APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
505 N.E.2d 1360, 153 Ill. App. 3d 616, 106 Ill. Dec. 569 1987.IL.363
Appeal from the Circuit Court of Du Page County; the Hon. Kevin P. Connelly, Judge, presiding.
Justice Unverzagt delivered the opinion of the court. Hopf and Inglis, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
On October 29, 1985, the State filed a petition in juvenile court alleging that the minor, J.H., was an abused minor as defined by sections 2-4(2)(a)(iii) and (2)(b) of the Juvenile Court Act (the Act) (Ill. Rev. Stat. 1985, ch. 37, par. 702-4(2)(a)(iii), (2)(b)). A series of hearings were held on the petition, and on February 27, 1986, the trial court found that the State failed to prove the allegations. The State appeals contending it presented sufficient testimony to prove the allegations of its petition by a preponderance of the evidence.
A guardian ad litem was appointed for J.H., and the public defender was appointed to represent her during the hearings. J.H.'s mother and father were represented by separate counsel during the hearings. Although no appellee's brief has been filed in this cause, we proceed to consider the evidence adduced below inasmuch as the interest of a minor is involved. First Capitol Mortgage v. Talandis Construction Corp. (1976), 63 Ill. 2d 128; In re Adoption of Daly (1976), 36 Ill. App. 3d 962.
The petition and the bill of particulars alleged that J.H. had been sexually abused at her home on or about September 26, 1985. It was also alleged in an amended bill of particulars that J.H. had suffered numerous burns on her body and was frequently absent from school; that she was not outfitted with a hearing aid although she suffers from a severe hearing loss; and that the living conditions of the family home were injurious to her health in that the home was not kept in a sanitary state.
Testimony was heard on January 29, February 5, 19, and 27, 1986. The first witness called to testify was Dr. Thomas Mullin, an emergency medicine specialist at Good Samaritan Hospital. He examined J.H. in the hospital emergency room on October 18, 1985. J.H. was brought to the hospital by a social worker who told the doctor that J.H. had indicated to her that she had been sexually assaulted by her father. He proceeded to perform a routine physical examination looking for signs of trauma. J.H. was hesitant and apprehensive about the doctor's touching her. He found her reaction to be unusual for a child her age because in his experience they usually have no inhibitions and often run around the emergency room naked. Her reaction indicated to him either that she had some sort of bad experience or was frightened by him in some way. Because of this reaction, the doctor did not thoroughly examine her genital area for fear of traumatizing her further. He did notice the tissue which surrounds the opening to the vaginal area appeared slightly inflamed, but the redness was not particularly remarkable. The inflammation observed could have been consistent with either a genital infection or trauma to the area, but the oral, anal and vaginal swabs taken were found to be normal, and no infection was noted. The inflammation was more likely the result of either self-induced or induced trauma from some other external force. He reiterated that the inflammation was not very impressive, and that he felt the most significant part of his examination was her reaction to him. He testified the slight inflammation observed could be consistent with an object being inserted or rubbed against the vaginal area. As in all cases of suspected rape, he prescribed antibiotic therapy. He speculated that because J.H. had been deaf and dumb since birth, she was perhaps a bit behind emotionally and probably more vulnerable and naive than a normal five-year-old.
On cross-examination, the doctor testified that J.H.'s hymen was apparently intact, although it was not imperforate, which means that the hymenal tissue did not totally span the opening to the vagina. He testified this condition was not uncommon to find and was totally consistent and normal for someone her age. The condition of J.H.'s hymen ruled out the possibility of total penetration during sexual intercourse, but not necessarily penetration by a finger.
On further cross-examination, he acknowledged he was looking for signs of sexual abuse in view of the history given him by the social worker. He stated that the trauma he viewed could have been the result of habitual scratching of the area. He stated J.H. is probably the first deaf/mute girl on whom he has performed a vaginal exam.
J.H.'s paternal grandmother testified that J.H. was currently living with her in Darien, Illinois, and had been since about late September 1985. She was a frequent visitor to her son's home in Westmont where J.H. resided, and she often found the house in disarray, with clothes lying all over and dishes that appeared to have been unwashed for about a week. On one occasion, after J.H. was already living with her, she testified she smelled cat urine and saw cat feces on the back porch and by the kitchen door. She also related an occasion about three years prior when there was an accumulation of about eight bags of garbage at the family's other residence in Woodridge. This was at a time when J.H.'s mother had left the family and the witness' son was in a cast and had custody of both J.H. and her brother, Jason. He and the children then resided with the witness for a time after that. The witness was the one who suggested, when J.H. was about two years old, that her hearing be tested; she was diagnosed at that time as profoundly deaf.
