Trinidad C. v. Augustin L.

• Decision Date: 21 November 2017
• Docket Number: No. 1–17–1148,1–17–1148
• Citation: 92 N.E.3d 475,2017 IL App (1st) 171148
• Parties: TRINIDAD C., Petitioner–Appellee, v. AUGUSTIN L., Respondent–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 171148

92 N.E.3d 475

TRINIDAD C., Petitioner–Appellee,

v.AUGUSTIN L., Respondent–Appellant.

No. 1–17–1148

Appellate Court of Illinois, First District, Second Division.

November 21, 2017

Mevorah Law Offices LLC, of Bloomingdale (Matthew B. Sperry, of counsel), for appellant.

Life Span, of Chicago (Denice Wolf Markham and Ishughun F. Orkar, of counsel), and Dentons US LLP, of Washington, D.C. (Drew W. Marrocco and Levon Golendukhin, of counsel), for appellee.

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Respondent Augustin L. appeals the trial court's issuance of a plenary order of protection in favor of petitioner, Trinidad C., and her three minor children. Augustin asserts that his stepdaughter L.C.'s outcry of sexual abuse that served as a basis for the order of protection should have been excluded as inadmissible hearsay. Because we find that the trial court did not abuse its discretion in declaring L.C. unavailable to testify and that her outcry of sexual abuse was reliable and corroborated by other independent evidence, we affirm the plenary order of protection.

¶ 2 BACKGROUND

¶ 3 Trinidad filed a petition for an order of protection on May 3, 2016, on behalf of herself and her three minor children: L.C., P.L., and R.M. In the petition, Trinidad alleged that Augustin sexually molested five-year old L.C., which Trinidad reported to the Department of Children and Family Services (DCFS) on April 29, 2016, and that all of her children were confused and affected emotionally. L.C. was Augustin's stepdaughter at the time of the incident.

¶ 4 During the evening of April 28, Trinidad left the home to do laundry. Augustin stayed with L.C. and P.L. The following morning, Trinidad woke L.C. to change and clean her before school because L.C. had not bathed the day before. Trinidad noticed that L.C.'s vaginal area was very red. Trinidad asked L.C. if anyone touched her in her private area, and L.C. covered her face. Trinidad asked her a second time, and L.C. told her that she was very afraid to tell her the truth. L.C. then told Trinidad that Augustin touched her in the vaginal area. L.C. said it happened when Trinidad was at school and doing laundry. Trinidad asked L.C. why she did not tell her and L.C. said because Augustin told her that if she told anyone what happened, he was going to leave the house and they would be without a father. Trinidad described L.C. as being very afraid. Trinidad noticed a hole in L.C.'s leggings "down there" roughly the size of two fingers. Trinidad finished changing L.C. and took her to school.

¶ 5 Vanessa Salcedo was L.C.'s prekindergarten teacher for approximately two school years: 2014–15 and 2015–16. When Trinidad arrived at school with L.C. on April 29, 2016, she told Salcedo about her conversation with L.C. Salcedo called DCFS. With Salcedo's help, Trinidad filled out a police report.

¶ 6 Ada Perez–Almuhtaseb, an investigator for DCFS, arrived at L.C.'s school the same day and interviewed Trinidad at 11:30 a.m., L.C. at 11:50 a.m., and Salcedo at 12:20 p.m. Perez–Almuhtaseb interviewed each individual separately, and no one else was present during the interviews.

¶ 7 Trinidad stated during the interview with Perez–Almuhtaseb that she left the house the night before to do laundry and Augustin stayed with L.C. and P.L. Trinidad also related discovering the redness in L.C.'s vaginal area and told Perez–Almuhtaseb about her conversation with her daughter and reporting the incident to Salcedo.

¶ 8 During Perez–Almuhtaseb's interview with L.C., L.C. accurately differentiated between good and bad touches, and she also accurately identified her private parts calling her vagina "cola." When asked if she had ever been touched on her private parts, L.C. told Perez–Almuhtaseb that her "dad" touched her on her "cola" when they were at home. L.C.'s mother was not home at the time because she was doing laundry, and Augustin was babysitting her and her brother. She was watching television in her parents' bedroom, and her brother was sleeping. L.C. told Perez–Almuhtaseb that when Augustin touched her, he moved his hand from side to side and that this happened while they were in her parents' bedroom. Augustin told L.C. not to tell anyone or else he would have to leave the home. L.C. did not want that to happen.

¶ 9 Finally, Perez–Almuhtaseb interviewed Salcedo as follow-up to the conversation they had when she reported the incident to DCFS.

¶ 10 Later that day at around 6 p.m., Trinidad took L.C. to see a doctor concerning her vaginal redness. According to Trinidad, the doctor stated that the redness could have been hygiene related because L.C. might not be cleaning herself properly.

