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Department of Public Aid v. Brewer

October 22, 1998

THE DEPARTMENT OF PUBLIC AID EX REL. LINDY DAVIS, NOW BY MARRIAGE, LINDY EDDY, APPELLEE, V. JESSE BREWER,APPELLANT.


The opinion of the court was delivered by: Justice McMORROW

Agenda 36-May 1998.

At issue in this appeal is whether, under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610 (West 1996)), in order to modify a child custody judgment within two years of the judgment's entry, the circuit court must find child endangerment by clear and convincing evidence or whether the court need only find that there is "reason to believe" that the child's present environment may endanger him or her in some way. The appellate court held that the parent seeking modification had to prove child endangerment by clear and convincing evidence, and, on this basis, reversed the judgment of the circuit court of Christian County granting the father's petition for modification of custody. 292 Ill. App. 3d 416. For different reasons, we affirm the appellate court's judgment reversing the circuit court's order modifying custody.

BACKGROUND

Jesse Brewer and Lindy Davis, now Lindy Eddy, are the parents of two minor children: Tasia Lee Brewer-Davis, born on April 26, 1991, and Nathan Silas Davis, born on July 30, 1992. Jesse and Lindy were not married at the time of either child's birth, and have never been married to each other. Lindy married Kevin Eddy in October 1994 and Jesse married Karen Poteet in May 1995.

On September 9, 1991, a consent order of parentage finding Jesse to be Tasia's natural father was entered by the circuit court of Fayette County. On September 30, 1994, the circuit court entered an agreed order establishing parentage, wherein Jesse acknowledged that he was Nathan's natural father. Shortly thereafter, on October 19, 1994, Jesse filed a petition for visitation privileges concerning both children. At a hearing on November 29, 1994, the parties reached an oral agreement regarding custody and visitation of the minor children, the terms of which were incorporated into a written stipulation. The trial court found the parties' agreement to be in the best interests of the children and approved the stipulation on December 2, 1994. This order placed sole custody of both children in Lindy, gave Jesse rights to visitation, and set a schedule for visitation between Jesse and the children. On January 5, 1995, the trial court approved a second written stipulation, and entered an order setting additional dates for visitation between the children and Jesse.

On November 21, 1995, the cause was transferred from Fayette County to Christian County, where both Jesse and Lindy were then residing. On December 15, 1995, Jesse filed a petition for modification of the custody and visitation order entered on December 2, 1994. According to the petition, material changes in the circumstances of the parties and children had occurred and the "environment at [Lindy's] house [had become] a serious danger to the minor children's physical, mental and emotional health." The central allegation in the petition was that Lindy had "knowingly and continuously delivered the children to a babysitter whose environment was a danger to their physical and mental health," because the children had been subject to sexual abuse by the baby- sitter's teenage son. The petition also alleged that the children were in danger because Lindy had bitten Nathan's arm as a form of discipline. The petition requested that Jesse be awarded sole care and custody of the children. The record shows that the affidavit of Karen Poteet was attached to, and filed with, Jesse's petition for modification. In that affidavit, Karen related her Discussions with the children and Lindy concerning the sexual abuse. On December 22, 1995, the trial court set Jesse's petition for an evidentiary hearing.

The trial court conducted an evidentiary hearing on Jesse's petition for modification during October and November 1996. On the first day of the hearing, Lindy's attorney argued that because Jesse's petition was filed and was being heard within two years of the December 2, 1994, custody order, pursuant to section 610 of the Act Jesse was required to establish, by clear and convincing evidence, that the present custodial arrangement seriously endangered the children. Jesse's attorney informed the trial court that he was "[d]efinitely in agreement" with that standard and was "prepared to proceed with that evidence."

During the hearing, Jesse presented evidence in support of the two allegations made in his petition: that Lindy bit Nathan's arm in an effort to discipline him; and that Lindy was aware that the children had been sexually abused at the home of the baby-sitter and failed to take appropriate action in protecting the children. Jesse additionally presented evidence concerning Lindy's alleged failure to have Tasia and Nathan immunized in a timely manner.

