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Trinidad C. v. Augustin L.

Court of Appeals of Illinois, First District, Second Division

November 21, 2017

TRINIDAD C., Petitioner-Appellee,
AUGUSTIN L., Respondent-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois. No. 16 OP 72812 Honorable Megan E. Goldish, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.


          MASON, JUSTICE.

         ¶ 1 Respondent Augustin L. appeals the trial court's issuance of a plenary order of protection in favor of petitioner, Trinidad C., and her three minor children. Augustin asserts that his stepdaughter L.C.'s outcry of sexual abuse that served as a basis for the order of protection should have been excluded as inadmissible hearsay. Because we find that the trial court did not abuse its discretion in declaring L.C. unavailable to testify and that her outcry of sexual abuse was reliable and corroborated by other independent evidence, we affirm the plenary order of protection.

         ¶ 2 BACKGROUND

         ¶ 3 Trinidad filed a petition for an order of protection on May 3, 2016, on behalf of herself and her three minor children: L.C., P.L., and R.M. In the petition, Trinidad alleged that Augustin sexually molested five-year old L.C., which Trinidad reported to the Department of Children and Family Services (DCFS) on April 29, 2016, and that all of her children were confused and affected emotionally. L.C. was Augustin's stepdaughter at the time of the incident.

         ¶ 4 During the evening of April 28, Trinidad left the home to do laundry. Augustin stayed with L.C. and P.L. The following morning, Trinidad woke L.C. to change and clean her before school because L.C. had not bathed the day before. Trinidad noticed that L.C.'s vaginal area was very red. Trinidad asked L.C. if anyone touched her in her private area, and L.C. covered her face. Trinidad asked her a second time, and L.C. told her that she was very afraid to tell her the truth. L.C. then told Trinidad that Augustin touched her in the vaginal area. L.C. said it happened when Trinidad was at school and doing laundry. Trinidad asked L.C. why she did not tell her and L.C. said because Augustin told her that if she told anyone what happened, he was going to leave the house and they would be without a father. Trinidad described L.C. as being very afraid. Trinidad noticed a hole in L.C.'s leggings "down there" roughly the size of two fingers. Trinidad finished changing L.C. and took her to school.

         ¶ 5 Vanessa Salcedo was L.C.'s prekindergarten teacher for approximately two school years: 2014-15 and 2015-16. When Trinidad arrived at school with L.C. on April 29, 2016, she told Salcedo about her conversation with L.C. Salcedo called DCFS. With Salcedo's help, Trinidad filled out a police report.

         ¶ 6 Ada Perez-Almuhtaseb, an investigator for DCFS, arrived at L.C.'s school the same day and interviewed Trinidad at 11:30 a.m., L.C. at 11:50 a.m., and Salcedo at 12:20 p.m. Perez-Almuhtaseb interviewed each individual separately, and no one else was present during the interviews.

         ¶ 7 Trinidad stated during the interview with Perez-Almuhtaseb that she left the house the night before to do laundry and Augustin stayed with L.C. and P.L. Trinidad also related discovering the redness in L.C.'s vaginal area and told Perez-Almuhtaseb about her conversation with her daughter and reporting the incident to Salcedo.

         ¶ 8 During Perez-Almuhtaseb's interview with L.C., L.C. accurately differentiated between good and bad touches, and she also accurately identified her private parts calling her vagina "cola." When asked if she had ever been touched on her private parts, L.C. told Perez-Almuhtaseb that her "dad" touched her on her "cola" when they were at home. L.C.'s mother was not home at the time because she was doing laundry, and Augustin was babysitting her and her brother. She was watching television in her parents' bedroom, and her brother was sleeping. L.C. told Perez-Almuhtaseb that when Augustin touched her, he moved his hand from side to side and that this happened while they were in her parents' bedroom. Augustin told L.C. not to tell anyone or else he would have to leave the home. L.C. did not want that to happen.

         ¶ 9 Finally, Perez-Almuhtaseb interviewed Salcedo as follow-up to the conversation they had when she reported the incident to DCFS.

         ¶ 10 Later that day at around 6 p.m., Trinidad took L.C. to see a doctor concerning her vaginal redness. According to Trinidad, the doctor stated that the redness could have been hygiene related because L.C. might not be cleaning herself properly.

         ¶ 11 Approximately a week later on May 5, 2016, Rebekah Stevenson, a forensic interviewer at the Chicago Advocacy Center, conducted an interview of five-year-old L.C., which was recorded as a victim sensitive interview (VSI). L.C. stated that she lived with her mom, sister, and older brother but not with her "dad, " Augustin, "because he went on vacation." Before L.C. described the incident involving Augustin, Stevenson asked L.C. questions ...

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