Find Legal Information

Docket No. 97059-Agenda 16-May 2004.

In re MARRIAGE OF NORMA PEREZ DE BATES, Appellant, and
R. EDWARD BATES, Appellee.

Opinion filed October 28, 2004.
 

JUSTICE KILBRIDE delivered the opinion of the court:

Following a lengthy hearing on the petition of Edward Bates tomodify custody, the trial court terminated Norma Bates' custody ofthe minor child, awarded custody to Edward, and restricted Norma'svisitation rights pending a professional evaluation. The court alsodenied Edward's petition to terminate unallocated maintenance andsupport based on an alleged continuing conjugal relationship betweenNorma and another man. Prior to the hearing, the court deniedNorma's constitutional challenge to section 506(a)(3) of the IllinoisMarriage and Dissolution of Marriage Act (Act) (750 ILCS5/506(a)(3) (West 2002)) and, at trial, read and relied on the writtenreport of the child's representative appointed pursuant to that statute.Norma appealed, Edward cross-appealed, and the appellate courtaffirmed. 342 Ill. App. 3d 207. We granted Norma leave to appeal.177 Ill. 2d R. 315. Edward seeks cross-relief. 155 Ill. 2d R. 318. Wenow affirm.

BACKGROUND

The parties were granted a judgment of dissolution, incorporatinga joint parenting agreement, on July 14, 2000. The agreementprovided that the minor child, S.B., would reside primarily withNorma, subject to Edward's defined rights of visitation. Theagreement mandated the "involvement and cooperation of bothparents" in S.B.'s best interests, and both parents were ordered to usetheir "best efforts to foster the respect, love and affection of S.B.toward each parent" and to "cooperate fully in implementing arelationship with S.B. that would give her the maximum feeling ofsecurity that may be possible." The judgment further provided thatEdward would pay unallocated family support to Norma until one ofseveral described events, including the death of either party, theremarriage of Norma, or the cohabitation of Norma on a resident,continuing, conjugal basis as determined by a court after notice and ahearing.

On March 9, 2001, Norma filed a petition for modification ofvisitation and other relief, alleging that Edward had breached the jointparenting agreement and that S.B. was experiencing extreme anxietyand distress following contact with her father. She also requestedappointment of a guardian ad litem pursuant to section 506(a) of theAct (750 ILCS 5/506(a) (West 2000)). In an agreed order, attorneyJohn Bush was appointed as the child's representative. The record issilent as to why a child representative was appointed, rather than aguardian ad litem as requested by Norma.

On March 19, 2001, Edward petitioned the court for a rule toshow cause why Norma should not be held in contempt for denyinghim all contact with S.B., including by telephone, beginning aroundJanuary 1, 2001. Edward's petition claimed that Norma failed todiscuss decisions regarding S.B.'s activities with him; that sheunilaterally transferred S.B. to a different school without prior noticeto or discussion with Edward; and that she repeatedly denigratedEdward in the presence of S.B. On May 15, 2001, Edward petitionedto modify the judgment for dissolution, including custody, assertingthe same grounds as a willful violation of the judgment of dissolutionand the joint parenting agreement. Edward also sought termination ofthe unallocated family support, alleging that Norma had cohabited ona resident, continuing, conjugal basis with another man. The matterwas set for trial on all issues on December 19, 2001.

Pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West2000)), the court appointed Dr. Gerald Blechman to evaluate thepostjudgment visitation dispute and to make a recommendation for itsresolution. After interviewing S.B., Dr. Blechman became concernedabout her emotional stability and suggested to the court that she bereferred to Dr. Roger Thatcher for therapy. Dr. Thatcher began hisinvolvement as a therapist in September 2001.

On October 1, 2001, Dr. Blechman sent his evaluation to thecourt and to all attorneys, including the child's representative. Thereport recounted diagnostic interviews with S.B. and her parents, acollateral interview with Kristin La Scala (a daughter of Edward), andpsychological testing administered to Norma and Edward. Dr.Blechman concluded that Norma had induced alienation of S.B. fromher father and that this had taken a significant toll on S.B.'s mentalhealth. He recommended immediate intervention to restore the father-daughter relationship. He suggested family therapy two or three timesa week with Edward and S.B., and a strong admonishment to Normato cooperate with the program, including ceasing any form of abuseallegations against Edward.

