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01/11/88 In Re R.G. Et Al.

January 11, 1988

IN RE R.G. ET AL., MINORS (THE PEOPLE OF THE STATE OF


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Illinois, Petitioner-Appellee, v.

Estella Daniels, Respondent-Appellant)

518 N.E.2d 691, 165 Ill. App. 3d 112, 116 Ill. Dec. 69 1988.IL.18

Appeal from the Circuit Court of Winnebago County; the Hon. Bradner Riggs, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The respondent, Estella Daniels, mother of R.G. and B.D., a male and female minor, respectively, appeals from the orders of the circuit court of Winnebago County finding each minor to be abused, finding her to be an unfit person, terminating her parental rights, and appointing the Department of Children and Family Services as the children's legal guardian with the power to consent to adoption. Neither Vernon Daniels, B.D.'s father and R.G.'s stepfather, nor Bobby Powers, R.G.'s alleged natural father, are parties to this appeal. We note the respondent's contemporaneous appeal from her criminal conviction for aggravated criminal sexual assault against R.G., which involved some of the same conduct alleged in the instant cause, has been affirmed by this court. People v. Daniels (1987), 164 Ill. App. 3d 1055.

Respondent contends: (1) she received ineffective assistance of counsel; (2) the court erred by conducting a combined adjudicatory, Dispositional, and termination hearing; (3) the court erred in not allowing her to be present during the testimony of her children; and (4) the court's finding of parental unfitness was not supported by clear and convincing evidence.

We sua sponte find respondent's statement of facts is argumentative with regard to the issue of whether she received the effective assistance of counsel and is otherwise insufficient to convey an understanding of the case as required by Supreme Court Rule 341. (107 Ill. 2d R. 341(e)(6).) As stated in Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1986), 149 Ill. App. 3d 53, 57, "attorneys can properly present evidence that is favorable to their clients but not at the cost of this court's understanding of the case." The respondent's statement of facts will not be stricken, however, and, as in Midland, these comments are intended both as chastisement and warning.

Over objection of counsel for Vernon Daniels and counsel for respondent, the court granted the State's request to have its petitions for adjudication, the Dispositional hearing, and its request for termination of parental rights heard at the same time. The hearing began on November 3, 1986, and was continued once to November 24. After examining R.G. in chambers in the presence of the children's appointed guardian ad litem , the court granted the State's motion, over respondent's and Vernon's objections, to receive R.G.'s testimony in chambers out of respondent's presence.

On direct examination, R.G. defined "family touching" as he, his sister, his mother and stepfather, Vernon Daniels, touching each other's genitals. R.G. would have sex with his mother and B.D. by putting his penis in their vaginas; he would have sex with Vernon by Vernon putting his penis in R.G.'s "butt." "Family touching" happened about every week, and it began when he was eight years old. Vernon would also place R.G.'s hand over Vernon's penis in a circle around his penis and then move R.G.'s hand back and forth; if R.G. did this for a long time "white stuff" would come out, but if for a short time it did not.

In R.G.'s presence, B.D. would move her hand back and forth on Vernon's penis. Over respondent's objection, R.G. testified B.D. told him she and the respondent played with a penis-like thing which R.G. had seen under his mother's pillow. He said his mother and Vernon took five or six movies of him. In the last one, R.G., B.D., the respondent, Vernon and Duker, their dog, were present. Vernon was doing the filming; R.G. masturbated the dog's penis, the dog licked R.G.'s penis, and R.G. put his penis in the dog's "butt." Vernon and the respondent were directing R.G.'s actions with the dog.

The other movies were just like "family touching." R.G. stated his mother did filming when Vernon and B.D. were having intercourse. In one movie, Vernon had a bull whip and whipped it at him and B.D.; once in a while the whip would hit them, but usually it missed. Sometimes in the movies he and B.D. got slapped or punched by Vernon and their mother. He didn't remember if anything sexual happened in the movies in which he was slapped and whipped. R.G. testified that once or twice his maternal grandparents, Clara and Dave Ginger, would be present at the filming and would hold the camera. His grandparents never did anything sexual to him, but they would punch and kick B.D. and him.

R.G. testified Tim B. lived a couple houses away from R.G.'s grandparents. He did not know how old Tim was. R.G. testified Tim B. sexually abused him in Tim's backyard shed; R.G. told his grandparents about this, but they would not listen. R.G. testified that when his uncle died and B.D. and his mother went to Peoria on July 28, 1985, he was alone with Vernon. R.G. testified Vernon had anal intercourse with him on that day; it was a Sunday, and it happened in Vernon's bedroom.

On cross-examination by counsel for Vernon, R.G. admitted he did not tell anyone in authority right away about Vernon's having intercourse with him. He also admitted he had stated to the authorities that various neighbors had sexually abused him, but that it was not true. R.G. stated it also was not true that his mother or his parents had killed someone. The camera used made films that were shown on a projector; he admitted it was untrue that Vernon transferred film so it could be played on their "RCS" movie player. R.G. stated he first said nothing happened when he came into foster care because his parents told him that if he told, they would come after him and hurt him. He remembered the statement he made to police on October 11, 1985; the incident related therein in which Vernon was in the kitchen and made R.G. have anal intercourse with him occurred on July 28, 1985; the other incident of anal intercourse in the bedroom was on another date.

R.G. stated that sometimes he and boys named Chris and Justin would go out in a cornfield and look at magazines depicting nude people doing sexual things. R.G. stated that he and a boy named Louie had sex with B.D. in the cornfield on one occasion in 1985. He got the magazines from under his parents' bed. His parents did not know that he took them until a neighbor, Mrs. Long, found out, and that same day he and B.D. were taken into foster care.

