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7 September 2000

NO. 4-00-0203

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:

In November 1999, after an adjudicatory hearing, thetrial court found respondent father, Dale Johnson, had exposed theminors B.J., B.J., and J.J. to an injurious environment. 705 ILCS405/2-3(1)(b) (West 1998). Therefore, the court adjudicated theminors neglected and placed them in their mother's custody untilafter the dispositional hearing. In its December 1999dispositional order, the court made the minors wards of the court,gave full legal and physical custody to the minors' mother and, atthe discretion of the Department of Children and Family Services(DCFS), granted respondent supervised visitation. Respondentappeals, arguing that (1) the trial court's finding of neglect andsubsequent dispositional order were contrary to the manifest weightof the evidence and (2) the trial court erred by refusing to consider testimony from respondent's psychologist concerning J.J.'scredibility and respondent's character. We affirm.

I. BACKGROUND

Respondent married Ellen Golden (formerly Ellen Johnson)in October 1986. The couple had three children, B.J., B.J., andJ.J. (born April 19, 1990; June 22, 1991; and July 21, 1993,respectively) before divorcing in May 1994. Ellen retained custodyof the children with respondent getting visitation every otherweekend and one day during the week.

In March 1999, the State filed a petition for adjudication of wardship of B.J., B.J., and J.J., alleging that respondentsexually molested J.J. and therefore neglected all three childrenby exposing them to an environment injurious to their welfare. 705ILCS 405/2-3(1)(b) (West 1998).

At the September 1999 hearing on the petition, EllenGolden testified that, since he was around two years old, J.J. hadexhibited unusual bathroom habits. Golden indicated that J.J. didnot "use" the bathroom but would "soil" himself. Further, shewould periodically catch J.J. crossing his legs and trying to "holdit." She testified that, at its worst, J.J. soiled himself threeto four times per day. Golden said that two to three times a weekJ.J. inexplicably urinated in closets or on the floor of hisbedroom. Golden talked with J.J. frequently about his bathroomhabits, but J.J. always said that he did not know why he soiledhimself and urinated on the floor.

Golden recalled an October 1998 conversation with J.J.(who was then five years old) during which J.J. told his motherthat he was scared to go to the bathroom. He said that there werethings in the bathroom that made him afraid. J.J. told her thatrespondent had touched his "private part." Golden stated that shegave J.J. a doll and asked him to point on the doll to whererespondent had touched him. She said J.J. pointed to between thedoll's legs. Golden testified that J.J. said the "touching"happened "a lot" when they stayed at respondent's house. Uponhearing this, Golden called J.J.'s school and asked JohnMcKittrick, a counselor, to speak with J.J.

McKittrick testified that Golden called him in October1998 and asked him to talk to J.J. about J.J.'s unusual bathroomhabits, which usually occurred after he returned from visiting hisfather. McKittrick said Golden did not explicitly tell him thatshe suspected respondent of molesting J.J. McKittrick said J.J.never actually told him that respondent had touched him inappropriately; however, J.J. did indicate that his dad was doing somethingscary to him while he was using the bathroom. Using a doll,McKittrick asked J.J. to show him what was happening in thebathroom. J.J. pointed to an area between the doll's legs. McKittrick said J.J. was visibly emotional during the conversationand had "tears running down his face."

Judy O'Brien, a child protective investigator for DCFS,testified that she met with and interviewed J.J. at his mother'shouse on October 22, 1998. After some general discussion about thedifference between "good touches" and "bad touches," O'Brien askedJ.J. if anybody had ever touched his private parts. J.J. said thathis father had touched his private parts. O'Brien explained toJ.J. the importance of telling the truth about such matters. O'Brien said J.J. initially dropped his head and said that it wasnot true, but then immediately burst into tears and said that itwas true. J.J. said it would happen when he visited his dad at hishouse.

O'Brien further testified that J.J., along with his twosiblings, were interviewed at the Children's Advocacy Center(Center) on October 27, 1998. O'Brien said she, Mike Stroh fromthe State's Attorney's office, Detective Dan Fevor, and Centercoordinator Mary Whitaker were present during the interview. O'Brien said that J.J. seemed very uncomfortable; to almost everyquestion, J.J. responded "I don't know" or "I don't remember." Further, J.J. would hide his face in a pillow or lay on the floorin a fetal position. As a result, O'Brien stated that theytemporarily ended J.J.'s interview and talked with his twosiblings. Both siblings denied having been touched by anyone in asexual or other inappropriate manner. When they resumed theirconversation with J.J., he seemed slightly more relaxed andadmitted that respondent had touched his "privates" more than once. J.J. also stated that he had seen respondent do the same thing tohis siblings.