On cross-examination, the witness testified that although she does not like her daughter-in-law, she does not want J.H. to have to stay with her (the witness). On further cross-examination, she testified she reported the unsanitary condition of the Woodridge residence to the Department of Children and Family Services , but the children were living with her at the time, and it was unable to help her. She testified that she was aware that J.H. was susceptible to swollen glands, upper respiratory bronchitis and croup, and that on several occasions when J.H. was home on a school day it was because she was ill. The witness testified J.H. had an attack of croup in October, when she was living with her, and the paramedics were called. Testifying further on cross-examination, the witness stated that ultimately she would like her son and his wife to get back together and have J.H. back in their home.
The court swore in Shirley Sutherland as an interpreter for the deaf to assist in the examination of the next witness, Gwen Hammersmith. Hammersmith is a clinical consultant for the Du Page County mental health department. She has been there about three years, and she has counselled approximately 30 hearing-impaired clients. She has been hearing-and-speech impaired since birth. She has seen J.H. three times since January 1986, after she was referred by DCFS. During those approximately one-hour long sessions, J.H. showed through the use of dolls that she was aware of all the various sexual activities between her parents which she indicated she learned about because she and her brother saw the parents in bed.
On cross-examination, Hammersmith stated that J.H. definitely is of normal intelligence for her age. In using the dolls to describe sexual activity, J.H. referred to them as her mother and father. J.H. specifically described her parents making love, and related a variety of positions during sexual activity; the woman doll on top of the man doll, up and down oral sex motions, having sex with woman doll standing and the man doll behind her back, and the man doll sucking the woman doll's breast. During none of her three interviews with J.H. did J.H. refer to the dolls other than as her mother and father. When she asked J.H. questions about her father having sex with her, J.H. said "No, no" using emphatic body language, and she became unwilling to cooperate further. On further cross-examination, Hammersmith testified she did not ask J.H. if she had seen anything like these sexual activities on television. On redirect examination, Hammersmith stated that J.H. was not agitated or uncomfortable when demonstrating this sexual activity of the dolls. On re-cross-examination, Hammersmith testified J.H. never seemed frightened of her father and that when she observed her meet him, her reaction was very loving.
The State's next witness was Joyce Zimmerman, a school counsellor for hearing-impaired students at Pleasant Lane School in Lombard and Edgewood School in Woodridge. Since September 1983 she saw J.H. at least once a week in a classroom group, and since March 1985 she has counseled J.H. individually one to two times a week. She testified she believed that during the 1983-84 school year J.H. was absent 98 of 180 school days. In the 1984-85 school year, Zimmerman testified she believed J.H. was absent 41 1/2 days of 180 school days. In the current school year, Zimmerman testified she believed J.H. was absent 12 of 36 school days until the time she was placed with her grandmother. Since then, J.H. has missed 3 out of 55 school days. She recalled that J.H. was absent September 26, 1985, and October 22, 1985.
During the 1984-85 school year, the witness testified that J.H.'s family had a fire at their apartment. J.H. was experiencing some social and emotional difficulty, and she began receiving individual counselling. She was experiencing sleeping problems and would come to school extremely tired and fatigued. She came to school on several occasions with a burn on her arm, and once she could not use the special auditory training unit (a hearing aid used at the school) because her ear hurt. Zimmerman testified J.H. told her that her daddy hit her ear with a toy truck. Twice in February, J.H. came to school with a burn on her arm: one burn was determined to be the result of an accident with her Aunt Sheryl's cigarette, and one burn was from an accident with a curling iron. In April, J.H. had another cigarette burn which, using dolls, role playing and reverse role playing, J.H. "made it quite evident" was not an accident and was done by her daddy.
Although J.H. does have her own personal hearing aids, the witness testified that from January 1985 until June 1985 the aids were not seen at school. These personal hearing aids enable J.H. to hear loud environmental noises and make her aware of loud speech in her environment.
On October 1, 1985, Zimmerman saw J.H. and, noting that she had not been at school the previous week, asked her if she had been sick. J.H. replied "No," that they had gone to visit a friend. J.H. then told her that her mom had been bad and that policemen had come and put handcuffs on her and had taken her away. The witness was unsure about her understanding of what J.H. was telling her, so she had her act it out for her. J.H. seemed very "antsy" about telling her about it, so in order to calm her down, she was told to choose something with which to play. J.H. took the family dolls, named one doll Mother and threw her in the garbage. She took a second doll, named him Jason and hid him in a desk. She then took two dolls and named one Dad and the other J., after herself, and laid them down. In response to a comment from Zimmerman, J.H. said the dolls were not playing. J.H. moved the J. doll so its head was near the genital area of the father doll, and held him in that position, moving them slightly. J.H. then reversed the dolls so that the father doll's head was toward the J. doll's genital area. She was asked what they were doing, and she said, "Daddy and J., daddy and J. on the bed." The counselor was unsure what to do, so she sent J.H. back to her classroom. In previous sessions, J.H. had played with the dolls in a fairly typical family-type manner.
