In Re Marriage of Ashby

549 N.E.2d 923, 193 Ill. App. 3d 366, 140 Ill. Dec. 272, 1990 Ill. App. LEXIS 21
CourtAppellate Court of Illinois
DecidedJanuary 8, 1990
Docket5-89-0009
StatusPublished
Cited by4 cases

This text of 549 N.E.2d 923 (In Re Marriage of Ashby) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Ashby, 549 N.E.2d 923, 193 Ill. App. 3d 366, 140 Ill. Dec. 272, 1990 Ill. App. LEXIS 21 (Ill. Ct. App. 1990).

Opinion

JUSTICE WELCH

delivered the opinion of the court:

Respondent, Danny Ray Ashby (hereinafter referred to as father), appeals from an order of the circuit court of Randolph County, entered December 15, 1988, terminating his visitation rights with respect to his two-year-old daughter based upon a finding of sexual abuse. He raises three issues on appeal: (1) whether the trial court erred in allowing into evidence testimony concerning out-of-court statements allegedly made by the two-year-old daughter regarding father’s alleged sexual abuse; (2) whether the trial court’s finding that father had sexually abused daughter was an abuse of discretion and against the manifest weight of the evidence; and (3) whether the trial court’s judgment terminating father’s visitation rights was an abuse of discretion and against the manifest weight of the evidence.

The instant proceeding was initiated in the trial court by father who, on October 26, 1988, filed a petition for rule to show cause against Linda Rae Ashby, n/k/a Linda Weber, his ex-wife and the mother of the two-year-old daughter herein involved, alleging that she had contumaciously refused him the visitation rights granted him by a judgment for dissolution of marriage entered by the circuit court of Randolph County on December 21, 1987. Linda Rae Ashby (hereinafter referred to as mother) filed an answer to the petition for rule to show cause in which she admits that she refused father his visitation rights, but alleges that she did so for the reason that father is mentally and emotionally unfit to exercise visitation with daughter in that he has sexually abused the daughter during periods of his visitation. Mother also filed a counterpetition for modification of father’s visitation rights alleging that daughter had been sexually abused by father while in his custody during his visitation, and that this environment seriously endangers her physical, mental, moral or emotional health. The petition prays that the court terminate father’s visitation rights with the two-year-old daughter.

Because mother admitted denying father visitation with daughter, the cause came on for hearing on the counterpetition for modification on December 12, 1988. The following stipulation of the parties was entered into evidence: “That on August 15, 1988, [daughter] was examined by Dr. Henry at the SAM Clinic, Cardinal Glennon Hospital at St. Louis, Missouri, and that Dr. Henry would testify after examining [daughter’s] vaginal and rectal area, it was her expert opinion that [daughter’s] vaginal hymenal findings are consistent and suggestive of sexual abuse, in that she observed evidence consistent with trauma and/or penetration, and that the rectal findings also are suggestive of abuse/trauma in the rectal area.”

Father was called to testify as an adverse witness. He testified that he resides with his parents; that he was divorced from mother on December 22, 1987, and that daughter was born on October 28, 1985. By the terms of the dissolution decree, father was granted visitation with daughter on alternate weekends, and on alternate Mondays from 8 a.m. to 8 p.m. Father believed that he separated from mother in February or March 1987. In January 1988, father left Illinois and moved to Florida, but returned to his parents’ home in May 1988. During the four months he was in Florida, father had no visitation with his daughter. He visited with daughter on May 8, 1988. During that visitation, father and daughter were at father’s parents’ house and father’s brother’s house. Father was alone with daughter only in the car when he picked her up from her mother. Father has not seen his daughter since August 1988. Father denied ever touching daughter’s genital area. During father’s visitation weekends, daughter and father would sleep in the same bed. Daughter would sleep in Pampers and father would sleep in shorts.

Laurie Johnson testified that she is 28 years old and baby-sits for daughter. She has known daughter a little over 21k years, and has baby-sat for her since February 1986, when daughter was only four months old. She baby-sits for daughter four or five days a week from 8 a.m. until 4 p.m. She described daughter as very smart.

Prior to mother and father separating, Laurie testified that daughter seemed to be a very well-adjusted, happy child. After the separation, in mid-summer 1987, daughter began to change. Following her weekend visitations with father, daughter would “be a different child” for three or four days. She would be ornery and hateful and would sometimes appear to be in a daze. She would object to having her diaper changed, and would clench her legs together so that they had to be pried apart. Daughter’s vaginal area would be a purplish-red color and would be sore. After three or four days, daughter would return to being a “nice, sweet little girl.” However, after every visitation with her father, daughter would exhibit the strange behavior described above.

In July or August 1987, Laurie discussed daughter’s strange behavior and physical symptoms with mother. Laurie was convinced that daughter was being sexually abused during her visitation periods with her father. In September 1987, Laurie and mother met with father’s parents to discuss their suspicions. After that meeting, daughter would no longer return from visitation with a sore vaginal area and exhibiting strange behavior.

On May 9, 1988, the day after daughter’s visitation with father upon his return from Florida, daughter was at Laurie Johnson’s house. That afternoon, Laurie placed daughter down for a nap. Shortly thereafter, daughter woke up crying and came out to the family room where Laurie was. As soon as daughter saw Laurie, she stopped crying, laid down on the floor by Laurie’s feet and went to' sleep. A short while later, when Laurie had left the room, daughter woke up “hysterical and screaming.” She ran outside looking for Laurie. Laurie picked her up and sat in a rocking chair with her while she cried. When daughter calmed down, she told Laurie that her father had “put candy down below,” indicating her genital area, and that “he ate it out of there,” and that her father had put candy on her feet and licked it off her toes. Daughter indicated that the candy was purple and that the incident had happened in a pink room or on a pink bed. Defense counsel objected to this testimony on the basis that it was hearsay. The trial court admitted the testimony under the spontaneous declaration exception to the hearsay rule.

In the first week of June 1988, Laurie’s two children and daughter were in Laurie’s family room. Laurie was in the living room. Laurie overheard daughter telling her children that father put candy “down here” and licks it out. Laurie did not know what prompted daughter’s statement. Again, defense counsel objected to the testimony as hearsay, but the trial court admitted it under the spontaneous declaration exception. Laurie testified that several times in the summer of 1988, when daughter returned from her father’s, her vaginal area would be pink. On one occasion, daughter’s vaginal area was puffy and pale or peaked. On one occasion, Laurie discovered purple candy near daughter’s left nipple. Since daughter had stopped seeing her father in August 1988, she had returned to being a happy child. Laurie also recited that in 1987, daughter had gone through a period when she was afraid to take baths or go in the bathroom.

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Cite This Page — Counsel Stack

Bluebook (online)
549 N.E.2d 923, 193 Ill. App. 3d 366, 140 Ill. Dec. 272, 1990 Ill. App. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-ashby-illappct-1990.