During the hearing, the court listened to the audiorecording of this interview and reviewed the written transcripts. At the State's request, the court later admitted the transcriptinto evidence.

Sexual abuse therapist Jennifer J. Aranda testified that,in spring 1999, she counseled J.J. and his two siblings regardingrespondent's alleged sexual abuse. Aranda explained that childrenwho are sexually abused sometimes exhibit physical manifestations. Such manifestations can include enuresis (inability to controlone's bladder function) and encopresis (inability to control one'sbowel movements). Further, Aranda said that sexually abusedchildren often exhibit emotional signs of abuse. The variety ofcharacteristics therapists typically look for include actingextremely aggressive, depression, acting out sexually, and/orhaving low self-esteem. Aranda testified that J.J. was oftenwithdrawn and appeared to have low self-esteem. Further, Arandaindicated that J.J.'s history included bouts of aggression.

J.J. testified in camera at the hearing. When askedwhether respondent had ever done anything that made him sad, J.J.responded "yes." After being asked what respondent did that madehim sad, J.J. pointed down toward his pants. Later on, J.J.admitted that respondent had touched his "private area" and noddedhis head up and down in response to being asked whether respondentever hurt him by touching him. Additionally, in response toquestions from the court, J.J. indicated that when respondenttouched his private area, respondent was not trying to clean him upbut was cooking dinner. J.J. further said that it "felt bad" whenrespondent touched him and that it hurt. However, J.J. said thatrespondent only touched him inappropriately on one occasion.

Dr. Larry Sapetti testified that he examined J.J. inNovember 1998. Although Sapetti stated that he examined J.J. onlyonce, other doctors in his practice had examined J.J. since hisinitial visit in January 1997. Sapetti further testified that, atthat time, J.J. was having problems related to enuresis andencopresis. The doctor noted that J.J.'s history indicated thatanother physician had previously treated him for constipation. Additionally, Sapetti commented that sexually abused childrensometimes exhibited, among other things, a regression in toilettraining behavior. Sapetti said that encopresis and enuresis canalso be caused by a number of physical illnesses includingdiabetes, hormone abnormalities, cystic fibrosis, Hirschsprung'sdiseases, and undetected infections. However, Sapetti said thattests performed on J.J. did not indicate a physical cause for histoilet training regression problems. Sapetti also noted that heperformed a visual examination of J.J.'s genitals and anus and sawno evidence of skin tears or scarring. Sapetti further noted thatstress can sometimes cause encopresis and enuresis. Events such asthe birth of a sibling and starting school can sometimes causetoilet training regression. Sapetti also agreed that asthmaattacks, from which J.J. periodically suffered, could be verystressful to a child.

Detective Dan Fevor testified that, after the allegationsof abuse, he interviewed respondent at the McLean County sheriff'sdepartment. Fevor said respondent denied the allegations and was"in the dark" about the allegations. Although recalling noincident or activity that J.J. might have mistaken for an inappropriate touching, respondent conceded that he would jokingly warnJ.J., when he misbehaved, that he was going to "snip" his penisoff. Respondent said that he would display a cutting motion withhis fingers when giving J.J. this warning. Fevor said that abouthalfway through the interview, respondent began shaking and startedto cry.

During his case in chief, respondent testified that hedid not sexually abuse his children. However, respondent admittedthat during 1997 DCFS suspended his visitation rights with J.J. andhis siblings, due to an incident in which respondent spanked J.J.hard enough to leave marks. Respondent said that he administeredthe spanking after J.J. urinated on the wall of the bathroom andsoiled his pants.

Michael Lype testified that he and Ellen Golden (thenJohnson) lived together for about five years beginning in 1993 andending around 1997. Lype said J.J. was about six or seven monthsold when he and Ellen moved in together. Lype recalled that,beginning around age two, J.J. began having bowel and urinaryproblems. J.J. would soil his pants and appeared to try andprevent bowel movements from occurring. In addition, J.J. wouldurinate in the corner of his bedroom. Lype further stated thatwhile he and Ellen lived together, J.J. never complained to himthat respondent had touched him inappropriately. However, Lype didsay that when J.J. visited respondent, J.J.'s bowel and urinaryproblems seemed to increase.

Dr. Melvin French, a clinical psychologist, testifiedthat outside of physical causes or poor toilet training by theparents, encopresis and enuresis are typically caused by psychological factors related to situational or environmental stress. Fora child of J.J.'s age, such stresses could include starting school,relocation, changes to the family system, domestic violence, or thebirth of new siblings. However, he admitted that encopresis andenuresis can also be caused by sexual abuse. In reviewing J.J.'shistory, Dr. French noted that J.J. had undergone relocation, hismother had remarried a man who brought children of his own to thenew home, and J.J. had recently started school. Further, Dr.French noted that, after her divorce from respondent and prior tomarrying her current husband, J.J.'s mother, Ellen, lived with aman who had physically shoved her in J.J.'s presence on at leastone occasion.

