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July 19, 1995



The Honorable Justice Rizzi delivered the opinion of the court: Tully and Cerda, J.j., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Pursuant to juvenile court proceedings, on September 17, 1990, Yolaine J. was removed from her home in Chicago and placed in foster care with a family in Evanston. She was three years old. On October 1, 1990, she was adjudged a ward of the court and placed in the custody and guardianship of the Department of Children and Family Services (DCFS). The court based its ruling on findings that Yolaine's father, Saurel J., sexually abused his other daughter, Magdalene, and that Yolaine's mother, Yolande J., was unable to provide a safe environment for Yolaine. Several months earlier, Saurel had pled guilty to criminal charges of sexually abusing Magdalene. Magdalene had been removed from the home on March 3, 1989. She has since reached adulthood and her status is not an issue.

After participating in court ordered therapy, Yolaine's parents petitioned the court for her return on July 26, 1991. On March 22, 1993, the court ruled that it would be in Yolaine's best interest to gradually return to her mother's custody. On April 12, 1993, the court entered another order which provided that the goal "shall be to return the child Yolaine to her mother Yolande sometime during the summer of 1993," and that Yolande shall ensure that Yolaine have no contact with Saurel while she is in Yolaine's custody unless under DCFS supervision. The order also provided that it shall remain in effect until April 12, 1994.

The Office of the Public Guardian, Yolaine's guardian ad litem, appealed the orders of March 22 and April 12, 1993. On August 27, 1993, Yolaine returned to live with her mother. Saurel, however, is precluded from living in the home pursuant to the April 12, 1993 order. Meanwhile, the appellate court entered an order which provides: "The order of protection entered in the circuit court on April 12, 1993 shall remain in effect until further order of the appellate court. Specific attention is called to that part of the order which provides that the mother shall ensure that the minor has no contact with father while in mother's custody unless under DCFS supervision."

Generally, the Public Guardian contends that the March 22 and April 12, 1993, orders should be reversed and that Yolaine should not have been removed from foster care and returned to live with her mother. We affirm in part, vacate in part, and remand with directions.

Saurel and Yolande emigrated from Haiti to Chicago between 1983 and 1985. Saurel is functional in English, but is lacking in some concepts of the language. Yolande is unable to communicate in English. Their native language is Haitian Creole.

At the time that Saurel and Yolande came to Chicago, they were married and had three sons, Luckner (the oldest), Guilliano, and Saurel Jr. (the youngest). In 1985, Magdalene, Saurel's daughter from a prior relationship, left Haiti and her mother to join her father in Chicago. Magdalene was 13 years old at the time. She was sent to live with her father because her mother was having a "difficult time controlling her."

On May 26, 1987, Yolande gave birth to Yolaine, and Yolande and Saurel lived with their four children and Magdalene in a two-bedroom apartment in Chicago. Saurel held two jobs. He worked as a doorman in a high-rise building, and he worked a few nights a week in a grocery store. Yolande baby-sat during the daytime for a family living in the building where Saurel worked as a doorman.

According to Magdalene's testimony in juvenile court, in July or August of 1987 when she was 15 years old her father "raped" her. She remembered when it was because she had a summer job at school. She remembered that it happened on a Friday because she left work early on Fridays. Her father picked her up in a car and told her they were going to see his friend. They then drove to a motel on 95th and Stony Island in Chicago.

Saurel told Magdalene to wait in the car while he went inside and returned with a white sheet and some keys. She did not know what her father was going to do. They pulled up in front of the motel room, parked and got out of the car. Her father unlocked the door to the room. She told her father that she thought they were going to see a friend. Her father told her to wait and see, and to come and have a seat in the room. Nobody else showed up.

Inside the room, Magdalene sat on a chair and her father sat on the bed. Her father watched a television channel which showed people having sex. She asked her father why they were there. Her father told her to watch and enjoy. Then her father turned off the television, and told her to lie down with him. She said that she wanted to go home. Her father started hitting her and pushed her on the bed. Her father then told her to take off her clothes, which she did because she was scared. Her father's shirt was already off; he removed his pants and underwear. Then her father got on top of her and had intercourse with her, and performed oral sex on her. She saw her father ejaculate on the bed.

Magdalene tried to fight her father's actions but he told her that she was his daughter and that he could do whatever he wanted. She told him that she was going to tell what happened. Her father responded that nobody would ...

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