This is a review of the Illinois family law case of In re Marriage of Portillo for an order of protection and supervised visitation wherein a child’s hearsay statements played. The opinion was filed on September 23, 2021.
Case Background
Julie Portillo filed a petition for an order of protection and a petition for supervised visitation against her former husband and father of her children, Daniel Portillo Martinez. The trial court granted both petitions and entered an emergency order of protection. Both orders limited Daniel’s contact with the children, and he appealed. The Appellate court reversed.
THE ORIGINAL JUDGMENT
Under the original judgment, the parenting plan gave both parents joint decision-making of their two minor children. As part of the Parenting Plan, a schedule was created that specified dates and times when each parent was responsible for the care of the minor children.
JULIE SEEKS EMERGENCY RELIEF FROM THE COURT
Daniel started the litigation with a petition to modify his parenting time. Julie filed a motion to dismiss that petition and the court sent the parties to mediation.
Shortly thereafter, Julie filed a petition for an order of protection, asking the court to protect her and the children for 2 years. That same day, the court entered a preliminary order of protection and a date was scheduled to conduct a hearing on Julie’s request that the emergency order be continued for two years.
Julie also filed an emergency petition seeking to terminate Daniel’s parenting time. Included in the petition to terminate parenting time, she indicated intent to use her child’s hearsay statements as testimony in the case. When you want to use hearsay testimony in court, you have to file a motion prior to the hearing to let the court and the other side know that you intend to admit hearsay testimony, and that is what Julie did.
What is Hearsay Testimony?
Hearsay is any testimony that is made out of court. Statements made to the police are considered hearsay in court if the police officer takes the stand and tries to testify about what someone told that officer. The police officer can only testify about what that officer saw or heard. The court will not allow affidavits or statements that you have gathered from a witness. A piece of paper cannot be cross-examined, so it is not allowed. Hearsay testimony is not allowed.
Are There Exceptions to the Hearsay Rule?
However, there are many exceptions to the hearsay rule. In this case, Julie sought to have her children’s statements about what happened to them admitted in the hearing without the children having to physically be present. When you want to do this, you cannot spring that testimony on your opposing counsel or the court, you have to seek permission ahead of time. That allows everyone to know if that type of testimony will be allowed or not. If the judge denies it, then the person seeking to have the hearsay admitted can decide to bring the witness in personally, or that testimony will not be a part of the record.
Julie filed a motion to admit that hearsay testimony and the notice of intent to offer hearsay evidence, “pursuant to Section 213.1 of the [Domestic Violence Act] and Section 2 606.5 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), or in the alternative, Section 2601 of the Code of Civil Procedure” (Code). The court had a hearing on Julie’s motion prior to the trial date.
The Plenary Hearing
On December 16 and 17, 2019, during the plenary hearing (hearing for a 2-year order of protection), the trial court heard evidence about both Julie’s plenary order of protection against Daniel and the emergency parental termination petition. At that hearing, numerous witnesses (including Julie and Daniel) testified as to several events that had disrupted the Parenting Plan. These events included numerous altercations and incidents that occurred during child drop-offs and pickups, prompting Daniel to install a camera to record the events. Eventually, the parties started to exchange the children at the sheriff’s office in an attempt to avoid further incidents.
Julie testified that the children came back from a visit at Daniel’s home with sore bottoms. Two days later, Daniel filed a petition to modify parenting time and responsibilities claiming that Julie failed to share extracurricular activity schedules or the children’s coach’s information. Daniel complained that Julie unilaterally signed the children up for private school, and took the children to therapy without notifying him or allowing him to participate.
Julie testified that on August 25, 2019, after picking up the children from Daniel’s residence, her child told her that he and his brother can go to Daniel’s room but they are only allowed to sleep with him one at a time when he gets off his computer. In mid-October, her son began having nightmares, which lasted for several weeks. On October 17, while changing her son’s diaper, Julie discovered the tip of his penis was unusually red, as well as the area surrounding his rectum. The child complained of pain when his diaper was changed. When Julie asked him what happened to cause the redness, the child told her that “daddy did it.” Julie then asked her son “Did daddy touch your pee-pee and hurt you?” Her son said, “Yes.”
Additional evidence was presented during the hearing regarding Daniel’s history of inappropriate sexual behavior, including:
- testimony that a teenage babysitter the children reported to her parents that Daniel had spanked her;
- that as a teenage orphan in Guatemala, Daniel engaged in inappropriate contact with a female child at the orphanage;
- that Daniel admitted to watching pornography;
- that Daniel had sexually assaulted Julie’s sister, Tricia;
- that Daniel was fired from the post office after making unwanted trips to the home of a woman he met on his mail route; and
- that Daniel had sexually assaulted Julie.
The case was continued for hearing, and at that hearing, the trial judge weighed the credibility of the witnesses. The judge found Julie was a credible witness and that some of Daniel’s testimony was not credible. The judge granted Julie’s order of protection protecting her and the children.
