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Gilbert v. Gilbert

December 30, 2004


Appeal from the Circuit Court of Cook County. No. 97 D 331700. Honorable Charles E. Porcellino, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

The petitioner, Bradley Gilbert, appeals the decision of the circuit court of Cook County which issued on behalf of the respondent, Lynette Gilbert, a plenary order of protection. On appeal, Bradley argues (1) the trial court erred in applying section 8-2601 of the Illinois Code of Civil Procedure (735 ILCS 5/8-2601 (West 2002)) in admitting hearsay testimony that he sexually assaulted his daughter; (2) the trial court failed to conduct a reliability hearing with reference to such hearsay, and (3) the hearsay statements lacked the corroboration required by the statute. For the reasons that follow, we affirm the decision of the trial court.

[9]     Bradley and Lynette were married in 1994. During their marriage, they had two children, a son, C.G., and a daughter, B.G. On October 17, 1997, Bradley filed a petition for dissolution of marriage. On March 2, 2000, a judgment for dissolution of marriage was entered. The parties also executed a marital settlement agreement and a joint parenting agreement, which were both entered on March 2, 2000. In the joint parenting agreement, the parties agreed that Lynette would serve as the primary residential parent for the couple's two children.

On August 11, 2000, under the original dissolution case, Lynette filed an ex parte petition for an order of protection on behalf of C.G. and B.G. against Bradley, pursuant to the Illinois Domestic Violence Act of 1986 (Domestic Violence Act), (750 ILCS 60/214 (West 2000)). An affidavit in support of the emergency order of protection was attached to the petition. In the affidavit, it was alleged that, on August 10, 2000, B.G., who was four years old at the time, was visiting Bradley at his home when he sexually abused her. Specifically, it was alleged in the affidavit that B.G. informed Lynette that during the visit, Bradley's penis, or "project" as she referred to it, touched her "private parts."

On August 11, 2000, the trial court found that there were reasonable grounds to believe that abuse had occurred and given the emergency nature of the situation, entered an ex parte order of protection.

Thereafter, a hearing on the matter was held. At that hearing, Lynette testified that on the evening of August 10, 2000, C.G. and B.G. arrived at her home at approximately 8 p.m. after visiting with Bradley. Later that evening, as Lynette was giving B.G. a bath, B.G. said "'mommy, daddy's private parts touched my private parts today.'" Lynette said that prior to B.G. making this statement, she had not been asking B.G. what she had been doing with her father earlier that day. Lynette testified that this was the first instance that B.G. had ever made such a statement to her. Lynette said that she was not surprised that B.G. referred to her genitals as "private parts" since this is how she had taught B.G. to refer to them.

After B.G. made this statement, Lynette said that she asked B.G. "What did you just say?" Lynette then testified that B.G. again said, "'Daddy's private parts touched my private parts today, mommy.'" Lynette said that she then took B.G. out of the tub, dried her off, and put some clothes on her so they could sit down and talk in the bedroom.

Once they were in the bedroom, Lynette said that she asked B.G. to tell her what she did with her daddy. Lynette testified that B.G. explained that "daddy said that he had a project for her to do." B.G. explained that Bradley also had a project for C.G. to perform, which was scooping dog "poop" in the backyard. When Lynette asked B.G. what her project was, Lynette said that B.G. began to "withdraw a little bit and say, 'well, I don't know the words, mommy.'" Lynette said that she reassured B.G. and just asked her to explain what she did at "daddy's house."

B.G. then explained "'well, he had this project, and he laid her down on the bed and took off her clothes. There was a red pillow and a green pillow. That he then took off his pants or let down his pants and that the project was real little and it got real big.'" Lynette stated that B.G. was referring to Bradley's penis as the "project" at first and then as the "finger" so that she became a little confused as B.G. was telling her story. Lynette said that B.G. said that she "held her mouth like in a circle like uh, and she was real good that she didn't bite." When asked what went into B.G.'s mouth, Lynette responded, "She kept calling it the project and the finger. I was very confused."

