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In Re Custody of Brunken





Appeal from the Circuit Court of Effingham County; the Hon. Mark M. Joy, Judge, presiding.


Rehearing denied January 17, 1986.

The proceeding in question concerns the custody of Kerry Beth Brunken, a minor. The circuit court of Shelby County dissolved the marriage of her parents, Barry Dean Brunken and Kendra Sue Brunken, by judgment of July 21, 1981. In that judgment, Kendra Brunken received custody of Kerry. On January 31, 1983, Mr. Brunken filed his petition in the circuit court of Shelby County for a rule to show cause why the Department of Children and Family Services (DCFS) should not be held in contempt for interfering with visitation. DCFS then filed its petition in the circuit court of Effingham County for adjudication of wardship. The circuit court of Effingham County adjudicated Kerry a ward of the court, granted custody to Mrs. Brunken, and granted Mr. Brunken limited visitation under supervision. Mr. Brunken appeals, requesting that this court either enter judgment denying the petition for adjudication of wardship, or remand this cause with directions that it be transferred to Shelby County and heard anew.

Barry and Kendra Brunken's marriage was dissolved on July 21, 1981. The decree provided that Kendra should have custody of Kerry. Barry continued to reside in the marital home, which his parents Garold and Jean Brunken owned. Barry was granted extensive visitation in the decree, including three three-day periods during each month. On January 28, 1983, Carol Lance, a DCFS social worker, informed Barry by telephone that Barry was not to visit Kerry without supervision. On January 31, 1983, in the circuit court of Shelby County, Barry filed his petition for a rule to show cause why DCFS should not be held in contempt for interfering with the visitation provisions of the decree of dissolution. On February 10, 1983, in the circuit court of Effingham County, Lance filed the petition for adjudication of wardship on behalf of DCFS, alleging that Barry had sexually abused Kerry. All subsequent proceedings referred to herein were in the circuit court of Effingham County.

DCFS took protective custody of Kerry on February 11, 1983, though Kendra retained physical custody. On February 14, 1983, a shelter care hearing was held without notice to Barry. On April 12 he filed his motion to set aside the original shelter care hearing. On May 25 he filed his motion for mental examination of Kendra and Kerry. Kerry, Kendra and Barry were psychologically evaluated on June 29, 1983. The resulting report, filed November 14, 1983, stated the evaluators' inability to determine whether or not sexual molestation occurred, but concluded that Barry should not be permitted unsupervised visits with Kerry "on the possibility molestation has occurred or may recur."

The adjudicatory hearing was held on December 1, 1983, and March 22, 1984. Witnesses for DCFS on the initial date included Kendra Brunken, her mother Beverly Moore, DCFS social worker Carol Lance, and counselor Judy Latta. The critical portion of the testimony of Kendra Brunken and of Moore, Lance, and Latta concerned Kerry's out-of-court statements and actions. Kerry was not examined during any of the proceedings in question.

Kendra Brunken testified as follows: She first noticed something unusual about Kerry's behavior in the fall of 1982; "she didn't want to go back to her dad's. She was clinging to her blanket more. When she got home she seemed more upset." Then, about January 1, 1983, Kendra was drying Kerry with a towel when Kerry said "Mommy, be gentle with me," a phrase Kendra had not heard her use before; Kerry also indicated her vaginal area by pointing. On or about January 19, 1983, Kendra was putting a diaper on Kerry when, "out of the clear blue," Kerry said, "Daddy sticks his finger in my bottom." According to Kendra, Kerry referred to her vaginal area as her "bottom." On or about February 26, 1983, Kendra observed Kerry in the bathtub, playing with a plastic knife and half of a plastic egg; Kerry was poking these items in and around her vaginal area; Kendra told her not to; Kerry said: "Well, daddy does like that." Also in February 1983, while Kendra and Kerry were in Kendra's automobile, Kerry said "out of the clear blue": "Only bad people hurt people, don't they?" Kendra told her that was right; Kerry said: "Only bad people hurt people with puzzle pieces?" Kendra asked if she knew anyone who does that; Kerry replied: "Daddy does." In the fall of 1982, Kerry and Kendra were watching television when Kerry "passionately" kissed Kendra, putting her mouth over Kendra's mouth and "around" Kendra's face; Kendra asked Kerry if she had learned this watching television; Kerry said no, from daddy. At about this time Kerry's vaginal area was very red, and Kerry was reluctant to be touched there; previously she was not reluctant to be touched. On a "couple" of occasions Kerry said: "Daddy tickles me with his finger," pointing to her vaginal area. In September of 1983, in the bathroom, Kerry complained of her "bottom" hurting, then said: "Daddy hurts my bottom." Kerry had seen Barry only once since the February 14, 1983, shelter care hearing; in that time Kerry had stopped clinging to her blanket, had stopped wetting her clothes and had decreased her bedwetting, did not seem so upset, and had ceased being reluctant to talk about her father.

