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11/20/97 A.P. v. ANTHONY P.

November 20, 1997

IN RE A.P., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ANTHONY P., APPELLANT).



Appeal from the Appellate Court, First District, Cook County. CASE NUMBERS: AC1-94-1928, TR93JA1391. TRIAL JUDGE: Hon. Lynne Kawamoto.

The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

This appeal arises out of a petition for adjudication of wardship filed by the State in the circuit court of Cook County requesting the court to adjudicate A.P., a four-year-old female child, a ward of the court and to remove A.P. from the home of her parents, Anthony P. and Louise B. After an adjudicatory hearing, the circuit court found that A.P. had been sexually abused by her father, the respondent. The circuit court subsequently found both parents to be unfit and that it was in the best interest of A.P. to adjudicate her a ward of the court and remove her from the custody of her parents. The court placed A.P. in the guardianship of Gary T. Morgan, the Guardianship Administrator of the Department of Children and Family Services (DCFS), with the right to place A.P. The respondent appealed from the juvenile court's findings. The appellate court affirmed the judgment of the circuit court. No. 1-94-1928 (unpublished order under Supreme Court Rule 23). We allowed the respondent's petition for leave to appeal (166 Ill. 2d R. 315; 134 Ill. 2d R. 660(b)). For the reasons that follow, we affirm the judgment of the appellate court.

FACTS

The issues presented in this appeal require that we discuss the facts in some detail.

On March 24, 1993, a report was made to the DCFS child abuse hotline that A.P. had been sexually abused. On April 5, 1993, the State filed a petition for adjudication of wardship of A.P. pursuant to sections 2-3(2)(ii) and 2-3(2)(iii) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(2)(ii), (2)(iii) (West 1992)), alleging that there existed substantial risk of physical injury and sexual abuse to A.P. On that same date, the circuit court granted the State temporary custody of A.P. The court determined that there was probable cause that A.P. was abused and that it was necessary to remove A.P. from her parents' home. The Cook County public guardian was appointed as A.P.'s attorney and her guardian ad litem. An adjudicatory hearing was subsequently held to consider the allegations in the State's petition for adjudication of wardship. Such a proceeding is civil in nature such that a finding of abuse need only be supported by a preponderance of the evidence. 705 ILCS 405/2-18(1) (West 1992).

At the adjudicatory hearing, Michelle Weber testified that she and her boyfriend, Michael Bell, A.P.'s uncle, baby-sat A.P. on the evening of March 24, 1993, at the one-bedroom apartment of A.P.'s parents. At some point during the evening, A.P. went into the bathroom. While in the bathroom, A.P. called Michelle and complained that "it hurt down there," pointing to her vagina. Michelle assumed A.P. had a rash and looked for some Vaseline, but was unable to find it. When it was time to put on A.P.'s pajamas, A.P. asked Michelle to first put on new underwear because "it hurts down there." Michelle asked where A.P. was hurting and A.P. again pointed to her vagina. A.P. indicated that she was hurt "when daddy was inside by my belly button." When Michelle asked her to show her where it hurt, A.P., who had her pants off, sat down on the floor, opened her legs, and pointed to her vagina. Michelle noticed that A.P.'s vagina was red, and the vaginal opening was about the size of a quarter.

A.P. then began to get excited and say things like "toe-toe" and "doe-doe," which Michelle did not understand. Michelle attempted to calm A.P. A.P. again complained that her "peepee" hurt and that her father had hurt her down there "when he was inside me." When Michelle asked who had hurt her, A.P. said "daddy." Michelle then dressed A.P. for bed and laid her on her mattress, which was next to her parents' mattress. Later in the evening, Michelle heard A.P. in the bedroom screaming and calling out: "owie, owie, no, no," "daddy," and "it hurts, it hurts." Michelle told Michael what had happened and Michael called his mother, A.P.'s maternal grandmother. A.P. was later taken to the emergency room at the hospital. After being released from the hospital, A.P. stayed with an aunt and uncle for a couple of days. About two days after A.P.'s release from the hospital, Michelle visited her. A.P. began saying "toe-toe" and "doe-doe" again. Michelle asked her what that meant and A.P. pointed to her vagina and said "toe-toe."