At the request of Edward, the court, pursuant to Supreme CourtRule 215 (166 Ill. 2d R. 215), required Norma to submit to apsychological examination by Dr. Robert Shapiro. After conductingthree clinical interviews and psychological testing on Norma inOctober and November 2001, Dr. Shapiro submitted his writtenreport, admitted in evidence at trial. He concluded that most of thepsychological testing was invalid because Norma's answers producedresults indicative of an individual who is purposely trying to deceiveand present herself as virtuous. He recounted that Norma reported shewas afraid of Edward caring for S.B. because he was an alcoholic whowas "always drunk."

Norma also reported that S.B. did not enjoy her visitations withEdward. At the time of his evaluation of Norma, S.B. had not visitedher father since January 2001. Norma acknowledged that she calledpolice in Florida on three occasions while S.B. was visiting Edwardthere during the Christmas holiday in 2000 because she could notreach S.B. and was worried about her safety. Dr. Shapiro concludedthat the presence of police during this vacation disrupted the qualityof the vacation and served to remind S.B. of her mother'somnipotence. He could not confirm the existence of parent alienationbecause he had not evaluated the child, the child-father relationship,and the child-mother relationship.

At the request of Norma, the court appointed Dr. Patrick J.Kennelly, a licensed clinical psychologist with a practice in thetreatment of alcoholism, to conduct an examination of Edwardpursuant to Supreme Court Rule 215 (166 Ill. 2d R. 215). Heconducted three interviews with Edward in October 2001 andadministered psychological testing and alcoholism screening tests. Hefurnished a written report, concluding that Edward had no evidenceof psychological disorders and that the testing showed no indicationof alcoholism.

The child's representative proceeded with an investigation andfiled a written report with the court on November 19, 2001. Theparties also conducted extensive discovery.

On January 11, 2002, the court ordered Dr. Blechman to conducta reevaluation concerning whether the recommended steps weresuccessful in improving S.B.'s relationship with her father. He filed anupdated evaluation on January 24, 2002, concluding that Norma wasstill manipulating S.B. and recommending that sole custody of S.B. begiven to Edward, with supervision of Norma's visitation by aprofessional familiar with parental alienation syndrome. He alsorecommended continued psychotherapy for S.B. and her father for theforeseeable future and strongly recommended that Norma seekpsychotherapy.

Pretrial Motions

On December 14, 2001, Norma filed a number of motions. Shemoved to dismiss Edward's petition to modify custody pursuant tosection 2-615 of the Code of Civil Procedure (Code) (735 ILCS5/2-615 (West 2000)), alleging the failure of Edward to presentaffidavits establishing a reason to believe S.B.'s physical, mental,moral or emotional health was seriously endangered by the presentenvironment, as required by section 610 of the Act (750 ILCS 5/610(West 2000)).

Norma next filed a motion to bar the testimony of Dr. RichardGardner, Edward's disclosed expert witness, on the ground that thesubject matter of his testimony, parental alienation syndrome (PAS),did not meet the reliability requirements set out in Frye v. UnitedStates, 293 F. 1013 (D.C. Cir. 1923).

Norma then filed a "motion to order child representative to testifyor in the alternative to strike his recommendations and for declaratoryjudgment regarding the constitutionality of 750 ILCS 5/506." Themotion claimed that Norma's right to due process of law would bedenied if the child's representative were allowed to present his reportwith no attendant right to cross-examine him. The motion asked thecourt either to strike and disregard the recommendations of Mr. Bush,or to order him to submit to deposition and to testify in the case, or todeclare the statute unconstitutional "on its face and/or as applied toNorma Perez."

Finally, Norma filed a motion pursuant to section 2-619(a)(9) ofthe Code (735 ILCS 5/2-619(a)(9) (West 2000)) to dismiss Edward'spetition to modify custody on the ground that Edward had improperlyasserted the physician-patient privilege when his physical and mentalhealth were at issue.

Edward filed written responses to those motions, asserting, interalia, that Norma had filed dispositive motions less than 63 days beforetrial, in violation of a local rule. The motions were called for hearingon the first day of trial and decided the following day.

On December 20, 2001, the court denied Norma's section 2-615motion, finding that Edward's verification of the pleading wassufficient and noting that Norma had participated in extensivediscovery without objection. On January 15, 2002, the court allowedEdward to file an affidavit in support of his petition to modifycustody, noting that it asserted no changes in the facts alleged in thepetition. Norma's section 2-619(a)(9) motion was stricken because ofits late filing, without prejudice to her right to raise the assertion ofprivilege issue at trial.

The court struck Norma's motion to bar the testimony of Dr.Gardner as untimely. However, the court treated it as a motion inlimine and also ordered a Frye hearing, to commence on January 15,2002.

