dissenting:
I dissent. I would reverse and remand this matter with directions to vacate the order of protection.
The first issue I will address is whether Lynette’s use of an order of protection to alter Bradley’s visitation rights with regard to B.G. was proper. Here, I believe that Radke v. Radke, 349 Ill. App. 3d 264 (2004), and Wilson v. Jackson, 312 Ill. App. 3d 1156 (2000), are very instructive.
In Radke, the petitioner, Kathryn, was formerly married to the respondent, Ross. Following the dissolution of their marriage, Kathryn was granted residential custody of the parties’ 12-year-old daughter, Laine. Ross was granted visitation.
Thereafter, Kathryn filed a petition for an order of protection on behalf of Laine. Kathryn sought, inter alia, an order prohibiting Ross from abusing, harassing or intimidating Laine. The trial court subsequently issued an emergency ex parte order of protection.
At the subsequent hearing on the petition, Laine testified that she visited her father in January 2003. At that time, she informed Ross that she did not enjoy spending time at his home and that she wanted to return to her mother’s house. When she attempted to call her mother, Ross “ripped the telephone off of the wall” and grounded her. Radke, 349 Ill. App. 3d at 265.
Thereafter, Laine said that she attempted to leave and walk to her mother’s house. When she did, Ross followed her outside, held her arms behind her back, then pushed her inside and into her room. Laine testified that Ross attempted to hit her, but said that she was able to avoid contact by moving backwards. She also said that she suffered a bruise on her arm as a result of this incident.
At the conclusion of the hearing, the trial court found that issues of visitation would not be addressed in the order of protection. “The court specifically noted that it would not restrict Ross’s visitation, correctly recognizing that the purpose of an order of protection, ‘is to protect, not to effectuate changes in visitation.’ ” Radke, 349 Ill. App. 3d at 267.
The court accepted Laine’s testimony that physical force had been used to prevent her from returning to her mother’s house and that Ross had denied her access to a telephone to call her mother. The trial court determined that Ross had improperly prevented Laine from calling Kathryn. Consequently, the court entered a plenary order of protection requiring Ross to refrain from physical abuse, harassment, intimidation or interference with the personal liberty of his daughter for two years from the date of the order. Radke, 349 Ill. App. 3d at 267.
On appeal, Ross argued that: (1) the trial court abused its discretion in granting the order of protection because the evidence failed to establish that he had harassed his daughter, and (2) the order of protection should be vacated because any action to restrict his visitation with his daughter should have been taken under the existing dissolution action rather than by obtaining an order of protection. The Radke court rejected the trial court’s legal conclusion that Ross’s action of denying Laine the ability to use the phone under the circumstances constituted harassment. Radke, 349 Ill. App. 3d at 268.
The Radke court then turned to the question of whether or not the order of protection should be vacated because any action to restrict his visitation should have been taken under the existing dissolution action rather than by obtaining an order of protection. The Radke court agreed with Ross. Its reasoning follows:
“The primary purpose of the Domestic Violence Act is to aid victims of domestic violence and to prevent further violence. 750 ILCS 60/102 (West 2002); Wilson v. Jackson, 312 Ill. App. 3d 1156, 728 N.E.2d 832 (2000). Obtaining an order of protection is not the proper procedure for resolving child custody or visitation issues. Those issues should be resolved under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2002)). Wilson, 312 Ill. App. 3d 1156, 728 N.E.2d 832, citing in re Marriage of Gordon, 233 Ill. App. 3d 617, 599 N.E.2d 1151 (1992).
In Wilson, this court found that the petitioner’s primary purpose in seeking an order of protection was to obtain visitation and custody of his child rather than to prevent abuse. We vacated the order of protection granted by the trial court due to the petitioner’s misuse of the Act, as well as insufficient evidence of abuse. Wilson, 312 Ill. App. 3d 1156, 728 N.E.2d 832.
In this case, Kathryn admitted that she obtained the order of protection to temporarily suspend visitation. Laine also indicated that the order of protection was sought so that she could see her father only when she wanted to see him. The Domestic Violence Act is not the appropriate vehicle for resolving such issues. We note that the order of protection did not restrict Ross’s visitation or contact with Laine. The court narrowly drafted the order to prohibit physical abuse, harassment, interference with personal liberty or intimidation. Nevertheless, based on this record, we believe that Kathryn misused the Domestic Violence Act for the purpose of attempting to alter Ross’s visitation with Laine. For that reason, and because we find that no harassment occurred, we reverse the judgment of the circuit court and vacate the order of protection.” Radke, 349 Ill. App. 3d at 268-69.
