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05/18/89 In Re Marcus E. Et Al.

May 18, 1989



Illinois, Petitioner-Appellee, v.

Melody E. et al., Respondents-Appellants)

539 N.E.2d 344, 183 Ill. App. 3d 693, 132 Ill. Dec. 34 1989.IL.757

Appeal from the Circuit Court of Cook County; the Hon. Nello Gamberdino, Judge, presiding.


JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.


This appeal arises out of an adjudication for wardship in which two minor children were removed from the home of their parents pursuant to certain provisions of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, pars. 702-4(2), 705-1, 705-7.) The case against the father, Mervyn E., was premised on allegations that he sexually abused both children. The mother, Melody E., was charged with allowing the abuse to occur and possibly participating in the abuse. After an evidentiary hearing, the trial court found that both children had been abused and that the environment should be deemed injurious to their welfare. While the children were in foster care the mother was allowed one hour of supervised visitation every two weeks and the father was initially denied visitation. After an additional hearing, the court reinstated the father's visitation rights and required him to receive therapy. The mother's motion for a new trial, based on newly discovered evidence, was denied. Both parents appeal, challenging the nature and extent of the evidence and the constitutionality of the provision of the Juvenile Court Act that they were charged with violating.

For the reasons that follow, we affirm the trial court's findings concerning the father, reverse the finding of abuse as against the mother, and affirm the Dispositional ruling.


The initial complaint of possible sexual abuse originated in Oregon, where the mother and children had temporarily stayed with relatives. The mother's sister reported that five-year-old Marla told her that the father had molested her while giving her baths. Although the written charge included an allegation of medical neglect and sexual intercourse, neither of these was established. The Illinois Department of Children and Family Services , after notification by its counterpart in Oregon, filed a petition for wardship on February 28, 1984.

The following facts were brought out at the trial of the wardship petition.


On February 14, 1984, Robert Granger, a social worker for the Illinois Department of Children and Family Services, visited the family's Chicago home, which was owned by the father's aunt, and spoke briefly with the parents. He set up an interview for the following day. The children appeared active and he saw no indication of medical neglect.

Gabriella Cohen, executive director of HELP, Inc., an agency which evaluates and treats persons allegedly involved in child sexual abuse cases, met the mother on February 15 at the police station. Cohen, who is also a member of several governmental task forces on sexual abuse, interviewed the mother and children and arranged for them to stay at a shelter.

At trial, defense counsel objected to Cohen's relating what the children told her, arguing that section 4 -- 6(4)(c) of the Juvenile Court Act was unconstitutional in permitting such hearsay testimony. The objection was overruled.

According to Cohen, Marla told her that in December 1983, before her mother took her and Marcus to Oregon, her father sat in the bathtub with her and rubbed her nipples and "pee-pee" (vagina). Marla, who was then four years old, told Cohen that her father had done this on several prior occasions.

Cohen showed Marla a coloring book which Cohen had helped develop for questioning children in sex abuse cases. On one page there were pictures of animals with explicitly depicted genitalia. Marla identified the vaginal opening of a raccoon as a "pee-pee." Defense counsel unsuccessfully objected to the use of the pictures because Cohen had not been qualified as an expert in using the materials to question children or interpret their answers and because the materials were not of established reliability.

Cohen testified that she showed Marla four figures on a "phallus chart." The first figure was a long squiggly thing, which Marla said looked like an elephant. The second was short and bumpy, and Marla did not know what it represented. The third figure resembled a non-erect penis and the fourth, a fully erect penis. Cohen testified that Marla said the third picture looked like her "daddy's pee-pee before he played with [her] pee-pee" and the fourth looked like his penis after she rubbed his "pee-pee."

Cohen acknowledged that the book she used to question the children was not standardized and that its reliability had not been established at the time of trial.

Cohen further testified that Marcus, the seven-year-old son, told her on February 15 that his father had hit him seven times on the penis for opening his sister's Christmas present. He also said his father hit him "upside the head a lot."

Cohen also interviewed the mother on February 15, 1984. Cohen said the mother told her that she was frightened when she found out about her husband's abuse of the children and that is why she took them to her sister's house in Oregon. She told Cohen that her husband hit Marcus often and that she was afraid to return to her husband's aunt's house in Chicago. Over objection, Cohen was allowed to testify that the mother told her that her husband had told her he "liked" children and that she was "too old" for him.

Later in the same day that Cohen initially interviewed the mother and children, Robert Granger, the DCFS social worker, talked to the mother. She told him that she had gone to Oregon in December 1983 because her husband had treated Marcus unfairly by severely punishing him and because her husband made her feel "low."

On February 27, 1984, Cohen again interviewed Marla. Marla repeated essentially the same allegations. The mother, however, told Cohen that Marla's Uncle Denny, who lived in Oregon, was probably the person who had molested Marla and that Marla was being misunderstood by saying "daddy/Denny." Upon Cohen's questioning, Marla responded that Uncle Denny would give her baths at night and "do the same thing." As a result, the DCFS sent a report back to the same Oregon department from which the original report of abuse had been initiated by Denny's wife, who is the sister of the children's mother.

Marla had been called as a witness in the criminal proceeding that had been initiated against her father. In that proceeding, she stated both that her father did nothing to her and that she did not remember.

On February 28, 1984, Granger from the DCFS interviewed the mother again at the home where she and the children lived with her husband's aunt, Evelyn Faedtke. The mother told Granger that she had seen her husband twice and that she no longer believed that Marla had told the truth about being ...

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