author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MOFFAT, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1366
    Opinion filed June 28, 1990.
    Modified on denial of rehearing September 20, 1990.

      Williams & Marcus, of Chicago (James I. Marcus and John F. Dziedziak, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Elizabeth Sklarsky, and Avery L. Goodrich, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendant, James Moffat, was found guilty of multiple counts of official misconduct and indecent liberties with a child. He was sentenced to concurrent terms of imprisonment of 15 years for the indecent liberties counts and five years for the official misconduct counts.

On appeal, defendant raises the following issues: (1) whether the evidence was sufficient to prove his guilt beyond a reasonable doubt; (2) whether the evidence presented at trial was prejudicially at variance -with the indictments and the bill of particulars; (3) whether he was deprived of a fair trial due to judicial and prosecutorial misconduct; and (4) whether the trial court abused its discretion in sentencing him. Defendant seeks reversal of his conviction, or reversal of his conviction and remand of the cause for a new trial before a different judge, or remand for resentencing before a different judge.

We affirm in part and vacate in part.

At trial the evidence established that defendant, employed by the Chicago Board of Education since 1956, had been the principal at Kelvyn Park High School (hereinafter Kelvyn) from October 1, 1980, to March 22, 1985. Darlene Stahl, defendant’s assistant principal, testified that defendant made certain improvements to his office shortly after he arrived. According to Ms. Stahl, defendant closed off a 12- by 6-inch vent with a piece of wood. Prior to defendant’s arrival at Kelvyn, members of the school’s staff would peer through this vent to determine whether anyone was in the principal’s office.

At defendant’s request, carpeting was also installed which, in effect, blocked out any space under the door to his office. The only way to determine whether anyone was in defendant’s office would have been to peer through the transom located over his door. This, however, would have necessitated the use of a ladder in order to reach the transom.

Ms. Stahl noted that defendant kept the doors to his office locked and asked school personnel not to disturb him when his door was closed. She also stated that she had observed some provocative items in defendant’s office.

Marsha Niazmand testified that she had been a social worker for the Board of Education since 1976. She worked with some of the students at Kelvyn from March 1983 to January 1985. When defendant found out that she had been counseling a particular student, he asked for a list of all of the other students who sought counseling from her at Kelvyn. Defendant then accused Ms. Niazmand of spreading rumors about him. Ms. Niazmand testified that she thought defendant was responsible for having her transferred from Kelvyn.

The first accusing witness to testify was the only female out of the five accusing witnesses. This witness was a student at Kelvyn. She testified that on or about October 31, 1983, she was taken out of class and escorted into defendant’s office by her boyfriend, another one of the five accusing witnesses. Approximately one week prior to this, her boyfriend had discussed taking her to defendant’s office.

While this witness was in defendant’s office, her boyfriend asked her to disrobe. When she hesitated, he told her that he would also disrobe. She then took off her clothes in a closet in defendant’s office. Defendant was lying on the floor when she emerged from the closet. The witness stated that she positioned herself over defendant and defendant proceeded to perform cunnilingus on her while her boyfriend watched. After this act she had sexual intercourse with her boyfriend in defendant’s presence. She then had sexual intercourse with defendant. At the time of this incident, the witness was 14 years of age. She testified that this was the only sexual encounter she had with defendant. Subsequently, she left Kelvyn due to a fight she had with another female student. She also testified that she left the school because defendant had failed to protect her, as he had promised, from the repercussions of her dispute with this other student.

We note that the other student who was involved in the fight had also been brought to defendant’s office by the first accusing witness’ boyfriend. During her first encounter with defendant, she reluctantly exposed one breast to defendant while in his office. Defendant proceeded to touch her breast but noticed that she appeared to be frightened. Although he requested that she not be brought back to his office, he summoned her to his office several days after this first encounter and asked her some “personal” questions.

The second accusing witness to testify was also a student at Kelvyn during defendant’s tenure as principal. This witness was a member of the school’s football team. On or about October 14, 1982, when this witness was approximately 15 years of age, defendant stopped him as he was walking down one of the school’s hallways. Defendant asked him to come to his office. Prior to this encounter, this witness testified that he had had a conversation with another member of the football team regarding going to defendant’s office. Defendant asked this -witness whether he had talked to this particular team member. After indicating that he had, defendant asked him if he was “ready.” This witness responded that he was, and defendant proceeded to perform an act of fellatio on this witness in his office.

Approximately three weeks later, defendant came across this -witness again in the hallway just after the witness had been asked to leave one of his classes. Defendant told the student to come to his office, where he again performed an act of fellatio on this witness. After this act, the witness asked defendant for money. Although the witness had previously told someone from the office of the State’s Attorney that defendant gave him $50, he testified at trial that defendant had only given him $5.

The last sexual encounter this witness had with defendant occurred on or about March 24, 1983. Defendant went to this witness’ math class and arranged for him to leave the class. Defendant then took the witness to a room on the first floor of the school and fondled him. Subsequently, the witness transferred from the school. He did not tell his parents or the police about these incidents with defendant because he was afraid of the possible repercussions.

The next witness to testify was not one of the accusing witnesses. This witness did, however, have a sexual encounter with defendant. At the time of the encounter this witness was 22 years of age and attended a junior college in the Chicago area. The witness testified that she was taken to defendant’s office by her boyfriend and one of the accusing witnesses. This was the same accusing -witness who had procured two other female students, including the only female accusing witness, for defendant. This incident occurred in 1983 during the first week in November. The witness testified that she was taken to defendant’s office. Once inside the office, her boyfriend told her to take off her shirt. She complied by removing her shirt and her blouse. While she undressed, defendant took off his pants. Defendant then proceeded to fondle her. He asked the other two males who had accompanied her into the office if they wanted to “join in the party.” Both declined. When the witness told defendant that she was nervous, he then attempted to fondle her boyfriend. After her boyfriend rebuffed defendant’s advances, she and defendant both dressed and proceeded to go to a football game. She did not sit with defendant at the game but met him after the game. Defendant later dropped her off a block from her house.

The third accusing witness to testify was also a student at Kelvyn. He was first approached by defendant in the school’s lunchroom. Defendant told him that he would like to get to know him. This witness was then 15 years of age. During the second semester of the 1983-84 school year, the witness began to work in the school’s main office.

Defendant confronted the witness during the latter part of March and asked if he was homosexual. The witness responded that he was not sure. Defendant then told him that he should know his sexual preference because he was young and attractive and could get anything he wanted, using his looks.

The next encounter this witness had with defendant occurred in April 1984 in the school’s lunchroom when defendant suggested that the witness come to his office to discuss his failing grades. The witness testified that when he entered defendant’s office, defendant closed the door. Defendant told the witness that his grades were poor but that he could do something about it if the witness would “play” with him. Initially, the witness declined the offer. Defendant then threatened that if he did not cooperate, his “grades would be really bad and that [defendant] could make it so that [the witness] couldn’t go into other good schools and that his parents would [become] furious.” The witness then agreed to cooperate with defendant.

The witness stated that he was then forced to perform an act of masturbation on defendant. After that, defendant performed an act of fellatio on the witness. Defendant then asked the witness if he could have anal intercourse with him. Although the witness refused, defendant still attempted to perform the act on the witness. Defendant stopped when the witness informed him that he was a virgin. Defendant then took the witness’ penis and guided into his rectum. After this act was completed defendant promised that he would “fix” the witness’ grades. The witness, however, received all failing marks at midterm.

In May 1984, the witness’ counselor told him that she was going to suspend him and that he would have to bring his mother to school. This witness later told defendant about his impending suspension. Defendant informed him that he could prevent the suspension. Defendant then told the witness to meet him in his office. Once inside the office, defendant proceeded to have anal intercourse with the student.

After this act, defendant asked the witness if he could take nude pictures of him. He also asked the -witness if he could bring any other “kids” to his office. The witness did not follow through with either request. Subsequently, the witness transferred to another school.

The fourth accusing witness to testify was also a student at Kelvyn. He was a member of both the football and basketball teams. At the time of his first sexual encounter with defendant, the witness was in his sophomore year in high school. Concerned that he would not be able to participate in team sports because of poor grades, he approached defendant. Defendant told him that he would help the witness with his grades if he agreed to have anal intercourse with him. The witness then reluctantly allowed defendant to have anal intercourse with him. This act took place in defendant’s office.

This witness next encountered defendant during the second marking period of the school year. The witness again informed defendant that he was having difficulty with his grades. The witness testified that he then had anal intercourse with defendant in his office.

The next sexual encounter with defendant came in June of the witness’ sophomore year. The witness had anal intercourse with defendant in exchange for defendant arranging for him to attend Orr High School’s summer session.

