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06/30/94 PEOPLE STATE ILLINOIS v. VALERICA AND IOAN

June 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, IN THE INTEREST OF MONICA S., A MINOR, RESPONDENT-APPELLANT,
v.
VALERICA AND IOAN S., RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Charles I. Barish, Judge Presiding.

Tully, Cerda, Greiman

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

On August 6, 1992, the Department of Children and Family Services (DCFS) filed a three-count petition for adjudication of wardship (hereinafter the Petition) of 3-year-old Monica S. in the circuit court of Cook County pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (hereinafter the Juvenile Act) (705 ILCS 405/2-3(1)(b) (West 1992)). The Petition alleged Monica was a neglectedminor, viz., Monica's father, Ioan S., had sexually abused her and that Monica's mother, Valerica S., was suffering from emotional problems which left her unable to care for Monica. The trial court found no sexual abuse and ordered Monica returned to her parents' custody. It is from the Dispositional order returning Monica to her parents' custody that the Office of the Cook County Public Guardian (hereinafter Public Guardian), on behalf of Monica, appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

At the adjudicatory hearing, Officer Clemente Aceviz of the Chicago police department testified that on June 15, 1992, he was dispatched to a domestic violence courtroom where he spoke to an assistant State's attorney and Valerica in the presence of Monica. Aceviz recounted that Valerica told him that she had quarreled with Ioan on the previous day and that he had beaten her twice in a short period of time. Valerica then told Aceviz that Ioan told her that he was going to take the baby to sleep with him and that he picked up Monica, went into the bedroom, locked the door and went to sleep. Aceviz confirmed that supplemental police reports revealed that Valerica looked into the bedroom to check on Monica and that she observed that both Ioan and Monica were asleep and fully clothed.

Aceviz further testified that Valerica stated that she had called the police later in the day and that Ioan was arrested on her signed complaint. After the arrest, Valerica said that she took Monica into the bathroom to clean her up. Valerica then smelled a foul odor, noticed a smelly, sticky, substance on Monica's genitalia and observed what she believed were pubic hairs on Monica's reddened labia. Aceviz then took Valerica and Monica to Children's Memorial Hospital for an examination. The emergency room doctor informed Aceviz that the substance was semen.

Certified medical records of Monica from the hospital, dated June 15, 1992, were admitted into evidence. The Public Guardian published the emergency department form which contained a diagnosis by Dr. Sara Nussbaum that Monica had suffered sexual abuse.

The same emergency room document revealed that: Valerica stated that the bedroom door remained open while Ioan and Monica were sleeping; Valerica did not hear anything unusual; Valerica found hair on a tissue when she helped Monica in the bathroom with a bowel movement; later Valerica saw a sticky white discharge at Monica's vagina and a spot on her underwear; and Valerica did not clean the child in case the police needed to see her. The emergencyroom genital examination revealed that: Monica's external and internal labia were swollen; no lacerations or bruising were found; Monica's hymenal opening was 1 to 2 millimeters; Monica's labia were reddened; the edges of the labia were smooth and without tears; and there was a sticky white discharge at her labia.

The pathology report for Monica from the hospital, dated June 16, 1992, was admitted into evidence and stated that the three slides of the white sticky substance submitted for screening revealed no sperm; only acute inflammatory cells, parabasil, and a few intermedial cells.

Denyce Ellis, a child protection investigator with DCFS, testified that she visited the family's home on June 15, 1992, and found it appropriate, clean and in order. During the visit, Valerica told Ellis that: Ioan had been drinking; Ioan had taken Monica to Burger King; Ioan had hit Valerica; Ioan would not allow her into the room were he fell asleep with Monica; she noticed something which appeared to be semen on Monica; she took her daughter to the police station; and Ioan was in jail. Ellis recounted that she did not take Monica into protective custody because Valerica appeared adequate and reported her concerns to the DCFS hotline and the police.

Ellis further testified that she went back to the home between 9:30 a.m. and 10:30 a.m. on August 4, 1992, for a follow-up visit, but Valerica would not allow her in. After returning to her office, Ellis learned that DCFS received another hotline call concerning Monica. The caller, a neighbor, expressed concern that Valerica was walking around the halls of the apartment building at night carrying a lit candle with a naked Monica in tow.

Ellis also testified that she met the police at the family's home later that same day at around 1 p.m. When Valerica refused to let them in, the police broke the door down and found the apartment in disarray. There was no food in the apartment. Furniture and paper were strewn about the floor. Monica, who was dressed only from the waist up, had paint all over her body. There was paint all over the walls. Valerica, who refused to talk to Ellis, yelled and tried to pull Monica away from the police when they took the child into protective custody. The police then transported Valerica to Ravenswood Hospital.

Valerica testified that on June 15, 1992, Monica asked Ioan to take her out for a soda. Valerica recounted that she asked Ioan to stay home as he had a few beers and would have to cross a busy street to get the soda. In response, Ioan violently flung Valerica against a wall and strutted out with Monica. Valerica stated that when Ioan and Monica returned, Monica asked Valerica to go withher into the bedroom. Valerica, who was upset, laid down in the living room and Ioan went with Monica into the bedroom. Valerica further testified that she did not see anything strange in the situation and that both Ioan and Monica were fully clothed.

According to Valerica, she confronted Ioan when he woke up sober and told him that she has to protect Monica. Ioan became upset and angry and frightened Valerica. Consequently, Valerica ran out of the house with Monica to a public telephone and called the police. When the police arrived, they went to the apartment with Valerica and Monica. Valerica informed the police that her husband had struck her. Ioan denied the charge, but the police arrested him. The following day, Valerica went to domestic violence court, met and spoke with Aceviz, and accompanied Monica and Aceviz to the hospital.

As to the events of August 4, 1992, Valerica testified that she saw Ellis for the first time when Ellis came to her home around 12 p.m. with six police officers. Valerica stated that she was shocked when she saw the police knocking at her window. Valerica said that she denied the officers access to her home as she felt she had done nothing wrong. Valerica felt that ...


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