Respondent also sought to have Dr. French testify thatJ.J. was not a credible witness and that respondent did not fit theprofile of a sex offender. The State filed a motion in limineseeking to bar Dr. French's testimony in this regard. The courtgranted the State's motion but allowed respondent to make an offerof proof.

During the offer of proof, Dr. French testified that theState presented no "strong credible evidence of childhood sexualabuse." Furthermore, Dr. French stated that J.J. was not acredible witness because of the coercive nature of the interviewprocess employed at the Center. Finally, Dr. French concluded thatDCFS "failed to pursue other explanations," noting that DCFSworkers, in a December 1998 report, stated that "this is not a verystrong case." Dr. French further testified that the psychologicaltests he performed on respondent did not indicate that respondentsuffered from any severe psychopathology, including those relatingto sexual behavior and alcoholism. The court elected to stand onits original decision to bar Dr. French's testimony regardingJ.J.'s credibility and any "profiling" evidence regarding respondent as a sex offender. The court noted that the testimonyregarding J.J.'s credibility invaded the province of the factfinder and that case law clearly indicated that "profiling"testimony was not admissible.

In November 1999, at the conclusion of all the evidence,the trial court found that the State had proved its petition andadjudicated all three minors neglected. In reaching its decision,the court remarked that, in its opinion:

"[C]onsistent statements were given by the[m]inor, that he was touched in his privatearea by his father, and *** the [c]ourt notes*** a consistency about these statements to anumber of different people, including inchambers. *** [T]he [c]ourt believes based onall the evidence[,] that by a preponderance ofthe evidence *** some touching in the sexualarea has occurred[.] *** [T]his created anenvironment *** injurious as related to thechild's sexuality."

In December 1998, the court, in its dispositional order,granted Ellen Golden full custody of all three minors. Further,the court provided respondent supervised visitation, at DCFS'discretion, only after he successfully completes a sex offenderevaluation and provided that the children's therapist agrees suchvisitation is in the minors' best interests. This appeal followed.

II. ANALYSIS

A. The Trial Court's Conclusions

Defendant first argues that the trial court's finding ofneglect and subsequent disposition granting full custody of theminors to Ellen Golden was against the manifest weight of theevidence. With respect to the court's dispositional order,respondent contends that, since the finding of neglect was againstthe manifest weight of the evidence, the court's subsequentdisposition is also against the manifest weight of the evidence. We disagree.

Typically, a circuit court's finding as to whether abuseor neglect occurred will not be disturbed on appeal unless contraryto the manifest weight of the evidence. In re A.P., 179 Ill. 2d184, 204, 688 N.E.2d 642, 652 (1997). This standard is appropriategiven that the trial court is in a far better position than thiscourt to assess the credibility of the witnesses and weigh theevidence. In re T.B., 215 Ill. App. 3d 1059, 1062, 574 N.E.2d 893,896 (1991). A reviewing court will not overturn the trial court'sfindings merely because the reviewing court might have reached adifferent conclusion. T.B., 215 Ill. App. 3d at 1062, 574 N.E.2dat 896.

In this case, J.J. testified, in camera, admitting thatrespondent touched his "private area" and that it "felt bad" whenhe did so. Ellen Golden and Judy O'Brien each testified that J.J.personally told them that respondent had touched him inappropriately, and, according to McKittrick, J.J. indicated respondent wasdoing something scary to him while he was in the bathroom. Furthermore, Detective Fevor and O'Brien said that, during aninterview at the Center, J.J. again stated that respondent hadtouched him inappropriately on more than one occasion and, inaddition, had done the same to B.J. and B.J. The court considerednot just these people's testimony regarding the interview, butactually listened to a tape recording of the interview and reviewedthe written transcripts. Further, on at least three differentoccasions, when asked, J.J. pointed to an area between a doll'slegs to indicate where respondent had touched him.