The following October, during the witness’ junior year, he approached defendant about his failing grades. The witness again had to submit to anal intercourse with defendant. At some later time in the month of October, this witness told defendant that he no longer wished to have anal intercourse with him. The witness, however, agreed to allow defendant to perform fellatio on him.

Later in the week, defendant paged the witness out of class to have oral sex with him. Defendant told the witness that he would have to come to his office twice a week so that defendant could have oral sex with him. Twice a week from October 1983 until February 1984, this witness allowed defendant to have oral sex with him. In February of 1984, according to the witness, defendant told him they would have to discontinue this practice because he felt the teachers may be aware of these activities. The witness graduated in August 1984.

It was also revealed at trial that, contrary to his testimony, this witness had previously denied having any sexual encounters with defendant to some of his teachers and several basketball teammates. The witness explained that he had denied the incidents out of embarrassment. He did not want to give them the impression that he was homosexual.

This witness also admitted to having told an investigator that defendant had shown him nude photographs of various students when, in fact, defendant had shown him photographs of naked women in some commercial magazines. The witness testified that defendant kept these magazines in one of his desk drawers.

The next witness to testify was not one of the accusing witnesses but he had also been approached by defendant. At the time of trial, this witness had a civil suit pending against defendant. The witness testified that during his freshman, sophomore, and part of his junior year at Kelvyn, he worked in the main office. He worked in the computer room the remainder of his junior year.

This witness’ first encounter with defendant came during his sophomore year at the school. The witness entered defendant’s office to deliver a message. While in defendant’s office, defendant remarked that he was a “fine young man, very handsome,” and proceeded to massage this witness’ shoulders. The witness responded to defendant’s advances by telling him that he had to get back to work and then proceeded to leave defendant’s office.

The next encounter this witness had with defendant was in the boys’ washroom on the second floor of the school building. While using the urinal, defendant observed and made some remark about this witness’ penis.

The last notable encounter this witness had with defendant occurred in defendant’s office. On this occasion, defendant locked his door and proceeded to massage this witness’ shoulders. Defendant then unzipped this witness’ pants and was about to perform an act of fellatio on the witness when someone knocked at his door. Defendant told the witness to get dressed and leave through another door in his office.

This witness also testified that after these three incidents his grades began to drop. He admitted to engaging in homosexual activities while he was a junior at Kelvyn. Although the witness did not tell his mother about these incidents, he did comment to two of his teachers at Kelvyn that defendant went “both ways.” This witness eventually withdrew as a student from Kelvyn.

The fifth and last accusing witness to testify was 18 years of age at the time of his sexual encounters -with defendant. This witness testified to having conversations with defendant in 1981, prior to his transferring to Kelvyn in December of that same year. This wdtness then dropped out of Kelvyn in March 1982 but returned the following September.

The witness testified that defendant told him in the spring of 1982 that he could arrange for him to transfer back to Kelvyn, receive a basketball scholarship, and change his grades. This would be in exchange for allowdng defendant to perform fellatio on him. The wdtness agreed to this and began meeting defendant in his office two or three times a week. On each occasion defendant had oral sex with the witness. This practice continued until the time the wdtness withdrew from Kelvyn in March of 1984.

This wdtness also corroborated the testimony of the female accusing witness and two other female witnesses who alleged sexual encounters with defendant. In fact, this accusing wdtness accompanied these females to defendant’s office and remained in defendant’s office during the encounters.

In June 1983, defendant allegedly took nude photographs of this witness while performing an act of fellatio on him. Several days after this, defendant attempted to engage the wdtness in anal intercourse. Defendant failed in his first attempt but was successful in his second attempt some time later.

In the spring of 1984, the wdtness told defendant that he no longer wanted to participate in defendant’s sexual antics. The wdtness then inquired as to when he was to receive his diploma. The wdtness also informed defendant that he intended to withdraw as a student from the school. Defendant tried to dissuade him from leaving by asking him to stay and become his “main man.” The wdtness declined and subsequently dropped out of Kelvyn. Although defendant contacted the witness by telephone and visited the witness’ home, he had no further sexual contact with the wdtness.

Several teachers from Kelvyn also testified concerning the apparent relationship between defendant and this last accusing wdtness. Ms. Margaret Harris testified that defendant asked her to send the wdtness’ cut slips directly to him. The usual practice had been to send the slips to a student’s division.

Another teacher, Ms. Maxine Lowe, testified that this same student had brought in passes signed by defendant when he was late or missed one of her classes. She testified that he brought in approximately 36 passes signed by defendant. When she confronted the student as to why he was being excused, the student responded to her inquiry by smiling.

Subsequently, defendant had this student transferred out of Ms. Lowe’s class and into a gym class. Ms. Lowe also testified that defendant made advances toward her and had asked her out on numerous occasions. She ignored all of his advances and declined invitations to go out.

Ms. Rochelle Drolson, a general science teacher, testified that on at least six occasions this last accusing witness would be called out of her class, via the school’s intercom, and into the main office. She also testified that this student had come to her class late on three occasions with passes signed by defendant.

In the spring of 1983, this same student told her that defendant would probably be paging him out of class but that he did not want to go to defendant’s office. Ms. Drolson then excused the student from her class in order to avoid the page. Shortly thereafter, the student was, in fact, paged. He reluctantly responded to the page.

At the end of the semester, defendant asked Ms. Drolson to change this student’s grade from failing to a passing grade. Ms. Drolson changed the student’s grade to a “D” after defendant told her that he would have the student turn in additional work. The student never turned in the promised work.

The school’s senior counselor, Ms. Lois Woodworth, also testified as to defendant’s relationship with this student. Ms. Woodworth reported seeing defendant and this student together as often as two or three times a week. She noted that there were also other male students who would frequent defendant’s office. Defendant had asked her to take this student in for counseling, even though he was only a junior at the time. She stated that defendant’s request was unusual, since she counseled those students who had entered their senior year in high school.

Mr. Thomas Riley, whose office was next to defendant’s office, testified that he saw this student enter defendant’s office through a side door on four or five occasions. He also observed two of the other accusing witnesses and several other students enter defendant’s office regularly through this side door.

Charles Riggs, the school’s engineer, testified that in March 1985, several months prior to defendant’s indictment, he observed defendant incinerate several stacks of papers. This incineration occurred on two separate occasions. Mr. Riggs noted that he had never seen defendant, prior to these incidents, incinerate anything. Usually a student brought items down for incineration or a janitor was called to incinerate anything to be disposed of at the request of members of the faculty.

At the close of the State’s case, although the court denied defendant’s motion for a directed verdict, it found defendant not guilty of the first count of the indictment filed by one of the accusing witnesses.

Defendant, in testimony, denied all allegations of sexual improprieties with any student from Kelvyn. He did admit to having a piece of wood placed over the grating of a door to his office and to having carpet installed. Defendant also conceded that he had burned a great number of documents and personal correspondence.

The court found defendant guilty at the conclusion of the evidence. A sentencing hearing was held and the court heard arguments in mitigation and aggravation. Defendant also spoke on his own behalf, again denying the allegations. The court then sentenced defendant to concurrent terms of 15 years for the indecent liberties charges and five years for the official misconduct charges. It is from this decision that defendant appeals.

Defendant first argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt. Defendant maintains that his conviction should be reversed since there was an utter absence of corroboration of the testimony of the accusing witnesses. Moreover, defendant argues, that the accusing witnesses’ testimony was not clear and convincing. We disagree.

The standard to be used for reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Eyler (1989), 133 Ill. 2d 173, 191; People v. Phillips (1989), 127 Ill. 2d 499, 509-10.) It is not the function of a court of review to retry the defendant. (Phillips, 127 Ill. 2d at 509.) It is the function of the trier of fact to determine the accused’s guilt or innocence; a court of review will not reverse the conviction unless the evidence is so improbable as to justify a reasonable doubt of the defendant’s guilt. Phillips, 127 Ill. 2d at 509-10.

We do not find that the evidence against defendant was so unreasonable or improbable as to warrant a reversal of his conviction. We, instead, find that the evidence is overwhelmingly against defendant. After carefully reviewing the record, we find that there was detailed testimony from each of the five accusing witnesses that defendant had committed various acts of sexual improprieties. In each case, the accusing witness subjected himself or herself to defendant’s sexual demands in exchange for promises of passing grades, protection of some sort, or special treatment. Furthermore, there was clear and concise testimony from other witnesses who had been subjected to defendant’s deviant acts.

Although defendant impeached the testimony of some of these witnesses with respect to dates, times and other inconsistencies, the testimony was otherwise clear, specific, and detailed as to what sexual improprieties defendant had committed with each witness. As the State properly observed, not one of these witnesses wavered as to the material aspects of their sexual encounters with defendant.