Jennifer Daniels, the assistant director of the Children's Advocacy Center of Northwest Cook County, testified that A.P.'s case was referred to her agency following a hotline report to DCFS. Daniels interviewed A.P. on March 30 and April 1, 1993. At the initial interview, Daniels asked A.P. if she knew why she was at the center. A.P. responded that this was the place to talk about "daddy." Daniels then asked A.P. if she had ever stayed with anybody besides her parents, and A.P. stated that she had stayed with her aunt and uncle. When Daniels asked A.P. if she had been to the hospital, A.P. stated that her uncle took her to the hospital because "daddy hurt my peepee." Daniels questioned A.P. about how her father had hurt her, and A.P. said: "Daddy took a knife and hit me on my peepee." Daniels inquired about what A.P. was wearing when this happened. A.P. responded that she was wearing a nightgown and that her father pulled up the nightgown over her head but did not remove it.

During this initial interview, A.P. was asked to identify body parts on an anatomically correct female doll, and she referred to the vagina as "peepee." A.P. also identified body parts on an anatomically correct male doll, whose penis she referred to as "peepee." When asked to demonstrate how her father had hurt her on her peepee, A.P. hit the vagina of the doll, and said that the knife cut her. There were play utensils in the interview room. A.P. took a play knife and used it to hit the doll's vagina using the flat side of the blade. A.P. said the knife went inside her. On cross-examination, Daniels admitted that A.P. stated that she had not seen her father undressing or showering, and that her father had not shown her his penis.

Also during the first interview, A.P. indicated to Daniels that she told her Aunt Michelle what had happened. A.P. initially denied that she had told her mother about the incident. Later, A.P. said that she had told her mother and that her mother had sent her to her room. A.P. never stated when the incident with her father happened. Daniels testified that A.P. never indicated that anyone other than her father had abused her.

Daniels interviewed A.P. again on April 1, 1993. A.P. indicated that she remembered talking previously with Daniels about her father. A.P. said she saw her father after the interview on March 30 and that her father was mad that she "told." A.P. subsequently became upset and refused to talk to Daniels any further about her father.

Karen Beckelman, a child protection investigator for DCFS, testified that she observed and listened to Jennifer Daniels interview A.P. on March 30 and April 1, 1993. Beckelman heard A.P. make statements that she had been sexually molested by her father. Throughout the interview on March 30, A.P. did not name any other perpetrators. After the March 30 interview, Beckelman permitted A.P.'s mother, Louise, to take A.P. home; however, she instructed her that A.P. was to have no contact with the respondent. After observing the second interview of A.P., Beckelman learned that A.P. had contact with her father when he stayed overnight at her mother's apartment. As a result of A.P.'s unauthorized contact with the respondent, Beckelman sought protective custody of A.P.

Dr. Constance Blade, a pediatrician and expert on child abuse, examined A.P. on April 1 and April 8, 1993. Using a special instrument, a colposcope, which provides light and magnification, Dr. Blade examined A.P.'s anal and genital anatomy. Dr. Blade found that A.P. had an abnormal hymen in that its opening was enlarged and it had an irregular border. A.P.'s hymen indicated to Dr. Blade that A.P. had suffered a previous trauma to the bottom part of her hymen, where it was thickened. Further, the opening in A.P.'s hymen was about six or seven millimeters. A girl of A.P.'s age usually has an opening of two millimeters in diameter. According to Dr. Blade, the upper limit of normal for a girl A.P.'s age was four millimeters. Dr. Blade also found a notch in A.P.'s hymen, which she believed indicated that something had previously stretched the hymen beyond its elasticity, causing it to tear.

Following her examinations of A.P., Dr. Blade diagnosed A.P. as having been sexually abused. The examinations revealed a penetration, which she assessed was caused by either a finger or a foreign object inserted into A.P.'s vagina. However, Dr. Blade did not believe there had been penile penetration, because the physical damage would have been far greater and there would be more abnormalities in her genital examination. When she examined A.P., there was no inflammation or evidence that there was current healing. Rather, A.P. had already healed. Dr. ...


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