The court found that the child representative's report was "in thenature of a prejudgment or a pretrial pleading" and "not evidence,"but the court sealed the report. The court reasoned that the pretrialsubmission of the report did not implicate the challenged provisionsof section 506 of the Act, and the court accordingly denied Norma'srequest to declare the statute unconstitutional.

On December 18, 2001, Edward filed an amended motion to barwitnesses, including Dr. Jeffrey Johnson, a physician designated as anexpert by Norma, because of late disclosure and failure to comply withthe requirements of Supreme Court Rules 213(f) and (g) (177 Ill. 2dRs. 213(f), (g)). The court entered an order barring Dr. Johnson fromtestifying because his report had not been identified and filed in atimely fashion. The court also denied Norma's motion in limine to barEdward from testifying at trial because of his assertion of physician-patient privilege, observing that she failed to file a motion to compelanswers to the deposition questions.

The Frye Hearing

Edward, as proponent of the PAS testimony, proffered threeexpert witnesses and 136 articles from peer-reviewed publications asexhibits. Norma proffered no witnesses and no exhibits.

Dr. R. Christopher Barden, an attorney and a psychologistlicensed in Minnesota and Texas, testified that he is familiar with PASand that he believed everyone in the social sciences field is familiarwith the term. He characterized PAS as a useful and clear descriptionof a set of symptoms or clusters, commonly seen in child custodyproceedings, when one parent is actively involved in turning a childagainst the other parent.

Dr. Barden testified that PAS is generally accepted in the relevantscientific community. He based his opinion on his clinical experienceand on his extensive perusal of peer-review publications referencingthe syndrome. Peer-review publications are journals and othercompendiums where research articles are reviewed for accuracy andmethodology by a panel of experts in the relevant field. Dr. Bardenidentified several peer-reviewed articles submitted by Dr. RichardGardner and other authors describing and authenticating PAS. Copiesof these articles were admitted in evidence. In Dr. Barden's opinion,the concept of PAS is not novel, having been first referenced in 1994by the American Psychological Association. Although PAS is notdescribed in the Diagnostic and Statistical Manual of MentalDisorders, Fourth Edition (DSM-IV), published by the AmericanPsychiatric Association in 1994, Dr. Barden did not believe that factindicated rejection of the syndrome, noting that another revision of theDSM is expected by 2010.

Dr. Richard Gardner, a board-certified psychiatrist and a clinicalprofessor of child psychiatry, also testified. He referenced severalbooks on PAS and an index of 59 articles on PAS written by his peers.He has written 13 published articles on PAS. He described PAS as adisorder arising primarily, if not exclusively, in the context of childcustody disputes. It results from the combination of one parent'sprogramming or brainwashing a child into a campaign of denigrationagainst the other parent, and the undue indoctrination of the child bythe programing parent with his or her own inflated "contributions."This combination, in his opinion, results in PAS. Dr. Gardner testifiedthat PAS is generally accepted in the relevant psychiatric andpsychological communities.

Dr. Robert B. Shapiro, a clinical psychologist licensed in Illinoisand a member of the Board of Evaluators, used by the Du PageCounty circuit court to evaluate families in custody disputes, alsotestified that PAS was generally accepted by the relevantpsychological community, observing that "I don't know anybody whodoesn't accept it." Dr. Shapiro himself has diagnosed PAS many timesand has testified often in court on the subject.

At the conclusion of the hearing, the court found "that theprinciple of Parental Alienation Syndrome is sufficiently established tohave gained general acceptance in the particular field."

The Trial

Numerous witnesses testified, either in person or by evidencedeposition, at the trial beginning on February 26, 2002, and continuingintermittently until its conclusion on April 17, 2002. Among thewitnesses were court-appointed evaluators, retained experts, treatingpractitioners, as well as the parties, family members, police officers,and private investigators.

Dr. Roger Hatcher, S. B.'s court-appointed therapist, was calledas a witness by Edward. He is a licensed psychologist and is thepractice director at PsychCare Associates in Aurora. He found S.B.'smental health to be severely compromised. She was acutely andseverely distressed with major symptoms of anxiety and panic relatingto Edward caused by Norma's influencing the child against her father.He found no evidence that any of her distress was caused by Edward.If not for therapeutic intervention, she was headed for an increasinglysevere psychiatric crisis. After a series of sessions with S.B. andinterviews with both parents, Dr. Hatcher set up a visitation schedule.After the visits, S.B.'s condition improved and her relationship withEdward was better.

