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In Re T.h.

OPINION FILED OCTOBER 17, 1986.

IN RE T.H. ET AL., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

LAVERNE HARPER, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of La Salle County; the Hon. Fred P. Wagner, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

The 10-year marriage of Laverne and Brenda Harper ended in a September 1983 divorce. Three children were born of the marriage; J.H. in 1976, C.H. in 1979, and T.H. in 1981. Brenda was awarded custody of the children, and Laverne was granted liberal visitation.

On October 19, 1984, the La Salle County State's Attorney filed a four-count petition alleging that the two female children were sexually abused by Laverne. It was further alleged that this contributed to an environment injurious to the welfare of all three children. The petition prayed for an adjudication of wardship and for further relief under the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 701-1 et seq.). Following an extensive adjudicatory hearing, the court found that acts of sexual abuse had been committed against C.H. The court ultimately entered an order for protection severely limiting Laverne's visitation and ordered that he undergo counseling. We affirm. Because this case was extremely close, an extensive review of the testimony is required.

Jean Tennyson testified for the State. She is the maternal grandmother of the children. In April 1984 C.H. was having a bath at Jean's house. She testified that C.H. was tickling herself "there" in the bathtub. Jean asked if anyone else bothered or tickling her down there. C.H. responded that Daddy did. She further testified that she told Brenda about this, but Brenda did not report it to anyone.

In early October 1984, Jean had both girls alone after sending Brenda out to do the laundry. She bathed them together. She first took C.H. out and dried her. At the same time, she noticed T.H. fondling herself in the vaginal area. Jean asked if anyone else ever bothered her there. T.H. responded that Daddy did. C.H. and T.H. then argued over whether their father actually did what T.H. described. T.H. said he did it on the couch in the living room. C.H. said, "he don't no more" and T.H. said, "he puts you outside to play and then he do." When Brenda returned to Jean's house, they repeated their story to her.

On cross-examination, Jean admitted that she had discussed the allegations with the children between the date of the petition and the adjudicatory hearing. She also admitted hiring an attorney to represent Brenda in the instant action, although no counts were actually directed against her. She had previously hired an attorney for Brenda in a post-decree dispute over utility bills.

Randy Constantine, an officer with the Department of Children and Family Services (DCFS), testified that on October 15 a report of child abuse was received on the hotline. He went to Brenda's home in Mendota the next day. He interviewed each child individually, with Brenda present but not participating. Constantine used anatomically correct dolls to assist the children in describing what happened. T.H. referred to the male doll's penis and the female doll's vagina as "private parts." T.H. told Constantine that Daddy touched her private part with his hand and it tickled. Constantine asked if anyone kissed her on her private part and T.H. said her Daddy did. This was done at Laverne's apartment in his bedroom and bathroom. She also recalled having once kissed her father's private part. C.H. also referred to the doll's vagina as a "private part." She said that her father rubbed her private part but did nothing else. This happened in the bedroom and bathroom. C.H. also stated that this occurred three months ago.

Constantine interviewed Laverne Harper in the presence of an Ottawa police officer. Laverne denied touching the vaginal areas of his daughters in a sexual manner. He described a game in which he would blow on their bellies to tickle the children.

On cross-examination, Constantine stated that he made no contemporaneous notes or tape recordings of these conversations. He also did not get any indication from the children of the frequency of the alleged touchings.

Brenda Harper testified that she called the hotline the next day after what happened at her mother's house. She essentially corroborated Constantine's account of the children's descriptions, but said that T.H. said nothing about kissing her father's private part. C.H. told Constantine that Daddy touched her private part, but that it did not hurt.

On cross-examination, Brenda exhibited confusion over how long after learning of the abuse she waited to call the hotline. Laverne's attorney elicited considerable testimony concerning the friction she had been experiencing with Laverne over her activities with men. Specifically, she had allowed a black man to move in with her and the children. Laverne had expressed his displeasure about this to her many times. Brenda also testified as to an incident immediately preceding the abuse allegations in which she had hired an attorney to write a letter to Laverne concerning the way in which he had the girls' hair cut. Brenda characterized this as a minor incident, although she did say something to the effect of "you're not going to get away with this."

The trial judge then interviewed C.H. and T.H. in camera. C.H. told the judge that she had told Randy Constantine that her father had touched her private part. She also related that her father had kissed her there as well. She also stated that she did not touch her father's private part.

After hearing testimony from Laverne denying any improper conduct, the court entertained a motion for a directed finding that the children had not been abused. Because there was nothing before him besides the uncorroborated statements of the children to third persons, the judge indicated that, all things being equal, he would ordinarily grant the motion. However, apparently due to some lingering doubts, the motion was denied pending the testimony of C.H.

The court found C.H. a competent witness. She testified to being both touched and kissed on her "important part." In many respects, her testimony contradicted details of the abuse related by Randy Constantine, Jean Tennyson and Becky Cattani, a social worker who took a taped statement from the children a day after the interview with Constantine. C.H. also used dolls in giving her testimony. She ...


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