Lynette then testified that "[B.G.] kept telling me she didn't know the words but that it tickled, that when daddy's private part touched her it tickled. She showed me it was between her legs and her bottom. She told me that it touched her bottom. And I asked her if it hurt. She said, no, it kind of tickled. And then I realized it was getting late and I still needed to get the laundry, so I just kind of said well, 'you know, you can tell me anything at any time, right?' And she said, 'yes.' I said, 'why don't we go get [C.G.], and let's go downstairs and get the laundry out of the dryer and come back up. Its getting late, and I think we need to go to bed.'"

After they retrieved the laundry, Lynette asked B.G. what color the project was, and B.G. responded that it was "brown and purple." At that point, Lynette said that was the end of their conversation. After consulting with her parents, she decided to call a doctor. Thereafter, she called a doctor and made an appointment for B.G. to see him the next day.

The next day, during the doctor's examination, Lynette said that B.G. refused to answer questions concerning the previous day. The doctor found no physical injury to the child. Before they left the doctor's office, Lynette testified that the doctor informed her that he had an obligation to report the occurrence to the proper authorities. Lynette testified that she responded, "you do what you have to do."

Later that afternoon, on August 11, 2000, Lynette and her attorney appeared in court to request an emergency order of protection. Thereafter, she reported the incident to the police. Later, Lynette said that she had another conversation with B.G. During the conversation, Lynette testified that she asked B.G., "Now when you were telling me about the project you also called it the finger, where was the project? Was it this or was the project something different? And she said 'no,' and she pointed down to her private area. She said, 'the project was down here.' I said, okay. And when you said the project and the finger went in your mouth and you held your mouth like this, but you didn't bite, was it the finger or was it the project down there? And she said, 'it was the project down there.' And I said -- I couldn't help myself - - I said, 'well, what did you think?' She said, 'it was yucky. I told daddy to get it out.' I said, 'good girl. Thanks. You can go play.'"

Thereafter, B.G. was referred to the Children's Advocacy Center for a victim-sensitive interview on August 15, 2000. B.G. was interviewed by Caryn Brauweiler, who was the assistant director and had conducted 1,000 interviews of allegedly abused children, 300 of which involved a child under the age of four. Detective Dave Bruno of the Hanover Park police department, Investigator Ron Miller of the Department of Children and Family Services, and Assistant State's Attorney (ASA) Ruth Howes of the Cook County State's Attorney's office observed the interview through a one-way glass.

During the interview, B.G. was asked if mommy touched her privates outside of the bathtub and she said "no." When asked if daddy touched her privates outside of the bathtub, she paused and looked away. B.G. then responded, "No, he doesn't."

Later in the interview, B.G. was asked if anyone touched her where she goes potty, she responded, "Yes." When asked who, she shrugged her shoulders but did not respond. When asked to talk about it, B.G. said that she would respond later if she were given some time to color. Thereafter, B.G. was asked about the touching that happened on her private parts and she stated "I'm scared about it. Daddy does that."

B.G. was then shown anatomically correct dolls and she was able to correctly identify the parts of the dolls, including their genitalia, which she referred to as private parts. Then the interviewer reminded B.G. that they were going to talk about the kind of touching that was scary for her. B.G. responded, "Mom told me if dad touched my private again, I should scream." When asked if that really happened, B.G. stated, "One time he does, a lot of times he does." When asked where this occurred, B.G. stated, "In his bedroom." B.G. then stated that it occurred "In his bed." B.G. then said that her father took her clothes off and that he took his own underwear off.

When asked what happened next, B.G. stated that, "He stuck his private there," as she pointed to her vagina and buttocks. When asked what her father's private's looked like, B.G. responded, "It looks like a boy's private." When she was asked if it looked liked the doll's private, she stated, "It was sticking up." She spontaneously added, "C.G. was picking Lady's poop up." When asked where her father's fiancee was at when this occurred, B.G. responded that she was at work.

B.G. than had the interviewer draw her so that she was lying on her stomach on her father's bed. When asked what happened, she stated, "He put his private on my bottom and stuck it through my legs, and put it here on my private." When asked how it felt, she said "silly." When asked if anything came out of his privates, she responded, "Let's not talk about it. It's yucky."

