{ "id": 1026058, "name": "DARIA W., Indiv. and as Mother of D.W., Petitioner-Appellee, v. BRADLEY W., Respondent-Appellant", "name_abbreviation": "Daria W. v. Bradley W.", "decision_date": "2000-10-17", "docket_number": "No. 3-00-0055", "first_page": "194", "last_page": "201", "citations": [ { "type": "official", "cite": "317 Ill. App. 3d 194" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "688 N.E.2d 642", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "179 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801353 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/179/0184-01" ] }, { "cite": "637 N.E.2d 1258", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5366937 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0266-01" ] }, { "cite": "686 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725065 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0780-01" ] }, { "cite": "697 N.E.2d 891", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910199 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/1038-01" ] }, { "cite": "688 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847545 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0367-01" ] }, { "cite": "657 N.E.2d 680", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906770 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0950-01" ] }, { "cite": "595 N.E.2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "149 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599792 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/149/0190-01" ] } ], "analysis": { "cardinality": 740, "char_count": 15829, "ocr_confidence": 0.726, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3103827674895332 }, "sha256": "0292befb96e00a672d04a664b6f96df01017886473d6378c37ce76f3c9be965b", "simhash": "1:9531bfaafdc71c55", "word_count": 2643 }, "last_updated": "2023-07-14T15:16:30.528913+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DARIA W., Indiv. and as Mother of D.W., Petitioner-Appellee, v. BRADLEY W., Respondent-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SLATER\ndelivered the opinion of the court:\nThe petitioner, Daria W, filed a petition for order of protection on behalf of her minor child, D.W, against the respondent, Bradley W, the father of the child. The trial court entered a plenary order of protection. On appeal, Bradley argues that the trial court erred in applying section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/606(e) (West 1998)) to admit D.W\u2019s hearsay statements. He also claims that the court\u2019s decision to enter the order of protection was against the manifest weight of the evidence. We affirm.\nOn October 30, 1998, Daria filed a verified petition for order of protection against Bradley requesting that his unsupervised overnight visitations be terminated. In her petition, she claimed that Bradley sexually abused their nine-year-old daughter, D.W Daria\u2019s petition alleged that Bradley \u201ctickled\u201d D.W.\u2019s vagina during an overnight stay.\nAt the hearing, Doctor Linda Ozaki testified that she specialized in pediatric medicine and had experience with cases of sexual assault and child molestation. On November 3, 1998, she performed a genital exam of D.W. Dr. Ozaki found that a portion of D.W.\u2019s hymen was missing. She also noticed a notch, a bump, and a healed scar. Dr. Ozaki opined that the injuries to the hymen were consistent with sexual abuse. She did not believe that the injuries were the result of penile penetration because the damage would have been more severe. The trauma to the hymen was consistent with the type of injury that would occur from the insertion of a finger or other small object into the vagina. Dr. Ozaki acknowledged the abuse could have occurred two to three weeks, or two to three years, prior to her examination. She was unable to pinpoint the exact date because injuries to that area of the body heal quickly.\nCrystal Holtrop, a marriage and family therapist, testified that she first met with Daria on October 14, 1998, to discuss a statement made by D.W She interviewed DW in the presence of her mother on October 22. During the interview, Holtrop gave D.W anatomically correct dolls and asked if anything happened to D.W to make her feel uncomfortable. Using the dolls, D.W. indicated that once, when she was asleep at her father\u2019s house, her father came into her room, pulled down her underpants, and tickled her \u201cpoo.