In Wilson, the petitioner sought an ex parte order of protection under the Domestic Violence Act in order to obtain custody of his daughter. The Wilson court determined that the petitioner misused the Domestic Violence Act as a means to obtain possession and custody of his daughter from his ex-girlfriend. The ruling of the Wilson court follows:
“In this case petitioner could have filed a petition for visitation or custody under the Parentage Act (see 750 ILCS 45/6(e) (West 1998)) or the Marriage Act (see 750 ILCS 5/601(b)(l)(ii) (West 1998)). Instead, petitioner waited until he had physical custody of the child and then sought an ex parte order of protection. A careful review of the entire record convinces this court that petitioner’s primary purpose in seeking an order of protection was not to prevent abuse but was to obtain visitation with and custody of the child. While petitioner’s desire to be a part of his child’s life is laudable, obtaining an order of protection is not the proper procedure for establishing visitation. Petitioner’s misuse of the Domestic Violence Act in this manner warrants reversal of the plenary order of protection entered in this case. Cf. Gordon, 233 Ill. App. 3d at 648, 599 N.E.2d at 1172 (‘We would be justified in reversing the judgment on the grounds that the judge exceeded his statutory authority and that the Domestic Violence Act was misused ***’). We emphasize that not every case of improper use of the Act would require reversal. It is both the misuse of the Act and the dearth of evidence of abuse, as explained below, that compel reversal.” Wilson, 312 Ill. App. 3d at 1164-65.
The Illinois Marriage and Dissolution of Marriage Act (Marriage Act) provides parents with certain safeguards and protections that they are not afforded under the Domestic Violence Act. Under the Marriage Act, in order to modify a parent’s custodial rights, proper notice must be given and a subsequent hearing must be held. 750 ILCS 5/610(b), 601(c), (d), 603 (West 2000).
This is not so under the Domestic Violence Act. Under the Domestic Violence Act, a parent can circumvent the protections guaranteed under the Marriage Act. In effect, the Domestic Violence Act could be used as a shortcut which would effectuate an ex parte change of status which would modify the status quo ante. In circumstances such as this one, the Domestic Violence Act could be abused and I do not believe that it was intended to be used this manner.
Here, there was an agreed order between Bradley and Lynette that delineated both of their parental rights. If Lynette believed that Bradley was abusing B.G., instead of filing an ex parte petition seeking an order of protection on behalf of C.G. and B.G. against Bradley pursuant to the Domestic Violence Act, I believe that Lynette should have filed an emergency petition to change child custody and visitation under section 603 of the Marriage Act (750 ILCS 5/603 (West 2000)).
Like the petitioners in Radke and Wilson, Lynette improperly sought an order of protection in order to suspend or alter Bradley’s visitation rights with his daughter. As stated in both Radke and Wilson, the Domestic Violence Act is not the proper statute to use to alter a parent’s visitation rights with his or her child. That is precisely what Lynette did. As such, the trial court’s order of protection should be vacated.
The majority attempts to distinguish Radke. Initially, the majority states that Radke is inapplicable to this set of facts because “[hjere 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.” 355 Ill. App. 3d at 110. However, the majority overlooks the fact that although the order of protection was originally filed under the original dissolution case number, the trial court went on to acknowledge that “a search of the court file fails to disclose any response to the currently pending petition.” The trial court then went on to set out and analyze the pertinent issues involved and held that “in accordance with section 220(l)(ii) of the Illinois Domestic Violence Act the said plenary order of protection entered on even date herewith shall remain in effect until vacated or modified by this Court.” The trial court also incorporated the plenary order into the final judgment for dissolution of marriage. The majority cannot ignore the fact that the trial court used the Illinois Domestic Violence Act to alter Bradley’s visitation rights with his daughter.
Furthermore, the majority attempts to characterize the holding in Radke, which concerned the application of the Domestic Violence Act, as dicta. This is just simply erroneous. A reading of the decision in Radke shows that its holding with regard to the Domestic Violence Act is also the law of the case. Radke, 349 Ill. App. 3d at 268-69.
Furthermore, I do not believe that B.G.’s statements were properly corroborated.
Section 606(e) of the Marriage Act states:
“Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” 750 ILCS 5/606(e) (West 2002).
“In In re A.P., 179 Ill. 2d 184 (1997), our supreme court discussed the evidence necessary to corroborate a minor’s hearsay statement of sexual abuse. The purpose of presenting corroborating evidence, the court wrote, was to balance the welfare interests of minors and the rights of those accused of abuse or neglect. A.P., 179 Ill. 2d at 197. The court noted that sufficient corroboration requires more than witnesses testifying that a minor related instances of abuse to them. A.P., 179 Ill. 2d at 198. The court stated:
‘[Clorroborating evidence of *** abuse or neglect requires there to be independent evidence which would support a logical and reasonable inference that the act of abuse or neglect described in the hearsay statement occurred. In essence, corroborating evidence is evidence that makes it more probable that a minor was abused or neglected. The form of the corroboration will vary depending on the facts of each case and can include physical or circumstantial evidence.’ A.P., 179 Ill. 2d at 199.” In re Marriage of Flannery, 328 Ill. App. 3d 602, 610 (2002).
