Dept. of Public Aid ex rel Davis v. Brewer (Ill. S.Ct.)
Docket No. 84330-Agenda 36-May 1998.
THE DEPARTMENT OF PUBLIC AID ex rel. LINDY DAVIS, now by marriage, Lindy Eddy, Appellee,
v. JESSE BREWER, Appellant.
Opinion filed October 22, 1998.
JUSTICE McMORROW delivered the opinion of the court:
At issue in this appeal is whether, under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610 (West 1996)), in order to modify a child custody judgment within two years of the judgment's entry, the circuit court must find child endangerment by clear and convincing evidence or whether the court need only find that there is "reason to believe" that the child's present environment may endanger him or her in some way. The appellate court held that the parent seeking modification had to prove child endangerment by clear and convincing evidence, and, on this basis, reversed the judgment of the circuit court of Christian County granting the father's petition for modification of custody. 292 Ill. App. 3d 416. For different reasons, we affirm the appellate court's judgment reversing the circuit court's order modifying custody.
BACKGROUND
Jesse Brewer and Lindy Davis, now Lindy Eddy, are the parents of two minor children: Tasia Lee Brewer-Davis, born on April 26, 1991, and Nathan Silas Davis, born on July 30, 1992. Jesse and Lindy were not married at the time of either child's birth, and have never been married to each other. Lindy married Kevin Eddy in October 1994 and Jesse married Karen Poteet in May 1995.
On September 9, 1991, a consent order of parentage finding Jesse to be Tasia's natural father was entered by the circuit court of Fayette County. On September 30, 1994, the circuit court entered an agreed order establishing parentage, wherein Jesse acknowledged that he was Nathan's natural father. Shortly thereafter, on October 19, 1994, Jesse filed a petition for visitation privileges concerning both children. At a hearing on November 29, 1994, the parties reached an oral agreement regarding custody and visitation of the minor children, the terms of which were incorporated into a written stipulation. The trial court found the parties' agreement to be in the best interests of the children and approved the stipulation on December 2, 1994. This order placed sole custody of both children in Lindy, gave Jesse rights to visitation, and set a schedule for visitation between Jesse and the children. On January 5, 1995, the trial court approved a second written stipulation, and entered an order setting additional dates for visitation between the children and Jesse.
On November 21, 1995, the cause was transferred from Fayette County to Christian County, where both Jesse and Lindy were then residing. On December 15, 1995, Jesse filed a petition for modification of the custody and visitation order entered on December 2, 1994. According to the petition, material changes in the circumstances of the parties and children had occurred and the "environment at [Lindy's] house [had become] a serious danger to the minor children's physical, mental and emotional health." The central allegation in the petition was that Lindy had "knowingly and continuously delivered the children to a babysitter whose environment was a danger to their physical and mental health," because the children had been subject to sexual abuse by the baby-sitter's teenage son. The petition also alleged that the children were in danger because Lindy had bitten Nathan's arm as a form of discipline. The petition requested that Jesse be awarded sole care and custody of the children. The record shows that the affidavit of Karen Poteet was attached to, and filed with, Jesse's petition for modification. In that affidavit, Karen related her discussions with the children and Lindy concerning the sexual abuse. On December 22, 1995, the trial court set Jesse's petition for an evidentiary hearing.
The trial court conducted an evidentiary hearing on Jesse's petition for modification during October and November 1996. On the first day of the hearing, Lindy's attorney argued that because Jesse's petition was filed and was being heard within two years of the December 2, 1994, custody order, pursuant to section 610 of the Act Jesse was required to establish, by clear and convincing evidence, that the present custodial arrangement seriously endangered the children. Jesse's attorney informed the trial court that he was "[d]efinitely in agreement" with that standard and was "prepared to proceed with that evidence."
During the hearing, Jesse presented evidence in support of the two allegations made in his petition: that Lindy bit Nathan's arm in an effort to discipline him; and that Lindy was aware that the children had been sexually abused at the home of the baby-sitter and failed to take appropriate action in protecting the children. Jesse additionally presented evidence concerning Lindy's alleged failure to have Tasia and Nathan immunized in a timely manner.
