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M.D. v. Dep't of Children & Family Servs.

Court of Appeals of Illinois, First District, Fifth Division

June 30, 2015

M.D., Plaintiff-Appellant,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES and BOBBIE GREGG, Director of Children and Family Services, Defendant-Appellees

Appeal from the Circuit Court of Cook County. No. 12 CH 22419. Honorable Neil Cohen, Judge Presiding.

Affirmed.

For APPELLANT: Helene M. Snyder, Chicago, Illinois.

For APPELLEE: Lisa Madigan, Attorney General, Valerie Quinn, Assistant Attorney General, Carolyn E. Shapiro, Solicitor General, Chicago, Illinois.

REYES, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.

OPINION

REYES, JUSTICE

[¶1] Plaintiff M.D. appeals an order of the circuit court of Cook County affirming a final administrative decision of the Illinois Department of Children and Family Services (the DCFS), denying his request to expunge an indicated finding[1] of sexual abuse involving his five-year-old daughter, A.D. On appeal, M.D. contends that the DCFS's determination to indicate was based on a superficial investigation that failed to comply with its own procedures. In addition, M.D. argues that the agency's ultimate determination not to expunge the indicated finding was against the manifest weight of the evidence where the testimony against him was not credible and the scientific evidence refuted the sexual abuse allegations. We affirm.

[¶2] BACKGROUND

[¶3] On April 2, 2010, the DCFS received a report of the possible sexual abuse of A.D. by M.D. The matter was investigated by both the DCFS and the Wilmette Police Department. That same day, a DCFS investigator interviewed M.D. and his wife N.G. regarding these allegations. Following an investigation, on June 2, 2010, the DCFS issued a finding, based on a " credible evidence" standard, indicating M.D. for allegation 19, sexual penetration, and allegation 21, sexual molestation. Allegation 19 defined " sexual penetration" as follows:

" Any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or any animal or object into the sex organ or anus of another person. This includes acts commonly known as oral sex (cunnilingus, fellatio), anal penetration, coition, coitus, and copulation." 89 Ill. Adm. Code 300.Appendix B (Allegation 19), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001).

Allegation 21 defined " sexual molestation" as follows:

" Sexual conduct with a child when such contact, touching or interaction is used for arousal or gratification of sexual needs or desires. Parts of the body, as used in the examples below, refer to the parts of the body described in the definition of sexual conduct found in the Illinois Criminal Sexual Assault Act [720 ILCS 5/12-12] as quoted above under Allegation 18, Sexually Transmitted Diseases. Examples include, but are not limited to:
- fondling.
- the alleged perpetrator inappropriately touching or pinching parts of the child's body generally associated with sexual activity.
- encouraging, forcing, or permitting the child to touch parts of the alleged perpetrator's body normally associated with sexual activity." 89 Ill. Adm. Code 300.Appendix B (Allegation 21), amended at 25 Ill. Reg. 12781, 12798 (eff. Oct. 1, 2001).

In addition, " [s]exual conduct is defined in the Act as 'any intentional or knowing touching or fondling of the victim or the perpetrator, either directly or through clothing of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child...for the purpose of sexual gratification or arousal of the victim or the accused.'" 89 Ill. Adm. Code 300.Appendix B (Allegation 18), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001).

[¶4] On June 5, 2010, M.D. requested a timely administrative appeal of the indicated finding.

[¶5] Hearing

[¶6] The DCFS administrative law judge (ALJ) conducted a hearing beginning April 21, 2011. The matter was continued for further hearing to April 22, June 29, August 29, September 22, September 29, September 30, December 5, 2011, and February 9 and February 16, 2012. The DCFS called the following witnesses: (1) Tamara Newel (Newel), psychotherapist for NorthShore University HealthSystems; (2) Scott Peterson (Peterson), child protection investigator for the DCFS; (3) Christine DiGangi (DiGangi), forensic interviewer; (4) Susan Kick (Kick), principal of A.D.'s elementary school; (5) Sousan Bahavar (Bahavar), child protection investigator supervisor at the DCFS; and (6) Glenda Monterey (Monterey), therapist for the Center of Contextual Change. M.D. called the following witnesses to testify at the hearing: (1) N.G.; (2) V.D., mother of M.D.; (3) Kelly Lawrence (Lawrence), forensic scientist from the Northern Illinois Regional Crime Laboratory; (4) Eric Ostrov (Ostrov), forensic psychologist; and (5) M.D.