\u201d Holtrop stated that D.W. took her finger and put it near the female doll\u2019s underpants. DW told Holtrop that her father\u2019s hands must have been dirty because after the encounter he went to the bathroom and washed them.\nHoltrop met with DW on several other occasions. During a meeting on November 18, DW told Holtrop that her dad came into her room while she was sleeping and tickled her \u201cpoo.\u201d When Holtrop asked DW to show her how he tickled her, D.W stuck her finger inside the girl doll\u2019s vagina. DW reiterated that her father must have had dirty hands because he went to the bathroom and washed them.\nTammy Long, Daria\u2019s sister, testified that on the morning of November 19, 1998, she was driving D.W. to the courthouse. When D.W got into the car, she began crying and told Tammy that her dad just kissed her \u201cpoo\u201d and she did not want to tell the story in front of him.\nDaria testified that she became concerned about D.W.\u2019s sexual tendencies in the summer of 1998. In July of that year, Daria\u2019s mother, Joyce, walked into her bedroom and found D.W. with two of her friends. One of the other girls had her underpants off. When Joyce told Daria about the incident, Daria scolded DW She told her daughter that young girls do not behave that way and D.W could get in trouble with the law. She then asked D.W. if anyone ever touched her \u201cpoo.\u201d D.W responded, \u201cNo.\u201d Daria did not believe her answer and warned her to tell the truth. D.W. said, \u201cOkay, okay, okay. You promise you won\u2019t get mad?\u201d She then told Daria that her daddy tickled her \u201cpoo.\u201d Daria asked her when it occurred. D.W. replied that she was little and that it happened the last time she spent the night at her father\u2019s.\nDaria stated that she discussed the matter with her mother. They thought that D.W. might be mad at Bradley because he did not visit her. Daria and Joyce decided to refrain from immediate action. In September, Daria brought the subject up again. She asked D.W. if she was telling her the truth about the incident with her father. D.W. refused to talk about it. Daria left the matter alone until October 5, 1998. That morning, D.W. started asking Daria questions about Bradley and Daria\u2019s relationship. Daria asked D.W. if Bradley really tickled her \u201cpoo\u201d and D.W. said, \u201cYes.\u201d D.W. stated that Bradley did other things as well but refused to elaborate.\nOn cross-examination, Daria testified that she talked to D.W. about inappropriate touching beginning in 1994. She read books to D.W on the subject. Daria told D.W. numerous times that it was inappropriate for anyone to touch her private parts and D.W should tell her if someone did.\nToni W, Bradley\u2019s wife, testified that D.W did not like to sleep in her room when she spent the night. Toni stated that during the last overnight visitation, D.W. got very upset when it was time to go to bed. She started crying hysterically and saying that her mom never made her sleep alone. She told Bradley she wanted to go home. They called Daria\u2019s house but Daria was not home. Brad and Toni sat with D.W. in her room while she cried herself to sleep.\nToni stated that Bradley limited his visitation with D.W. because he felt that D.W. was tormented and pressured by Daria after D.W. spent time with him. Toni stated that during the last visitation in April of 1998, D.W. told Bradley and Toni that she French kissed a boy. Toni asked her what a French kiss was, and she explained that she kissed him with her mouth open and her tongue in his mouth.\nBradley testified that, during the divorce proceedings, Daria threatened to accuse him of child molestation. Bradley stated that he reduced visitation beginning in 1995 to protect D.W from her mother\u2019s harassment. Bradley denied sexually abusing his daughter.\nOn cross-examination Bradley conceded that during his deposition the only reason he gave for the decrease in visitation was his busy work schedule. Bradley also testified that he was not aware of any statements made by Daria that Bradley sexually molested their daughter.\nHarrison Smith, a child protection investigator with the Department of Children and Family Services, testified that he interviewed D.W. Smith stated D.W. initially said she wanted to forget about the incident but then spontaneously started telling him what happened. According to Smith\u2019s report, D.W stated that she was asleep at her father\u2019s house. She felt someone tickling her \u201cpoo.