Defendant also contends that the evidence against him was implausible because there was no immediate outcry by any of the students after the alleged incidents took place. However, in cases such as this, the lack of an outcry or a late complaint may be attributed to fear or embarrassment. People v. Escobedo (1986), 151 Ill. App. 3d 69, 82-83.

We note that defendant initially made the argument that one of the accusing witnesses had reached the age of majority prior to the time the indictment was handed down. However, defendant conceded in oral argument before this court that the witness’ reaching the age of majority was irrelevant to the charges made against him.

Next, defendant argues that the evidence at trial was prejudicially at variance with the indictment and the bill of particulars. The State’s bill of particulars sets forth the dates the alleged incidents took place with respect to each student. Defendant argues, however, that when the case came to trial each of the accusing witnesses was unable to identify the date or dates of the incidents. This, defendant charges, misled him in the preparation of his defense.

The State, on the other hand, maintains that no variance exists between the evidence presented at trial and the bill of particulars. The dates on the indictments are all listed as “on or about” or “during.” The bill of particulars which was filed with the answer to discovery also listed the dates as “on or about.” Moreover, the State argues, even assuming, arguendo, that such a variance existed, it was not fatal and had no effect upon the preparation of the defense. We, however, note that the State has conceded that the record is devoid of any evidence of fellatio occurring between defendant and one of the accusing witnesses on May 14, 1984. Therefore, we vacate defendant’s convictions as to the official misconduct and indecent liberties counts which are based on defendant’s alleged act of fellatio on May 14, 1984.

A minor variance between the testimony given at trial and the information provided in the bill of particulars does not rise to the level of reversible error unless the date is an essential element of the crime or where the inconsistency is so substantial that it misled defendant in the preparation of his defense. (People v. Escobedo (1986), 151 Ill. App. 3d 69, 84.) “The date of the crime is not an essential ingredient of the offense of indecent liberties with a child ***.” Escobedo, 151 Ill. App. 3d at 85.

Furthermore, after carefully reviewing the testimony, we find that either the witnesses approximated the dates or, in some instances, gave the exact date listed in the bill of particulars. As one of the accusing witnesses stated, in testimony: “I don’t remember the exact date. I remember it happened.”

Defendant’s claim that the alleged variances misled him in the preparation of his case is also without merit. Defendant has steadfastly maintained that none of the alleged incidents occurred at any time. The dates would, therefore, arguably be inconsequential to his defense. In fact, prior to sentencing, with respect to an incident that allegedly occurred around Halloween, defendant stated: “I don’t care if it was Halloween or the previous Friday or the previous Thursday, that is *** irrelevant to me. It didn’t happen ***.” Further, the dates listed in the bill of particulars gave defendant a sufficient time frame as to when the alleged incidents occurred. We are not persuaded that defendant was prejudiced in the preparation of his defense due to the claimed variances.

Defendant next argues that prejudicial prosecutorial and judicial misconduct deprived him of a fair trial. Specifically, defendant observed the son of the trier of fact, who is an assistant State’s Attorney, in the courtroom conversing with the prosecutor, defense counsel, and his father. Defendant maintains that at the very least this gives the appearance of impropriety and, therefore, defendant’s conviction must be reversed.

Defendant relies on Supreme Court Rule 67, which provides, in pertinent part, as follows:

“(a) A judge shall disqualify himself in any case in which a close relative by blood or marriage (first, second or third degree of relationship under the rules of the civil law, see Ill. Rev. Stat. 1975, ch. 3, par. 2—1(g)) is a party, has an interest, or appears as counsel. Disqualification is required where a lineal descendant or ascendant, brother, sister, uncle, aunt, nephew, niece or spouse thereof is involved. A judge cannot rid himself of this responsibility by consent of counsel or the parties to the case.
(b) While a judge should disqualify himself in virtually all cases where a relative by blood or marriage is a party, has an interest, or appears as counsel, this may create an unnecessary hardship if the degree of relationship is remote. Although those relationships beyond the third degree are too remote to cause automatic disqualification, more distant relationships should be disclosed to the parties if they involve any possible conflict of interest.” 87 Ill. 2d R. 67.

Defendant claims that the trier of fact’s son, Frank Mahon, Jr., had an interest in this case. Defendant, however, does not articulate what particular interest the trier of fact’s son may have in this case. Moreover, defendant did not raise this objection during trial which, arguably, waives the issue for review (but see SCA Services, Inc. v. Morgan (7th Cir. 1977), 557 F. 2d 110). As the State notes, defendant apparently only felt that he had been prejudiced after he was convicted. Even assuming, arguendo, that the issue was not waived, we are not persuaded that, under the circumstances of this case, the alleged communications would warrant a reversal.

To establish that a right to an impartial trial was denied, the defendant has the burden of rebutting the presumption of impartiality by proving actual prejudice. (People v. Anderson (1981), 95 Ill. App. 3d 143, 147.) Defendant has not met his burden in this case. To warrant a reversal, the communication must rise to the level of unfairness or the probability of unfairness. (People v. Hicks (1970), 44 Ill. 2d 550, 557.) After carefully reviewing the record, we do not find that the alleged communications rise to that level.

Defendant cites to two instances of alleged misconduct. First, he argues that Frank Mahon, Jr., “assisted” the State in its case against defendant. The record, however, does not support this contention. We do not find any evidence whatsoever that Frank Mahon, Jr., assisted the State in this case. Second, defendant points out that Frank Ma-hon, Jr., had only recently been assigned, prior to trial, to the unit in the office of the State’s Attorney office that was responsible for prosecuting him. However, Frank Mahon, Jr., was transferred to the arson unit. There is no connection between the crime of arson and the issues presented in the instant case.

The mere fact that Frank Mahon, Jr., is an assistant State’s Attorney would not warrant the assertion that defendant was deprived of a fair trial. It is preposterous to assume that a judge’s propensity to convict criminal defendants would increase simply because his or her son or daughter is an assistant State’s Attorney. See State v. Logan (1984), 236 Kan. 79, 689 P. 2d 778.

Next defendant argues that the trial court erred in allowing two of the State’s witnesses to testify. One witness, an adult, testified to a sexual encounter she had had with defendant in his office. The other witness, who was present during that sexual encounter, corroborated the detail of the incident. Further, both witnesses’ testimony was corroborated by an accusing witness, who was also present during the encounter.

Defendant contends that there was no crime committed since the female involved was a consenting adult, or, defendant argues, in the alternative, that this admission of other crimes resulted in prejudice against him and would warrant a reversal. Although evidence of other crimes is inadmissible to show defendant’s propensity to commit a crime, it may be admissible if relevant to demonstrate intent, motive, design, plan or identification. People v. Lindgren (1980), 79 Ill. 2d 129, 137.

In the instant case, the testimony evidenced a common plan or scheme by defendant of getting certain individuals into his office to commit various sexual acts. This same reasoning would apply to defendant’s argument that no crime had been committed since the female was at the age of consent. Moreover, even if the testimony were erroneously admitted, if there is sufficient evidence to establish guilt beyond a reasonable doubt, the error will be considered harmless. (People v. Hudson (1980), 86 Ill. App. 3d 335, 341.) In the instant case, the evidence was overwhelmingly against defendant; we, therefore, do not find grounds for reversal based on this contention.

Finally, defendant argues that the trial court abused its discretion in sentencing him. He maintains that the trial court refused to give proper consideration to his personal background and rehabilitative potential and considered improper factors in imposing his sentence.

In People v. Partin (1987), 156 Ill. App. 3d 365, the appellate court set forth the following principles to be observed by a court of review in determining whether the trial court abused its discretion at the sentencing phase of the trial.

“Although the Illinois Constitution requires the trial court to determine all penalties both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, sec. 11), a trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. [Citation.] There is a strong presumption that a trial court’s sentencing decision is based upon proper legal reasoning, and the court will be presumed to have considered any evidence of mitigation which is before it. [Citation.] The court has no obligation to recite and give value to each fact presented at the sentencing hearing. [Citation.] The trial court is the proper forum in which to determine a suitable sentence, and the trial court’s decision regarding sentencing is entitled to great deference and weight. [Citation.] [A] decision will be modified by a reviewing court only if there has been an abuse of discretion.” Partin, 156 Ill. App. 3d at 373.