The testimony at the hearing established that during visitation in June 1995, Jesse and his wife, Karen, discovered a bruise on Nathan's upper arm. Nathan informed them that Lindy had bitten him. Karen, who is a social worker and a mandated child abuse reporter, contacted the Department of Children and Family Services (DCFS). Lindy admitted during the hearing that she bit Nathan on one occasion, but testified that her actions were a last resort in an attempt to prevent Nathan from biting other children after several other disciplinary measures had proven unsuccessful. Lindy's testimony concerning Nathan's biting problem was corroborated by DCFS investigator Michael Parkin, who testified that Nathan told him that he bit others, and also by Karen, who testified that Nathan had previously bitten her on her upper leg. Lindy related that after she took this disciplinary measure, Nathan refrained from biting anyone else. The evidence showed that although DCFS investigated this incident, no formal action was taken against Lindy.

The trial court also heard undisputed evidence that Lindy failed to have the children immunized in accordance with the recommended immunization schedules. Although Lindy had received information regarding when the immunizations were to be administered, she failed to bring the children to scheduled appointments and neither child had been subject to a well- child examination. However, the evidence indicated that Lindy's failure in this regard amounted to tardiness and did not rise to the level of medical neglect. Further, both children had received the necessary immunizations at the time of the hearing.

The majority of the evidence at the hearing related to the sexual abuse of the children by the son of the children's baby-sitter. The evidence was not disputed that Dustin Drone sexually abused both Tasia and Nathan on at least one occasion sometime during the summer of 1995. The critical dispute between the parties concerning this abuse was whether Lindy knew or should have known that the children had been subjected to sexual abuse and whether she properly protected the children from that abuse.

According to Lindy's testimony at the hearing, she had been friends with Dustin's mother, Nancy Drone, for most of Lindy's life. Further, Lindy and Jesse had lived with the Drones for sometime before Tasia was born. For a period of approximately two years ending in July 1995, Nancy baby- sat the children while Lindy was at work.

Lindy testified that in May 1995, Tasia complained to her that her genital area hurt. Although Lindy found that Tasia'a vaginal area was red and irritated, Lindy testified, she was not alarmed because Tasia was prone to infections in this area of her body. Lindy related that the irritation disappeared once she changed Tasia's soap and bubble bath. Lindy testified that in late June 1995, she was informed by Nancy Drone that Tasia had been displaying inappropriate sexual behavior. Nancy described Tasia's conduct to Lindy. According to Lindy, Tasia, who was four years old at this time, had never before acted in such a manner. In addition, Nathan, who was almost three years of age at this time, also engaged in inappropriate sexual behavior. The next day Lindy met with Cheryl Woods, a counselor with the Shelby County mental health department, who instructed Lindy to report Tasia's behavior to DCFS. Lindy testified that DCFS declined to investigate on the basis that Lindy could not pinpoint the source of the children's behavior and that Tasia and Nathan refused to speak with anyone about it.

By the time Woods saw the children in early July 1995, their behavior had improved and they did not relate anything to her that indicated they were victims of sexual abuse. Woods noted that Tasia did state that when the children stayed overnight with Jesse, both children slept in the same bed with Jesse and Karen. Based upon her interviews with the children, Woods concluded that they did not relate any high-risk factors and she believed that no further counseling sessions were required. The testimony of both Woods and Lindy indicated that Lindy was concerned because the children's unusual behavior started after they had an extended visit with Jesse and Karen. As a result, Lindy went to an attorney in an attempt to have Jesse's visitation with the children stopped until Lindy "found out what was going on." However, because the attorney did not return Lindy's phone calls, Lindy did not pursue this avenue any further.

Lindy and her husband, Kevin, testified that at the end of July 1995, they were in the process of packing their belongings for their move to Pana, Illinois, when Tasia blurted out that she knew Dustin had French kissed someone. After Tasia made this remark, Lindy asked Nancy Drone if Dustin, who was 16 years old at that time, was ever near the children. Nancy stated that Dustin was not around the children, as he was either in school or playing outside, and that the only time he was in the house was when he watched television. Nancy reassured Lindy that the children were never without Nancy's supervision. Lindy testified that she ...


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