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01/13/94 N.S. v. TERESA SMITH

January 13, 1994

IN THE INTEREST OF N.S., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
TERESA SMITH, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 92J144. Honorable John P. O'Rourke, Judge Presiding.

Released for Publication March 2, 1994. As Corrected March 22, 1994.

Honorable Carl A. Lund, J., Honorable John T. McCULLOUGH, J., Concurring, Honorable Robert W. Cook, J., Dissenting

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

This opinion illustrates the nightmarish problems faced by trial courts when determining child abuse cases.

Respondent Teresa Smith appeals from an order of the circuit court of Vermilion County adjudging her daughter N.S. an abused minor under section 2-3(2)(iii) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 37, par. 802-3(2)(iii)) and placing her in the custody of her natural father, Edward Smith. We affirm.

On August 3, 1992, a petition for adjudication of wardship was filed by the Illinois Department of Children and Family Services (DCFS), alleging that four-year-old N.S. had been sexually abused by respondent. It was alleged that on three occasions in July 1992 respondent had placed her finger in the vagina of N.S., fondled the child's vagina, and touched it with her mouth.

N.S. was taken into protective custody. At a shelter-care hearing, evidence showed that N.S. had told investigators her mother had placed her finger in her "pooty," a word N.S. used to indicate her vagina. She also said respondent had kissed her vagina. DCFS was appointed temporary guardian, and the minor was placed in the physical custody of Edward, a resident of Virginia, as long as he resided in Vermilion County, Illinois. DCFS eventually placed N.S. in the home of her paternal aunt, Lori Redmon, who resided in Westville.

ADJUDICATORY HEARING EVIDENCE

N.S. was examined in camera and questioned by four attorneys and the trial Judge. She testified that respondent had put her finger inside her vagina and put her mouth on her vagina at night when she was asleep in her bedroom. Each time it lasted for about five minutes, and occurred on different occasions. Her mother told her not to tell anyone about it. When asked whether the incidents happened a long time ago or just recently, N.S. at first said long ago, then stated it had just happened. She stated that it hurt when respondent put her finger inside her vagina. N.S. was with Edward for visitation for five days, and she told him what respondent had done. No one told her to accuse her mother. Edward, her aunt, and grandmother told her to tell the truth. She wants to live with Edward.

N.S. testified Edward bought her a white pony, then she changed it to a unicorn. She rides it on the road by herself to restaurants. She went to the Ponderosa restaurant with it. Sometimes the unicorn gets hit by cars, but it is not killed. In response to questioning, N.S. said she was tired of talking about the incidents with her mother and that was why she was talking about a unicorn. She stated she told Linda (a DCFS worker) that her mother had done it. She insisted she had a unicorn and that she rode it to the Ponderosa. When the trial Judge asked her how many times respondent had done this to her, N.S. answered, "Five and six and seven and eight and nine and twelve and thirteen and fourteen." She also said she told what respondent had done so that she could go live with Edward.

Steve Wilson, a juvenile investigator for the City of Danville, testified that he spoke with N.S. on July 27, 1992. N.S. told him respondent had come into her bedroom while N.S. was asleep, undressed her, and placed her finger way up in her vagina. She told him she told respondent it hurt and to stop and, if she did not stop, N.S. would run away. Respondent did not stop. N.S. told him this had happened on several occasions. She also told him respondent had kissed N.S.' vagina. He felt N.S. could distinguish between truth and falsity, and he found her believable. N.S. did not get upset, and she was writing and drawing as Wilson talked with her. She said no one told her to say these things.

Linda Jacques, a child protective investigator for DCFS, testified that she spoke with N.S. on July 28, 1992. N.S. knew what her private parts were and knew the difference between good and bad touches. N.S. told her respondent had put her finger in her vagina and wiggled it around and had kissed her vagina. She said the last time it happened was the night before. However, Jacques was aware that N.S. had been with Edward that night.

Jacques testified that respondent has four children. She is living with Charles Lovett, father of three of them. In 1989, DCFS was involved with the family because of respondent's failure to keep medical appointments for N.S. In May 1992, the public health nurse attempted to visit the family and was not allowed in the house. When she was allowed entrance on her third visit, she found respondent's baby, A.S., needed medical attention. When they arrived at the hospital with her, the doctor said that the baby would have died in a matter of days without medical attention. Respondent was offered parenting assistance, transportation to appointments, financial assistance, and counseling. Cooperation from the family was minimal. After her conversation with N.S., she spoke to respondent, who denied N.S.' allegations. N.S. was examined by a doctor, but no evidence of sexual abuse was found.