After carefully reviewing the record, we do not find that the trial court abused its discretion in sentencing defendant. At the sentencing hearing, after witnesses and defendant testified and counsel presented arguments in mitigation and aggravation, the court stated:

“I want you to understand that I went through my notes piece by piece, I combed everything to see if there was anything I could find in your favor, and I couldn’t. I gave you a degree beyond reasonable doubt, and I find you guilty. Therefore, I am going to sentence you at this time.
* * *
I also wanted to advise you that I did not give you probation, although I did consider it, because it would be a deprecation of the seriousness of the crime. If I would give a person probation having found you guilty of the acts that I found you guilty of, it would also be necessary to protect the public from acts of a similar nature that might be made by you.”

First, with respect to defendant’s argument that the trial court failed to consider defendant’s background and rehabilitative potential, we find nothing in the record that would indicate the court ignored these factors. A trial court need not give greater weight to the potential for rehabilitation than to the seriousness of the offense. (People v. Partin (1987), 156 Ill. App. 3d 365, 373.) Further, defense counsel’s argument with respect to rehabilitation seems contradictory, since defendant steadfastly maintains that he did not commit any sexual offenses.

Second, defendant’s argument that the court improperly considered two factors in aggravation is simply unsubstantiated by the record. Specifically, defendant points to the court’s remark, made prior to imposing sentence, that “we are living in a society that is obsessed with sexuality.” However, as the State aptly points out, defendant takes this remark out of context. The remark was in response to defendant’s request for a new trial. The court immediately-stated after making the remark that it carefully reviewed the record and had even taken personal notes during the trial to determine if anything could be found in defendant’s favor. The court then went on to explain that defendant’s plight had been considered beyond a reasonable doubt. There is simply nothing in the record to support defendant’s argument that this remark was considered as a factor in aggravation.

Defendant argues that the trial court also took offense to and improperly considered a factor in aggravation, i.e., his assertion that the trier of fact’s son influenced the court’s decision. Although the court may have taken offense to the assertion, there is nothing in the record to support defendant’s contention that the court considered this as a factor in aggravation when it later imposed sentence. Defendant’s argument fails with respect to this issue.

Accordingly, the decision of the circuit court is affirmed in part, and we vacate those counts consistent with our previous findings herein. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nieholls (1978), 71 Ill. 2d 166.

Affirmed in part; vacated in part.

McMORROW, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    AMERICAN COLLEGE OF CHEST PHYSICIANS, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1253
    Opinion filed July 18, 1990.
    Modified on denial of rehearing September 12, 1990.

      Neistein, Richman, Hauslinger, Young & Rosen, Ltd., of Chicago (Harry A. Young, Jr., Alan Rosen, and Marcia Topper Wolf, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, the American College of Chest Physicians, appeals from an order of the circuit court affirming the finding of defendant, the Illinois Department of Revenue (Department), that real property owned by plaintiff and located at 911 Busse Highway in Park Ridge, Illinois, was not exempt from taxation for the year 1986. Plaintiff argues that it is entitled to a property tax exemption under sections 19.1 and 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, pars. 500.1, 500.7).

In 1974, the Department exempted plaintiffs property from taxation. The property remained exempt for the following 11 years. In 1987, the Cook County Board of Appeals approved plaintiff’s application for a tax exemption for the year 1986. However, on August 10, 1987, the Department reversed the Board’s decision on the ground that the property was not in exempt ownership or use.

Plaintiff requested a formal hearing on the Department’s denial of its request for an exemption. Dr. Alfred Soffer, plaintiff’s executive director, was the only witness called at the hearing. Soffer testified that plaintiff is an international, not-for-profit medical society for 13,000 members in the United States, Canada, and overseas. Soffer stated that plaintiff’s major purpose is to provide continuing education to the practicing specialist in heart and lung disease and to physicians who treat patients with heart and lung diseases. Soffer further stated that plaintiff was the primary source of post-graduate education in pulmonary medicine.

Soffer testified that in 1986 one-third of plaintiff’s funds came from membership dues; one-third from fees for its courses and annual meeting; and one-third from advertising in Chest, plaintiff’s monthly journal. Soffer stated that plaintiff also received $500,000 in grants.

Soffer testified that the building in Park Ridge was staffed by 42 full-time employees and that the employees were divided into four administrative categories: seven were employed in the education division, 11 in the publications division, three in the convention and audiovisual division, and 21 in the membership division. The building also housed a scientific library staffed by a full-time librarian. The library contained the major heart and lung journals in the world, textbooks relating to heart and lung disease, and facilities for computerized data bases for the National Library of Medicine. Soffer stated that the library received requests from laymen and physicians and members and nonmembers all over the world and that there was no charge for library research.

In response to a question by the administrative law judge, Soffer stated that he did not know what number of laypersons used the library and he indicated that the library was primarily used by plaintiff’s staff to respond to inquiries in letters and phone calls. When asked whether people came to the building to use the books, Soffer replied that the books were for staff use in responding to inquiries and performing research for high schools, schools, physicians and laymen. When asked if a layperson would be prohibited from going to the library to look at the books, Soffer stated

“No, no. It’s not a prohibition. It’s just that it’s a national — it’s a national responsibility, and I and my staff usually we are asked questions but not from Illinois. However, its available. There is — it’s not — we would welcome all visitors.
And we’d like to expand this service. Because especially with our own computer base soon, I would hope we would be able to offer that availability.”

Soffer testified that plaintiff also maintained a video tape library, and that video tapes from the library were rented to the public at the cost of mailing. In addition, plaintiff produced audio tapes on the diagnosis, treatment, and prevention of heart and lung diseases, which were available for purchase by physicians and members of the public who were not physicians.

Soffer testified that plaintiff maintained an educational fund, created by voluntary donations from plaintiff’s members, and that each year three $18,000 grants were “provided by industry.” Soffer also testified that plaintiff provided $70,000 a year for a teaching research grant.

Soffer further testified that each year plaintiff offered between 12 and 22 continuing medical education courses for physicians. The courses lasted from two to five days and the standard fee for a three-day course was $300. The courses were not conducted at the building in Park Ridge, but were presented at hospitals and medical centers across the country. The courses included lectures and workshops, and class sizes ranged from 100 to 1,000 students. Although the majority of the courses offered were for physicians, plaintiff also offered at least one course a year for nurses and allied health professionals, such as respiratory therapists.

Soffer testified that the State of Illinois did not offer any continuing medical education. Soffer also testified that, while continuing medical education was necessary for continued licensure and certification in 20 States, it was not required in the State of Illinois.

Following the hearing, the administrative law judge concluded that plaintiff did not qualify as a school or a charitable organization. The Department adopted the law judge’s conclusions, and plaintiff’s request for a property tax exemption was denied.

Plaintiff filed a complaint in administrative review with the circuit court of Cook County. Following a hearing, the court affirmed the Department’s decision. The court held plaintiff’s property did not qualify for an educational property tax exemption because the courses offered by plaintiff were not mandated by the State of Illinois, because the courses did not relieve any State burden, and because the State did not have any responsibility to educate physicians on new techniques in chest medicine.

The court found that plaintiff existed primarily for the education of its dues-paying members and that, while the courses offered passed down some indirect benefit to the members’ patients, this did not constitute a direct economic benefit to the State. The court also found that plaintiff did not qualify for a charitable exemption because the property was not used to relieve the public from disease, suffering, or constraint, or for some other activity which lessened the financial burden on the State. This appeal followed.

Section 19.1 of the Revenue Act (Ill. Rev. Stat. 1985, ch. 120, par. 500.1) provides that all property of schools used for school purposes is exempt from taxation. In Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 146 N.E.2d 73, the supreme court stated that two things are necessary to qualify property owned by a private institution for exemption from tax: (1) a course of study which fits into the general scheme of education founded by the State and supported by public taxation; and (2) a course of study which substantially lessens what would otherwise be a governmental function and obligation. (Coyne, 12 Ill. 2d at 392-93.) The burden of proving the right to exemption is upon the party seeking it, and in determining whether property is included within the scope of an exemption, all facts are to be construed and all debatable questions resolved in favor of taxation. Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 494 N.E.2d 485; Highland Park Hospital v. Department of Revenue (1987), 155 Ill. App. 3d 272, 507 N.E.2d 1331.

In the present case, plaintiff points out that in 1986, section 5a of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. Ill, par. 4411a) provided that the Department of Registration and Education “shall promulgate requirements of continuing education for persons licensed under this Act” and that regulations requiring continuing medical education had been proposed pursuant to this section. Plaintiff also points out that in 1986, amendments to the'Medical Practice Act requiring continuing medical education had been proposed. Plaintiff acknowledges that the proposed regulations were never enacted and were subsequently withdrawn. However, plaintiff contends that the proposed regulations and the proposed amendments indicate that in 1986, State policy mandated continuing medical education. Plaintiff therefore argues that it satisfied the first requirement that the course of study offered fit into the general scheme of education by the State.

