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17 October 2000
                                                                       No. 3--00-0055

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

PRESIDING JUSTICE SLATER delivered the opinion of the court:

The petitioner, Daria W., filed a petition for order ofprotection on behalf of her minor child, D.W., against therespondent, Bradley W., the father of the child. The trial courtentered a plenary order of protection. On appeal, Bradley arguesthat the trial court erred in applying section 606(e) of theIllinois Marriage and Dissolution of Marriage Act (Marriage Act)(750 ILCS 5/606(e) (West 1998)) to admit D.W.'s hearsaystatements. He also claims that the court's decision to enterthe order of protection was against the manifest weight of theevidence. We affirm.

On October 30, 1998, Daria filed a verified petition fororder of protection against Bradley requesting that hisunsupervised overnight visitations be terminated. In herpetition, she claimed that Bradley sexually abused their nine-year-old daughter, D.W. Daria's petition alleged that Bradley"tickled" D.W.'s vagina during an overnight stay.

At the hearing, Doctor Linda Ozaki testified that shespecialized in pediatric medicine and had experience with casesof sexual assault and child molestation. On November 3, 1998,she performed a genital exam of D.W. Dr. Ozaki found that aportion of D.W.'s hymen was missing. She also noticed a notch, abump, and a healed scar. Dr. Ozaki opined that the injuries tothe hymen were consistent with sexual abuse. She did not believethat the injuries were the result of penile penetration becausethe damage would have been more severe. The trauma to the hymenwas consistent with the type of injury that would occur from theinsertion of a finger or other small object into the vagina. Dr.Ozaki acknowledged the abuse could have occurred two to threeweeks, or two to three years, prior to her examination. She wasunable to pinpoint the exact date because injuries to that areaof the body heal quickly.

Crystal Holtrop, a marriage and family therapist, testifiedthat she first met with Daria on October 14, 1998, to discuss astatement made by D.W. She interviewed D.W. in the presence ofher mother on October 22. During the interview, Holtrop gaveD.W. anatomically correct dolls and asked if anything happened toD.W. to make her feel uncomfortable. Using the dolls, D.W.indicated that once, when she was asleep at her father's house,her father came into her room, pulled down her underpants, andtickled her "poo." Holtrop stated that D.W. took her finger andput it near the female doll's underpants. D.W. told Holtrop thather father's hands must have been dirty because after theencounter he went to the bathroom and washed them.

Holtrop met with D.W. on several other occasions. During ameeting on November 18, D.W. told Holtrop that her dad came intoher room while she was sleeping and tickled her "poo." WhenHoltrop asked D.W. to show her how he tickled her, D.W. stuck herfinger inside the girl doll's vagina. D.W. reiterated that herfather must have had dirty hands because he went to the bathroomand washed them.

Tammy Long, Daria's sister, testified that on the morning ofNovember 19, 1998, she was driving D.W. to the courthouse. WhenD.W. got into the car, she began crying and told Tammy that herdad just kissed her "poo" and she did not want to tell the storyin front of him.

Daria testified that she became concerned about D.W.'ssexual tendencies in the summer of 1998. In July of that year,Daria's mother, Joyce, walked into her bedroom and found D.W.with two of her friends. One of the other girls had herunderpants off. When Joyce told Daria about the incident, Dariascolded D.W. She told her daughter that young girls do notbehave that way and D.W. could get in trouble with the law. Shethen asked D.W. if anyone ever touched her "poo." D.W.responded, "No." Daria did not believe her answer and warned herto tell the truth. D.W. said, "Okay, okay, okay. You promiseyou won't get mad?" She then told Daria that her daddy tickledher "poo." Daria asked her when it occurred. D.W. replied thatshe was little and that it happened the last time she spent thenight at her father's.

Daria stated that she discussed the matter with her mother. They thought that D.W. might be mad at Bradley because he did notvisit her. Daria and Joyce decided to refrain from immediateaction. In September, Daria brought the subject up again. Sheasked D.W. if she was telling her the truth about the incidentwith her father. D.W. refused to talk about it. Daria left thematter alone until October 5, 1998. That morning, D.W. startingasking Daria questions about Bradley and Daria's relationship. Daria asked D.W. if Bradley really tickled her "poo" and D.W.said, "Yes." D.W. stated that Bradley did other things as wellbut refused to elaborate.

On cross-examination, Daria testified that she talked toD.W. about inappropriate touching beginning in 1994. She readbooks to D.W. on the subject. Daria told D.W. numerous timesthat it was inappropriate for anyone to touch her private partsand D.W. should tell her if someone did.