When Zimmerman asked J.H.'s teacher about the police/handcuff story, the teacher reported that J.H. had repeated the story to her also. J.H.'s mother was called, but could not understand where the story came from, although she thought it was possible it might have been from television. Zimmerman mentioned the J.H. incident to her supervisor, who asked her if she was sure of the activity J.H. was indicating to her. Zimmerman said she was not sure, so the supervisor suggested that different dolls be available in their next session to see if J.H. would repeat the same incident in another way.
Zimmerman next saw J.H. on October 8, 1985. After being asked if she remembered what she said last time, J.H. retold the story about her mother and the police, and once again threw away the mother doll and hid the Jason doll. She took the doll named Daddy and removed the clothes. She took a color marker and tried to draw a belly button, pubic hair and genitals on the doll. J.H. didn't do anything else with the doll at that time, and the witness decided not to pursue the incident, feeling she lacked experience working with this type of case.
Zimmerman again saw J.H. on October 10, 1985, for counselling. J.H. drew pictures of her family, giving her mother and father angry faces and calling them bad, and then crossing them out. She drew herself and Jason as playing, with happy, smiling faces. J.H. had never exhibited this type of attitude toward her parents before, except when her mother was away from home, or her father burned her arm or hit her with the truck; she would say, "Mom bad," "Dad bad," in sign language.
Zimmerman attempted one other time to have J.H. repeat the incident, but J.H. would not cooperate and exhibited avoidance behavior. Zimmerman later contacted social workers from the Westmont and the Lombard schools. Both advised that she should try to get J.H. to reconfirm the information, which Zimmerman reported to them that she had already tried to do. They then told her it would be better to report that type of incident to the DCFS "Hot Line" and be wrong, than to not report it at all, and Zimmerman did so on October 16.
Zimmerman testified that on October 18, 1985, Detective Rick Musil of the Westmont police department, and Diane Bergslien, an investigator from the State's Attorney's office, came to the school to interview J.H. Bergslien interviewed J.H. with the assistance of Zimmerman, who would suggest to Bergslien how to reask a question if J.H. was not understanding it as posed by Bergslien. After Bergslien used various examples of specific behavior so that J.H. would understand her questions, J.H. acknowledged knowing the difference between good and bad touches, and telling the truth and a lie. J.H. indicated she recalled telling Zimmerman her mother was bad and was taken away by the police, but she could not give any further details. J.H. related that she and Dad were on the waterbed. Bergslien gave J.H. two dolls; J.H. named one J., after herself, and one Jason, but when Bergslien took the doll's cap off and stood it up, J.H. changed the name of the doll to Dad. J.H. then undressed the dolls, and she put the dolls together simulating intercourse with the J. doll on top. She repositioned the dolls so that the J. doll was sitting on the dad doll with its back toward him. She tried to get the penis of the dad doll into the vagina of the J. doll. Bergslien testified she asked if daddy had ejaculated, which was hard for J.H. to understand, but J.H. said no. J.H. next positioned the J. doll near the daddy doll's penis. Bergslien asked if daddy kissed or licked J.H. J.H. said "Yes," and indicated that daddy had kissed her on the breast and licked her. J.H. indicated that the dolls went to sleep after this.
When asked her opinion of J.H.'s reputation for telling the truth, Zimmerman stated that although she has difficulty communicating because she doesn't know all the words, J.H. has always told her the truth when she does have the words and the language. Moreover, Zimmerman testified that hearing-impaired children generally focus on things that have happened and their experiences. Although they do engage in imaginary play, they rarely fantasize or act out behavior they have not experienced. Compared with normal children, hearing-impaired children do not imagine or fantasize stories they would hear on television since they have little or no exposure to them.
On cross-examination, Zimmerman stated that she saw J.H. regularly at school on Tuesdays and Thursdays and that prior to the October 1, 1985, interview J.H. had been absent on Thursday, September 26, 1985. Zimmerman attempted to verify the story regarding the mother's arrest, but the mother denied anything like that occurring. Zimmerman had earlier verified the story about a new baby in J.H.'s family, which J.H. had referred to as "Mom's baby." Zimmerman learned that J.H.'s aunt Sheryl had just had a baby. She described how deaf children ...