Dr. Shapiro, who conducted the Rule 215 evaluation of Norma,identified three occurrences consistent with alienation: (1) Norma'sseries of phone calls to Florida during S.B.'s visitation with Edward;(2) Norma's registering S.B. in school under the surname "Perez," and(3) Norma's failure to maintain S.B.'s scheduled visitation with herfather.

Dr. Kennelly, who conducted the Rule 215 examination ofEdward, concluded that Edward showed no evidence of majorpsychological disorders. He testified that Edward's test results foralcoholism were insignificant.

Dr. Blechman, the court's section 604(b) evaluator, testified thatS.B. fit the typical criteria for PAS. Her complaints about her fatherdid not appear to be valid. Although she would obsessively repeat thesame accusations against her father, she could provide no explanationwhen pressed for particulars. In Dr. Blechman's opinion, S.B. hadfalse memories suggested or created by Norma. Although S.B. toldhim that her father struck her during the Florida vacation, he chosenot to believe her. Based on his interviews with the parties, hisobservations, and his conversations with Dr. Hatcher, he opined thatresidential custody of S.B. should be awarded to Edward, subject tosupervised visitation by Norma with a professional present.

Dr. Richard Gardner testified regarding PAS and the allegedalcoholism of Edward. He did not conduct clinical interviews withS.B. or Norma, but rendered hypothetical opinions based on hisreview of documents, reports, depositions and information conveyedto him by Edward. Among the materials reviewed were Dr.Blechman's reports and notes, letters from Dr. Hatcher, police reportsfrom Florida, and the report of child representative John Bush.

Dr. Gardner defined PAS as a psychiatric disorder arising in thecontext of a child custody dispute. In this disorder, one parent"programs" or "brainwashes" a child into a campaign of denigrationagainst the other parent, even though that other parent is generallygood and loving. The denigrating custodial parent inflates his or herown contributions, and PAS arises as a result of a combination of boththe undue denigration and the inflated heightening of the custodialparent's contributions. In Dr. Gardner's opinion, S.B. exhibited classicsigns and symptoms of PAS in the moderate category. He concludedthat therapy for the child would be useless as long as she lived withher mother. Dr. Gardner also concluded that Edward is not analcoholic and that his possible consumption of some alcohol did notinterfere with his parenting.

Edward testified that S.B. had been taken out of her previousschool without his knowledge, and he was required to go to court inSeptember 2000 to learn her new school, home address, and phonenumber. Edward also testified concerning the Florida visitationincident. He described the trip he took with S.B. to Florida inDecember of 2000 as apparently a happy and good one for her. Heobserved that on December 29, while S.B. was speaking with hermother on the telephone, she appeared to become agitated. A sheriff'sdeputy soon arrived, spoke with S.B., and also spoke with Norma onthe telephone. No official action was taken. At approximately 1 a.m.the following morning, the same deputy arrived and said he had beencalled by Norma. He conferred with Edward, who showed him toS.B.'s room, where she was sleeping. The deputy again left, withouttaking any action. At 12:15 p.m. another deputy arrived, spoke withEdward and S.B., and left without taking any action.

Edward's account of these events was essentially corroboratedby Richard Young, the deputy who first arrived. His testimony was inthe form of an evidence deposition taken telephonically at the instanceof Mr. Bush, the child representative. The deposition was taken duringtrial, with leave of court, and over Norma's objection. Counsel for allparties participated in the deposition. Norma objected to the testimonybecause Deputy Young was not disclosed as a witness as required bythe court's pretrial order. The objection was overruled, and DeputyYoung's deposition was read into evidence. He testified that he wasdispatched as a result of a Teletype message from Illinois, requestinga check on the child's welfare. He could discern no physical injury orabuse to S.B., and she made no claim that Edward had harmed her,although she seemed upset when he arrived. He returned later thatnight in response to another Teletype message from Illinois,requesting another welfare check and asking for S.B. to call hermother. Since the child was sleeping, Edward told him he would haveher call her mother in the morning.

Edward related that after January 1, 2001, S.B. ceased beinganimated and vocal with him, instead becoming withdrawn anddifficult to engage in conversation. On numerous occasions hetelephoned Norma's residence seeking to speak with S.B., but his callswent unanswered or unreturned.

