A common issue in order of protection cases involving abused children is the admissibility of their hearsay statements. There are three statutes in Illinois which address this issue and two appellate cases, one from the second district and one from the first district, which mandate different outcomes insofar as whether or not a reliability hearing has to take place before hearsay statements can be admitted, and what constitutes sufficient corroboration of hearsay statements. Until either the Legislature or the Supreme Court clarifies these matters, it is important to become conversant in the alternate analysis made by the different courts, and which statute to apply.
In an order of protection case, there are three statutes which provide for the admission of hearsay statements. These are: (a) Section 213.1 of the Illinois Domestic Violence Act of 1986,1 (b) Section 606(e) of the Illinois Marriage and Dissolution of Marriage Act,2 or ( c) Section 8-2601 of the Code of Civil Procedure.3 In determining which section to apply, the tension between Appellate Courts has focused on whether to apply Section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) or Section 8-2601 of the Code of Civil Procedure. Section 606(e) of the IMDMA provides, in relevant part, as follows:
(e) Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.
Section 5/8-2601(a) of the Code of Civil Procedure provides, as follows:
(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; and (2) the child either: ( I) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
In the second district case of In re Marriage of Flannery 4 the court was required to decide whether to apply the relevant statutory provisions of the IMDMA or the Code of Civil Procedure to hearsay statements made by a 3 year old in an order of protection case. The trial court in that case had admitted the child’s out-of-court statements under Section 606(e) of the IMDMA. The respondent contended that Section 8/2601 was properly applied to the admissibility of the minor’s hearsay statements and that the trial court erred in failing to conduct a hearing to establish the reliability of the statements and had not determined whether or not corroborative evidence of the child’s statements were reliable. The appellate court concluded after a review of the statutory provisions that Section 8/2601 applied in determining the admissibility of the child’s out-of-court statements of sexual abuse by the respondent.5 The Court found that the Domestic Violence Act governs orders of protection and that Section 205(a) of that Act provides in pertinent part:
Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court. The Code of Civil Procedure [(735 ILCS 5/10191 et seq. (West 2000))] and Supreme Court and local rules applicable to civil proceedings, as now or hereafter amended, shall apply, except as otherwise provided by this law." (Emphasis added). 750 ILCS 60/205(a) (West 2000).6
Applying rules of statutory construction the second district found that the plain language of Section 205(a) mandated the application of Section 8/2601. The court found that in certain circumstances certain provisions of the IMDMA could overlap into domestic violence cases and arguably provide a basis for the use of Rule 606(e), but found that none of those seven sub-sections applied to the case before it nor have any subsequent appellate cases made those sections applicable.7
The court went on to opine that while both of the relevant statutory provisions require corroboration, Section 8/2601 of the Code requires the court to conduct a hearing and find sufficient indicia of reliability.8 Citing the United States Supreme Court case of Idaho v. Wright, the court pointed out that the "indicia of reliability" requirement may be met (1) where the statement falls in a "firmly rooted hearsay exception" or (2) where it is supported by "a showing of particularized guarantees of trustworthiness." Since the trial court in Flannery found that the child’s statements were admissible under Section 606(e) which does not require the trial court to conduct a reliability hearing, the appellate court found that it followed that the trial court did not consider whether the "time, content, or circumstances of the statement(s) provides sufficient safeguards of reliability" as required by Section 8/2601 of the Code.9 The court noted that ordinarily it would remand the proceeding so that the trial court could hold a reliability hearing, however, as it went on to analyze whether or not the hearsay statements were properly corroborated, it came to the conclusion that since the child’s hearsay statements lacked corroboration, a remand would be unnecessary. The court cited the Illinois Supreme Court’s standards for corroborating evidence of abuse or neglect. In the case of In re A.P 10 the Supreme Court Stated:
corroborating evidence of * * * abuse or neglect requires there to be independent evidence which would support a logical and reasonable inference that the act of abuse or neglect described in the hearsay statement occurred. In essence, corroborating evidence is evidence that makes it more probable that a minor was abused or neglected. The form of the corroboration will vary depending on the facts of each case and can include physical or circumstantial evidence. A.P. 179 Ill.2d at 199.11
After applying the guidelines from A.P. to the facts in Flannery, the court found insufficient corroboration – that is, hearsay cannot corroborate hearsay.12 The appellate court reversed the finding of the lower court.