In addition, more than one witness testified that J.J.'sproblems with encopresis and enuresis could be caused by sexualabuse. While Dr. Sapetti testified that there are other causesbesides sexual abuse, he stated that, after running several tests,he found no physical cause for J.J.'s toilet training regressionproblems. Finally, respondent admitted that he had previouslyphysically abused J.J. and had, as a result, lost his visitationprivileges for about a year. Although the State presented scantevidence regarding respondent's abuse of B.J. and B.J., where atrial court finds that the minors' environment is injurious, itneed not wait until each child becomes a victim or is emotionallydamaged in order to remove the child from the household. T.B., 215Ill. App. 3d at 1062-63, 574 N.E.2d at 896. Parents have a duty toprotect their children from harm, and their failure to provide asafe and nurturing shelter clearly falls within the concept ofstatutory neglect. In re M.K., 271 Ill. App. 3d 820, 826, 649N.E.2d 74, 79 (1995). Given that J.J. consistently identifiedrespondent as the one who touched him, he told several differentpeople the same thing at different times, the witnesses' corroboration of J.J.'s in camera testimony, and the lack of a medicalexplanation for J.J.'s toilet training regression problems, weconclude that the trial court's finding that all three minors wereneglected by virtue of being exposed to an environment injurious totheir welfare was not against the manifest weight of the evidence.

Respondent also urges us to find that the trial court'sdispositional order was against the manifest weight of theevidence. Contrary to respondent's assertion, the correct standardof review is whether the trial court abused its discretion infashioning an appropriate disposition. T.B., 215 Ill. App. 3d at1062, 574 N.E.2d at 896. We also point out that respondentpresented no case law on this issue and, in fact, made no argumentsat all, as required by Supreme Court Rule 341(e)(7) (177 Ill. 2d R.341(e)(7)). Rather, respondent asserted that the trial court erredand deferred to the arguments that he presented regarding the trialcourt's finding of neglect. Given that the trial court's findingsof neglect were not against the manifest weight of the evidence,its subsequent decision to grant custody of the three minors totheir mother, Ellen Golden, and grant respondent supervisedvisitation, at DCFS' discretion, was not an abuse of discretion.

B. Dr. French's Testimony

Respondent contends that the trial court erred bygranting the State's motion to prohibit Dr. French from testifyingthat J.J. was not a credible witness and that respondent did notfit the profile of a sex offender. Typically, a trial court shouldallow expert testimony only if (1) the proffered expert hasknowledge and qualifications uncommon to laypersons that distinguish him as an expert; (2) the expert's testimony would help thefact finder understand an aspect of the evidence that it otherwisemight not understand, without invading the province of the factfinder to determine credibility and assess the facts of the case;and (3) the expert's testimony would reflect generally acceptedscientific or technical principles. People v. Simpkins, 297 Ill.App. 3d 668, 681, 697 N.E.2d 302, 310 (1998).

During the offer of proof, Dr. French testified that, inhis opinion, J.J.'s reports of respondent's abuse were not crediblebecause, during the interview at the Center, the interviewers weretoo forceful in their approach. Further, Dr. French said thatalternative explanations to J.J.'s statements and his toilettraining regression problems were not adequately explored. Withrespect to respondent, Dr. French said that, after conducting"psychological" tests, he got no results indicating that respondentsuffered from serious psychopathology, including sexual behaviorand alcohol problems.

Although Dr. French was competent to testify aboutbehaviors typically exhibited by sexually abused children, he wasnot competent to testify as to whether J.J. was a credible witness. See Simpkins, 297 Ill. App. 3d at 683, 697 N.E.2d at 312. WhetherJ.J. demonstrated behaviors typically exhibited by sexually abusedchildren constitutes circumstantial evidence for the trier of factto consider and give such weight as it deems fit. We reaffirm whatwe said in Simpkins: trial courts should reject the attempt to usepurported expert testimony to bolster or attack a witness'credibility. Simpkins, 297 Ill. App. 3d at 683, 697 N.E.2d at 312.

While concluding that Dr. French could not permissiblytestify that J.J.'s testimony was unreliable, he could testify, asan expert, regarding the technique employed by those questioningJ.J. Certainly, Dr. French could have disputed the validity of thequestioning procedure by which J.J.'s responses were obtained andlet the fact finder draw its own conclusions on whether to believeJ.J.'s answers; however, by asserting that, due to the faultytesting procedure, J.J. was not a credible witness, he invaded theprovince of the fact finder.

Moreover, while respondent could have introduced evidenceof his good character or personality through "general reputation"evidence, the trial court correctly prohibited him from doing sousing the expert personal opinion testimony of Dr. French. Peoplev. Edwards, 224 Ill. App. 3d 1017, 1024, 586 N.E.2d 1326, 1331(1992). Generally, opinion testimony is not a proper method ofadmitting evidence regarding character traits. In re J.M., 226Ill. App. 3d 681, 685, 589 N.E.2d 1101, 1104 (1992). In decliningto admit this portion of Dr. French's testimony, the trial courtfollowed existing law; therefore, we can find no abuse of discretion.

III. CONCLUSION

For the reasons stated, we affirm the judgment of thetrial court.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.