Toni W., Bradley's wife, testified that D.W. did not like tosleep in her room when she spent the night. Toni stated thatduring the last overnight visitation, D.W. got very upset when itwas time to go to bed. She started crying hysterically andsaying that her mom never made her sleep alone. She told Bradleyshe wanted to go home. They called Daria's house but Daria wasnot home. Brad and Toni sat with D.W. in her room while shecried herself to sleep.

Toni stated that Bradley limited his visitation with D.W.because he felt that D.W. was tormented and pressured by Dariaafter D.W. spent time with him. Toni stated that during the lastvisitation in April of 1998, D.W. told Bradley and Toni that shefrench kissed a boy. Toni asked her what a french kiss was, andshe explained that she kissed him with her mouth open and hertongue in his mouth.

Bradley testified that during the divorce proceedings, Dariathreatened to accuse him of child molestation. Bradley statedthat he reduced visitation beginning in 1995 to protect D.W. fromher mother's harassment. Bradley denied sexually abusing hisdaughter.

On cross-examination Bradley conceded that during hisdeposition the only reason he gave for the decrease in visitationwas his busy work schedule. Bradley also testified that he wasnot aware of any statements made by Daria that Bradley sexuallymolested their daughter.

Harrison Smith, a child protection investigator with theDepartment of Children and Family Services, testified that heinterviewed D.W. Smith stated D.W. initially said she wanted toforget about the incident but then spontaneously started tellinghim what happened. According to Smith's report, D.W. stated thatshe was asleep at her father's house. She felt someone ticklingher "poo." She woke up and no one was there. She went to thebathroom and her father was washing his hands. She told Smiththat her "poo" was between her legs.

The trial court appointed child therapist Bernadine Frus toconduct an independent evaluation of D.W. During the firstinterview, D.W. picked up an anatomically correct female doll andsaid that her father tickled her "poo." When Frus asked her todemonstrate, D.W. inserted her finger into the vagina of thedoll. Frus testified that D.W. looked very sad while she wasrelating the story. D.W. told Frus that she was sleeping and herfather came into her room, pulled down her pants, and tickled her"poo." According to D.W., her father then went to the bathroomand washed his hands. Frus testified that throughout thesessions D.W. consistently named her father as the perpetrator.

At the close of evidence, Bradley moved to dismiss. Heargued that there had been no determination that the child wasunavailable to testify. Thus, he claimed that under section 8--2601 of the Code of Civil Procedure (Code) (735 ILCS 5/8--2601(West 1998)) D.W.'s hearsay statements were inadmissable. Thetrial court noted that the petition concerned Bradley'svisitation and the allegations of abuse involved Bradley and hisdaughter. Therefore, the court concluded that the case fellunder the purview of section 606(e) of the Marriage Act, notsection 8--2601. The trial court acknowledged that the hearsaystatements alone would not support a finding of abuse. However,it found that a determination that the child was unavailable wasnot required and denied the motion.

The trial court found D.W.'s hearsay statements reliable. It considered Daria a credible witness. However, it questionedthe veracity of Bradley's testimony. The court concluded thatD.W.'s statements, in conjunction with Dr. Ozaki's testimony thatD.W. was sexually abused, proved Daria's case by a preponderanceof the evidence. Consequently, it entered a two-year plenaryorder of protection against Bradley.

On appeal, Bradley first argues that the trial court erredin applying section 606(e) of the Marriage Act to admit D.W.'shearsay statements alleging sexual abuse. Instead, he claimsthat the court should have utilized section 8--2601 of the Code. That section requires a hearing to establish the statements'reliability and a determination that the witness is unavailableif the child does not testify.

Pursuant to the Illinois Domestic Violence Act (DomesticViolence Act) (750 ILCS 60/101 et seq. (West 1998)), an order ofprotection shall issue if the court finds that the petitioner hasbeen abused by a family member. 750 ILCS 60/214(a) (West 1998). As a remedy, the court may restrict or deny the respondent'svisitation with a child if the court finds the respondent abusedthe child during visitation. 750 ILCS 60/214(b)(7) (West 1998).

Section 606(e) of the Marriage Act states:

"Previous statements made by the child relating toany allegations that the child is an abused orneglected child *** shall be admissible in evidence ina hearing concerning custody of or visitation with thechild. No such statement, however, if uncorroboratedand not subject to cross-examination, shall besufficient in itself to support a finding of abuse orneglect." 750 ILCS 5/606(e) (West 1998).

By contrast, a statement of sexual abuse made by a child underthe age of 13 is admissible under section 8--2601 of the Codeonly after:

"(1) the court conducts a hearing outside the presenceof the jury and finds that the time, content, andcircumstances of the statement provide sufficientsafeguards of reliability; and (2) the child either:(i) testifies at the proceeding; or (ii) is unavailableas a witness and there is corroborative evidence of theact which is the subject of the statement." 735 ILCS5/8--2601(a) (West 1998).

