2 by 4" and a pool cue
over his back.
M.D.H. testified that respondent father had not acted
in a sexually inappropriate manner with her, and she had never
told anyone otherwise. She stated that she talked with Marshall
because she was upset about having to do chores. She also stated
that she forgot to tell Marshall that when she slept in respon-
dent father's bed, he slept on the couch.
On cross-examination, M.D.H. testified that Marshall
did not ask her what she meant by the phrase "everything that a
wife has to do." She denied telling Marshall that "everything"
meant "you know, everything." She stated that following their
conversation, she tried to explain to Marshall what she had
meant, but Marshall was too busy.
Based on this evidence, the trial court adjudicated
M.D.H. a neglected minor based upon respondent father's sexual
abuse of S.H., as alleged in count I, and an abused minor as
alleged in count II. The court found that the State failed to
prove that respondent father had sexually abused L.G. as alleged
in count I.
II. ANALYSIS
A. M.R.H.'s Testimony Outside of Respondent Father's Presence
Respondent father first argues that the trial court
erred by allowing M.R.H. to testify outside respondent father's
presence. We disagree.
Section 2-18(4)(d) of the Act provides as follows:
"There shall be a rebuttable presumption
that a minor is competent to testify in abuse
or neglect proceedings. The court *** may
allow the minor to testify in chambers with
only the court, the court reporter[,] and
attorneys for the parties present." 705 ILCS
405/2-18(4)(d) (West 1996).
Section 1-3(10) of the Act defines "minor" as "a person under the
age of 21 years subject to this Act." 705 ILCS 405/1-3(10) (West
1996).
Respondent father objected to M.R.H.'s testifying
outside of respondent father's presence on the ground that
section 2-18(4)(d) of the Act does not permit a nonparty minor
who was not named in the petition to testify outside of a
respondent's presence. The court overruled respondent father's
objection and stated the following:
"The [c]ourt does have wide discretion.
The statute is clear that the minor that is
the subject of abuse can testify outside of
the presence of the parents or the respon-
dents. The theory I assume is that it would
put pressure on a minor to be required to
testify in front of their parent or parents
of acts that were committed by their parent
or parents against them or other children.
The pressure would still exist in the case of
an observer, in other words, pressure to
testify to an incident in front of their
parent or parents, so I will allow this wit-
ness to testify."
We agree with the trial court that--under the circum-
stances of this case--M.R.H., a then 13-year-old child, would
have experienced a similar fear of and pressure about testifying
in the presence of respondent father as would a child who was the
subject of the abuse petition. M.R.H. testified that he watched
his father commit a morally reprehensible act upon M.D.H.
Specifically, M.R.H. saw his father and M.D.H. in bed together
without any clothes on their upper bodies, and his father was on
top of M.D.H., "moving up and down." Moreover, M.R.H.'s testimo-
ny that his father had previously hurt him by breaking a "2 by 4"
and a pool cue over his back provides further support for
M.R.H.'s fear of testifying in respondent father's presence.
The overriding purpose of the Act is "to ensure that
the best interests of the minor, the minor's family, and the
community are served." In re J.J., 142 Ill. 2d 1, 8, 566 N.E.2d
1345, 1349 (1991). At each step of the adjudication process, the
trial court has a duty to further that purpose. In re A.F., 234
Ill. App. 3d 1010, 1014, 602 N.E.2d 480, 483 (1991). In addi-
tion, the trial court shall administer the Act "in a spirit of
humane concern, not only for the rights of the parties, but also
for the fears and the limits of understanding of all who appear
before the court." 705 ILCS 405/1-2(2) (West 1996). Further-
more, a proceeding under the Act constitutes a civil proceeding--
meaning that no sixth amendment right to confront witnesses is
implicated (U.S. Const., amend. VI)--and is nonadversarial in
nature. J.J., 142 Ill. 2d at 8, 566 N.E.2d at 1348-49; In re
Brooks, 63 Ill. App. 3d 328, 340, 379 N.E.2d 872, 881 (1978).
Section 2-18(4)(d) of the Act does not expressly autho-
rize a nonparty minor to testify outside the respondent's pres-
ence. Nonetheless, considering (1) the overriding purpose of the
Act, (2) that the trial court has a duty to ensure that the best
interests of not only the minor but the minor's family are served
at every stage of the proceedings under the Act, and (3) that the
court must administer the Act "in a spirit of humane concern" for
"all who appear before the court," we conclude that, under the
particular circumstances present in this case, the court did not
err by allowing M.R.H., a minor child of respondent father, to
testify outside of respondent father's presence.