Plaintiff further argues that because State policy required continuing medical education, plaintiff’s courses substantially lessened the tax burden on the public by providing educational training that, otherwise, the State would have to furnish. Thus, plaintiff contends that it also satisfied the second requirement that its course of study substantially lessen a governmental function and obligation.

In support of its contentions, plaintiff relies on Illinois College of Optometry v. Lorenz (1961), 21 Ill. 2d 219, 171 N.E.2d 620, and Association of American Medical Colleges v. Lorenz (1959), 17 Ill. 2d 125, 160 N.E.2d 763, two cases in which the supreme court found that the plaintiff organizations qualified for educational property tax exemptions. Plaintiff argues that its activities are similar to those of the organizations in the above-cited cases and claims that, therefore, a similar conclusion must be reached in this case.

We disagree with plaintiff’s arguments that it satisfies the requirements for exemption set forth in Coyne, and we find that both Illinois College of Optometry and Association of American Medical Colleges are distinguishable.

In Illinois College of Optometry, that school was held to be exempt from taxation because the courses taught there duplicated those taught by the tax-supported University of Illinois and its medical school. Although the supreme court stated that there was no requirement that the courses offered by a private school duplicate the program of a public school to qualify for a tax exemption, the court also stated that the course of study provided must fit within the general scheme of education provided in tax-supported schools. (Illinois College of Optometry, 21 Ill. 2d 219.) Because the courses taught at the College of Optometry were “equally as comprehensive and exacting” as those taught in State-supported universities and were required before one could become qualified to practice optometry, the court concluded that they fit into the general scheme of education established by the State and substantially lessened the tax burden by providing instruction that otherwise would be provided at government expense. 21 Ill. 2d at 223.

In Association of American Medical Colleges, plaintiff was a not-for-profit corporation whose members included medical schools throughout the country. The Association’s functions included publishing a directory containing admission requirements and other information about member schools; sponsoring admission tests; performing placement functions; and appraising the curricula of medical schools and colleges. In allowing the tax exemption for the Association’s property, the supreme court noted that the functions to which the property was devoted were identical to those that would afford exemption if conducted separately by the member institutions. The court concluded that where the functions themselves qualify for exemption, it did not matter that they were performed by a separate organization rather than by the respective members. Association of American Medical Colleges, 17 Ill. 2d at 129.

In the present case, plaintiff did not function on behalf of tax-exempt entities, as did the Association of American Medical Schools; nor did it provide the comprehensive course of study presented by the College of Optometry. While plaintiff’s executive director testified that plaintiff was the primary source of post-graduate education in pulmonary medicine, he also testified that plaintiff’s courses lasted only two to five days and that they were not required in order to be licensed in Illinois.

We are not persuaded by plaintiff’s argument that its courses fit within the general scheme of education in 1986 because in that year the Department of Registration had proposed regulations requiring continuing medical education. As we stated above, in determining whether property is included within the scope of an exemption, all facts are to be construed in favor of taxation. In construing the facts in this case, we note that the Department’s proposed regulations were never enacted and that in 1986 there was no Illinois law requiring continuing medical education. It follows that if there was no requirement of continuing medical education, there was no burden on the State to furnish such education and, thus, no burden for plaintiff to lessen. Accordingly, we conclude that plaintiff’s property does not fall within the statutory exemption for property used for schools or other educational purposes.

We now turn to plaintiff’s contention that its activities qualify it for a charitable tax exemption under section 19.7 of the Revenue Act. Section 19.7 provides an exemption from tax for all property of institutions of public charity. Ill. Rev. Stat. 1985, ch. 120, par. 500.7.

In Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, the supreme court enunciated the following guidelines and criteria to be applied in determining whether a use is for charitable purposes: (1) the use is for the benefit of an indefinite number of persons, persuading them to an educational or religious conviction, for their general welfare — or in some way reducing the burdens on government; (2) the charitable institution has no capital, capital stock, or shareholders, earns no profits or dividends, but rather derives its funds mainly from public and private charity and holds them in trust for the objects and purposes expressed in its charter; (3) the charitable institution dispenses charity to all who need and apply for it, does not provide gain or profit in a private sense to any person connected with it, and does not appear to place obstacles of any character in the way of those who need and would avail themselves of the charitable benefits it dispenses; (4) the statements of the agents of an institution and the wording of its governing legal documents evidencing an intention to use its property exclusively for charitable purposes do not relieve such institution of the burden of proving that its property actually and factually is so used; and (5) the term “exclusively used” means the primary purpose for which property is used and not any secondary or incidental purpose. 39 Ill. 2d at 157.

After applying these guidelines to facts in the present case, we conclude that plaintiff does not qualify for a charitable tax exemption.

To meet the first of the guidelines, it must be established that the benefits accrued to mankind directly; it is not sufficient that incidental benefits may come to the public as a result of the property’s use. (International College of Surgeons v. Brenza (1956), 8 Ill. 2d 141, 133 N.E.2d 269.) Although plaintiff argues that the public was directly benefitted by its courses, it seems clear that plaintiff’s activities benefitted a particular class of people, i.e., its members and other doctors who took plaintiff’s courses, and any benefit accruing to the general public was indirect. Further, as we stated above, plaintiff’s activities did not reduce the burdens of government, because there was no burden on the government to provide continuing medical education. Thus we find that plaintiff failed to meet the first guideline.

Turning to the second guideline, it appears that plaintiff was a not-for-profit corporation with no capital stock or shareholders. However, plaintiff’s executive director testified that one-third of plaintiff’s income was derived from membership dues, one-third from the courses and annual meeting, one-third from advertising, and an additional $500,000 a year from grants. The income and expense statements included in the record reveal that in fiscal year 1986, plaintiff derived $1,424,931 in membership dues, $998,521 from its courses and annual meeting, and $1,851,178 from advertising. Thus, it is clear that the $500,000 in grants was not the main source of plaintiff’s funds.

We also find that plaintiff did not meet the third guideline that charity be dispensed to all who need and apply for it with no obstacles put in the way of those who need and would avail themselves of plaintiff’s benefits. Plaintiff argues that it met this guideline through the fellowships and grants it provided for research, its teaching and training, and its library whose publications and tapes were available to anyone.

We have already held that plaintiff’s teaching and training benefit-ted only a limited class of people. We now hold that there is no evidence that plaintiff’s fellowships and grants or its library provided benefits to the general public.

Under the fourth guideline, the statements of the agents of an institution do not relieve the institution of the burden of proving that it actually used its property for an exclusively charitable purpose. In the present case, the only evidence that plaintiff’s library was available for use by the public was the statement of plaintiff’s director. When plaintiff’s director was questioned about the public’s use of plaintiff’s library, he was unable to state what number of laypersons used the library; he stated that the library was used primarily by plaintiff’s staff in responding to inquiries; and his reply to the hearing officer’s question of whether laypersons would be allowed to visit the library to examine plaintiff’s books, at best, could be described as equivocal.

The director’s testimony concerning plaintiff’s grants and fellowships was similarly ambiguous. He stated that five grants were awarded annually: three of these were provided by “industry” and a fourth in the amount of $70,000 was provided by plaintiff itself; no details were given concerning the fifth grant.

The burden of proving the right to an exemption is upon the party seeking it and a plaintiff meets this burden by demonstrating that charity is the primary purpose for which the property is used. (Board of Certified Safety Professionals of the Americas, Inc. v. Johnson, 112 Ill. 2d at 547; Highland Park Hospital v. Department of Revenue, 155 Ill. App. 3d at 283.) In the present case, the testimony of plaintiff’s director concerning plaintiff’s fellowships and grants and the public’s use of plaintiff’s library did not establish with the required conclusiveness and clarity that the primary purpose for which plaintiff’s property was used was a charitable one. See Coyne Electrical School v. Paschen, 12 Ill. 2d at 401.

In arguing that it is entitled to a charitable exemption, plaintiff claims that its situation is factually indistinguishable from that of the plaintiff in American College of Surgeons v. Korzen (1967), 36 Ill. 2d 340, 227 N.E.2d 7. We disagree.

In American College of Surgeons, the supreme court held that although many of the college’s programs were attended primarily by members of the medical profession, the college made its benefits available to the public to the greatest degree possible and that the college’s activities relieved, to some extent, the burden on the State to advance the interest of its citizens. (36 Ill. 2d at 348.) Unlike the present case, there was evidence in American College of Surgeons that the library and museum operated by the college were used by the public; that the college formulated standards for and inspected and accredited State, municipal, and private hospital facilities at no charge; and that the college conducted programs for the education of doctors, laymen, hospital administrators, and the general public. Here, plaintiff took no part in the accreditation of hospitals; its programs were directed toward its members and other doctors; and as we stated above there was no clear and convincing evidence that plaintiff’s facilities were used by the general public. Accordingly, we find that plaintiff has failed to meet its burden of establishing that it is entitled to a charitable tax exemption.