On cross-examination by counsel for respondent, R.G. stated he had sex with Tim B. possibly four times. On those occasions, Tim, who was "a lot older" than R.G., "almost 20," would put his penis in R.G.'s "butt" and then R.G. would put his penis in Tim's "butt." When Tim's sister, Brandy, was not at home, B.D. played with Tim and R.G. one time. His relationship with Tim started about the same time the "family touching" did.

R.G. never saw any of the movies that were made. He did not know if the movies were ever taken to be developed. R.G. stated Vernon has two bull whips; they were hung on the deer head that they have in their home. Their dog, Duker, was part German shepherd and part collie and was about 10 years old. The movie R.G. made with the dog was made when R.G. was 11 years old. R.G. stated his grandparents filmed them on one occasion; they didn't kick or punch them at that time, but on a few other occasions they would do so.

R.G. stated he changed his mind about telling about what had happened because he began to know he was safe and began to understand that the assistant State's Attorneys and the other attorneys don't punch kids. He admitted he told some lies along with the truths. R.G. stated when he had contact with his mother while he was in foster care, she would tell him that he had better not tell anything. He was mad at his mother only because of the things that she did to him; otherwise, he always liked his mom.

On cross-examination by the GAL, R.G. stated the things that happened to him happened in Rockford, and that nothing in his testimony that day was a lie; he knew the difference between a lie and the truth. He lied about things in the past because he was confused and trying to cover up for his mother. His parents told him he would go to jail if he told about it because he had gone along with it. R.G. stated he does not feel now that any of it was his fault, but that he did feel that way before and he felt guilty about it.

R.G. stated his parents showed him about one-half of an X-rated movie showing people that just got married and about how to have sex. He stated his parents would not be there when his grandparents hit and kicked him, but that he thought they knew about it because his parents and grandparents talked a lot. R.G. stated the penis-like object vibrated when it was plugged into the wall. His mother never told him what she did with the movies after she and Vernon took them. R.G. stated his parents showed him Playboy, Chic and Hustler Magazines; his father told him he should read about these things because they were going to have some fun things like in the magazines. R.G. stated that when his parents wanted to do those things, they would tell him and his sister to remember about the magazines. When R.G. saw a movie with his mother in which a boy was licking a dog's penis and playing with the dog, R.G. stated he did not believe that could happen, and his mother sat their dog on the bed and told R.G. to take down his pants and the dog would lick his penis.

R.G. stated there was a light mounted on the camera they used to take movies. R.G.'s parents had a projector, and R.G. thought the movies they took fit that projector. He had not seen and did not know if his parents could develop the film. R.G. stated he never told his parents about B.D. having sex with Tim B. or Louie. He did not know if the movies had been given names, and he never heard his relatives talk about the movies.

On redirect examination, R.G. said the last time he saw the projector was in court the Wednesday before. On re-cross-examination by respondent's attorney, R.G. stated he did not see the movies or bull whip at the trial, but he did see the penis-like vibrator.

Upon inquiry by the court, R.G. stated Tim B. put his penis in B.D.'s vagina. R.G. did not do anything to make his grandparents angry, which would have caused them to kick or punch him. In one movie, there was no sex, but just pictures of Vernon and the respondent hitting R.G. and his sister. He first started seeing the magazines when he was about 10 or 11, after the "family touching" began. Examination of R.G. then concluded. After recess, and based on his interview with B.D. in chambers in the presence of the GAL, the court granted the State's motion over Vernon's and respondent's objections to examine B.D. out of the presence of her parents.

B.D. testified that "family touching" meant when people have sex with their kids and have them touch with their hands you and your mom's and your dad's private parts. B.D. said the touching took place at her house with her mother, father, brother and herself present. She said she would touch her mother's vagina with her hand for a long time. Her parents told her to touch R.G.'s penis, and R.G. would touch her vagina with his hand. B.D. said her father would put his penis in her "butt" and touch her vagina. "Family touching" happened a lot until August 22, when she left and was placed in foster care. During each "family touching" session, her father would put his penis in her "butt." B.D. said it started at home when she was six or seven years old.

B.D. stated her parents made movies, and some were made at her grandmother's house. The one with the dog and the one with mother and daughter were made at B.D.'s house. In the mother-daughter movie, she was directed to touch her mom and kiss her vagina, and her mother kissed B.D.'s vagina. In the movie with Duker, the dog, B.D. stated her parents made R.G. put his penis up next to the dog where the dog would lick it, and put his penis up to the dog's "butt."

Five or six movies were made. In one of the movies, her dad had a whip, and he hit her and her brother. She got hit in the head, but it really did not hurt. R.G. had a lot of white lumps, mostly on his back. In one movie, B.D. stated her grandfather put his penis in her "butt," and R.G. put his penis in her grandmother. B.D.'s mom and dad were taking the pictures. B.D. said her grandparents lived in Sterling.

B.D. testified her mother used "this white thing" with a cord for her vagina. It did not make a sound, but when she took it out it had blood on it, and her mother had B.D. clean it. Her mother used "the white thing" a lot of times. Sometimes in the bathroom and sometimes in the bedroom. She would use it in her bedroom when B.D. was watching television in there. B.D. testified her parents showed a movie once which showed how to do sex; they told her and her brother that it would teach them something.

On cross-examination by Vernon's attorney, B.D. stated when she said "family touching" happened "lots of times" she meant about once or twice a month. She stated her parents never showed her the movies they took of her. The movies were made on a camera that had film on a spool that went through a projector. B.D. stated she thought it was an accident that her father hit her with the whip handle; he was trying to hit R.G.

On cross-examination by respondent's counsel, B.D. stated "family touching" and "sex touching" were mostly both the same thing. The movies lasted longer than one-half hour but less than one hour. The first movie made was sex touching with herself, her mother, father, and brother. The one with her grandparents was second to the last. The one with ...


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