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In Re Marriage of Theis



Appeal from the Circuit Court of Kankakee County; the Hon. Wayne P. Dyer, Judge, presiding.


This is an interlocutory appeal under Supreme Court Rule 307(a)(1) (87 Ill.2d R. 307(a)(1)) from an order of the circuit court of Kankakee County modifying a preliminary injunction. We reverse.

In post-dissolution of marriage proceedings, the appellant, Ms. Charlene Theis (mother), sought preliminary and permanent injunctions restricting the appellee's, Mr. Terry Theis' (father), rights of visitation with the parties' two minor children, April and Timothy. The mother alleged that the father had sexually abused April. On August 3, 1983, the trial court granted a preliminary injunction. However, in the following November, the lower court entered two orders: one denied the mother's motion to reinstate certain testimony which was previously stricken and the other modified the preliminary injunction. Pending the hearing on the permanent injunction and custody modification, the father was allowed to take the children from the mother on specified days but only in the presence of the father's new wife.

The mother appeals from the November orders and attacks the lower court's evidentiary rulings. The nature of these evidentiary issues necessitates a review of the testimony.

The mother testified that the children, Timothy and April, visited their father in January, February and March, 1983. April was then three years old and Timothy was eight years old. In February, April began wetting her bed at night and complained of pain when urinating. In early March, April again complained to her mother that her vagina hurt. The mother examined April and noticed redness and a slight discharge from her vaginal area. The mother consulted Dr. Lu in mid-April.

Dr. Lu had been April's treating physician since 1980 and had treated April for a bladder infection in 1982. Dr. Lu testified that initially she thought April might have had another bladder infection. Urine tests, however, showed no indications of such an infection. In accordance with standard medical practice, Dr. Lu interviewed both the mother and April to obtain a history in order to discover the cause of April's medical problem and to devise a treatment. The mother mentioned that April's symptoms began after visitations with her father. Dr. Lu further related that a vaginal discharge is not necessarily the result of sexual contact. April, herself, may have inserted a foreign body. Nonetheless, Dr. Lu obviously suspected abuse by the father because in the course of her examination, Dr. Lu asked April several questions concerning the touching of her vaginal area. Dr. Lu testified as follows:

"* * * I pointed to her private area. I asked her `did your father touch you there?' [external vaginal area] * * * April had tears in her eyes and she nodded her head [up and down] * * *."

The questions that followed were also yes or no questions which inquired as to the manner in which April was touched. To each question, April responded by nodding her head. Dr. Lu noted that, as she questioned April, her crying became more severe. Dr. Lu was unable to continue with a physical examination of April because of her upset state, but was able to obtain a vaginal culture. The tests performed on the culture showed that April had a disease known as gardenerella vaginalis. This disease is rarely found in a female below the age of puberty and is very common in sexually active women.

Dr. Lu reported her suspicion of child abuse to the Department of Children and Family Services (DCFS). Mr. Taylor, from DCFS, testified that he interviewed April and her mother on April 29. It is interesting to note that, according to the mother's testimony, April, prior to February, was an outgoing child and would reach out to any man. But, after February, she became somewhat withdrawn and avoided contact with men. Consequently, Mr. Taylor had to ask questions of April through her mother. Mr. Taylor asked April if anyone touched her in her vaginal area. He also asked April to get a doll and show him how she had been touched. Apparently, April showed Mr. Taylor how she had been touched. However, Mr. Taylor's observation is not part of the record because of a sustained objection interposed by the father's attorney. The mother's attorney did make an offer of proof which included Mr. Taylor's conclusions that the child was a reliable source of information and that the child had been sexually abused by her father.

The trial court struck the testimony of the mother, Dr. Lu and Mr. Taylor which recounted what April said or did concerning the alleged abuse. The mother argues this was error for four reasons.

• 1 First, the mother contends that Mr. Taylor is an expert DCFS investigator who developed opinions relevant to this case from the contents of his report. The mother argues that under the rules adopted in Wilson v. Clark (1981), 84 Ill.2d 186, Mr. Taylor's opinions and the contents of his report should have been admitted as substantive evidence. We disagree. Wilson deals with testimony of experts based upon medical records, not with the admission of the records themselves. (Guerrero v. City of Chicago (1983), 117 Ill. App.3d 348, 351.) Also, even assuming that Mr. Taylor is a qualified expert, a foundation must first be laid to demonstrate that the trier of fact needs the assistance of an expert opinion, as contrasted with evidentiary facts, in order to decide an issue. (See People v. Covey (1966), 34 Ill.2d 195, 197.) Such indication is lacking in this case.

Second, the mother argues that Mr. Taylor should have been allowed to testify in the same manner as an appointed expert from DCFS. Section 605 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 605) empowers a trial court to order an investigation and report concerning the custodial arrangements for the child. The report may be used by the court in determining custody, and the preparer of the report is subject to cross-examination. In the instant case, the trial judge did not grant the mother's request for an investigative report. The mother claims that this was error. In addition, she argues that Mr. Taylor's conclusions concerning the credibility of the child and the abuse by the father would have been admissible had they been in a section 605 report. She contends that since a report should have been ordered, Mr. Taylor's conclusions should have been admitted to rectify the error of not ordering a report.

• 2 Even if we were to assume that Mr. Taylor's investigation and report was the equivalent of a section 605 investigation and report, and that a report should have been ordered, we cannot agree that the report could encompass the finding of fact concerning who abused April. The section 605 report is only evidence of what the investigator observed and of his conclusions concerning suggested custody arrangements based upon those observations. Any underlying facts contained in the report which are outside the personal knowledge of the investigator are hearsay.

Third, the mother argues that Dr. Lu's testimony should be admissible under the treating-physician exception to the hearsay rule. In People v. Gant (1974), 58 Ill.2d 178, a treating doctor, in order that he might have a better understanding of the victim's problem, inquired of the patient as to what had happened. At trial, the doctor was allowed to testify to the victim's statements. The victim stated that she was sitting on a couch when a man entered the room behind her and threatened her. She also mentioned she knew ...

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