For the foregoing reasons, we find that plaintiff did not qualify for an educational property tax exemption or a charitable exemption and, therefore, we affirm the judgment of the circuit court of Cook County.

Affirmed.

RIZZI and FREEMAN, JJ., concur.


author: PRESIDING JUSTICE COCCIA

text:
      In re MARRIAGE OF L.R., Petitioner-Appellant, and A.L.R., n/k/a A.L., Respondent-Appellee.
    First District (5th Division)
    Nos. 1—87—3554, 1—88—3118 cons.
    Opinion filed July 27, 1990.
    Rehearing denied September 27, 1990.

      Kalcheim, Schatz & Berger, of Chicago, for appellant.

      Catherine M. Ryan, of Ryan & Miller, RC., of Chicago (Mary Ellen Dienes, of counsel), for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

I

Petitioner L.R. (father) and respondent A.L. (mother) were married on December 19, 1981; H.R. (daughter), their only child, was born on August 1, 1982; their marriage was dissolved on June 29, 1984. Mother was granted custody of daughter, and father was granted reasonable visitation rights. This appeal arises from a dispute concerning his exercise of those rights. Specifically, father has appealed from an order entered by the circuit court, which abated his visitation with daughter, on the basis of a finding that he sexually abused her. He has also appealed from the circuit court’s order directing him to pay mother’s attorney fees. For the following reasons, we reverse the order abating visitation, reverse the order awarding attorney fees, and remand for further proceedings.

II

On November 11, 1985, mother filed a petition to abate father’s visitation with daughter, alleging that he sexually abused her. Shortly thereafter, father filed a petition for a rule to show cause, seeking to enforce his visitation rights. A hearing began on June 22, 1987, and extended over the course of 10 days. For the purpose of clarity, we shall recite the relevant facts in the order in which events transpired, although the witnesses did not testify in that order. Parenthetically, we note that father’s failure to file a table of contents for the voluminous record — contrary to Supreme Court Rule 342(a) (107 Ill. 2d R. 342(a))—did not assist us in resolving this appeal.

Mother testified that she had a conversation with daughter on October 29, 1985, in the kitchen of their home, around 7:30 p.m. No one else heard the conversation. According to mother:

“We were eating some kind of nuts, and [daughter] suddenly got off her high chair. She sat down on the floor spreading her legs, and she proceeded to take her clothes off. At that moment, I asked her, Why do you take your clothes off?’ She said, T am going to show to you and tell you what my Papa does to me.’ I said, ‘Tell me. Do not take your clothes off.’ She said he is asking her to sit on the cold bathroom floor with her legs spread out. Then, she stood up, came towards me with her back facing me, and she came between my legs. I was sitting on the chair. She bent herself down, and she show that he is putting something in her poopa (phonetic), and he does something in her pee-pee. Also, he was squeezing her legs when he was doing this. She said it hurt her, and she startfed] crying, but he start pulling her hair, and she said the more she cried, the more he pulled her hair to prevent her from crying. She said she was calling, ‘Mommy, Mommy, Mommy, but you didn’t come.’ *** I told [daughter], ‘[Daughter], I was too far for me to hear you calling me. That is why I couldn’t hear you.’ *** [Daughter] sort of finished the conversation by saying, ‘Make sure that you will not do those things to me.’ ”

Mother then explained that daughter called her father “papa,” that she called the rectum “poopa,” and that she called the vagina “pee-pee.”

Mother testified that she and daughter had another conversation later that same evening, about 9 p.m., in the bathroom. N.L. (sister), mother’s child by a different marriage, was present for this conversation. According to mother:

“When I was giving her a bath, [daughter] said that when her Papa was putting something in her poopa, it hurt her very much, and T was calling you, and you didn’t come.’ And I explained to her that I was too far away from her. *** Then, she sat down on the edge of the bathtub, and she lifted one of her legs, and she showed that with her fingers, that Papa does something in her pee-pee like this.”

Father’s attorney objected to both statements on the grounds of the hearsay rule, and the circuit court reserved its ruling.

The day after hearing the alleged statements, mother took daughter to her pediatrician, Dr. Korach, for a previously scheduled appointment. Apparently, mother did not discuss these alleged incidents with Dr. Korach, and he did not give daughter a vaginal examination. Later that day, mother called a child abuse hotline. On November 1, 1985, she met with Marilyn Michaelparker of the Illinois Department of Children and Family Services (DCFS). Mother then took daughter to Mount Sinai Hospital, where she was examined by Dr. Joyce Smith. The next day, mother spoke with Detective Silverberg of the Skokie police department. According to the DCFS report, no criminal proceedings were initiated against father because the police believed that daughter, who was three years old at the time, would not make a good witness.

On cross-examination, mother admitted that when daughter was making the supposed statements to her, the child was “sort of calm.” Mother also conceded that she never returned to Mount Sinai to have daughter admitted for a more thorough examination, contrary to Dr. Smith’s advice. Mother admitted that she secretly listened to father’s telephone conversations with daughter, when he called the child. And mother conceded that her own mother, T.L. (maternal grandmother), told daughter that father did bad things to her.

Maternal grandmother testified through an interpreter, who was conversant in the Polish and Russian languages. According to maternal grandmother, she and daughter had a conversation in October of 1985, which was the child’s first week of school. This conversation took place in maternal grandmother’s home, after school. No one else was present. Daughter referred to two secrets, but she only told maternal grandmother one secret at that time. The first secret concerned father's negative statements about maternal grandmother, sister, and mother. Maternal grandmother testified that daughter told her the second secret during the last week of October 1985. Like the first conversation, the second conversation took place at her home, after school, with no one else present. According to maternal grandmother:

“I asked her — [daughter], ‘where do you want to talk, in which room?’ She said in the bathroom. *** [Daughter] said not to tell — not to say anything and not to ask her questions. She wanted me to sit on the toilet seat. *** She started to take off all her clothes. *** Then, she sat on the naked floor. I asked [daughter], ‘Why are you sitting on the naked floor naked?’ [Daughter] said, T want to show you why I have been sick so often.’ Once again, she said, ‘Grandma, don't say anything. I will show you what was next.’ She stood up from the floor, turned her back and said, ‘Grandma, hug me closely.’ She bent a little and showed me how Papa put a stick in her bottom. She started to cry. She said that while she was crying her Papa told her to stop crying and was pulling her hair. ‘Grandma, it hurt a lot.’ T didn’t want him to do it. I asked him not to do it; but, he was still doing it.’ *** Her father answered, ‘A good father should do things like that, put a stick in your bottom.’ *** She cried very much. She was white as a sheet of paper. She was cold as a piece of ice. She was hanging on her neck. She clang [sic] to her neck; and, she couldn’t take her weight off her. I didn’t know what to do with her. I got scared and terrified.”

Maternal grandmother testified that daughter’s supposed statements were made in Polish, with the exception of the word “Papa,” which she said in Russian.

Counsel for father likewise objected to the admission of this testimony on the basis of the hearsay rule. Again, the circuit court reserved its ruling. On cross-examination, maternal grandmother conceded that daughter did not tell her when the alleged incidents occurred. She also admitted that her husband and their two sons were living with her at the time the supposed statements were made.

Iva Falevits also testified for mother. She was a friend of mother’s, and daughter was her student at the time of the alleged statements. According to Falevits, daughter was shy and pensive around that time.

As noted above, Joyce Smith, M.D., examined daughter at Mount Sinai Hospital on November 1, 1985. Dr. Smith tested her for several sexually transmitted diseases, and those tests were negative. She found daughter’s vagina to be normal, but found an abrasion in the lower part of the rectum. An abrasion, according to Dr. Smith, is a slight denuding of the skin, in which a layer of the skin is missing. In her opinion, the abrasion was secondary to significant trauma, of the sort children do not normally inflict upon themselves. Dr. Smith also opined that the trauma caused by the abrasion was consistent with the insertion of an object in the rectum. On cross-examination, Dr. Smith conceded that the abrasion could be consistent with other etiologies. That is, rubbing the rectal area, irritation, or scratching, or wiping a child too vigorously after a bowel movement could also produce an abrasion. Although daughter’s condition was consistent with other etiologies, Dr. Smith could not rule out sexual abuse. She testified that such an abrasion takes one week to 10 days to heal. Although she had no idea as to what sort of object penetrated daughter’s rectum, she believed there had been penetration by an object. There had not been full penetration, as the abrasion was located on the rectum’s perimeter, the area dividing the internal and external parts. Finally, Dr. Smith confirmed that she recommended to mother that daughter be admitted to the hospital the following week for a complete in-patient evaluation, yet mother never returned with the child.