¶ 11 Approximately a week later on May 5, 2016, Rebekah Stevenson, a forensic interviewer at the Chicago Advocacy Center, conducted an interview of five-year-old L.C., which was recorded as a victim sensitive interview (VSI). L.C. stated that she lived with her mom, sister, and older brother but not with her "dad," Augustin, "because he went on vacation." Before L.C. described the incident involving Augustin, Stevenson asked L.C. questions about telling the truth and lies, and L.C. accurately identified whether a statement was the truth or a lie.

¶ 12 During the interview, L.C. stated that Augustin touched her in her vaginal area when they went to the garden. L.C. elaborated that they were in the garage inside the house on a lower level where Augustin looks for his things. L.C.'s younger brother was outside making bubbles with his Spiderman, and L.C.'s mother was inside the house eating. Augustin stood in front of L.C., who was also standing. Augustin touched and rubbed L.C. in her vaginal area with his hand over her clothes. L.C. demonstrated Augustin's touch by rubbing her hand up and down her vaginal area, and also patted an arm rest to demonstrate how Augustin's hand moved. L.C. told Stevenson that Augustin touched her one time when she was five years old. Augustin did not touch L.C. anywhere else and did not ask her to touch him or do anything to him.

¶ 13 L.C. told Stevenson she did not tell anyone what happened because Augustin told her not to say anything and, if she did, he would leave the house. L.C. later decided to tell her mom what happened because her mom would get mad if she told a lie. L.C. stated that she was scared that "my daddy will leave the house and he already left the house."

¶ 14 When the hearing on the order of protection commenced, Trinidad filed a motion in limine seeking to admit L.C.'s out-of-court statements regarding the sexual abuse under section 8–2601 of the Code of Civil Procedure (Code) ( 735 ILCS 5/8–2601 (West 2016) ), which permits the admission of hearsay statements of sexual abuse reported by a minor under the age of 13 when the minor is unavailable to testify and the statements are reliable and supported by corroborating evidence. Augustin moved to continue the hearing so that he could obtain L.C.'s medical records, which he claimed would show a recantation of her claim that he abused her. Alternatively, asserting lack of proper notice, Augustin requested that the hearsay statements be barred. The motion for a continuance was denied, and the court took Trinidad's motion in limine with the hearing on the order of protection.

¶ 15 During the hearing, Perez–Almuhtaseb testified regarding the three interviews she conducted on April 29, 2016. With respect to L.C., Perez–Almuhtaseb was permitted, over objection, to state her belief that L.C. was truthful and that, during the interview, L.C. appeared afraid to talk.

¶ 16 Trinidad recounted the events of April 29 and testified that later that evening, after L.C. fell asleep, L.C. woke up very scared and began to cry "Augustin." Since the incident, Trinidad noticed that L.C. had become very aggressive. Several months later on August 16, 2016, Trinidad was present when L.C. indicated that she wanted to draw, but did not know what to draw, so L.C. started drawing and drew a picture that looked like a penis. A copy of the picture was introduced into evidence.

¶ 17 Salcedo, who also testified, indicated that she had seen L.C. five days a week for 2.5 hours each day for the past two years and had a good understanding of L.C.'s typical behavior in the classroom. Salcedo described L.C. as having been very happy, outgoing, helpful with the other children and just happy to be in school. After the incident, Salcedo noticed a change in L.C. because she became more easily angered and started identifying things in story books that she did not identify before that were connected to an increased knowledge of sexual behavior.

¶ 18 After hearing the testimony relating to the sexual abuse allegations and viewing the VSI, which the trial court found Stevenson conducted in a neutral manner, the trial court admitted L.C.'s out-of-court statements, finding L.C. to be unavailable to testify and that her outcry statements were reliable and corroborated by other evidence. Based on the preponderance of evidence, including L.C.'s outcry of sexual abuse, the trial court found that the alleged sexual abuse occurred and issued a plenary order of protection for one year effective from January 17, 2017, to January 17, 2018. Augustin filed a motion for a new trial and to reconsider, which the trial court denied.

¶ 19 ANALYSIS

¶ 20 Augustin asserts that L.C.'s out-of-court statements of sexual abuse were inadmissible hearsay. Specifically, Augustin claims that the trial court erred in finding L.C. unavailable to testify and that her statements were both reliable and supported by independent corroborating evidence. Augustin contends that the order of protection must be vacated because its issuance was improperly based on inadmissible hearsay statements.

¶ 21 Section 205(a) of the Illinois Domestic Violence Act of 1986 (Act) ( 750 ILCS 60/205(a) (West 2016)) governs any proceeding to obtain, modify, reopen, or appeal an order of protection. Such...