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10/03/97 DEPARTMENT PUBLIC AID EX REL. LINDY DAVIS

October 3, 1997

THE DEPARTMENT OF PUBLIC AID EX REL. LINDY DAVIS, NOT KNOW AS LINDY EDDY, PETITIONER-APPELLANT,
v.
JESSE BREWER, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Christian County. No. 95-F-372. Honorable Mark M. Joy, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Kuehn, P.j., and Rarick, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Petitioner, Lindy Eddy, appeals from the trial court's order modifying the custody of the two minor children of Lindy and respondent, Jesse Brewer. The trial court transferred the custody of the two children from Lindy, their mother, to Jesse, their father, in an order dated December 2, 1996. Lindy argues that the trial court applied the wrong burden of proof to Jesse's petition for modification and that the trial court's decision to change custody is against the manifest weight of the evidence. For reasons we will more fully explain, we reverse and remand.

I. FACTS

Tasia Lee Davis was born to Jesse and Lindy on April 26, 1991. Lindy and Jesse were not married at the time and have never been married to each other. On September 9, 1991, the circuit court of Fayette County entered an order establishing Tasia's parentage by consent of Lindy and Jesse. Nathan Silas Davis was born to Lindy on July 30, 1992. Jesse and Lindy were no longer living together at the time of Nathan's birth. On July 1, 1994, the Fayette County circuit court entered an agreed order that Jesse would pay $50 per week in child support for Tasia. On September 30, 1994, an agreed order was entered establishing Jesse as Nathan's biological father and setting child support for both children at $65 per week. On December 2, 1994, the Fayette County circuit court entered an order approving a stipulation entered into between Jesse and Lindy setting a schedule of visitation for Jesse and the children.

On November 21, 1995, the case was transferred from Fayette County to Christian County, where both parties were then residing. On December 15, 1995, in the Christian County circuit court, Jesse filed a petition for modification, alleging that the circumstances of the children had changed, that "the environment at [Lindy's] house is a serious danger to the minor children's physical, mental and emotional health," due to the sexual abuse of both children by the son of the children's babysitter, and that Lindy "knowingly and continuously delivered the children to a babysitter whose environment was a danger to their physical and mental health."

In October and November 1996 an evidentiary hearing was held on Jesse's petition for modification. On the first day of the hearing, Lindy's attorney argued that since the petition to modify was filed and being heard within two years of the date of the custody order which it sought to modify, Jesse would be required to prove, by clear and convincing evidence, that the present custodial arrangement seriously endangered the children's physical, mental, moral, or emotional health, pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610 (West 1994)). The statute provides, in pertinent part, as follows:

"(a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian ***, and that the modification is necessary to serve the best interest of the child." 750 ILCS 5/610 (West 1994).

Jesse's attorney agreed that he "definitely" would be required to prove serious endangerment to the children, and he stated that he was prepared to present that evidence. Jesse did not file any affidavit in support of his petition to modify, but Lindy's attorney agreed to waive the affidavit requirement of section 610(a).

Lindy testified that Tasia and Nathan have always lived with her. At the time of the hearing, Tasia was five years old and in kindergarten. Nathan was four years old and in preschool. Lindy works mornings once or twice a week and at night the rest of the time. Lindy has been married to Kevin Eddy since October 29, 1994. Kevin did not have any children of his own at the time of the hearing, but Lindy was pregnant with their first child. Kevin works during the day, so the children currently stay with Diana Davis when Lindy and Kevin are both working.

Jesse has been married to Karen Poteet since May 21, 1995. Karen does not have any children of her own. Jesse's visitation with the children includes every other weekend and holiday and three separate week-long visits in the summer, which initially began in June 1995.

Both of the parents and their respective spouses testified that they each loved the children and disciplined them appropriately. Both parties called several character witnesses to testify about the relationship of that parent and stepparent with the children. All of the witnesses expressed approval of the parent and stepparent for whom each testified.

The evidence Jesse presented in support of his request for custody of the children was in three basic areas: that Lindy failed to have the children immunized according to recommended schedules, that Lindy bit Nathan one time in discipline for his biting behavior, and that Lindy knew about the sexual abuse of the children at the home of the babysitter but did not adequately protect the children.

As to the immunizations, the evidence was that Lindy was late in getting the children's necessary immunizations and that her failure in this regard amounted to tardiness but not medical neglect. Both children were current in all of their immunizations at the time of the hearing. As to the biting, the evidence was undisputed that Lindy bit Nathan one time in an attempt to stop him from biting other children, after she had tried several other disciplinary measures without curing Nathan of the biting. The bite from Lindy caused a bruise on Nathan's arm. When Jesse and Karen noticed the bruise during the children's first week of visitation in June 1995, Nathan told them it came from a bite from his mother. Karen, who is a social worker and a mandated child abuse reporter, called the Department of Children and Family Services (DCFS). DCFS investigated but took no formal action relating to the bite. The trial court did not base its decision on the evidence regarding the immunizations or the bite, and the court stated that the evidence about the immunizations and the biting was insufficient alone to transfer custody to Jesse.

As to the sexual abuse, the evidence is not in dispute that sometime during the summer of 1995 Tasia and Nathan were each sexually abused at least one time by Dustin Drone, the teenage son of Nancy Drone, the babysitter Lindy used for the children until sometime in July of 1995. What knowledge Lindy had, what Lindy should have inferred or suspected based on that knowledge, and what Lindy could or should have done to protect the children from the abuse are areas of major dispute between the parties.

Lindy's version of the events relating to the sexual abuse is as follows: She had known Nancy and her husband George most of her life. Lindy and Jesse lived with Nancy and George for a while before Tasia was born. Dustin also lived there at the time. When Lindy was a teenager and Dustin was about 10 years old, Lindy learned that Dustin had been sexually molested. Lindy testified that she forgot about the fact that Dustin had been molested until she learned that Dustin molested her children. Nancy baby-sat for Lindy's children, but she was not licensed as a child care facility. Tasia and Nathan stayed with Nancy while Lindy was at work during a period of about two years, ending sometime in July 1995.

Sometime in May 1995, Tasia complained to Lindy that her "pee-pee" hurt. Lindy examined Tasia, whose vaginal area was red and irritated. Tasia did not report any problems or exhibit any other unusual behavior. Lindy was not particularly alarmed, because Tasia was prone to infections in this area of her body. Lindy ...


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