Later, B.G. began playing with the anatomically correct dolls. During this time, Brauweiler asked B.G. to show her how daddy touched her. B.G. took the small female doll and put it on the floor facedown. She pulled the underwear off and took the large male doll, pulling his pants off, and inserted the penis in the rectum of the small female doll. She then explained that daddy then put his private between her legs and said that it touched her on the private. She then stated, "Let's not talk about it. I'm scared."

Bradley testified that on August 10, 2000, he picked up both B.G. and C.G. from Lynette's house. He said that he spent approximately two hours alone with the children, outside the presence of his fiancee. He explained that during this time he gave C.G. a "project" to do, which was to scoop their dog's "poop" up in the backyard. He stated that C.G. did this task for approximately five minutes. He stated that he did not assign a task to B.G. Bradley said that he used the term "project" because of his job.

He denied ever going into a bedroom with B.G. He stated that there were no red or green pillows in the bedroom at his home. He denied having any sexual contact with B.G. He stated that B.G. never touched his penis. He stated that he had never touched her private parts in an inappropriate way.

Nancy Mulso testified that she was an employee of Judicial Monitoring Resources (JMR) an organization appointed by the trial court to supervise visitation. Mulso stated that JMR provided services to Bradley and the children after the allegations of abuse had been levied. As an employee of JMR, it was Mulso's job to observe the visitation periods that Bradley had with his children.

Mulso testified that Bradley's behavior during visits with his children was appropriate. Mulso testified that when B.G. visited with her father at the Schaumburg library, the child was reluctant to return to her father and stated she was afraid of him. When asked why by Ms. Mulso, B.G. stated "because he did that bad thing." Mulso testified that during one particular visit, B.G. asked Bradley, "[W]hy did you do that?" And he said, "[W]hy did I do what?" B.G. responded, "Why did you touch me when you weren't supposed to?" And he said "[W]hen did I do that?" And she said, "[M]ommy said you did." And he said, "[W]ell you'll have to ask mommy when it happened because I didn't do it."

Mulso further testified that on a separate visit, while Bradley and the children were at an ice cream shop, "the children told [Bradley] that he wasn't going to heaven, he was going to hell because he didn't have Jesus in his heart."

On another visit Mulso overheard C.G. telling B.G. that she had to watch out what she said in front of Mulso, "that she's [B.G.] not supposed to say things in front of us that mommy said."

Ron Miller, an investigator with the Department of Children and Family Services, observed that in his experience he had never found a case where a four year old was able to make false allegations of sexual abuse.

Following the hearing, on September 10, 2002, the trial court issued a memorandum order. In the order, the trial court initially stated that the matter was "coming on to be heard upon the petition of Lynette Gilbert for an order of protection filed on August 11, 2000." Although improperly captioned Lynette Gilbert v. Bradley Gilbert, it was filed under the original dissolution case number wherein Bradley filed as petitioner and Lynette was the respondent. In the order, the trial court determined that B.G. had been abused by Bradley. The trial court issued a plenary order of protection pursuant to section 220 of the Act, which it incorporated into the March 20, 2000, final judgment for dissolution of marriage. The trial court further provided that visitation with the children would "continue subject to Bradley's compliance with the court's order regarding the counseling program of the Social Service Department."

Thereafter, Bradley filed a petition to vacate, modify, reopen, or reconsider the order entered on September 10, 2002, pursuant to section 2-1203 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1203 (West 2002)), which the trial court denied on December 19, 2002.

On January 17, 2003, Bradley timely filed his notice of appeal wherein he appealed the trial court's orders of September 10, 2002, and December 19, 2002.

On appeal Bradley argues that it is inappropriate to enter an order of protection pursuant to the provisions of the Illinois Domestic Violence Act of 1986 that would vary the visitation rights determined in the dissolution proceedings. Although at least one Illinois case in the Third District, Radke v. Radke, 349 Ill. App. 3d 264 (2004), held that the Illinois Domestic Violence Act had been inappropriately used to alter the defendant's visitation with his minor child, we are not faced with that problem in this case. Here the order of protection was filed under the original dissolution case number so that the thoughtful opinion of the trial court was entered pursuant to that initial dissolution case.

Moreover, in Radke, the court determined that the substance of the plaintiff's complaint was not proven so that the issue of the application of the ...

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