Ellen Wenrick, a marriage and family therapist for Catholic Social Services, testified that she has met with N.S. two times since the report of abuse. N.S. brought up the incidents in a matter-of-fact manner. She was playing with leggos at the time and continued to play while she talked. The second time she saw N.S. was only for about 10 minutes, and they did not discuss the incidents.

Edward testified that he has resided for the last year in Virginia Beach, Virginia, and is in the United States Navy. He had custody of N.S. prior to entering the Navy and, when entering, he turned over custody to respondent because he could not get into the Navy with dependents. In July 1992, he picked N.S. up from respondent's house for a visit at his sister's house in Westville. N.S. was to stay with him for one week, the duration of his leave. About the second or third day of the visit, after they had been swimming at his mother's house, N.S. started rubbing herself and said her "pooty" hurt. When he asked her why, N.S. said because respondent touches her there. She said respondent had several times come into her room while she was asleep and pulled N.S.' pants down and stuck her finger inside N.S.' vagina. She illustrated by pulling aside her bathing suit and sticking her finger up inside her vagina. N.S. repeated the story to Edward's brother, mother, and sister, and began acting upset. They called the police. Before this, N.S. had never said this about her mother or any other person. N.S. said it had happened the day before, but she was with him that night. He does not think N.S. understands the concept of time. He has a son who resides in Virginia with him. Edward testified he did not tell N.S. to say these things about respondent, and he has only told N.S. to tell the truth, whatever that is. He has filed a petition for custody of N.S.

Linda Lucas, a caseworker for Catholic Social Services, testified that on September 14, 1992, she was monitoring a visit between N.S. and respondent. Both were in her sight at all times. Respondent was not to discuss the case with N.S. N.S. was playing with puzzles and wanted respondent to help her. Then N.S. said, without any prompting, "Dad made me say it." Respondent asked her what Edward had made her say and N.S. replied that he had made her say respondent had put her finger in N.S.' vagina. Lucas told N.S. she was free to say what was true, and N.S. said she could not because she had already told the story to the Judge. She told N.S. it was never too late to tell the truth. The conversation was then ended, because N.S became nervous and shaky. She also monitored a visit on August 12, 1992, which went very well. N.S. appeared to be comfortable with her mother. N.S. asked to use the rest room and Lucas started to take her, but N.S. said she wanted respondent to take her.

Lucas also testified that at a visit on September 21, 1992, respondent asked N.S. what Edward had said to make her accuse respondent, and N.S. answered that he had told her to do it. She then volunteered the information that Edward had abused her at her Aunt Julie's and Uncle Ben's house and had told her to say that respondent did it. N.S. further stated that her aunt and uncle had left the house and Edward had taken her into a bedroom and had stuck his finger in her vagina, and that she told him no, but he continued. At no time during the visits did N.S. say respondent had done anything to her. Later that day, she and N.S. were alone in the car as she was taking N.S. home after the visitation. She again urged N.S. not to be afraid to tell the truth, and N.S. replied that she was telling the truth--respondent had not touched her. N.S. asked her not to tell her Aunt Lori about their conversation. N.S. was always happy to see her mother, and she would hug and kiss her. Lucas filed an incident report after hearing N.S. tell of abuse by Edward.

Respondent testified and denied ever touching N.S.' vagina with her hand or mouth or putting her finger inside it. The reason she did not keep N.S.' medical appointments in 1989 was because N.S. had a cold and asthma and could not get her shots with those conditions. A doctor had told her this and said to wait until she was better and had finished her medication. She denied refusing to allow the nurse to see A.S. She did not know her baby was ill in 1992 when the public health nurse came. She had taken her to the emergency room about a week before the nurse's visit, and the doctor said there was nothing wrong with her--she had a cold. As to the September 14, 1992, visit, N.S. told her that Edward said if N.S. did not say what he wanted her to, he would hurt her and respondent. N.S. refers to Charles Lovett sometimes as daddy and sometimes Charlie. She refers to Edward as dad or Ed. She knows that N.S. was referring to Edward when she made allegations at the visitation because she referred to him as dad. N.S. sleeps upstairs at her house, and respondent sleeps downstairs with her two-year-old daughter. ...


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