\u201d She woke up and no one was there. She went to the bathroom and her father was washing his hands. She told Smith that her \u201cpoo\u201d was between her legs.\nThe trial court appointed child therapist Bernadine Frus to conduct an independent evaluation of D.W During the first interview, D.W. picked up an anatomically correct female doll and said that her father tickled her \u201cpoo.\u201d When Frus asked her to demonstrate, D.W inserted her finger into the vagina of the doll. Frus testified that D.W looked very sad while, she was relating the story. D.W. told Frus that she was sleeping and her father came into her room, pulled down her pants, and tickled her \u201cpoo.\u201d According to D.W, her father then went to the bathroom and washed his hands. Frus testified that throughout the sessions D.W consistently named her father as the perpetrator.\nAt the close of evidence, Bradley moved to dismiss. He argued that there had been no determination that the child was unavailable to testify. Thus, he claimed that under section 8 \u2014 2601 of the Code of Civil Procedure (Code) (735 ILCS 5/8 \u2014 2601 (West 1998)) D.W.\u2019s hearsay statements were inadmissable. The trial court noted that the petition concerned Bradley\u2019s visitation and the allegations of abuse involved Bradley and his daughter. Therefore, the court concluded that the case fell under the purview of section 606(e) of the Marriage Act, not section 8 \u2014 2601. The trial court acknowledged that the hearsay statements alone would not support a finding of abuse. However, it found that a determination that the child was unavailable was not required and denied the motion.\nThe trial court found D.W.\u2019s hearsay statements reliable. It considered Daria a credible witness. However, it questioned the veracity of Bradley\u2019s testimony. The court concluded that D.W.\u2019s statements, in conjunction with Dr. Ozaki\u2019s testimony that D.W. was sexually abused, proved Daria\u2019s case by a preponderance of the evidence. Consequently, it entered a two-year plenary order of protection against Bradley.\nDISCUSSION\nOn appeal, Bradley first argues that the trial court erred in applying section 606(e) of the Marriage Act to admit D.W\u2019s hearsay statements alleging sexual abuse. Instead, he claims that the court should have utilized section 8 \u2014 2601 of the Code. That section requires a hearing to establish the statements\u2019 reliability and a determination that the witness is unavailable if the child does not testify.\nPursuant to the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq. (West 1998)), an order of protection shall issue if the court finds that the petitioner has been abused by a family member. 750 ILCS 60/214(a) (West 1998). As a remedy, the court may restrict or deny the respondent\u2019s visitation with a child if the court finds the respondent abused the child during visitation. 750 ILCS 60/214(b)(7) (West 1998).\nSection 606(e) of the Marriage Act states:\n\u201cPrevious statements made by the child relating to any allegations that the child is an abused or neglected child *** 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.\u201d 750 ILCS 5/606(e) (West 1998).\nBy contrast, a statement of sexual abuse made by a child under the age of 13 is admissible under section 8 \u2014 2601 of the Code only after:\n\u201c(1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.\u201d 735 ILCS 5/8 \u2014 2601(a) (West 1998).\nIt is a basic rule of statutory construction that when two statutory provisions deal with the same legal issue, the more specific statute governs. Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 595 N.E.2d 561 (1992). The admission of evidence lies within the discretion of the trial court, and its decision will not be reversed on appeal absent a clear abuse of discretion. Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d 680 (1995).\nBradley claims that section 8 \u2014 2601 of the Code controls the admissibility of the hearsay testimony in the case at bar. He offers no case law or statutory authority in support of this position.\nWe find that section 606(e) is the more specific statute regarding the admission of out-of-court statements in which a child alleges sexual abuse by a parent. Both section 606(e) and section 8 \u2014 2601 concern the admission of hearsay statements by abused children in civil proceedings. However, section 606(e) addresses the admission of those statements when the alleged abuser is the parent. Moreover, section 606(e) specifically mentions that it applies to hearings concerning visitation with the child. Consequently, the trial court properly admitted D.W.