The Appeal
Specifically, Daniel argued that Julie should not have been able to testify about what their son told her. In his brief to the court, Daniel argued that there was insufficient evidence to justify the trial court’s orders restricting his parenting time under both the plenary order of protection, addressed under the Domestic Violence Act, and the emergency parental termination petition, addressed under the Marriage Act.
Can a Child’s Hearsay Statements Come Into Evidence?
THE APPELLATE COURT FINDS THAT THE LAW WAS NOT FOLLOWED WHICH WOULD ALLOW THE HEARSAY STATEMENTS TO COME INTO EVIDENCE
There are two possible Illinois statutes under which a person can admit the hearsay statements. One is section 606.5(c) of the [Marriage] Act (750 ILCS 5/606.5(c) (West 2018) and the other is section 8-2601 of the Code (735 ILCS 5/8-2601 (West 2018)). The Marriage Act does not require a separate hearing regarding the admissibility of a child’s proposed hearsay statements. In contrast, a separate admissibility hearing is envisioned under section 8-2601 of the Code.
735 ILCS 5/8-2601(a) REQUIRES A SEPARATE HEARING IF A STATEMENT IS TO BE ADMITTED FOR A CHILD UNDER THE AGE OF 13
Section 8-2601 (735 ILCS 5/8-2601(a) (West 2018)), located in article VIII of the Code (735 ILCS 5/art. VIII (West 2018)), states the following:
(a) An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. The child must either testify at the proceeding; or be unavailable as a witness. If the child is unavailable, there has to be corroborative evidence of the act which is the subject of the statement.”
Plenary Order of Protection Hearing
At the December 16, 2019, plenary hearing, the trial judge discussed Julie’s motion to admit hearsay testimony of the minor children as well as Julie’s notice of intent to offer hearsay evidence of the minor children, which requested, inter alia, that the judge allow the hearsay testimony of the minor children in accordance with section 606.5 of the Marriage Act (750 ILCS 5/606.5 (West 2018)). In opposition to Julie’s hearsay motions, Daniel’s counsel argued that section 8-2601 of the Code should govern the admission of the children’s hearsay statements.
The trial court elected to use the statute under the Marriage Act, the court ruled that the statute under the Marriage act would govern the admission of the children’s hearsay statements for the plenary order of protection and the emergency parental termination petition. In previous case law, the appellate court had ruled that the Marriage Act should govern the admission of a child’s hearsay statements regarding abuse by a parent because that statute specifically addresses and allows admission of these statements where they concern parental custody and visitation rights. See 750 ILCS 5/606(e) (West 2014) (now codified as 750 ILCS 5/606.5(c) (West 2016)). Section 606(e) is more specific regarding the admission of out-of-court statements in which a child alleges sexual abuse by a parent.
Daniel’s Argument to the Appellate Court
Daniel asked the appellate court to revisit the issue of allowing out-of-court statements in light of the more recent decision in a previous case. Daniel argued that where two statutes are allegedly in conflict, a court has a duty to interpret the statutes in a manner that avoids an inconsistency and gives effect to both statutes. Daniel’s argument was supported by a previous case decided by the appellate court, In Arika M.
In that case, a mother sought an order of protection on behalf of herself and her three daughters against the father of her children. In the petition for the order of protection, the mother asserted that the children had confessed that their father touched them inappropriately when he took baths with them. The trial heard the mother’s request for a plenary order of protection and the father in that case argued that the children’s out-of-court statements should not be admitted because they lacked corroboration. In this context, it means that there should be other evidence supporting the statement. By way of example, if a child complained that a parent punched them in the face and the child had a bruise, the bruise could be considered corroboration. “Touching cases” are hard to prove because they rarely have bruises, cuts, or anything to prove or disprove them.
In Arika M, the trial court admitted the children’s statements, agreeing with the mother that the girls’ actions and demeanors corroborated their out-of-court statements. The trial court granted the order of protection and reduced the father’s parenting time to supervised visits. On appeal, the father claimed that the children’s hearsay statements should not have been admitted. The appellate court remanded the case for a hearing to be held in accord with the provisions of section 8-2601 of the Code.
Daniel argued that in his appeal that the court use the ruling in Arika to decide his case. The appellate court in Daniel’s case agreed with him and said that the trial court should have used the other statute, the one in section 8-2601 since it was a domestic violence proceeding.
The Appellate Court Agreed with the Father
A SEPARATE HEARING SHOULD HAVE BEEN HELD AS TO THE RELIABILITY OF THE CHILD’S HEARSAY STATEMENTS
In this case, as in the Arika M. case, Julie requested a plenary order of protection on behalf of herself and her children against the children’s father, Daniel. At the plenary hearing, although Daniel’s counsel requested that section 8-2601 of the Code be applied, the trial judge applied the Marriage Act standard instead. As a result, the trial court heard out-of-court hearsay statements without first holding a hearing about the reliability of those statements. The appellate court reversed the trial court’s ruling.
