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02/01/94 KR. K. AND KE. K. v. K.K.

February 1, 1994


Appeal from the Circuit Court of Lake County. No. 92-J-607. Honorble Peter M. Trobe, Judge, Presiding.

As Modified On Denial of Rehearing March 30, 1994.

Bowman, Geiger, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

This case involves findings and judgments on a juvenile court petition containing two counts alleging abuse under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802-3(2)(iii) (now 705 ILCS 405/2-3(2)(iii) (West 1992))) and neglect under the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802-3(1)(b) (now 705 ILCS 405/2-3(1)(b) (West 1992))) by respondent father against his two children, Kr. K., female minor, and Ke. K., male minor. An adjudicatory hearing was held with testimony from numerous witnesses. The trial court ruled that the State had proven abuse and neglect of Kr. K. and Ke. K. The trial court entered an order making the minors wards of the court, prohibiting contact with the minors by respondent unless or until it is determined to be appropriate and necessary by the minors' therapist, requiring respondent to be financially responsible for the minors' treatment, and determining that custody and guardianship should remain with the wife. In addition, the order stated that the wife should insure that the minors continue to receive treatment and that respondent and the wife cooperate with the Department of Children and Family Services (DCFS) and follow all recommendations with the ultimate issue of financial responsibility for the minors' treatment to be resolved in the pending divorce case. Respondent timely filed a notice of appeal. On appeal, respondent contends that (1) the judgment of the trial court was against the manifest weight of the evidence; and (2) respondent was denied the effective assistance of counsel.

Respondent and his wife were married on June 30, 1984. They are the parents of two minor children, Kr. K. born June 12, 1986, and Ke. K. born December 16, 1988. The couple was separated in spring of 1991.

The events that led to the filing of the Juvenile Court Act petition are as follows: The wife testified that on or about October 18, 1991, she had a conversation with Kr. K. in her truck while moving out of the family home. The wife asked Kr. K., "Does Daddy ever hug you?" Kr. K. responded, "Yeah, my daddy hugs me." The wife then asked, "Does Daddy ever touch you?" and Kr. K. responded "Yeah." The wife then asked "Well, where does Daddy touch you?" and Kr. K. pointed to her head, tummy, toes, vaginal area, and her back area. The wife said, "Well, [Kr. K.], Daddy doesn't touch you there," and Kr. K. responded that he did and nodded her head.

On October 23, 1991, the wife brought Kr. K. in for examination for possible sexual abuse by respondent. Kr. K. was examined by Dr. Richard Rosenfeld, a licensed medical doctor, who was not a pediatric gynecologist. Kr. K. was examined from head to toe with special attention to the genital and rectal area and no evidence of any trauma was found. Vaginal and urine specimens were taken which were negative for sperm. The examining doctor noticed nothing unusual about the vaginal area. Dr. Rosenfeld pointed to Kr. K.'s vaginal area and asked her if anybody had touched her "down there," and Kr. K. denied any such touching. He also asked her if her daddy had been rough with her in any way, and she denied that also. The doctor then discussed the results with the wife, who was very insistent that an abuse had occurred and was rather unhappy with the examining doctor's negative findings. No specific examination of the hymen was done. Dr. Rosenfeld then called in a social worker, Naomi Renfro, for another opinion.

Ms. Renfro testified that she is a licensed clinical social worker and interviewed Kr. K. on October 23, 1991, with the wife present. Kr. K. answered her questions by nodding and when asked if her daddy touched her she shook her head to indicate "no." After discussing the results of the physical examination with the wife, DCFS was contacted by Ms. Renfro. It was the wife's idea to contact DCFS, and Ms. Renfro would not have done so nor did she feel the law or any guidelines required such a report. Ms. Renfro testified that there was nothing to indicate that Kr. K. was abused by her father. When Ms. Renfro asked why the wife felt that respondent had abused the children, she indicated that the child, a couple of days prior, indicated to wife that respondent had touched her in the vaginal and rectal areas.

On October 24, 1991, Kr. K. was interviewed by George Hollow, a child protective investigator for DCFS, at her maternal grandparents' house in the presence of the wife and Ke. K. Although the session lasted 15 to 20 minutes, Mr. Hollow could not do an interview because of Kr. K.'s hyperactivity. When questioned about what happened between her and her father, she would not respond. Then she reacted by getting very active in her room and getting and bringing back dolls to Mr. Hollow. Mr. Hollow talked to Kr. K. about sexual abuse and her daddy touching her.

On October 29, 1991, Mr. Hollow met again with Kr. K. at her grandmother's house. Kr. K. was again hyperactive and the wife was asked to join them. Kr. K. said that while she was at her paternal grandparents' house the grandparents had gone out to dinner and while she was alone with her father and brother, her father made her straddle him while he lay on the floor on his back. He then made Kr. K. pull her pants and panties down, and he took his finger and put it in the place she goes "pee." She pointed to her vagina and said it hurt when he did this. Kr. K. said that the next time her father did that to her she was going to tell him to stop because it hurt.

On November 14, 1991, Mr. Hollow again met with Kr. K. at her maternal grandparents' house. Mr. Hollow, Kr. K., and the wife were all present. At this meeting Kr. K. said that abuse also happened in her home when her mother would go to play practice. The two minors would be left alone with respondent and respondent would put his finger in the place where Kr. K. goes "pee." Mr. Hollow asked Kr. K. about her brother. She did not seem to be sure at first, but then she talked about her brother being alone with his father also.

On November 18, 1991, Mr. Hollow met a fourth time with Kr. K. and Detective O'Donnell from the Illinois State Police. Kr. K. would not talk with Detective O'Donnell. Mr. Hollow indicated that Kr. K. knew the difference between the truth and a lie by some of the questions he asked. Mr. Hollow concluded in his capacity as an investigator for DCFS that the report on this case "indicated" sexual abuse and molestation.

Detective O'Donnell testified that he was present at an interview of Kr. K. in November 1991 during which most of the interview was done by Mr. Hollow. This interview lasted 45 minutes to one hour and initially Kr. K. did not indicate she was abused by her father. Later in the interview Kr. K. did say that her father did something to her. The child's response was to a question asked by her mother which was ...

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