We find support for this conclusion in Brooks, in which
the appellate court--prior to the enactment of section 2-18(4)(d)
of the Act in Public Act 85-601 (Pub. Act 85-601, eff. January 1,
1988 (1987 Ill. Laws 2578, 2683))--upheld a trial court's deci-
sion to allow a minor to testify outside the respondents' pres-
ence, but with counsel for all parties present. In upholding the
trial court's decision, the Brooks court wrote the following:
"[A] child-neglect case is a nonadversary
proceeding and the primary concern is the
best interests and welfare of the child.
[Citation.] As in custody cases, the trial
court must have discretion to interview the
child in the privacy of chambers. Generally,
there is an inherent fear in the child to
testify, which may be an obstacle to ascer-
taining the truth." Brooks, 63 Ill. App. 3d
at 340, 379 N.E.2d at 881-82.
B. The Trial Court's Refusal To Strike Marshall's Testimony
Respondent father next argues that the trial court
erred by refusing to strike Marshall's testimony because DCFS
investigated Marshall's report of possible sexual relations
between respondent father and M.D.H. and determined that the
report was "unfounded." Specifically, he contends that either
(1) DCFS' "unfounded" report should have been admitted into evi-
dence; or (2) the court should have stricken Marshall's testimo-
ny. We disagree.
Initially, we note Marshall testified that in May 1996,
the principal of M.D.H.'s school received a letter from DCFS
indicating that it had determined that the report of possible
sexual relations between respondent father and M.D.H. (based upon
Marshall's March 1996 conversation with M.D.H.) was unfounded.
Thus, the trial court had before it--and could consider--the fact
that DCFS had determined that the report was unfounded. Indeed,
the court specifically indicated--in response to a question by
respondent father's counsel--that it had heard the evidence that
DCFS had determined that the report was unfounded. The court
also noted that none of the parties even requested that the un-
founded report be admitted into evidence.
Respondent father also asserts that the trial court
should have stricken Marshall's testimony because it "was not
corroborated by a 'founded' report, and thus admissible by
[section 2-18(4)(a) of the Act] (705 ILCS 405/2-18(4)(a)[) (West
1996)]." The problem with this assertion--as the State correctly
points out--is that Marshall's testimony was admissible pursuant
to section 2-18(4)(c) of the Act, not section 2-18(4)(a) (which
provides for the admission of "[a]ny writing, record, photo-
graph[,] or x-ray of any hospital or public or private agency")
(705 ILCS 405/2-18(4)(a) (West 1996)). Section 2-18(4)(c)
provides that "[p]revious statements made by the minor relating
to any allegations of abuse or neglect shall be admissible in
evidence." (Emphasis added.) 705 ILCS 405/2-18(4)(c) (West
1996); In re N.S., 255 Ill. App. 3d 768, 776, 627 N.E.2d 1178,
1184 (1994). Thus, we hold that the court did not err by refus-
ing to strike Marshall's testimony regarding M.D.H.'s statements
to her.
C. Adjudication of Neglect
Respondent father next argues that the trial court's
finding of neglect was against the manifest weight of the evi-
dence. We disagree.
Initially, we address respondent father's contention
that, to prove that M.D.H. was neglected due to an injurious
environment, the State was required to prove that respondent
father committed the offense of criminal sexual abuse against
S.H., as defined in the Criminal Code of 1961 (Code) (720 ILCS
5/12-15(a)(2) (West 1996)). He thus claims that the State failed
to sustain its burden of proof because the trial court found only
that respondent father attempted to touch S.H.'s sex organs and
asked S.H. to touch respondent father's sex organs. We disagree.
In count I of its amended petition, the State alleged,
in relevant part, that respondent father had neglected M.D.H.
because he created an environment injurious to her welfare in
that he put her at risk of sexual harm by sexually abusing S.H.,
M.D.H.'s minor brother (705 ILCS 405/2-3(1)(b) (West 1996)). In
adjudicating M.D.H. neglected based upon an injurious environment
as alleged in count I, the trial court found that respondent
father "did at least attempt to touch [S.H.'s] private parts and
asked [S.H.] to touch his private parts," and sufficient evidence
existed "that the environment in the home of [respondent father]
is injurious to the welfare of the minor child [M.D.H.] based on
his sexual abuse of S.H."
Proof that one minor is neglected, abused, or dependent
is admissible evidence on the issue of neglect, abuse, or depen-
dency of any other minor for whom the parent is responsible. In
addition, a parent's behavior toward one minor may be considered
when deciding whether a sibling is exposed to an injurious
environment. In re K.G., 288 Ill. App. 3d 728, 736, 682 N.E.2d
95, 100 (1997).