The testimony at the hearing established that during visitation in June 1995, Jesse and his wife, Karen, discovered a bruise on Nathan's upper arm. Nathan informed them that Lindy had bitten him. Karen, who is a social worker and a mandated child abuse reporter, contacted the Department of Children and Family Services (DCFS). Lindy admitted during the hearing that she bit Nathan on one occasion, but testified that her actions were a last resort in an attempt to prevent Nathan from biting other children after several other disciplinary measures had proven unsuccessful. Lindy's testimony concerning Nathan's biting problem was corroborated by DCFS investigator Michael Parkin, who testified that Nathan told him that he bit others, and also by Karen, who testified that Nathan had previously bitten her on her upper leg. Lindy related that after she took this disciplinary measure, Nathan refrained from biting anyone else. The evidence showed that although DCFS investigated this incident, no formal action was taken against Lindy.
The trial court also heard undisputed evidence that Lindy failed to have the children immunized in accordance with the recommended immunization schedules. Although Lindy had received information regarding when the immunizations were to be administered, she failed to bring the children to scheduled appointments and neither child had been subject to a well-child examination. However, the evidence indicated that Lindy's failure in this regard amounted to tardiness and did not rise to the level of medical neglect. Further, both children had received the necessary immunizations at the time of the hearing.
The majority of the evidence at the hearing related to the sexual abuse of the children by the son of the children's baby-sitter. The evidence was not disputed that Dustin Drone sexually abused both Tasia and Nathan on at least one occasion sometime during the summer of 1995. The critical dispute between the parties concerning this abuse was whether Lindy knew or should have known that the children had been subjected to sexual abuse and whether she properly protected the children from that abuse.
According to Lindy's testimony at the hearing, she had been friends with Dustin's mother, Nancy Drone, for most of Lindy's life. Further, Lindy and Jesse had lived with the Drones for sometime before Tasia was born. For a period of approximately two years ending in July 1995, Nancy baby-sat the children while Lindy was at work.
Lindy testified that in May 1995, Tasia complained to her that her genital area hurt. Although Lindy found that Tasia'a vaginal area was red and irritated, Lindy testified, she was not alarmed because Tasia was prone to infections in this area of her body. Lindy related that the irritation disappeared once she changed Tasia's soap and bubble bath.
Lindy testified that in late June 1995, she was informed by Nancy Drone that Tasia had been displaying inappropriate sexual behavior. Nancy described Tasia's conduct to Lindy. According to Lindy, Tasia, who was four years old at this time, had never before acted in such a manner. In addition, Nathan, who was almost three years of age at this time, also engaged in inappropriate sexual behavior. The next day Lindy met with Cheryl Woods, a counselor with the Shelby County mental health department, who instructed Lindy to report Tasia's behavior to DCFS. Lindy testified that DCFS declined to investigate on the basis that Lindy could not pinpoint the source of the children's behavior and that Tasia and Nathan refused to speak with anyone about it.
By the time Woods saw the children in early July 1995, their behavior had improved and they did not relate anything to her that indicated they were victims of sexual abuse. Woods noted that Tasia did state that when the children stayed overnight with Jesse, both children slept in the same bed with Jesse and Karen. Based upon her interviews with the children, Woods concluded that they did not relate any high-risk factors and she believed that no further counseling sessions were required.
The testimony of both Woods and Lindy indicated that Lindy was concerned because the children's unusual behavior started after they had an extended visit with Jesse and Karen. As a result, Lindy went to an attorney in an attempt to have Jesse's visitation with the children stopped until Lindy "found out what was going on." However, because the attorney did not return Lindy's phone calls, Lindy did not pursue this avenue any further.
Lindy and her husband, Kevin, testified that at the end of July 1995, they were in the process of packing their belongings for their move to Pana, Illinois, when Tasia blurted out that she knew Dustin had French kissed someone. After Tasia made this remark, Lindy asked Nancy Drone if Dustin, who was 16 years old at that time, was ever near the children. Nancy stated that Dustin was not around the children, as he was either in school or playing outside, and that the only time he was in the house was when he watched television. Nancy reassured Lindy that the children were never without Nancy's supervision. Lindy testified that she told Nancy to keep a very close watch on the children and their playmates in an effort to assist Lindy in discovering the source of the children's unusual behavior.