Marilyn Michaelparker was the DCFS investigator assigned to the case, as stated previously. Over father’s objection, her official report was admitted into evidence. In her report, she concluded that father sexually abused daughter.

Psychologist Anne M. Brown, Ph.D., originally was appointed by the circuit court to investigate independently mother’s allegations. However, she testified at the hearing as an expert witness for mother. In her report, dated February 18, 1986, Dr. Brown concluded that there was “no doubt” in her mind that daughter had been traumatized by a significant male, that the male in question was father, and that he sexually abused the child. Dr. Brown’s conclusions were based upon the DCFS report; interviews with father, mother, and maternal grandmother; therapeutic evaluations of daughter; observations of daughter’s interactions with mother and grandmother; phone conversations with daughter’s teacher and a friend of maternal grandmother’s; and the administration of a multiple-choice test to mother and father known as the Millón Clinical Multiaxial Inventory.

On cross-examination, Dr. Brown admitted that not observing father’s interaction with daughter was a “flaw.” Dr. Brown also conceded that never during her evaluations of daughter did she hear the child say that father sexually abused her. She admitted that parents have been known to make unfounded allegations of sexual abuse, that parents have brainwashed their children into making such allegations, and that children can be taught to fear their parents. In fact, Dr. Brown stated that approximately 40% of all abuse allegations made in Cook County are false. Dr. Brown admitted that her sessions with daughter did not reveal which male abused the child; instead, she made the inference that father abused daughter from other sources. Although Dr. Brown opined in her report that S.Z. (cousin), father’s nephew, may also have abused daughter, she never interviewed cousin. She neglected to contact father’s psychiatrist, even though this would have been a way for her to independently verify the allegations. Dr. Brown did not retain a Polish interpreter to translate what maternal grandmother was saying to daughter during the evaluations. Dr. Brown admitted that father told her he had trouble understanding the Millón test. And, when she gave the Millón test to mother and father, she had yet to receive formal training in its administration; indeed, she was not registered as a psychologist and licensed to practice in the State of Illinois until May of 1987, after her report was submitted to the circuit court.

Tina Grossman, a clinical social worker specializing in the area of child abuse, testified as an expert witness for father. Grossman criticized the methods which led Dr. Brown to her conclusion that father abused daughter. Grossman opined that Dr. Brown’s methodology was biased in favor of mother. Based on Dr. Brown’s data, Grossman did not believe that she or anyone else could say with a degree of certainty that father abused daughter.

Eric Ostrov, Ph.D., a forensic psychologist, also testified for father. Like Grossman, Dr. Ostrov opined that Dr. Brown was biased in favor of mother. He based his opinion on the facts that mother and father related different versions of what happened to daughter, but that Dr. Brown’s data were drawn almost entirely from sources which favored mother. Dr. Ostrov stated that while literature in the field of child abuse places importance upon the observation of interaction between the alleged perpetrator of the abuse and the alleged victim, Dr. Brown failed to undertake such observation. Dr. Ostrov also criticized Dr. Brown’s reliance on the Millón test. According to him, it is a clinical test, designed to assist in the diagnosis of persons who seek treatment for psychological problems; Dr. Brown should not have used it for her investigation, because she was not attempting to treat father. Dr. Ostrov also opined that the test should be used circumspectly on members of minority groups such as father, a Russian immigrant of Jewish extraction. Because the test was written in English, father’s difficulties with that language could invalidate the test results. Dr. Ostrov likewise noted that even though daughter was given many opportunities to incriminate father in the course of Dr. Brown’s evaluation, the child never asserted that father abused her. Dr. Ostrov opined that Dr. Brown’s data, which consisted entirely of secondhand information, did not support her conclusions. And, assuming for argument’s sake that daughter had been abused, Dr. Ostrov was of the opinion that there was nothing to confirm Dr. Brown’s theory that the child had been abused by father.

Alan Ravitz, M.D., a child psychiatrist, testified for father. Dr. Ravitz also emphasized the importance of a perpetrator-victim interview in a case such as this. Dr. Ravitz stated that he would not have used the Millón test in the manner that Dr. Brown used it. Like Dr. Smith, Dr. Ravitz opined that daughter’s rectal abrasion was consistent with other etiologies, including constipation, wiping the rectal area too vigorously after a bowel movement, irritation from rubbing the area, or poor hygiene. In response to questioning by the court, Dr. Ravitz opined that Dr. Brown’s conclusion — that there was “no doubt” that father abused daughter — was not supported by her data; however, he admitted that her data did support the conclusion that it was more likely than not that such abuse occurred. But Dr. Ravitz criticized her data elsewhere in his testimony.

Father’s mother, R.R. (paternal grandmother), testified in her son’s behalf through a Russian interpreter. She lived with him at the time of the alleged incidents and noticed nothing unusual regarding his relationship with daughter. Due to her poor health and advanced age she rarely left his apartment, where he brought the child for visitation. Paternal grandmother testified that she never saw father sexually abuse daughter. Whenever he had her over for visitation, paternal grandmother spent every moment with daughter.

Cousin, who is father’s nephew, also testified. Like paternal grandmother, cousin lived with father at the time of the supposed abuse. Cousin saw daughter on every visitation, but he never saw father abuse her. Cousin also denied that he abused daughter. Cousin was with father, daughter, and paternal grandmother on every visitation because he was a student and studied at home. According to cousin, father never bathed daughter, although he did change her diapers and bring her to the bathroom when she was being toilet trained.

Finally, father testified. He denied sexually abusing daughter. Father testified that he never had overnight visitation with her, apart from a vacation in the summer of 1985. According to father, his last visitation with daughter was on October 26, 1985. She had a bowel movement in his bathroom, and he cleaned the loose stool from her rectum. On December 22, 1985, he had a telephone conversation with daughter. He testified that she told him that mother and maternal grandmother were telling her that he did something bad to her. However, father testified that daughter told him:

“And she said, ‘You did not do anything bad to me. That was a play. That was a joke.’ And I felt that I can’t go through all detail or the phone with my conversations, so I said, ‘Yes, [daughter], it was a joke.’ ”

On cross-examination, mother’s counsel asked father to explain what he thought the child meant by the word “joke.” He stated:

“I think that she meant that formerly when she had a nap at my apartment after that she would wake up, I would go to her bed, sit down on the side, and we will start to talk for approximately fifteen or twenty minutes. That was part of my educational process. And during this talk, I would play with her. I would tickle her, I would do all kinds of stuff that she will wake up in a happy mood. I will try to tell her stories. She would tell me stories that [sister] is calling her names, and she was asking me what to do with that. And I would say, ‘Okay, [daughter], do not worry about it. If she is not right, you have to tell your mother that she is not right.f’] That is what I understand she was saying that I was joking with her exactly.”

Mother’s explanation of what she thought the child meant by the word “joke” differs from father’s explanation. Mother was permitted to describe, over father’s objection, an alleged incident that daughter supposedly related to her. According to mother:

“She described — they were in the bathroom — behind the bathroom in the bathtub, and she was sitting on her father’s lap, facing him. *** She was facing her father, and he told her to lift herself on her hands and relax; and, he started kissing her, arid she said in her pee-pee and Papa was kissing her all over her body, and he was touching her all over her body; and, then some point he put his head under water and put some water in her nose also; and then he told her he’s going to wash his underwear, and he was moving his hands between his legs up and down, and [daughter] said that whatever Papa was doing he told me that this is a joke.”

The circuit court announced its decision on September 14, 1987. The court found that father abused daughter and abated his visitation until an expert determined that it should resume. Regarding the reserved rulings on father’s hearsay objections to the admission of daughter’s supposed statements to mother and maternal grandmother, the court ruled that the statements were admissible under the spontaneous declaration exception. The court went on to comment upon the remaining evidence. The court was impressed by what it described as mother’s quick action when confronted by daughter’s statements. The court found Falevits’ testimony concerning the child’s conduct at school to be probative. The court was persuaded by Dr. Smith’s testimony. It interpreted Dr. Ravitz’s testimony as a ratification of Dr. Brown’s conclusions, rather than a criticism of them.

However, the circuit court acknowledged the weaknesses in mother’s case. The court agreed with father’s experts that Dr. Brown’s failure to observe father with daughter was a “major omission.” Nevertheless, on the basis of Dr. Brown’s testimony, and that of the other witnesses, the circuit court agreed with her conclusion that father traumatized daughter. According to the court, the evidence clearly demonstrated that mother would prefer that daughter never see father again, and that mother would do whatever she could to achieve that goal. The court stated that it took this bias into account.