In In re Z.R., 274 Ill. App. 3d 422, 654 N.E.2d 255
(1995), the State alleged that the minor, Z.R., was neglected
based upon an injurious environment in that respondent uncle made
inappropriate sexual comments to his 10-year-old niece (J.K.) and
exposed himself to his 8-year-old nephew (C.K.). In upholding
the trial court's determination that Z.R. was neglected based
upon an injurious environment, this court wrote the following:
"A finding of abuse of one sibling establish-
es a prima facie case of neglect based upon
an injurious environment to another. [Cita-
tions.]
Although respondent was found to have
made inappropriate sexual comments to J.K.
and exposed himself to C.K., he argues there
is no indication in the record Z.R. was even
aware of the conduct, let alone affected by
it. Neglect due to injurious environment has
been found where the child did not know about
nor was he exposed to sexual abuse of a sib-
ling [citation] and where the father was
previously adjudged unfit because of sexual
abuse of daughters by a prior marriage but
had failed to address the problem even though
there was no evidence of sexual abuse of the
children of the present marriage [citation]."
(Emphasis added.) Z.R., 274 Ill. App. 3d at
427-28, 654 N.E.2d at 259.
In Z.R., this court concluded--implicitly, at least--that a
respondent's inappropriate sexual comments and exposure of
himself to another child constitute "sexual abuse," and a finding
of such abuse establishes a prima facie case of neglect based
upon an injurious environment. Z.R., 274 Ill. App. 3d at 427-
28, 654 N.E.2d at 259.
Consistent with Z.R., we conclude that when the State
alleges--as in this case--that a minor is neglected due to an
injurious environment based upon the respondent's "sexual abuse"
of a sibling, "sexual abuse" may have a broader meaning than
"criminal sexual abuse" as it is defined in section 12-15(a)(2)
of the Code (720 ILCS 5/12-15(a)(2) (West 1996)).
In so concluding, we note that were we to accept
respondent father's contention, the trial court here could not
have found M.D.H. to be a neglected minor based upon an injurious
environment as a result of respondent father's attempting to
touch S.H.'s sex organs or his requests that S.H. touch respon-
dent father's sex organs. Clearly, such conduct on respondent
father's part falls within the concept of statutory neglect based
upon an injurious environment. See In re B.M., 248 Ill. App. 3d
76, 79, 618 N.E.2d 374, 376 (1993) (the concept of "injurious
environment" is amorphous and cannot be defined with particulari-
ty; therefore, each case must be reviewed based upon its specific
facts). Thus, the court could consider respondent father's
sexual abuse of S.H. (by attempting to touch S.H.'s sex organs
and requesting that S.H. touch respondent father's sex organs) in
determining whether M.D.H. was a neglected minor based upon an
injurious environment. See K.G., 288 Ill. App. 3d at 736, 682
N.E.2d at 100; see also Z.R., 274 Ill. App. 3d at 427-28, 654
N.E.2d at 259. Moreover, we note that accepting respondent
father's contention would be contrary to the overriding purpose
of the Act--namely, "to ensure that the best interests of the
minor, the minor's family, and the community are served." J.J.,
142 Ill. 2d at 8, 566 N.E.2d at 1349.
In a proceeding under the Act for adjudication of
abused, neglected, or dependent minors, the State must prove its
allegations by a preponderance of the evidence. N.S., 255 Ill.
App. 3d at 776, 627 N.E.2d at 1184. We will not disturb a trial
court's findings that a child was abused or neglected unless they
are against the manifest weight of the evidence. In re B.W., 216
Ill. App. 3d 410, 414, 576 N.E.2d 346, 349 (1991). Further, this
court in Z.R., 274 Ill. App. 3d at 427, 654 N.E.2d at 258-59,
wrote the following:
"A finding of the trial court is *** against
the manifest weight of the evidence only if a
review of the record 'clearly demonstrates'
the opposite result was the proper one.
[Citation.] We will not overturn the trial
court's findings merely because we might have
reached a different conclusion. We will not
second-guess the trial court on the issue of
credibility. The trial court is in the best
position to determine the credibility of
witnesses."
In Z.R., this court upheld on appeal the trial court's finding of
neglect despite discrepancies between the prior statements and
trial testimony of the child witnesses. Z.R., 274 Ill. App. 3d
at 427, 654 N.E.2d at 259.
In finding that M.D.H. was neglected, the trial court
stated, in relevant part, the following:
"We have the testimony of Miss Catron
who investigated an incident involving [S.H.]
that was called in through the hotline where
[S.H.] indicated in response to being ques-
tioned about some improper touching at the
[after-school program]; that during visita-
tion with [respondent] father[,] his father
taught him to do it and some other language
about privates of his father's and his.