The trial court in the case sub judice determined that the hearsay statements were corroborated with the following evidence: (1) B.G.’s use of anatomically correct dolls to describe what took place, (2) B.G.’s use of the term “project” to describe Bradley’s penis, (3) B.G.’s statement that Bradley’s project was “real little then it got real big,” (4) B.G. statement that Bradley’s privates were different than that of the anatomically correct doll because his was “sticking up,” and (5) when B.G. was asked if anything came out of Bradley’s privates, she responded, “Let’s not talk about it. It’s yucky.”
In finding that there was corroborating evidence, the trial court relied heavily on the cases of In re C.C., 224 Ill. App. 3d 207 (1991), and In re K.L.M., 146 Ill. App. 3d 489 (1986). The trial court considered but refused to follow the decision reached in In re Marriage of Flannery, 328 Ill. App. 3d 602 (2002), which distinguished both In re C.C. and In re K.L.M. Taking our particular set of facts into consideration, I believe that Flannery is more persuasive.
In Flannery, a mother alleged that her three-year-old daughter, Amanda, informed a social worker that “ ‘daddy put his finger in my buddy butt (vagina) and hurt me.’ ” Flannery, 328 Ill. App. 3d at 604. A physical examination of the girl revealed that she suffered vaginal redness. However, the pediatrician who examined the child testified that vaginal redness is quite common among 2V2-year-old girls and explained that there were a lot of things that could explain the cause of the girl’s vaginal redness. Except for the vaginal irritation, the pediatrician was unable to find anything abnormal. Flannery, 328 Ill. App. 3d at 611.
Furthermore, there was evidence that Amanda, who was potty trained, began to “hav[e] accidents” around the time of the alleged abuse. Flannery, 328 Ill. App. 3d at 612. There was testimony that Amanda began waking up in the middle of the night. There was testimony that after Amanda initially informed her mother of the abuse, she made further statements which suggested that her father had abused her. There was also testimony from a social worker who conducted a sexual-abuse-victim assessment of Amanda. The social worker, inter alia, testified about Amanda’s physical actions when she spoke about the alleged sexual abuse she suffered from her father. Flannery, 328 Ill. App. 3d at 612-13.
The trial court determined that there was sufficient evidence to corroborate Amanda’s hearsay statements. The trial court noted that the corroborating evidence consisted of physical evidence and testimony regarding Amanda’s physical actions when she relayed the statements of abuse. Flannery, 328 Ill. App. 3d at 605.
In reversing the trial court, the Flannery court determined that there was inadequate physical evidence and testimony concerning the
physical actions of the child when she relayed the statements of abuse to corroborate the hearsay statement under section 8 — 2601. Flannery, 328 Ill. App. 3d at 610-13. A portion of the Flannery court ruling follows:
“[Tjhis court has previously determined that evidence that is itself hearsay cannot provide the corroboration required by the statute. In re Alba, 185 Ill. App. 3d 286, 290 (1989). Although hearsay is defined as testimony of an out-of-court ‘statement’ that is offered to establish the truth of the matter asserted (People v. Garcia, 195 Ill. App. 3d 621, 626 (1990)), we have applied this definition to physical manifestations as well. See Alba, 185 Ill. App. 3d at 290 (finding that child’s drawing indicating where her father placed his penis was insufficient to corroborate the child’s hearsay statement of sexual abuse; the drawing constituted hearsay because it was offered to establish the truth of the matter asserted). In this case, Amanda’s physical actions were offered to prove petitioner’s claim that Amanda was sexually abused. Accordingly, the actions fit within the definition of hearsay and could not, by themselves, corroborate Amanda’s out-of-court statements of sexual abuse. A contrary holding would effectively nullify the corroboration requirement. Thus, we hold that testimony regarding the physical manifestations that accompany a child’s hearsay statements of abuse is insufficient to corroborate the out-of-court statements when the child’s conduct is the only corroborative evidence presented. Consequently, we must reverse the judgment of the trial court.
Petitioner first relies on In re K.L.M., 146 Ill. App. 3d 489 (1986). In K.L.M., the court found that the minor child’s hearsay statements of sexual abuse by her father were corroborated by (1) testimony of a caseworker for the Department of Children and Family Services and a psychotherapist that the girl was anxious when she related the allegations of abuse; (2) the testimony of the child’s father, who indicated that the four-year-old had limited opportunity to have learned about the sexual matters that she purported to have described; (3) testimony that the minor’s mother had no opportunity to arrange for the child to provide false testimony; and (4) testimony that the girl had a skin irritation in the genital area. K.L.M., 146 Ill. App. 3d at 493-94. Importantly, however, the court pointed out that the child was able to describe semen. K.L.M., 146 Ill. App. 3d at 494. The court believed that the child would have been unable to describe semen unless she had seen it and that it would have been unlikely that she had seen semen unless the events she related had actually taken place.