Norma claimed Edward was drinking and abusing S.B. during theFlorida trip, thus occasioning her telephoning the police. Sheadmitted, however, that police found no evidence of eitherintoxication or abuse. Norma claimed that she always let S.B. speakwith Edward when he telephoned or left a message for S.B. Hertelephone records revealed, however, no return calls to Edward'shome or cell phone numbers. Further, although she claimed thatvisitation between Edward and S.B. did not occur in 2001 onlybecause of Edward's preference, several letters were introduceddemonstrating that Edward continuously requested his scheduledvisitation during that time.

Several witnesses, including family members and privateinvestigators, testified as to the frequency and amount of Edward'salcohol consumption. Edward admitted drinking wine frequently andrum and coke occasionally, but denied being intoxicated or drinkingin S.B.'s presence. He said that his last alcohol consumption wasabout mid-February 2002, and that he had quit drinking because it hadbecome an issue.

The court declined to conduct an in camera interview with S.B.on the issue of whether she was abused by Edward in Florida becausethere was a meaningful risk of putting the 10-year-old child in aposition of blaming herself for the outcome of the case. The courtnoted that "I can't possibly put that child through it. I'm not going tohave her come into this courtroom."

Norma admitted knowing Parmod Malik, an airline pilot, for 15to16 years, and said they planned on getting married some day. Shemoved into a home in St. Charles owned by Malik, and admitted thatMalik stayed overnight there with her on occasion since January 2001,and that they had sexual relations on two of his visits. Nonetheless,they maintained separate residences and have not vacationed together.Neither Norma nor Malik keeps personal belongings in the home ofthe other. Each is responsible for his or her own expenses and homemaintenance, and they do not commingle any funds. Although Normaadmitted writing checks to Malik, she claimed they were rentalpayments on the St. Charles home. A private investigator employedby Edward testified that he observed Malik and Norma kissing andhugging on several occasions. He also saw Malik enter Norma's homeseveral times, but did not see him leave.

At the close of the hearing, child representative Bush offered hissealed report in evidence. The court allowed its admission overNorma's objection that it contained hearsay and that she had beendenied the right to cross-examine Bush.

Bush's report described his interviews with S.B., Edward, andNorma, and various school and medical records provided by theparties, as well as his observations of visitations between S.B. andEdward. S.B. related to Bush that she enjoyed the Florida trip anddenied that any abuse occurred. S.B. said she did not want to visitEdward because he gets drunk and she feared he would hurt her. Shedescribed recollections of Edward coming home drunk and "pokingher in the eyes and stepping on her toes" when she was smaller. Sheadmitted she has never seen him drink alcohol and could not articulateany reason for her fears. Additionally, Bush attached the first writtenreport of Dr. Blechman and the written report of Dr. Mark Goldstein,a psychologist who had completed a court-ordered child custodyevaluation prior to the judgment of dissolution. The report concludedwith Bush's recommendation that physical custody of S.B. betransferred to Edward.

The trial court found that Edward had proved, by clear andconvincing evidence, that S.B.'s present environment seriouslyendangered her physical, mental, moral or emotional health, and thatit was in S.B.'s best interests that Edward be awarded sole custodyimmediately. The court abated visitation between S.B. and Normauntil further order of court, finding S.B. would be seriouslyendangered by visitation. The court directed Edward and S.B. tocontinue therapy with Dr. Hatcher and directed Edward not toconsume alcohol until further order of the court. The court deniedEdward's petition to terminate unallocated support and discharged therule to show cause against Norma. The court found no just cause todelay enforcement or appeal, pursuant to Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)).

In announcing the ruling, the trial court said that it was based onits review of the pleadings and orders in the file, the exhibits, thesubstance and credibility of the expert testimony, the substance andcredibility of the parties' testimony, and the testimony of nonpartywitnesses, as well as its review of the child representative's report.The court said it would "throw out the words 'parental alienationsyndrome,' " basing its findings instead on the standard set out insection 602(a)(8) of the Act (750 ILCS 5/602(a)(8) (West 2002)),namely, "The willingness and ability of each parent to facilitate andencourage a close and continuing relationship between the parents andchild." Norma appealed and Edward cross-appealed.

The appellate court, in an opinion published in part (166 Ill. 2dR. 23), affirmed both the change of custody and the denial ofEdward's petition to terminate unallocated support. 342 Ill. App. 3dat 215. We allowed Norma's petition for leave to appeal. 177 Ill. 2dR. 315. Edward seeks cross-relief on the termination of support issue.155 Ill. 2d R. 318. We also granted leave to Justice For Children, anational child advocacy organization, and to Richard L. Ducote, amember of the Louisiana bar, to file amicus curiae briefs in supportof Norma. 155 Ill. 2d R. 345.