[¶7] Tamara Newel

[¶8] Newel testified she is a psychotherapist[2] for NorthShore University HealthSystems. Newel started seeing A.D. for family therapy in 2008. On April 2, 2010, Newel met with A.D. and N.G. A.D. disclosed to Newel that M.D. had " touched and tickled her private parts." A.D. also informed Newel that M.D. made her touch his penis. A.D. further disclosed that her father told her when she wakes up in the middle of the night to come down to the basement and sleep with him, but not to tell anyone.

[¶9] On cross-examination, Newel testified that it was clinically appropriate to take A.D.'s statement about the suspected abuse in the presence of N.G. because " it was difficult for [A.D.] to tell anyone that" and " [s]he had never been in a session alone with me." Newel further testified that after the disclosure, A.D. played and " laughed a lot." This behavior was not inconsistent with the disclosure because A.D. " appeared to be relieved" after expressing what had been a secret. Newel also testified that A.D. did not disclose that her father " urinated on her," " ejaculated on her," " inserted a pencil into her," or " inserted a stick into her."

[¶10] Scott Peterson

[¶11] Peterson testified he is an investigator with the DCFS. On April 2, 2010, the DCFS hotline received a report of sexual abuse regarding A.D. That same day, Peterson interviewed M.D. at his home regarding the allegations that " he had touched his daughter inappropriately, tickled her on her privates, made her touch his penis, and I believe the verbiage was he peed on her." M.D. denied the allegations and indicated he felt they were a result of " nasty divorce proceedings."

[¶12] Peterson next interviewed N.G., who told him that " her daughter came to her and stated that [M.D.] had touched her inappropriately, that he had tickled her, particularly that he had tickled her privates, that he made her touch his penis and that he went to the bathroom on her." Peterson then implemented a " safety plan" which involved M.D. leaving the home. After M.D. said goodbye to A.D. and exited the residence, Peterson observed A.D. wave at the door and say " 'goodbye, nasty daddy.'"

[¶13] On cross-examination, Peterson testified that A.D. did not appear to be afraid of her father. He further testified that M.D. told A.D. he was going to go live at grandma's house for a long time. A.D. asked M.D. why he was going away. Peterson testified that M.D. replied that he was going away because " either that somebody had hurt her or it could have been that he did something to her."

[¶14] Christine DiGangi

[¶15] DiGangi, a licensed clinical social worker, testified that she has been a forensic interviewer with The Children's Advocacy Center of North and Northwest Cook County (Center) since 2007. She has a master's degree in social work from Loyola University. By the time she interviewed A.D., she had as a forensic interviewer conducted 417 interviews.

[¶16] DiGangi testified to the protocol for interviewing children in the course of a child sexual abuse investigation. She employs the " Step-Wise" method for interviewing children, which is " a nine-step protocol that entails rapport building, recall the neutral event, truth and lie, introducing the topic of concern, open-ended questions, more narrow-ended questions, use of aids, if necessary, and a conclusion." These interviewing techniques vary depending on the age of the child. For example, when interviewing very young children some of the steps may be condensed.

[¶17] On April 8, 2010, DiGangi met with A.D. at the Center for a forensic interview. Prior to the interview DiGangi was familiar with the allegations against M.D., that " dad had tickled her privates and that she had to touch his private." DiGangi walked with A.D. back to the interview room, where the two of them were alone. The investigative team, which included two Wilmette police officers, a DCFS worker, and an assistant State's Attorney, was behind a one-way mirror. Following the protocol, DiGangi built a rapport with A.D. by asking her what she would like to be called, her age, what she did for her birthday, where she lives, who lives with her, and about her school. DiGangi then discussed the interview process with her. DiGangi informed A.D. that she was going to ask her questions and if she did not understand the questions to let her know.

[¶18] DiGangi stressed the importance of telling the truth and asked A.D. if she knew what it meant to be truthful. A.D. replied, " 'no not so much.'" DiGangi then provided A.D. with several examples and asked her to identify in each whether it was telling the truth or telling a lie. For example, DiGangi asked A.D. " if it would be telling the truth or telling a lie to state that it was currently raining in the interview room and she told me a lie 'because it's not raining.'" She also asked A.D. whether it would be telling the truth or telling a lie to state that her name is A.D. and A.D. responded that it is the truth " because [A.D.] is my name." DiGangi then asked A.D. if she would be truthful and talk to DiGangi about " things that really happened." A.D. responded, " 'I will, I will. I promise you I will.'" At this point, DiGangi believed A.D. was capable of telling the difference between the truth and a lie.

