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12/12/97 MARRIAGE JAYSON E. RUDD

December 12, 1997

IN RE THE MARRIAGE OF: JAYSON E. RUDD, PETITIONER-APPELLEE, AND STACEY R. RUDD, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Tazewell County. No. 96D714. Honorable Jerelyn D. Maher, Judge Presiding.

Honorable Rita B. Garman, J., Honorable James A. Knecht, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

In May 1997, the trial court of Tazewell County, as part of a dissolution judgment, granted petitioner unsupervised visitation with his three-year-old daughter, Brittinee. In rendering its decision, the trial court denied respondent's request that petitioner's visitation rights be terminated or restricted because of petitioner's alleged sexual abuse of the parties' then four-year-old niece, G.T. Respondent appeals, arguing the trial court erred (1) in applying section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Act)(750 ILCS 5/606(e) (West 1996)) to bar testimony of certain hearsay statements made by G.T., or, alternatively, (2) by not conducting a hearing to determine the reliability of G.T.'s statements as required under section 8-2601(a) of the Code of Civil Procedure (Code)(735 ILCS 5/8-2601(a) (West 1996)). For the following reasons, we reverse and remand for further proceedings.

I. BACKGROUND

The parties married in June 1994 and separated in April 1996. They agreed respondent would maintain custody of Brittinee, who was born in August 1994, and further agreed petitioner would be allowed reasonable visitation with her. After the parties' separation, petitioner visited Brittinee on several occasions.

In October 1996, petitioner was alleged to have sexually molested his niece, G.T. As a result of the allegations, respondent has refused petitioner access to Brittinee. The record does not indicate whether petitioner was ever charged with sexually abusing G.T. or whether any adjudication or finding of guilt has been made on such a claim.

In May 1997, the trial court entered a judgment dissolving the marriage of the parties and conducted a hearing on the issue of petitioner's visitation rights. Respondent requested the trial court either deny or restrict petitioner's visitation of Brittinee in light of his alleged sexual misconduct. At the hearing, respondent sought to introduce the testimony of Josh Hendrix, a child protection investigator with the Department of Children and Family Services (DCFS). Hendrix was the DCFS representative who was in charge of investigating the claims of sexual abuse against G.T.

Hendrix was initially questioned about his qualifications and DCFS investigative procedures. Hendrix then was asked about an interview he conducted with G.T. At this time, petitioner's counsel objected, arguing any testimony as to statements made by G.T. was inadmissible hearsay. Respondent's counsel recognized Hendrix's testimony as hearsay but contended it nonetheless was admissible as an exception to the hearsay rule under section 606(e) of the Act or, alternatively, under section 8-2601(a) of the Code. Section 606 of the Act governs hearings concerning custody and visitation rights and provides, in relevant part:

"Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act [(325 ILCS 5/1 et seq. (West 1996))], or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987 [(705 ILCS 405/1-1 et seq. (West 1996))], shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect." 750 ILCS 5/606(e) (West 1996).

Similarly, section 8-2601(a) of the Code states:

"An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement." 735 ILCS 5/8-2601(a) (West 1996).

After considering the parties' arguments, the trial court determined neither section 606(e) of the Act nor section 8-2601(a) of the Code provides a basis for allowing Hendrix to testify about G.T.'s statements of abuse made during the course of the interview. The trial court determined section 606(e) does not cover statements made by a child whose visitation is not at issue. Because the visitation of Brittinee, and not G.T., was at issue in the underlying hearing, the trial court reasoned section 606(e) of the Act does not apply to allow Hendrix's testimony.

The trial court found section 8-2601(a) inapplicable because any testimony by Hendrix concerning G.T.'s statements would be unreliable and, as such, would be inadmissible ...


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