Mrs. Moore testified as follows: In the fall of 1982 she was putting a diaper on Kerry when Kerry recited a variation of the nursery rhyme "Hickory Dickory Dock," as follows: "[T]he clock struck one and daddy put his hand in my pants." Another time, during a bath, Kerry said; "I take baths with daddy in the shower and daddy hurts me." Another time, being dressed after bathing, Kerry said: "Be gentle with me."

Carol Lance testified as follows: She interviewed Kerry in Kendra's home on January 21, 1983. Kerry told her "that daddy stuck his fingers and put wooden puzzle pieces into where she pee pees and poo poos," and Kerry pointed to those areas. Kerry also said that daddy kissed her on her chest and belly and had her kiss him on the same areas, and that she showered and slept with him. Using anatomically correct dolls which Lance had brought with her, Kerry demonstrated: Kerry picked up a puzzle piece with the hand of the adult male doll and "crammed it" into the female child doll, first in the vaginal area, then the anal area. "Then she took her own finger and stuck her finger into the vagina and into the anus and said this is what daddy does to me." There was no prompting or suggesting by Lance. Kerry then laid the female doll on the floor "and took the male doll * * * and said daddy does this and I said what is that that daddy is doing and she said daddy is kissing me on the, my belly and on my chest." Later Kerry reversed the positions of the dolls and "said I am kissing daddy on his belly." Kerry brought up the subject of sex with her father herself.

Judy Latta testified as follows: She had counseled or interviewed Kerry eight times thus far. On the first occasion, January 26, 1983, Latta told Kerry she wanted to talk about whether she had ever been touched by anyone in a way she didn't like. Latta showed Kerry a "stick drawing" of a person, asked her to pretend it was she, and asked her if anyone had touched her. Kerry pointed "between the drawing's legs and said that her daddy had touched her there." In Latta's opinion children of any age did not make up stories of sexual abuse. There were "red flags" of sexual abuse which people in her field looked for, such as increase or recurrence of bedwetting, a recurrence in needing a favorite object, or other behavioral changes.

Testimony at the resumption of the adjudicatory hearing on March 22, 1984, was as follows:

Pediatrician Donnelly Foster testified that she examined Kerry twice in January, 1983, once for signs of sexual abuse, the second time to test for gonorrhea; no signs of sexual abuse were found. However, she referred Kerry to Judy Latta for counseling, preferring to err on the side of protecting the child.

Psychotherapist Robert Beechdale, of the Child Abuse Treatment and Training Center of Illinois, testified for DCFS as an expert witness. He did not examine or interview Kerry. Beechdale testified as follows: Based on about 400 cases seen by the Center, children who report sexual abuse are rarely found to have lied. Signs of a sexually abused child included recurrence of bedwetting, excessive masturbation, sensitivity to touch, and an overdeveloped sense of privacy. Typically the accused parent would either deny the occurrence or its significance. Typically the child would want to spend time with the abusing parent. Children abused as early as age three do not forget, though they may try to. In most cases in which a child reports sexual abuse, the perpetrator ultimately admits his guilt, the exceptions being less than 10 of the 400 cases seen by the Center.

Evidence for Barry Brunken was as follows: John House, a DCFS social worker testified: He interviewed Barry on January 28, 1983. Barry denied any sexual contact with Kerry, though he admitted bathing her. He could not explain Kerry's stories. Barry characterized Kerry as affectionate, but did not understand the reference to passionate kisses. Barry accused Kendra of fabricating the incidents to prevent his visiting with Kerry; he offered to submit to polygraph examination. In House's opinion Barry's reactions were appropriate; Barry did not appear nervous or guilt-ridden; his answers were consistent despite attempts to confuse him; even when ...

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