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Daria W. v. Bradley W.

October 17, 2000


Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, No. 98--OP--555 Honorable Lori Lefstein, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Slater

The petitioner, Daria W., filed a petition for order of protection on behalf of her minor child, D.W., against the respondent, Bradley W., the father of the child. The trial court entered a plenary order of protection. On appeal, Bradley argues that the trial court erred in applying section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/606(e) (West 1998)) to admit D.W.'s hearsay statements. He also claims that the court's decision to enter the order of protection was against the manifest weight of the evidence. We affirm.

On October 30, 1998, Daria filed a verified petition for order of protection against Bradley requesting that his unsupervised overnight visitations be terminated. In her petition, she claimed that Bradley sexually abused their nine-year-old daughter, D.W. Daria's petition alleged that Bradley "tickled" D.W.'s vagina during an overnight stay.

At the hearing, Doctor Linda Ozaki testified that she specialized in pediatric medicine and had experience with cases of sexual assault and child molestation. On November 3, 1998, she performed a genital exam of D.W. Dr. Ozaki found that a portion of D.W.'s hymen was missing. She also noticed a notch, a bump, and a healed scar. Dr. Ozaki opined that the injuries to the hymen were consistent with sexual abuse. She did not believe that the injuries were the result of penile penetration because the damage would have been more severe. The trauma to the hymen was consistent with the type of injury that would occur from the insertion of a finger or other small object into the vagina. Dr. Ozaki acknowledged the abuse could have occurred two to three weeks, or two to three years, prior to her examination. She was unable to pinpoint the exact date because injuries to that area of the body heal quickly.

Crystal Holtrop, a marriage and family therapist, testified that she first met with Daria on October 14, 1998, to discuss a statement made by D.W. She interviewed D.W. in the presence of her mother on October 22. During the interview, Holtrop gave D.W. anatomically correct dolls and asked if anything happened to D.W. to make her feel uncomfortable. Using the dolls, D.W. indicated that once, when she was asleep at her father's house, her father came into her room, pulled down her underpants, and tickled her "poo." Holtrop stated that D.W. took her finger and put it near the female doll's underpants. D.W. told Holtrop that her father's hands must have been dirty because after the encounter he went to the bathroom and washed them.

Holtrop met with D.W. on several other occasions. During a meeting on November 18, D.W. told Holtrop that her dad came into her room while she was sleeping and tickled her "poo." When Holtrop asked D.W. to show her how he tickled her, D.W. stuck her finger inside the girl doll's vagina. D.W. reiterated that her father must have had dirty hands because he went to the bathroom and washed them.

Tammy Long, Daria's sister, testified that on the morning of November 19, 1998, she was driving D.W. to the courthouse. When D.W. got into the car, she began crying and told Tammy that her dad just kissed her "poo" and she did not want to tell the story in front of him.

Daria testified that she became concerned about D.W.'s sexual tendencies in the summer of 1998. In July of that year, Daria's mother, Joyce, walked into her bedroom and found D.W. with two of her friends. One of the other girls had her underpants off. When Joyce told Daria about the incident, Daria scolded D.W. She told her daughter that young girls do not behave that way and D.W. could get in trouble with the law. She then asked D.W. if anyone ever touched her "poo." D.W. responded, "No." Daria did not believe her answer and warned her to tell the truth. D.W. said, "Okay, okay, okay. You promise you won't get mad?" She then told Daria that her daddy tickled her "poo." Daria asked her when it occurred. D.W. replied that she was little and that it happened the last time she spent the night at her father's.

Daria stated that she discussed the matter with her mother. They thought that D.W. might be mad at Bradley because he did not visit her. Daria and Joyce decided to refrain from immediate action. In September, Daria brought the subject up again. She asked D.W. if she was telling her the truth about the incident with her father. D.W. refused to talk about it. Daria left the matter alone until October 5, 1998. That morning, D.W. starting asking Daria questions about Bradley and Daria's relationship. Daria asked D.W. if Bradley really tickled her "poo" and D.W. said, "Yes." D.W. stated that Bradley did other things as well but refused to elaborate.

On cross-examination, Daria testified that she talked to D.W. about inappropriate touching beginning in 1994. She read books to D.W. on the subject. Daria told D.W. numerous times that it was inappropriate for anyone to touch her private parts and D.W. should tell her if someone did.

Toni W., Bradley's wife, testified that D.W. did not like to sleep in her room when she spent the night. Toni stated that during the last overnight visitation, D.W. got very upset when it was time to go to bed. She started crying hysterically and saying that her mom never made her sleep alone. She told Bradley she wanted to go home. They called Daria's house but Daria was not home. Brad and Toni sat with D.W. in her room while she cried herself to sleep.

Toni stated that Bradley limited his visitation with D.W. because he felt that D.W. was tormented and pressured by Daria after D.W. spent time with him. Toni stated that during the last visitation in April of 1998, D.W. told Bradley and Toni that she french kissed a boy. Toni asked her what a french kiss was, and she explained that she kissed him with her mouth open and her tongue in his mouth.

Bradley testified that during the divorce proceedings, Daria threatened to accuse him of child molestation. Bradley stated that he reduced visitation beginning in 1995 to protect D.W. from her mother's harassment. Bradley denied sexually abusing his daughter.

On cross-examination Bradley conceded that during his deposition the only reason he gave for the decrease in visitation was his busy work schedule. Bradley also testified that he was not aware of any statements made ...

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