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August 11, 1995


Appeal from Circuit Court of Champaign County. No. 94J107. Honorable John R. DeLaMar, Judge Presiding.

As Corrected December 12, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Justices: Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring, Honorable Robert W. Cook, J., Dissenting. Presiding Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

On March 26, 1994, the Department of Children and Family Services (DCFS) in Champaign County received a report of sexual exploitation and risk of harm involving respondent, Ralph Rittenhouse, and two relative foster children, J.K. and C.K. After interviewing respondent and his wife, Monica, co-respondent but not party to this appeal, DCFS took protective custody of respondents' natural child, Z.R., on March 27. Following a shelter-care hearing on March 29 and 30, the trial court found probable cause to believe Z.R. was either neglected or abused and appointed DCFS as temporary custodian.

After the adjudicatory hearing on September 20, 1994, the trial court ruled count I, alleging neglect, had been proved and dismissed count II alleging abuse. At a dispositional hearing on October 27, 1994, the trial court found the neglect of Z.R. was not the result of physical abuse but was the result of neglect by respondents in providing an injurious environment. Z.R. was made a ward of the court and custody was removed from respondent. The guardianship administrator of DCFS was named guardian and Monica was named custodian. Respondent Ralph Rittenhouse argues on appeal the trial court's finding of neglect was against the manifest weight of the evidence and the decision to remove custody from him was an abuse of discretion and also against the manifest weight of the evidence. We affirm.

J.K. and C.K. were the children of Monica's sister. They were removed from their parents in September 1991 and resided in various foster homes before being placed with the Rittenhouses in May 1992 and July 1993, respectively. While not the precipitating reason for the children's removal from their parents' home, there were indicated allegations of sexual abuse by their father and other relatives in the children's past. The allegations against respondent were that he had asked his then ten-year-old niece, J.K., if she wanted to see his "private parts" and, in a completely separate incident, he exposed himself to C.K., his then eight-year-old nephew, and asked him if he wanted to "touch it or suck it." There were no witnesses to each incident besides respondent and the child involved except that Z.R., then two years old, was in the same room when the incident with J.K. occurred. Respondent denied the events occurred.

Both children testified at the adjudicatory hearing. J.K. stated the incident involving her occurred on an evening while she and Z.R. were watching television. Monica was gone from the home and respondent was in charge of watching the children. J.K. stated respondent was clothed in a T-shirt and elastic waist shorts and asked her if she wanted to, in her words, see his "private parts." She declined, respondent repeated the offer and J.K. finally left the room and went to bed, ending the incident. The next day J.K. told Monica about the incident and Monica did not believe her. Monica called respondent at work to ask him about the allegations and respondent denied them. Monica asked C.K. if he saw or heard anything and he replied no. Monica did nothing further except to discuss the incident with her mother, J.K.'s grandmother, with whom J.K. had previously lived until she made accusations about sexual abuse, later found to be indicated, against her grandmother's husband. Monica did not leave J.K. home alone with respondent again.

Because the Rittenhouses' application for foster parent certification had not been approved, both J.K. and C.K. were scheduled to be removed from their home prior to J.K. reporting the incident against respondent. J.K. was removed in January 1994, and reported the incident to her new foster mother on March 26, 1994. When C.K. was interviewed by a DCFS worker the following day in his new foster home, he was asked if respondent ever had offered to show him his private parts. He replied, "Yes." He stated he was in respondent's home and Monica was out but Z.R. was home although not in the same room where the incident occurred. J.K. had already been moved to her new foster home. C.K. stated respondent pulled his jeans down to mid-thigh and asked C.K. if he wanted to "touch it or suck it." C.K. replied he did not want to and went to bed. C.K. did not report the incident because respondent told him not to. He stated he never discussed the incident with J.K. and she never discussed her incident with him although respondent told him he had showed his private parts to J.K.

There were discrepancies between both children's trial testimony and the statements they had given the DCFS investigator, who also testified. Neither child could explain when the incidents occurred. In fact, C.K. testified his occurred in January, between Thanksgiving and Christmas, and he could not place it as winter or spring. J.K. told the investigator Monica was gone at a Boy Scout meeting but this was apparently not accurate as C.K., being the Boy Scout in the family, was not with her. J.K.'s testimony varied as far as details of where respondent was standing in the living room and where C.K. actually was as she stated at one point she was sure he could hear respondent because he was in the hallway and another time stated he was in bed. Evidence was admitted concerning psychological testing of both children and their entire DCFS history was placed before the court.

Testimony was admitted concerning C.K.'s behavior problems and his diagnosis of attention deficit disorder. There was also testimony C.K. was not always truthful. An incident was related in which he called Monica while he was in another home and told her he was home alone watching pornographic movies when he was, in fact, getting ready to eat supper with his foster family. He could not give an explanation for why he had lied to Monica.

Respondent testified and denied both incidents. He further stated he could think of nothing he had done or said which could have been misinterpreted by the children in the manner in which they had described.

The trial court stated it had a great deal of trouble coming to a decision. The Rittenhouse family appeared to be nice and likable and it was difficult for the trial court to imagine, much less believe, the allegations against respondent. Nothing in respondent's testimony appeared to be untruthful. The trial court indicated if it had been evaluating the testimony of J.K. and respondent alone, the court did not believe the State would have met its burden of proof.

The trial court found C.K. to be much more credible, with a much better memory than his sister and his testimony as to detail was very specific. The court stated C.K. fixed the time as somewhere between Thanksgiving and Christmas and it was impressed by the fact C.K. and J.K. had not spoken to each other about the events but had arrived at their remarkably similar stories independently. The trial court stated it had taken into consideration the children's backgrounds of abuse, which gave them knowledge of sexual matters beyond their years, as well as the troubling aspects of each child's personality. While the court acknowledged J.K. admitted to some bias by stating she wanted to see Z.R. removed from the Rittenhouses' custody, ...

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