ANALYSIS

In her petition for leave to appeal, Norma raised four pointsrelied on for reversal. Those points, as described in her petition, were:(1) the trial court committed reversible error in ruling that section 506of the Act (750 ILCS 5/506 (West 2002)) was constitutional and inadmitting and considering the child representative's report, and inmodifying custody; (2) the trial court should not have permitted thechild representative's undisclosed witness (Deputy Young) to testify;(3) the trial court committed reversible error in failing to interview theminor child; and (4) the trial court committed reversible error in failingto bar the parental alienation syndrome testimony of Dr. Gardner. Inher brief, Norma asserts additional grounds for reversal: (1) the trialcourt's rulings on the section 2-615 and 2-619 motions, (2) the orderbarring Dr. Johnson from testifying, and (3) the limitation of the scopeof another witness' testimony.

Supreme Court Rule 315(b) provides that a party's petition forleave to appeal "shall contain *** (3) a statement of the points reliedupon for reversal of the judgment of the Appellate Court." 177 Ill. 2dR. 315(b)(3). Failure to raise an issue in the petition for leave toappeal may be deemed a waiver of that argument. Federal DepositInsurance Corp. v. O'Malley, 163 Ill. 2d 130, 154 (1994). Adherenceto Rule 315(b)(3) is not a jurisdictional prerequisite to our review ofan issue; it is a principle of administrative convenience. Dineen v. Cityof Chicago, 125 Ill. 2d 248, 265 (1988). In this case, however, wewill consider only the points raised in the petition for leave to appeal.The additional points urged as grounds for reversal in Norma's briefwere thoroughly and thoughtfully discussed in the unpublishedportions of the appellate court's opinion, and we find no sufficientjustification to overlook the administrative requirements of Rule 315in this instance. We therefore deem those arguments to be waived.Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 429 (2002). Weturn now to the issues properly preserved for review.

Section 506 and Procedural Due Process

Norma argues that section 506 of the Act is unconstitutional asapplied in her case because she was denied the opportunity to cross-examine the child representative, who functioned as both an advocateand a fact finder and whose written report was relied on by the trialcourt in its findings. The standard of review of the constitutionality ofa statute is de novo. People v. Masterson, 207 Ill. 2d 305, 318 (2003).Statutes are presumed constitutional, and the party challenging thevalidity of a statute has the burden of clearly establishing that it isunconstitutional. In re Curtis B., 203 Ill. 2d 53, 58 (2002). The strongpresumption of constitutionality requires courts to construe statutesin order to uphold their constitutionality whenever reasonablypossible. Hill v. Cowan, 202 Ill. 2d 151, 157 (2002).

Section 506 provides, in pertinent part:

"(a) Duties. In any proceedings involving the support,custody, visitation, education, parentage, property interest,or general welfare of a minor or dependent child, the courtmay, on its own motion or that of any party, and subject tothe terms or specifications the court determines, appoint anattorney to serve in one of the following capacities:

* * *

(3) as a child's representative whose duty shall be toadvocate what the representative finds to be in the bestinterests of the child after reviewing the facts andcircumstances of the case. The child's representative shallhave the same power and authority to take part in theconduct of the litigation as does an attorney for a partyand shall possess all the powers of investigation andrecommendation as does a guardian ad litem. The child'srepresentative shall consider, but not be bound by, theexpressed wishes of the child. *** The child'srepresentative shall not disclose confidentialcommunications made by the child, except as required bylaw or by the Rules of Professional Conduct. The child'srepresentative shall not be called as a witness regardingthe issues set forth in this subsection." 750 ILCS5/506(a)(3) (West 2002).

In his written report, child representative Bush described hisobservations of visitation between Edward and S.B., recounted S.B.'sversion of the events in Florida as well as her recollections of Edwardcoming home drunk and "poking her in the eyes and stepping on hertoes" when she was smaller. The report was admitted in evidence, butNorma was unable to cross-examine Bush on his observations and thebasis for his recommendations because of the clear statutoryprohibition against calling him as a witness. Thus, Norma argues thatshe was deprived of a meaningful opportunity to be heard on a matterimplicating a fundamental liberty interest, thereby violating her rightto procedural due process of law as guaranteed by the fourteenthamendment to the United States Constitution (U.S. Const., amend.XIV) and section 2 of article I of the 1970 Illinois Constitution (Ill.Const. 1970, art. I,