It is a basic rule of statutory construction that when twostatutory provisions deal with the same legal issue, the morespecific statute governs. Hernon v. E.W. Corrigan ConstructionCo., 149 Ill. 2d 190, 595 N.E.2d 561 (1992). The admission ofevidence lies within the discretion the trial court, and itsdecision will not be reversed on appeal absent a clear abuse ofdiscretion. Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d680 (1995).

Bradley claims that section 8--2601 of the Code controls theadmissibility of the hearsay testimony in the case at bar. Heoffers no case law or statutory authority in support of thisposition.

We find that section 606(e) is the more specific statuteregarding the admission of out-of-court statements in which achild alleges sexual abuse by a parent. Both section 606(e) andsection 8--2601 concern the admission of hearsay statements byabused children in civil proceedings. However, section 606(e) addresses the admission of those statements when the allegedabuser is the parent. Moreover, section 606(e) specificallymentions that it applies to hearings concerning visitation withthe child. Consequently, the trial court properly admittedD.W.'s statements pursuant to section 606(e) of the Marriage Act. In reaching its decision in the case at bar, the trial courtrelied on in In re Marriage of Rudd, 293 Ill. App. 3d 367, 688N.E.2d 342 (1997). There, the mother requested that the courtrestrict the father's visitation in light of the father's allegedsexual abuse of his niece. At the hearing, the trial court foundthat statements made by the father's daughter were admissibleunder section 606(e) of the Marriage Act. The appellate courtconcluded that it was not an abuse of discretion to admit thestatements made by the daughter pursuant to that section. Rudd,293 Ill. App. 3d 367, 688 N.E.2d 342. Comparing the statementsadmitted in Rudd to the hearsay statements in this case, we findno error in the trial court's decision to admit D.W.'s statementspursuant to section 606(e).

Next, Bradley argues that the trial court's decision toenter a plenary order of protection was against the manifestweight of the evidence.

Preliminarily, we note that Bradley claims the standard ofreview is whether the trial court's decision is against themanifest weight of the evidence. The proper standard of reviewis whether the court's decision is an abuse of discretion. SeePeople ex rel. Minteer v. Kozin, 297 Ill. App. 3d 1038, 697N.E.2d 891 (1998); Whitten v. Whitten, 292 Ill. App. 3d 780, 686N.E.2d 19 (1997). Thus, we must determine whether the trialcourt abused its discretion in entering an order of protectionagainst Bradley.

The trial court is in the best position to evaluate thecredibility of the witnesses. Kozin, 297 Ill. App. 3d 1038, 697N.E.2d 891. It has broad discretion to decide whether abuse, asdefined in the Domestic Violence Act, occurred. In re Marriageof Lichtenstein, 263 Ill. App. 3d 266, 637 N.E.2d 1258 (1994).

Here, the trial court heard testimony from several witnessesregarding statements made by D.W. These witnesses testified thatD.W. told them her father tickled her "poo." Although details ofthe occurrence varied, her rendition of the specific act of abusewas consistent. In all the conversations, D.W. named only herfather as the abuser.

Nevertheless, Bradley insists that there was insufficientcorroboration of D.W.'s hearsay statements alleging sexual abuse. Specifically, he claims that the medical examiner's testimonydoes not support the court's finding of abuse.

Although Dr. Ozaki could not identify the perpetrator,independent corroboration of the identity of the abuser, inaddition to the child's hearsay statement, is not required. SeeIn re A.P., 179 Ill. 2d 184, 688 N.E.2d 642 (1997). Dr. Ozaki'sexamination of D.W. revealed evidence that supported D.W.'s claimthat she was sexually abused. Dr. Ozaki opined that the vaginahad been penetrated with a finger or other small object. Shedetermined that the injury was not the result of penilepenetration. The results of her examination were consistent withD.W.'s re-enactments of abuse and added strength to herstatements. Accordingly, we find that the hearsay statementswere sufficiently corroborated by Dr. Ozaki's testimony.

After considering all the evidence, the court determinedthat D.W.'s statements were reliable based on corroboratingevidence and the testimony of several credible witnesses. We arein no position to second-guess the trial court's conclusions onissues of credibility. Accordingly, we must conclude that thecourt's decision to enter an order of protection against Bradleywas not an abuse of discretion.

For the foregoing reasons, the judgment of the circuit courtof Rock Island County is affirmed.

Affirmed.

BRESLIN and HOLDRIDGE,J.J., concur.