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In Re K.l.m.

OPINION FILED AUGUST 21, 1986.

IN RE K.L.M. (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

DUANE L. MARSHALL, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of McLean County; the Hon. William D. DeCardy, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On October 3, 1985, the circuit court of McLean County entered an order adjudicating K.L.M., a four-year-old child, to be a neglected minor within the meaning of section 2-4 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702-4). On November 14, 1985, the court entered a dispositional order making the minor a ward of the court and placing her in the guardianship of the Department of Children and Family Services (DCFS). The minor's custodial father, respondent, Duane L. Marshall, has appealed contending (1) the adjudication of neglect was contrary to the manifest weight of the evidence; (2) section 4-6(4)(c) of the Act (Ill. Rev. Stat. 1983, ch. 37, par. 704-6(4)(c)), under which the court permitted testimony of the minor's complaints about respondent, violated respondent's constitutional right of confrontation; and (3) the court erred in admitting opinion testimony of a psychotherapist, Debra Oberg, that the minor was sexually abused by respondent. We affirm.

The major thrust of the evidence in support of the determination that the minor was neglected came from the testimony of Maggie Wright, a caseworker for DCFS, and Debra Oberg, a psychotherapist, concerning conversations they had with the minor. This testimony is the basis of respondent's claim of breach of his right to confront the witnesses against him. Objection was made and preserved as to the entire line of questioning.

According to Wright, her first conversation with the minor occurred on April 20, 1985, in a bedroom of respondent's home where Wright had gone with a deputy sheriff in response to an abuse report. They talked while alone in a bedroom in which, according to the minor, she slept with respondent. Wright related the following conversation. She told the minor that she had heard that respondent had been touching the minor in ways that the minor disliked or found painful, and the minor responded by nodding her head and saying "[t]hat is our secret." She then asked the minor what her father "went potty with" and the minor told her that it was a "weiner." This was apparently asked in order to determine the term used by the minor to describe a penis. When asked if the respondent had ever touched her with "his weiner" in a place she did not like, the minor clutched her vaginal area and said "here" and also touched her anal area and said "here." The minor later referred to the area where her father was touching her as "where I go potty" and again indicated that what her father was doing was to be a secret. In answer to other questions, the minor indicated that her father had not touched her between her legs with his hands or other parts of his body except his penis, and that touching had occurred in bed and in the bathtub. When asked if anything came out of her father's "weiner" when touching her, the minor said "he goes potty."

Wright also testified to a further conversation with the minor on April 25, 1985, in which the minor said that her previous statements were true and again showed where she had been touched. Wright also stated that the minor was given dolls to show how she and her father were positioned when the touching took place and the dolls were placed face to face on their sides. According to Wright, the minor finally told her that "Daddy pees on me" and did so on her stomach and arm and described the fluid being discharged as white in color. Wright testified that, in her opinion, the minor's nervousness, her accurate perception of what "touching" meant, and her independent indication of the body areas where she had been touched bore on the reliability of her statements.

Wright's testimony was corroborated by that of Oberg, who testified to the following three conversations. The first was on August 14, 1985. Oberg played with the minor for awhile to make her more comfortable. After awhile, the minor asked Oberg if she was the one to whom she was to tell her secret. Oberg responded that she could wait until they were better acquainted. Later, the minor asked Oberg if she wanted to know what her father did with his "weiner," but Oberg said that could wait. Oberg returned in a few days and after playing with the minor, the minor again asked if Oberg wanted to hear her secret. However, when Oberg said she did, the minor responded that she was not supposed to tell and got nervous. Oberg then met with the minor on August 21, 1985, and they went to a nearby park for about an hour and then back to the minor's room at her foster home. Oberg then asked the minor if she wanted to tell her secret. After hesitating, mentioning that she had told her father that she would not tell, the minor told Oberg that her father had put his "weiner here" pointing to the front area between her legs and "here" pointing to her buttocks area between her legs. The minor said that it hurt, and when asked if anything came out of his "weiner," she responded that some white sticky substance came out and sometimes got on her stomach. The minor indicated that her father did not put his penis in her mouth or against other parts of her body.

Oberg testified that she returned once more to play with the minor hoping to reduce her anxiety for having told about her father. No discussion was had concerning the father's conduct. Oberg explained that she had found that an abused child was much more likely to be nervous when questioned about such activity than one who had not been abused. Over respondent's objection, Oberg was permitted to testify to an opinion that the minor was abused. Her reasons centered upon her belief that the minor's testimony was accurate. Oberg stated that her opinion was based on (1) the minor's anxiety; (2) the fact that the minor answered negatively when asked if the minor's father had committed other improper acts; and (3) her, Oberg's, general experience in working on cases of this nature. Oberg also stated that, absent participation in the episodes related by the minor, she would have been unlikely to know about the appearance of semen.

Evidence was also presented that on April 20, 1985, the minor was taken to a physician who found that the minor's vulva was red and her panties had a red discoloration. However, no bleeding was found in that area, and the minor's hymen appeared intact. Further evidence was presented that on a follow-up examination on May 11, 1985, the minor's external genitals had a normal appearance.

Respondent's only evidence was his testimony in which he stated: (1) the minor preferred to sleep with him rather than in her own room; (2) he had never made contact with her vaginal or anal area with his penis; (3) he never told her a secret that she was not to tell others; and (4) he did not think she could tell the difference between telling the truth and lying. However, he admitted that he had never known her to tell a lie. He also testified that he had not allowed her to watch sexually explicit or X-rated movies, and he had not heard her make comments of a sexual nature after being with her cousins with whom she sometimes spent the night.

• 1 Both of respondent's first two contentions involve section 4-6(4)(c) of the Juvenile Court Act, which states:

"(c) Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect." (Ill. Rev. Stat. 1983, ch. 37, par. 704-6(4)(c).)

Absent the foregoing legislation, the testimony of Wright and Oberg would be inadmissible hearsay. As indicated, that testimony was the heart of the State's case. Accordingly, the question of the sufficiency of the evidence to support the adjudicatory order of abuse hinges on whether that testimony met the corroboration requirements of section 4-6(4)(c).

Various items of corroborative evidence were presented. Both Wright and Oberg testified that the minor was anxious, and Oberg testified that this was a sign of abuse. The testimony of the respondent tended to indicate that the minor had limited opportunity to have learned about the sexual matters which she was purported to have described. Further testimony that the minor had visited with her mother only in respondent's presence since April 1983 indicated that the mother, who might have had motive to damage respondent, had no opportunity to arrange for the minor to give false testimony. Finally the testimony that, at the time the question of whether the minor was abused was being investigated, the minor had skin irritation in the genital area is not void of probative value. When taken together, all of this circumstantial evidence constitutes sufficient corroboration of the hearsay evidence admitted under the special provision of the section.

Respondent calls our attention to People v. Lambert (1984), 104 Ill.2d 375, 472 N.E.2d 427, as holding that the existence of skin irritation of the minor's genital area was not corroboration that her father had placed his penis in that area. In Lambert, the defendant was convicted of taking indecent liberties with a male child by placing the child's sex organ in his mouth. The court held that evidence of skin irritation of the minor's anus was not corroboration of the defendant's commission of the ...


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