In the case of In re Marriage of Gilbert, the first district took up virtually the same issue.13 In Gilbert, the first district found that although the relief sought in the petition for order of protection referred to the Domestic Violence Act, the court’s ruling implicated questions of custody and visitation and therefore Section 606(e) of the IMDMA would apply. The court also considered important the fact that the petition was brought before the lower court under the name and title of the original dissolution petition. 14
It was argued by the Petitioner in Flannery that while she did not seek "temporary legal custody" she did request "physical care" and equated "physical care" with the term "temporary legal custody" as found in Section 214(b)(6) of the Domestic Violence Act, which, the Petitioner argued meant that the trial court in that case correctly applied Section 606(e) of the IMDMA. The court in Flannery decided that "physical care" and "temporary legal custody" mean two different things because Section 214(b)(5) of the Domestic Violence Act expressly provides that, in issuing an order of protection, a court may award "physical care and possession of the minor child." as distinguished from Section 214(b)(6) of the same Act and section which provides for the remedy of "temporary legal custody."15
If the petitioner in Flannery had used the magic words "temporary legal custody," does that mean the court in that case would have considered the issue to be primarily pursuant to the IMDMA and applied Section 606(e)? A fair reading of that case indicates that the result would have been the same regardless. Notable is the fact that while the appellate court found that the legislature thought that "physical care and possession" and "temporary legal custody" mean two different things, the court never went on the spell out what those two different things are. The court in Gilbert went to find that it was not error for the trial court in that case to fail to conduct a reliability hearing, and found that not only does Section 606(e) of the IMDMA not require such a hearing, that Section 8/2601 does not require a reliability hearing either if there is a bench trial. The First District stated:
Even if such a hearing was required in jury cases, in a bench trial the trial judge is presumed to have considered the time, content and circumstances under which the statement was made in determining the reliability of the statements.16
In sum, the First District found that corroboration "will vary depending on the facts of each case and can include physical or circumstantial evidence" citing In re A.P. and that many kinds of corroboration can be used to allow the admission of hearsay statements, unlike the stricter standard set forth by the Second District in Flannery. 17 In commenting on Flannery, Gilbert stated:
A recent case would suggest a different outcome. In In re Marriage of Flannery, (citations omitted) the court determined that merely observing the physical evidence of the child’s hearsay statements of sexual abuse, such as using puppets or other "games," was insufficient to provide corroboration under any of the operative statutes. The statements relating to observation of the child were also hearsay. If the Flannery case is bedrock precedent, it would be almost impossible to obtain a finding of sexual abuse unless there was some physical evidence on the body of the child or unless the abuser had other witnesses to his abuse, a matter that is certainly unlikely.18
The appellate court in Gilbert affirmed the ruling of the trial court. The unanswered question in either of these cases involves the following:
If the petitioner in Flannery has asked for temporary legal custody of the children or the court would have applied the standards of the IMDMA and utilized Section 606(e)? It appears that the appellate court would not have taken that position even in that event since, as previously pointed out, it failed to make any particular distinction of its own between "temporary legal custody" or "physical care." On the other hand, it is apparent that the first district would never apply Section 8/2601 in any meaningful way to an order of protection hearing since such hearings are always bench trials. As with many other matters in the domestic relations area, it is important for lawyers to be keenly aware of where they are litigating, and what rules and standards to apply.
1 750 ILCS 60/213.1
2 750 ILCS 5/606 (e)
3 735 ILCS 5/8-2601
4 328 Ill. App. 3d 602, 768 N. E. 2d 34 (2d Dist., 2002)
5 328 Ill. App. 3d at 606
6 328 Ill. App. 3d at 606
7 328 Ill. App. 3d at 606-607
8 328 Ill. App. 3d at 608
9 328 Ill. App. 3d at 609, citing 497 U.S. 805, 111 L. Ed 2d 638, 110 S. Ct. 3139 (1990)
10 328 Ill. App. 3d at 610, citing 179 Ill. 2d 184 (1997)
11 328 Ill. App. 3d at 610
12 328 Ill. App. 3d at 614
13 355 Ill. App. 3d 104, 822 N. E. 2d 116 (1st Dist., 2004)
14 355 Ill. App. 3d at 112
15 328 Ill. App. 3d at 607
16 355 Ill. App. 3d at 112
17 328 Ill. App. 3d at 614
18 355 Ill. App. 3d at 114
Thomas A. Else is the Second Vice President of the DuPage County Bar Association. He offices in Oak Brook, Illinois and concentrates his practice in Family Law and Bankruptcy cases.