dissenting:
I respectfully dissent and would reverse.
J.K. is a 10-year-old female. C.K. is her eight-year-old brother. In 1991, the two were removed from their parents amidst allegations of sexual abuse against their father, Leonhard. J.K was placed in the custody of her grandparents, but that came to an end after J.K. made allegations of abuse against her grandfather. In May 1992, C.K. was placed with Ralph and Monica Rittenhouse, and in July 1993, J.K. was placed with them as well. Monica is the sister of the children’s mother. On the occasion in question, Monica visited a friend, and J.K. was upset because she could not go along. The next morning J.K. related to Monica that Ralph asked her if she wanted to see his "private parts.” Monica did not leave J.K. home with Ralph again.
Because the Rittenhouses’ application for foster parent certification had not been approved, the children were placed in new foster homes in January 1994. From his new foster home, C.K. called Monica and told her that he was home alone, watching X-rated movies. A police officer came to the home to investigate, and C.K. later admitted that he had lied. On March 26, 1994, while J.K. was talking to her foster mother, Karen Moore, about her father, Leonhard, she stated that the described incident had occurred with Ralph. DCFS investigator David Harmon spoke to C.K. on March 27 in a separate foster home. He asked C.K. if C.K. had ever felt uncomfortable when he was living at the Rittenhouses. C.K. said "no.” Harmon then asked C.K. if Ralph had ever offered to show him his private parts, and C.K. replied "yes.” That questioning seems inartful and suggestive.
Harmon was concerned about the Rittenhouses’ two-year-old son, Z.R., who was living in their home. He asked Ralph to move out of the home. Ralph agreed and continues to live outside the home. Nevertheless, Z.R. was placed in a foster home for a period of time, although he is now in Monica’s custody. The Rittenhouses have another son, B.R., born August 22, 1994. DCFS is concerned about the well-being of B.R. and has reached some sort of agreed protection plan so that he may remain with Monica.
The trial court concluded Ralph’s testimony was credible and that there were credibility and bias problems with J.K.’s testimony. However, the trial court felt that when the testimony of the two children was taken together there was enough evidence to conclude that Z.R. was neglected. Once it passed that hurdle, the trial court faulted Monica for not believing J.K. when J.K. told her about the incident, and concluded that Monica could not be counted on to protect Z.R. from Ralph. I do not understand how the trial court can be critical of Monica for not believing J.K., or of Ralph for not admitting the abuse, when the trial court itself did not believe J.K. By J.K.’s testimony she has been abused by every adult male in whose home she has resided. C.K.’s testimony is much the same. Unless we are to conclude that all men are sex abusers, we should view this testimony with suspicion, as Monica did. We should recognize that children, even children who are victims of sexual abuse, are themselves capable of manipulation and use of the system in order to achieve their own ends. Any foster parents who take in J.K. or C.K. are at considerable risk.
As far as J.K. or C.K. is concerned, perhaps the safest approach is for them to be removed from the Rittenhouse home. The risks attendant to a false negative may be greater than the burdens attendant to a false positive. With Z.R. and B.R., it is another matter. As a result of the flimsy evidence in this case, the trial court has broken up a marriage, and a two-year-old child has been taken from both his parents for some period of time, and from his father perhaps forever. True, the course taken avoids the possibility that Z.R. or B.R. might sometime be abused by Ralph, in the event that the allegations against Ralph are true. That course of action, however, is not without its costs, which I see as overwhelmingly outweighing any benefits. There is no easy answer to these cases. Although the stakes are high, the court must decide them as it does any others, on the basis of the evidence presented, even though it is possible a child may be returned to the custody of a sex abuser. (See In re N.S. (1994), 255 Ill. App. 3d 768, 780, 627 N.E.2d 1178, 1186 (Cook, J., dissenting).) Surely the time has passed when we assume that children do not lie about sexual abuse. See Levy, Using "Scientific” Testimony to Prove Child Sexual Abuse, 23 Fam. L. Q. 383, 391-92 (1989-90).
The trial court indicated it would wait for further evaluations and, hopefully, testimony from experts which will guide it in its future decisions. Even though this case is a difficult one, it is the trial court which must decide it, and reliance on experts is likely to be futile. See, e.g., In re Marriage of Dall (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109 (child placed with DCFS while psychiatrist made unsuccessful attempt to determine who was telling truth).
The State quotes in its brief the report of Dr. Marty Traver, a psychologist:
"What is clear about this couple, however, is that there are factors present which are common in families where there is sexual abuse of the type alleged: a poor and stressed marital relationship, a man of limited intellectual functioning, inappropriate affect, a spouse who refuses to even consider whether or not abuse occurred, and a dominant female with a passive male.”
Dr. Traver stated this was not an implication that Ralph committed the sexual abuse, but I see no other purpose for which it was admitted. Testimony of the characteristics of child abuse perpetrators is improper evidence of past conduct to show the propensity of a defendant to commit crime. (People v. Bradley (1988), 172 Ill. App. 3d 545, 551-52, 526 N.E.2d 916, 921; People v. King (1993), 248 Ill. App. 3d 253, 274-75, 618 N.E.2d 709, 723-24.) Bradley and King were criminal cases but I see no reason for any different rule here. It is a mistake to use this sort of theorizing as a substitute for evidence.
The majority opinion seems to suggest there is no big problem here, because this order was only a custody order, and not an order terminating parental rights. Under our law, however, a finding of negleet by a preponderance of the evidence can become a finding of unfitness by clear and convincing evidence with the passage of time. (750 ILCS 50/l(D)(m) (West 1992) (failure to make reasonable efforts to correct conditions or to make reasonable progress toward return within 12 months after an adjudication of neglect).) If Ralph is not suitable to have custody now, what can he do to correct conditions or make progress in the next 12 months?
In my view, the trial court’s determination that Z.R. has been neglected by his parents is contrary to the manifest weight of the evidence. The decision that it was in the best interests of Z.R. for his father to move out of the marital home and be raised by his mother alone is also contrary to the manifest weight of the evidence. I would reverse the decision of the trial court.