APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
the State of Illinois, Petitioner-Appellee, v.
Francisco Alba, Sr., Respondent-Appellant)
540 N.E.2d 1116, 185 Ill. App. 3d 286, 133 Ill. Dec. 250 1989.IL.987
Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. McLAREN and NASH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Respondent, Francisco Alba, Sr., appeals from the order of the circuit court of Stephenson County placing custody and guardianship of his children, Lea Alba and Francisco Alba, Jr. (Frankie), with their natural mother, following adjudication of the children as abused minors.
Respondent contends on appeal that the finding that Lea and Frankie were abused minors is not supported by sufficient evidence because the evidence of abuse consisted entirely of out-of-court statements of Lea and Frankie which were not corroborated by any other evidence or subject to cross-examination.
Respondent had been granted custody of Frankie and Lea following a dissolution of marriage from their mother in 1984. On May 5, 1988, separate petitions were filed to adjudicate Frankie, who was then six years old, and Lea, who was then five years old, abused minors. The petitions alleged that Lea was an abused minor in that respondent had committed a sex offense against her (Ill. Rev. Stat. 1987, ch. 37, par. 802-3(2)(a)(iii)) and that Frankie was an abused minor in that his environment was injurious to his welfare, because he resided in the same household with his sexually abused sister (Ill. Rev. Stat. 1987, ch. 37, par. 802-3(2)(b)). Following a hearing on May 5, the Department of Children and Family Services was given temporary custody of both children. On June 14, supplemental petitions were filed alleging that Frankie was abused in that respondent committed a sex offense against him and that Lea was abused in that she resided in the same household as her sexually abused brother.
At the adjudicatory hearing conducted on June 15, 1988, Terry Hendrickson, the family service coordinator for NICA Head Start, testified that she knew Lea from Lea's participation in the Head Start program. On April 29, 1988, Hendrickson, who had become concerned about Lea's home life, asked Lea if she was having any problems at home. She said that when their daddy was mad at them he would spank them with a stick. During the Discussion that ensued, Hendrickson asked Lea if she knew what private parts meant and pointed to various body parts to confirm Lea's understanding. Hendrickson then asked Lea if anyone touches her private parts. Lea responded, "[Yes], daddy does." Later that day, Hendrickson again asked, "[Does] daddy touch your private parts?" Lea answered, "[Yes], and he puts his favorite part in me." Hendrickson then asked Lea to draw a picture of her father and herself. Hendrickson asked Lea to draw a line from daddy's favorite part to where he places it on her, and Lea drew a line between the crotch areas of the two figures. The drawing was placed in evidence.
Pat Graham-Touhy, the educational services coordinator for the Family Advocate program in Rockford, testified that Lea and Frankie were referred to the program on May 19, 1988. Graham-Touhy saw both children on several occasions between May 19 and June 8. She related several statements the children made during her Discussions with them. Both children had separately stated that they were "afraid of daddy." Additionally, Lea had told her "daddy touches my pee-pee" and "daddy touches my bottom." Frankie made similar statements. During a subsequent session Lea told Graham-Touhy that "daddy puts his dick in my mouth." On one occasion Frankie related that he had been orally and anally penetrated.
Bertha Brinkmeir, who served as the children's foster mother following their removal from respondent's custody, testified that on May 4, 1988, she took Lea for a medical examination. The examination was painful for Lea. Brinkmeir asked Lea if anybody had ever hurt her like that before. Lea responded, "[My] daddy." On another occasion, Lea began to talk about "bad touches" stating that she had to touch "daddy's wiener." She also indicated that respondent had inserted a pen in her anus and that respondent's girlfriend, Michelle, had done the same to Frankie.
The State sought to call Frankie and Lea to testify. However, following in camera examinations to determine their competence to testify, the State withdrew Lea as a witness and then withdrew Frankie when the trial Judge ...