Based upon Nancy's statement that Dustin was never around the children, Lindy thought that it was not possible that Dustin had kissed Tasia. Lindy related that when she had been a teenager and Dustin was approximately 10 years old, she discovered that Dustin had been sexually molested. She further testified, however, that she had forgotten this fact until she learned that Dustin had also molested her children. Lindy stated that Nancy baby-sat the children on only one or two occasions after Tasia made the statement about kissing, and that she ceased using Nancy as a baby-sitter because Nancy had become "unreliable" in that she was not home when Lindy arrived with the children for scheduled baby-sitting. Lindy testified that on a few occasions thereafter, the children were baby-sat by Teresa Boehm, who lives close to the Drone home and is Dustin's aunt.
Lindy stated that she was unaware that Dustin had sexually abused the children until she received a telephone call from a DCFS investigator on November 2, 1995. Lindy testified that DCFS personnel never made an in-person follow-up visit to her concerning this matter.
Jesse and his wife, Karen, related that during visitation in late October 1995, Tasia changed the subject of a conversation by spontaneously stating that it was "not fair" that Dustin told her she would be in trouble when he made her perform a sexual act. Nathan then uttered a similar remark. Karen immediately informed DCFS, and the children were interviewed by a DCFS investigator. Jesse and Karen informed Lindy neither of the statements made by the children, nor that the children had been interviewed by DCFS. Jesse and Karen testified that prior to this incident, the children had never made any similar statements or exhibited any behavior indicating that they had been sexually abused. Jesse and Karen also denied that the children slept in the same bed with them when the children stayed overnight at their home during visitation.
Karen testified that she received a telephone call from Lindy on November 2, 1995, after Lindy had been initially contacted by DCFS concerning the allegations of sexual abuse. Karen stated that during this conversation Lindy told her that the children had been sexually acting out with other children and that Lindy had harbored suspicions concerning Dustin because Tasia had told Lindy that Dustin had French kissed her on the mouth. According to Karen, Lindy also stated that Dustin had broken into homes to steal women's undergarments, had made 900-number telephone calls, and had been sexually molested as a child. According to Karen, Lindy stated that she had complained to Nancy about Dustin's behavior, and had taken the children to a counselor but that the children would not talk. Jesse testified that Lindy told him that she thought the kissing and sexual abuse might have occurred in May, June or July of 1995. According to Jesse, the primary reason he sought modification of the custody order was that he believed that although Lindy was aware that the children were sexually abused by Dustin, she allowed them to continue to be exposed to this threat.
Bert Holloway, a caseworker for DCFS, testified that he interviewed the children at Jesse and Karen's home on October 28, 1995, in connection with the children's statements concerning Dustin Drone. Holloway testified that both children stated that they had told Lindy about Dustin's actions, but Holloway was unable to establish exactly when the children informed Lindy. Holloway testified that he never interviewed Lindy in connection with the report of sexual abuse and there is no indication from the record that DCFS ever proceeded against Lindy on the basis of her alleged knowledge of this abuse.
Jo D. Spezia Lanham, a child protection investigator for DCFS, testified that she investigated the children's sexual abuse allegations and, as part of that investigation, contacted Lindy on one occasion by telephone on November 30, 1995. According to Lanham, Lindy told her that Nancy voiced concerns over Tasia's behavior in May 1995, and that Lindy requested Nancy to "keep an extra eye on Tasia" because Tasia told Lindy that Dustin had French kissed her.
At the close of Jesse's case, Lindy's attorney moved for judgment in her favor, contending that Jesse did not meet the agreed-upon burden of proving by clear and convincing evidence that the continued custody arrangement would seriously endanger the children. Jesse's attorney argued that the "standard is somewhat in dispute here," contending that section 610(a) of the Act should be interpreted as merely prefatory and that in order to modify a custody order, the court was required to find that Jesse had presented clear and convincing evidence of a change in circumstances and that it was in the children's best interests to modify custody. In support of his argument, Jesse's counsel cited the appellate court decision in In re Marriage of Oehm, 252 Ill. App. 3d 311 (1993). Although the trial court judge denied Lindy's motion, the judge did not specifically rule on the issue of the appropriate burden of proof.
