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In re Marriage of Troy S.

February 27, 2001

IN RE MARRIAGE OF TROY S., PETITIONER-APPELLEE, AND RACHEL S., RESPONDENT-APPELLANT.


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 96--D--180 Honorable Kathleen Kallan, Judge Presiding

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

Custody of four-year-old D.S. was awarded to her father Troy. Her mother Rachel appeals, contending that: (1) the trial court erred in limiting Elizabeth Delaney's testimony based upon an assertion of confidentiality; (2) the trial court erred in excluding the testimony of Rose Gossmeyer; and (3) the custody determination was against the manifest weight of the evidence. After our careful consideration, we reverse in part, affirm in part, and remand for further proceedings.

FACTS

When Rachel and Troy separated in 1994, they agreed that Rachel would have custody of D.S., Troy would have alternate weekend visitation, and Troy would pay $50 per week in child support. This arrangement worked well until November 1995 when Rachel discontinued Troy's visitation.

According to Rachel, after returning from a visit with Troy in November 1995, D.S. confided that Troy had sexually abused her during a bath. Rachel testified that she took D.S. to see a child psychologist, Dr. Jason Sherman, three days later but D.S. refused to discuss the incident with Dr. Sherman. Rachel further testified that approximately 2½ weeks later, D.S. told her that "when her dad hurt her that blood came out of her pee-pee." Rachel testified that she took D.S. to her family doctor, Dr. Swane, the following day. Dr. Swane found no indication of abuse upon examining D.S.

Rachel's father reported the allegations to the Department of Children and Family Services (DCFS) on the day of D.S.'s appointment with Dr. Swane. A colposcopy performed on D.S. in the course of the investigation disclosed no evidence of abuse.

Troy filed for divorce in 1996. At the custody hearing, Barbara Carlson testified that she had interviewed D.S. in January 1996 as part of the DCFS investigation process. She testified that D.S. told her in detail about the alleged sexual abuse and that she believed D.S.'s account. The court, however, ruled that Carlson could testify only as an occurrence witness and therefore barred her from testifying as an expert witness.

Rachel's attorney also sought to qualify Elizabeth Delaney, a therapist, as an expert witness. D.S. received counseling from Delaney from October 1997 through June 1998. Both Troy and the guardian ad litem objected to having Delaney testify as an expert witness, arguing that information regarding D.S.'s treatment was privileged. The trial judge sustained the objection. Rachel was permitted to make an offer of proof as to Delaney's qualifications but was prohibited from making an offer of proof as to what Delaney would testify to if testifying as an expert. Delaney was permitted to testify only as an occurrence witness.

Delaney testified that D.S. had described the alleged abuse to her and that she had recommended to Rachel that visitation with Troy should be suspended. Delaney was not permitted to testify as to why she made that recommendation. The court ruled that the reasons for Delaney's recommendation were a part of D.S.'s treatment and were therefore privileged and inadmissible.

Rachel additionally called Rose Gossmeyer, a DCFS investigator who had attended the January 1996 interview. An offer of proof was made in camera after which the court ruled that, because Gossmeyer would merely be testifying regarding the same interview described by Carlson, the policy of confidentiality outweighed the probative value of the testimoy.

At the conclusion of the hearing, the trial judge noted that she did not believe Troy had abused D.S. and thus found Rachel was not justified in denying Troy visitation. Consequently, the trial judge awarded custody to Troy. Rachel appeals.

ANALYSIS

1. Privilege--Delaney

Rachel first complains that the trial judge erred in prohibiting Delaney from testifying as an expert based upon an assertion of confidentiality. The trial judge indicated and Troy contends that, since custody was yet to be determined, ...


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