[¶19] DiGangi then asked A.D. if she knew why she was at the Center. A.D. said " 'because my dad was hurting me.'" DiGangi asked what her father was doing to hurt her and A.D. said, " 'he was touching in my private part and he was doing things he shouldn't do and he told me not to tell anyone and he made me touch his private part. And one time he went potty on me.'" DiGangi inquired as to what private parts her father had touched and A.D. " pointed to her butt and her vagina, and she stated he touched both." DiGangi asked where she was when her father touched her private parts and A.D. replied that she was in his bed. DiGangi then asked A.D. where her father's bed was and she said downstairs. DiGangi inquired as to how A.D. got downstairs and she replied, " 'we have staircases, silly you.'" A.D. told DiGangi that she knew how to go downstairs because her father told her to and that he asked her do to that " 'because he wanted to hurt me.'"

[¶20] Once downstairs, A.D. would get into her father's bed. When asked if her father was awake or asleep, A.D. replied, " 'he is always awake, working, working, working.'" A.D. told DiGangi that before she got in the bed " '[her father] said get out.'" DiGangi inquired as to whether A.D. stayed in the bed or got out of the bed after she was told to " get out" and A.D. responded that she stayed in the bed. DiGangi asked A.D. what happened next and " at this time she began to shut down and she told me that that was about it, she didn't want to talk anymore, she was getting tired." DiGangi, however, continued to ask A.D. what happened after she got into the bed. A.D. informed her that " that's when daddy would do the bad things, the touching." A.D. told DiGangi that when her father was touching her private parts, " he would laugh and that he would say 'I'm touching [A.D.'s] private parts.'"

[¶21] Regarding what she was wearing, A.D. stated she was not wearing anything when she got into her father's bed and that she " 'usually [does not] wear anything late at night'" ; however, she also said that her father told her to take her pajamas off and put them in the laundry. A.D. told DiGangi that her father touched her private parts on her skin, not through her clothes.

[¶22] A.D. told DiGangi that her father " touched her on the inside and she said one time he touched the hole where the pee comes out and it really hurt." When asked how she knew it went inside, A.D. said " 'because I could feel it.'" When asked what private part her father touched, A.D. pointed to her vagina. A.D. further explained her father touched her with his fingers and a " pencil" or " pencil stick." A.D. described the " pencil stick" as " big and thick and pointy." DiGangi testified, " I asked her where her dad got the stick from, and she told me outside." When asked how many times her father " touched her front private part," A.D. told DiGangi " a hundred." A.D. told her that she was three years old when her father first started touching her and he last touched her, " 'Monday, last Monday, a few Mondays ago.'"

[¶23] DiGangi asked A.D. if she had touched her father's " private part" and if " that's when the pee came out" and A.D. responded, " yes, yes, yes." When asked what the " pee" looked like, A.D. told DiGangi " it was orange and that it went on her hand." Thereafter, A.D. washed her hand and changed from her " kitty cat pajamas" into a nightgown " because dad peed on me." A.D. then put the pajamas in the laundry. DiGangi asked A.D. how many times her father had peed on her, and she replied " a hundred."

[¶24] DiGangi asked A.D. how she knew to touch her father " on the skin" and A.D. said " 'because he was touching my private part and he holded [ sic ]--he grabbed my hand.'" DiGangi testified:

" At this time [A.D.] grabbed her wrist and showed me by grabbing her wrist.
And she said that he would put it in there.
I asked her what she would have to do once her hand was by her dad's private part. And she said 'like this' and she held up her hand and made a fist in the interview room.
I asked her if her hand stayed still or moved around. And she said 'still.' And, again, she made the fist and said 'like this.'"

DiGangi asked A.D. what her father's private part looked like:

" [S]he told me that 'it was big and it squished around.' I asked her if it was standing up or lying down. And she said it was standing up.
She also added something about 'when daddy's private part is standing up is when he is happy--or when he is happy his private part stands up.'
I asked her who told her that, and she said 'dad did.'"

According to A.D. her father told her, " 'don't tell your mom, don't tell your mom I did this, but I did [tell mom] ...


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