On December 2, 1996, the trial court entered a memorandum of decision granting Jesse's petition to modify custody. The trial court judge determined that serious endangerment was "the initial burden that must be met by affidavit to even allow the petition to be heard. It was met." The judge ruled that the proper burden on Jesse during the evidentiary hearing was "to show by clear and convincing evidence that a change of circumstances has occurred and that a modification of custody is in the best interests of the children." The trial court judge determined that the sexual abuse constituted the pivotal change of circumstance since the entry of the custody order.
The trial court judge stated that "[t]he closer issue is whether modification is in the best interests of the children." The judge found that Lindy's biting of Nathan as a disciplinary measure and the lack of timely immunizations, while not excusable, were not, in and of themselves, sufficient for modification. According to the judge, "[t]he key issue is the matter of sexual abuse, what Lindy knew or should have known, and what, if anything she did about it. These are not easy questions to answer." The trial court judge found that although Lindy did not know the full extent of sexual abuse as it was occurring, "one must question Lindy's judgment and sensitivity to warning signs."
The trial court judge found that "due to Lindy's failure to protect the children from sexual abuse, though probably negligent and not intentional, the stability now present in Jesse's household with the presence of Karen Poteet, and to a lesser extent Lindy's failure to properly immunize the children, it is in the children's best interests that custody be transferred to Jesse." In further explanation, the trial court judge stated that "[i]n fairness to Lindy, it should be noted that this is a case upon which reasonable people might disagree," and that "[t]he issue of whether Jesse met his burden on the best interest standard [was] very close." The judge concluded, however, that "after balancing all the factors," the children were "better off with Jesse." The judge further ruled, however, that there was "no reason that Lindy should not have liberal visitation."
On December 5, 1996, Lindy filed with the trial court a motion to reconsider its grant of Jesse's petition to modify custody, arguing that the trial court judge's findings that this was a case "upon which reasonable people might disagree" and that the evidence was "very close" showed that Jesse failed to meet the clear and convincing standard of proof required pursuant to section 610 of the Act. On December 10, 1996, the trial court judge denied Lindy's motion to reconsider, explaining the basis of his grant of modification in a docket entry as follows: "To characterize this decision as being made with absolute certainty would be unfair to Lindy Eddy. It was indeed close as judged by the clear and convincing evidence standard. However, the court still believes it to be the correct decision ***."
Lindy thereafter appealed. In reversing the trial court's ruling and remanding this cause for further proceedings, the appellate court held that the trial court incorrectly interpreted section 610 of the Act. According to the appellate court, because the custody order that Jesse sought to modify was entered within two years of the hearing, sections 610(a) and (b) of the Act required Jesse to prove by clear and convincing evidence that the current custodial arrangement seriously endangered the children. 292 Ill. App. 3d at 425. In reaching its conclusion, the appellate court rejected the interpretation of section 610 employed by the appellate court panel in In re Marriage of Oehm, 252 Ill. App. 3d 311 (1993), which was relied upon by the trial court. The appellate court determined that without clear and convincing proof of serious endangerment to the children and specific findings to that effect, the trial court's order modifying the custody judgment was void. 292 Ill. App. 3d at 427. Finally, the appellate court held that the trial court improperly allowed the legal standard to change in the middle of the hearing, placing Lindy at an "irreconcilable disadvantage." 292 Ill. App. 3d at 428.
We granted Jesse leave to appeal. 166 Ill. 2d R. 315. Before this court, Jesse raises two issues for consideration: (1) whether, under section 610 of the Act, in order to modify a child custody judgment within 2 years of the entry of that judgment, the circuit court must find child endangerment by clear and convincing evidence, or whether the court need only find that there is "reason to believe" that the child's present environment may endanger him or her in some way; and (2) whether sufficient evidence was presented to justify the trial court's modification of the custody order pursuant to section 610 of the Act.
ANALYSIS
The Illinois Parentage Act of 1984 provides that modification of custody judgments is governed by the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 45/16 (West 1996)). Section 610 of the Act (750 ILCS 5/610 (West 1996)) governs modification of custody awards and was modeled after section 409 of the Uniform Marriage and Divorce Act (see Ill. Ann. Stat., ch. 40, par. 610, Historical & Practice Notes, at 93 (Smith-Hurd 1980)), which was "designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's interest." Uniform Marriage and Divorce Act, 9A U.L.A.