\u2019s statements pursuant to section 606(e) of the Marriage Act.\nIn reaching its decision in the case at bar, the trial court relied on In re Marriage of Rudd, 293 Ill. App. 3d 367, 688 N.E.2d 342 (1997). There, the mother requested that the court restrict the father\u2019s visitation in light of the father\u2019s alleged sexual abuse of his niece. At the hearing, the trial court found that statements made by the father\u2019s daughter were admissible under section 606(e) of the Marriage Act. The appellate court concluded that it was not an abuse of discretion to admit the statements made by the daughter pursuant to that section. Rudd, 293 Ill. App. 3d 367, 688 N.E.2d 342. Comparing the statements admitted in Rudd to the hearsay statements in this case, we find no error in the trial court\u2019s decision to admit D.W\u2019s statements pursuant to section 606(e).\nNext, Bradley argues that the trial court\u2019s decision to enter a plenary order of protection was against the manifest weight of the evidence.\nPreliminarily, we note that Bradley claims the standard of review is whether the trial court\u2019s decision is against the manifest weight of the evidence. The proper standard of review is whether the court\u2019s decision is an abuse of discretion. See People ex rel. Minteer v. Kozin, 297 Ill. App. 3d 1038, 697 N.E.2d 891 (1998); Whitten v. Whitten, 292 Ill. App. 3d 780, 686 N.E.2d 19 (1997). Thus, we must determine whether the trial court abused its discretion in entering an order of protection against Bradley.\nThe trial court is in the best position to evaluate the credibility of the witnesses. Kozin, 297. Ill. App. 3d 1038, 697 N.E.2d 891. It has broad discretion to decide whether abuse, as defined in the Domestic Violence Act, occurred. In re Marriage of Lichtenstein, 263 Ill. App. 3d 266, 637 N.E.2d 1258 (1994).\nHere, the trial court heard testimony from several witnesses regarding statements made by D.W. These witnesses testified that D.W. told them her father tickled her \u201cpoo.\u201d Although details of the occurrence varied, her rendition of the specific act of abuse was consistent. In all the conversations, D.W named only her father as the abuser.\nNevertheless, Bradley insists that there was insufficient corroboration of D.W.\u2019s hearsay statements alleging sexual abuse. Specifically, he claims that the medical examiner\u2019s testimony does not support the court\u2019s finding of abuse.\nAlthough Dr. Ozaki could not identify the perpetrator, independent corroboration of the identity of the abuser, in addition to the child\u2019s hearsay statement, is not required. See In re A.P., 179 Ill. 2d 184, 688 N.E.2d 642 (1997). Dr. Ozaki\u2019s examination of D.W. revealed evidence that supported D.W\u2019s claim that she was sexually abused. Dr. Ozaki opined that the vagina had been penetrated with a finger or other small object. She determined that the injury was not the result of penile penetration. The results of her examination were consistent with D.W\u2019s reenactments of abuse and added strength to her statements. Accordingly, we find that the hearsay statements were sufficiently corroborated by Dr. Ozaki\u2019s testimony.\nAfter considering all the evidence, the court determined that D.W\u2019s statements were reliable based on corroborating evidence and the testimony of several credible witnesses. We are in no position to second-guess the trial court\u2019s conclusions on issues of credibility. Accordingly, we must conclude that the court\u2019s decision to enter an order of protection against Bradley was not an abuse of discretion.\nFor the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.\nAffirmed.\nBRESLIN and HOLDRIDGE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SLATER" } ], "attorneys": [ "William R. Stengel, Jr., of Coyle, Gilman & Stengel, of Rock Island, for appellant.", "Theresa L. Sosalla, of Brooks & Trinrud, of Rock Island, for appellee." ], "corrections": "", "head_matter": "DARIA W., Indiv. and as Mother of D.W., Petitioner-Appellee, v. BRADLEY W., Respondent-Appellant.\nThird District\nNo. 3-00-0055\nOpinion filed October 17, 2000.\nWilliam R. Stengel, Jr., of Coyle, Gilman & Stengel, of Rock Island, for appellant.\nTheresa L. Sosalla, of Brooks & Trinrud, of Rock Island, for appellee." }, "file_name": "0194-01", "first_page_order": 214, "last_page_order": 221 }