Seemed to be a rather frank response from a
child who was fairly young at the time, one
that I don't believe was an effort to pin
something on his father to get himself out of
trouble.
* * *
[We also have t]he evidence of David
Parrish, that he likewise interviewed [S.H.]
and his answers were consistent with that of
Miss Catron's.
* * *
We have the testimony of [S.H.], [a
six-]year[-]old minor who really I thought
did a fairly good job testifying. He cer-
tainly has a problem with dates. I do find
him to be a person who knew the difference
between telling the truth and telling a lie.
I do find that his testimony was credible,
that his father did at least attempt to touch
his private parts and asked him to touch his
private parts.
* * *
*** I believe there was an argument
about the word sexual abuse being defined in
the statute, not being within the--not being
with the exact evidence that has been submit-
ted here today. In this [c]ourt's opinion[,]
there is sufficient evidence before this
[c]ourt that shows that the environment in
the home of [respondent father] is injurious
to the welfare of the minor child [M.D.H.]
based on his sexual abuse of S.H."
Reviewing the record before us in accordance with the
proper standard of review, we cannot conclude that it "'clearly
demonstrates' the opposite result was the proper one." Z.R., 274
Ill. App. 3d at 427, 654 N.E.2d at 259, quoting In re T.B., 215
Ill. App. 3d 1059, 1062, 574 N.E.2d 893, 896 (1991). According-
ly, we hold that the trial court's adjudication of M.D.H. as a
neglected minor was not contrary to the manifest weight of the
evidence.
D. Adjudication of Abuse
Last, respondent father argues that the trial court's
finding of abuse was against the manifest weight of the evidence.
We disagree.
As earlier stated, we will not disturb a trial court's
findings that a child was abused or neglected unless they are
against the manifest weight of the evidence. B.W., 216 Ill. App.
3d at 414, 576 N.E.2d at 349.
In finding that M.D.H. was abused, the trial court
stated, in relevant part, the following:
"The [c]ourt has considered the evidence
adduced in these proceedings and the argu-
ments of counsel.
* * *
[We have the t]estimony of Dr. Marshall.
Now, the fact that Dr. Marshall did not ap-
pear at the first hearing in my opinion adds
to her credibility. Dr. Marshall at the
outset had a discussion with the minor who is
the primary subject of this petition. ***
Dr. Marshall is an educator and a very sensi-
bly educated person. She understands things
that are said to her that may not be said in
specific language. The discussion between
Dr. Marshall and the minor[,] in this
[c]ourt's opinion[,] clearly was an admission
by the minor that she was having sexual rela-
tions with [respondent] father, and I specif-
ically find Dr. Marshall's testimony in that
aspect to be credible.
We then have today testimony of [M.R.H.]
***. *** [M.R.H.] has certain problems in
and of himself that are being addressed
through medication. I didn't find the ef-
fects of his medication in any way [detract-
ed] from his credibility. He testified to
observing an incident. Wasn't exactly sure
when it occurred but it was well over a year
ago. He *** was pretty specific as to what
he saw. He was really consistent in his
answers except for a few[,] which does not
totally -- which is not unexpected. I think
and I do find that [M.R.H.'s] testimony was
credible, that he saw what he said he saw.
* * *
Then we have the testimony of [M.D.H.],
and I can certainly understand the dilemma
that [M.D.H.] is facing and faced today. A
person who she has lived with for the entire-
ty of her life and who has been her primary
caretaker for all but 6 months or a little
bit more than that of her life is[,] in this
[c]ourt's opinion[,] a person who she has had
a sexual relationship with; and to come to
[c]ourt and have to acknowledge that, indi-
cate that that occurred, would be a very
difficult situation. So the reasons for her
testimony not being credible are fairly evi-
dent, and I do not find her testimony to be
credible.
* * *
Count 2 said minor is an abused minor as
defined under [section 2-3(iii) of the Act]
[(]705 ILCS 405/2-3(iii) (West 1996)[)] in
that the minor's father has committed a sex
offense against the minor by having sexual
intercourse with her. Certainly what
[M.R.H.] observed gave the appearances of
sexual intercourse. The minor[,] in this
[c]ourt's opinion[,] did admit to Dr. Mar-
shall, although not using those words, but
sexual intercourse had taken place. There-
fore, the [c]ourt does find again by a pre-
ponderance of the evidence that Count 2 has
been proven."
Reviewing this record in accordance with the proper
standard of review, we conclude that the trial court's adjudica-
tion of M.D.H. as an abused minor was not contrary to the mani-
fest weight of the evidence.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GARMAN, P.J., and McCULLOUGH, J., concur.
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