Petitioner also cites In re C.C., 224 Ill. App. 3d 207 (1991). C.C. involved the alleged sexual abuse of two minors, R.C. and C.C., by their father. In C.C., the court found that the minors’ out-of-court statements of sexual abuse were corroborated by testimony that C.C. had used anatomically correct puppets to recreate a ‘secret game’ he played with R.C. and his father. Moreover, the five-year-old C.C. was able to describe semen, and there was testimony that the behavior of C.C. and R.C. began to change while living with their father. For instance, C.C. began crying over insignificant things, he wet his pants every day, he became less affectionate, he did not want to be touched, he stopped doing schoolwork, and he was hard to motivate. The seven-year-old R.C. frequently wet his pants, had bowel movements in his pants, had frequent tantrums, often cried and whined, and would not let anyone hug him. Further, a medical team interviewed, observed, and psychologically tested both hoys. The team then compiled a ‘composite picture’ of the children and concluded that they had been sexually abused. Based on this evidence, the court concluded that it was more probable than not that the children were sexually abused by their father. C.C., 224 Ill. App. 3d at 215.
We find petitioner’s reliance on K.LM. and C.C. misplaced. In both of those cases there was a myriad of factors beyond the children’s physical manifestations that, when taken together, could support a finding of corroboration. Here, the trial court found only two factors corroborated Amanda’s hearsay statements. However, we have already concluded that there was no physical evidence to corroborate Amanda’s hearsay statements of sexual abuse. Thus, we are left only with Amanda’s physical manifestations. As noted above, there is no authority supporting a finding of corroboration based on the child’s physical conduct alone, and we decline to impose such a finding here.” Flannery, 328 Ill. App. 3d at 614-15.
Here, I believe the trial court improperly determined that the hearsay statements in question had been corroborated. The trial court made this erroneous determination because it only relied on further hearsay to corroborate the original hearsay statements. Taking into consideration the particular set of facts before us, I cannot agree with the decision reached by the majority and the trial court.
In this matter, there was absolutely no physical evidence that corroborated the hearsay statements. Furthermore, the day after the abuse allegedly occurred, when Lynette initially took B.G. to the doctor for an examination, B.G. made no statements to the doctor concerning any alleged abuse. Thereafter, during B.G.’s victim-sensitive interview with Brauweiler, initially B.G. unequivocally informed Brauweiler that Bradley had never touched her privates outside of him giving her a bath.
Moreover, it appears that the trial court failed to realize that Lynette was the only person to state that B.G. referred to Bradley’s penis as a “project.” During B.G.’s interview with Brauweiler, B.G. never referred to Bradley’s penis as a “project.” The only person who did so was Brauweiler, which occurred when Brauweiler asked B.G. “if daddy had asked her about a special project,” and B.G. response was “Yes.” However, B.G. also added “I don’t know what it is and we’re not going to talk about it.”
Lynette was also the only person to say that B.G. informed her that Bradley put his penis in her mouth. This accusation was never repeated by B.G. to anyone other than Lynette. We find this to be unsettling in this matter because there was evidence given by Mulso of JMR which suggested that Lynette may have been in fact coaching B.G. as to what she should say. It also appears that the trial court failed to adequately consider Bradley’s allegations that before their divorce, Lynette had threatened to use his family history of sexual abuse, i.e., his father molesting his sister, against him with regard to the custody of their children.
Furthermore, it also appears that the trial court as well as the majority has ignored the evidence which suggested that Lynette had a strong motive to lie about the alleged abuse. For instance, Lynette admitted that she prevented Bradley from having normal unsupervised visits with the children until he obtained a court order in the context of the divorce proceedings. There was also evidence that Lynette did not like Bradley’s fiancée, Jennifer Ann Licka, and that she did not want her around the children.
Licka also testified that she saw the children on the day that the alleged abuse occurred. In fact Licka saw the children after the abuse allegedly occurred. Licka stated that she did not see anything unusual about the children’s behavior. Licka stated that she was with the children for four hours until they returned home that particular evening. Also, Licka testified that on the day of the alleged abuse, she and Bradley informed the children that they would be getting married and also informed them that they would be participating in the wedding. After this conversation, B.G. then asked if she could come and live with her and Bradley.
As such, I disagree with the majority and believe that, in this particular case, the hearsay statements were not sufficiently corroborated.