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In re M.D.H.

June 29, 1998

IN THE INTEREST OF M.D.H., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JOHNNY RAY HOWELL, RESPONDENT-APPELLANT, AND CHERYL BAXTER, RESPONDENT.



The opinion of the court was delivered by: Justice Steigmann

Circuit Court of Pike County No. 97JA6

Honorable Michael R. Roseberry, judge Presiding.

In September 1997, the State filed an amended petition for adjudication of wardship, alleging that M.D.H. (born November 13, 1981), the minor child of respondent father, Johnny Howell, and respondent mother, Cheryl Baxter, was neglected and abused. In November 1997, the trial court conducted a hearing and found that M.D.H. was a neglected and abused minor, pursuant to sections 2-3(1)(b) and 2-3(2)(iii) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b),(2)(iii) (West 1996)). After a December 1997 Dispositional hearing, the court formally adjudicated M.D.H. a ward of the court and appointed the Department of Children and Family Services (DCFS) as her guardian with the power to place her.

Respondent father appeals, arguing that (1) the trial court erred by allowing M.R.H., M.D.H.'s 13-year-old brother, to testify outside of respondent father's presence; (2) the court erred by refusing to strike a certain witness' testimony; and (3) the court's findings of neglect and abuse were against the manifest weight of the evidence. We affirm.

I. BACKGROUND

Because the parties are familiar with the evidence, we discuss it only to the extent necessary to put respondent father's arguments in context. In its September 1997 amended petition, the State alleged that (1) respondent father had neglected M.D.H. because he created an envi- ronment injurious to her welfare in that he put her at risk of sexual harm by sexually abusing S.H., M.D.H.'s minor brother, and L.G., M.D.H.'s minor stepsister (count I) (705 ILCS 405/2-3(1)(b) (West 1996)); and (2) respondent father had abused M.D.H. because he committed a sex offense against M.D.H. by having sexual intercourse with her (count II) (705 ILCS 405/2-3(2)(iii)).

At the November 1997 adjudicatory hearing, the evidence showed the following. Sheila Catron, a social service worker in Lewis County, Missouri, testified that in May 1997, she interviewed S.H. (born June 15, 1991) pursuant to a report that he had attempted to kiss his female cousin's "crotch area" during an after-school program. During the interview, S.H. told her that respondent father had taught him how to kiss respondent father's private area. S.H. told Catron that respondent father asked him "to get under his father to kiss his private area." S.H. also correctly identified the genital area using a stuffed animal. Catron stated that, based upon S.H.'s responses, these incidents took place when S.H. was between three and six years of age.

David Parrish, a juvenile officer in Lewis County, testified substantially the same as Catron regarding what S.H. said during the May 1997 interview.

On cross-examination, Catron testified that S.H.'s mother had told her that "with [S.H.'s] age and stuff[,] he did like to tell stories." S.H.'s counselor also indicated that he had "a very large imagination."

S.H. testified that he used to live with respondent father, but he moved out because respondent father tried "to do the sex" with S.H. when S.H. visited him. S.H. stated that respondent father was "going to try to touch [S.H.'s] private and [S.H.] didn't want him to do it." Respondent father also wanted S.H. to touch respondent father's "private," but S.H. never did. S.H. also stated that the incident happened in June, "a long time ago." S.H. further stated that M.D.H. was there and tried to stop respondent father.

On cross-examination, S.H. testified that the incident hap- pened when he was two years old. S.H. stated that he did not know the present year or month. Upon questioning by the trial court, S.H. testified that he knew the difference between the truth and a lie.

Dr. Shari Marshall, the superintendent of schools for the Barry, Illinois, school system (where M.D.H. was a junior high school student during 1996), testified that in March 1996, M.D.H. came to her office and asked to speak with Marshall. M.D.H. was "very upset and crying." During that conversation, M.D.H. told Marshall that "[s]he felt that she was being required to do many, many, many chores, her homework, take care of her little brother[,] *** [and] [s]he just felt like she was just being required to be a wife." Marshall stated that because of an earlier conversation, she asked M.D.H. if by being a wife M.D.H. meant that she also slept with respondent father. M.D.H. re- sponded "sometimes." Marshall also stated that because of the earlier conversation, she thought M.D.H. meant that she slept with respondent father "in a sexual manner." Marshall acknowledged that M.D.H. recanted within a week of their conversation and that M.D.H. "told DCFS that that's not what she meant."

On cross-examination, Marshall testified that she instructed the school principal to report to DCFS the possible sexual relationship between M.D.H. and respondent father. Marshall stated that in May 1996, DCFS sent the principal a letter indicating that it had investigated the report and determined that it was "unfounded."

On redirect examination, Marshall testified that when she asked M.D.H. what she meant by having to do "everything else a wife has to do," M.D.H. began crying harder and responded, "you know, everything."

M.R.H., M.D.H.'s brother and respondent father's biological child, testified that during the summer of 1995, he lived with respon- dent father and M.D.H. for a period of two to three months. M.R.H. stated that, one evening during that period, he came home and noticed that the television was on at a loud volume. He turned the television off and then looked in respondent father's room because he thought he heard M.D.H. say "help." He saw respondent father on top of M.D.H., "moving up and down." Respondent father and M.D.H. were covered up to their backs, and neither was wearing any clothing that M.R.H. could see.

On cross-examination, M.R.H. testified that he did not tell anyone about the incident because he did not think it was anyone's business. M.R.H. also stated that he observed respondent father and M.D.H. for about one minute. M.R.H. further stated that he takes Prozac, Ritalin, and a blood pressure medication, and he attends classes for students with behavior disorders. He also acknowledged that he did not like respondent father, and he moved out of respondent father's home, in part, because respondent father had broken a "2 by 4" and a pool cue over his back.

M.D.H. testified that respondent father had not acted in a sexually inappropriate manner with her, and she had never told anyone otherwise. She stated that she talked with Marshall because she was upset about having to do chores. She also stated that she forgot to tell Marshall that when she slept in respondent father's bed, he slept on the couch.

On cross-examination, M.D.H. testified that Marshall did not ask her what she meant by the phrase "everything that a wife has to do." She denied telling Marshall that "everything" meant "you know, everything." She stated that following their conversation, she tried ...


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