On October 9, 1987, the circuit court granted father’s motion to reopen proofs. He submitted the report of a DCFS hearing held to consider his request that Michaelparker’s report of child abuse be expunged from the State’s records. After taking testimony on Michaelparker’s methods, the DCFS hearing officer had concluded that the evidence was not sufficient to support a finding of child abuse, on the grounds that her investigation was not conducted in a thorough manner. The DCFS director agreed with the hearing officer, and he ordered the report expunged.

Nonetheless, on October 26, 1987, the circuit court entered a written order, memorializing its oral ruling of September 14, 1987. This order provides in part:

“THE COURT FINDS:
1. That [father] has sexually abused the minor child [daughter].
2. That visitation of the minor child [daughter] by [father] at this time would seriously endanger [daughter’s physical, mental, and emotional health.”

Therefore, the court granted mother’s petition to abate visitation, and it denied father’s counterpetition for a rule to show cause.

Father appealed the order of October 26, 1987. He also appealed the circuit court’s order of September 15, 1988, which directed him to pay mother’s attorney fees in the sum of $9,500. We subsequently consolidated the appeals.

Ill

The dispositive issue before us concerns the circuit court’s admission of daughter’s alleged statements to mother and maternal grandmother under the spontaneous declaration exception to the hearsay rule. Father argues that the circuit court erred in admitting the supposed statements. He asserts that it is doubtful that the statements were ever made, since the only persons who testified to hearing them were mother and maternal grandmother, and since daughter refused to repeat the alleged statements to any neutral parties, although she was prompted to do so on many occasions. He also notes that there is nothing in the supposed statements to indicate when the alleged abuse occurred. Mother responds that the circuit court did not abuse its discretion in admitting the statements as spontaneous declarations. She points out that the rectal abrasion discovered by Dr. Smith on November 1, 1985, had a life of 7 to 10 days, that father saw daughter on October 26, 1985, and that her statements were made only days thereafter. The parties agree that the recently enacted statutory hearsay exception is inapplicable (see Ill. Rev. Stat. 1989, ch. 110, par. 8— 2601), so we focus only upon the common law exception.

A statement relating to a startling event or condition, made while the declarant was under the stress or excitement caused by it, is admissible as a hearsay exception. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.3, at 624 (5th ed. 1990).) Traditionally, there are three requirements for admissibility under this exception: first, the occurrence of an event or condition sufficiently startling to produce a spontaneous and unreflecting statement; second, absence of time to fabricate; and, third, a statement relating to the circumstances of the occurrence. The exception is premised upon the notion that the excitement caused by the event or condition temporarily stills the capacity for reflection, thereby producing statements free of conscious fabrication. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.3, at 625 (5th ed. 1990).) In cases involving allegations of child sexual abuse, Illinois courts have employed a totality of the circumstances approach to determine whether a particular statement is reliable enough to be admissible. (See, e.g., In re Marriage of Ashby (1990), 193 Ill. App. 3d 366, 374, 549 N.E.2d 923, 927-28.) The admissibility of such statements should be determined upon a case-by-case basis, after considering all of the relevant facts. (Ashby, 193 Ill. App. 3d at 375, 549 N.E.2d at 928.) It must be remembered that the rule against hearsay — that witnesses may testify only as to facts within their personal knowledge and not as to what others tell them — is founded upon the necessity of the opportunity for cross-examination; it is a fundamental, rather than a technical, rule. In re Marriage of Dunn (1987), 155 Ill. App. 3d 247, 251, 508 N.E.2d 250, 253.

We must conclude that the circuit court abused its discretion in admitting daughter’s supposed statements to mother and maternal grandmother as spontaneous declarations. We have considered the totality of the circumstances in determining whether the alleged statements are reliable enough to warrant an exception to the general rule against hearsay. This is a case pitting former spouses against each other, with the visitation rights to their child hanging in the balance. Courts must be cognizant of the incentive to perjury in cases where adults, who have an interest in the outcome of visitation or custody disputes, recite the hearsay statements of children. (See In re Marriage of Gustafson (1989), 187 Ill. App. 3d 551, 555-56, 543 N.E.2d 575, 578.) We must consider not only the nature of the action, but also the interests of the parties. As the circuit court found, the evidence clearly shows that mother does not want daughter to see father again, and that she will do anything to achieve that goal. The only other person who testified to hearing the child’s supposed statements was maternal grandmother, mother’s own mother, who also told daughter that her father did bad things to her. The child did not testify at the hearing, and the record reveals that she never repeated the alleged statements to anyone else, even though she was encouraged to do so during the course of Dr. Brown’s investigation.

Other relevant facts do not support the admission of the alleged statements. As previously noted, the circuit court identified certain evidence as being probative when it announced its decision on September 14, 1987. For example, the circuit court was impressed by what it found to be the quick action mother took when confronted by daughter’s alleged statements. However, there is nothing in the record to suggest that mother said anything about sexual abuse to daughter’s pediatrician, when she took the child to him the very next day. And, shortly thereafter, mother refused to follow Dr. Smith’s advice that she return with daughter to the hospital for a complete evaluation. The circuit court also placed importance upon the observations of Falevits, mother’s friend, regarding daughter’s shy and pensive behavior at the time the alleged statements were made. But the child was attending school for the first time in her life. The conclusion that a child has been sexually abused does not follow from the premise that she behaves shyly and pensively when beginning school, in the absence of additional circumstances.

The circuit court also rejected father’s explanation of daughter’s statements to him in their telephone conversation. However, the context of his remarks must be kept in mind. He was asked by mother’s counsel to explain what he thought daughter, a three-year-old child, meant by the word “joke.” It must be remembered that father — like mother — is not a native speaker of English, and it is not clear from the record whether his conversation with daughter was held in Russian, Polish, or English. Indeed, the record does not reveal whether daughter knew any English at all. This brings us to the other language problems presented by this appeal. For instance, the grandmothers both testified through interpreters: the maternal through a Polish interpreter, and the paternal through a Russian interpreter. The hearing transcript reveals that their testimony did not proceed smoothly. At least one translator had to be dismissed, and the proceedings were frequently interrupted by the parties, who suggested alternative translations. In any event, father’s explanation of daughter’s intentions is no less plausible than mother’s.

Similarly, the expert testimony does not militate in favor of the supposed statements’ admissibility. Dr. Smith, who testified for mother, was of the opinion that the abrasion on daughter’s rectum was caused by penetration of an object, but she could not deny that it was consistent with other, innocent, etiologies. Dr. Ravitz, who testified for father, also opined that the abrasion was consistent with etiologies other than penetration. The circuit court was persuaded that Dr. Ravitz merely quarreled with Dr. Brown’s conclusion that daughter had undoubtedly been abused by father. The context of Dr. Ravitz’s remarks, however, demonstrates that he was assuming for the purposes of the court’s question that her methodology was proper; the rest of his testimony reveals that he rejected that hypothesis.

Finally, regarding Dr. Brown, the circuit court, as well as father’s experts, agreed that her failure to observe the interaction between father and daughter cast doubt upon her conclusions. Moreover, the only person Dr. Brown interviewed who was not biased against father — apart from daughter — was father himself. Her reliance upon the Millón test is also questionable, given that she was inexperienced in its administration, that the test was designed for clinical rather than forensic purposes, and that father had difficulty with English. Last but not least, Michaelparker’s DCFS report, which Dr. Brown relied upon in reaching her conclusions, was subsequently repudiated by the agency itself. We have, then, one incomplete investigation based upon another incomplete investigation.

Mother has cited several cases in support of the proposition that the circuit court properly made an exception to the hearsay rule. But the facts of those cases are not on all fours with the facts of our case. For instance, in In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 460 N.E.2d 912, the child’s spontaneous declarations were repeated to a physician — a neutral party with no interest in the outcome of the visitation dispute. (Compare Ashby, 193 Ill. App. 3d 366, 549 N.E.2d 923 (appellate court upholds admission of baby sitter’s hearsay testimony regarding minor child’s statements as spontaneous declarations).) The criminal cases involving spontaneous declarations cited by mother are likewise readily distinguishable. In People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61, the child’s statements were related in the testimony of a neighbor and a police officer. In People v. Watson (1982), 107 Ill. App. 3d 691, 438 N.E.2d 453, two emergency room nurses related the child’s spontaneous declarations. People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292, was not a sexual abuse case. And People v. Land (1988), 178 Ill. App. 3d 251, 533 N.E.2d 57, was a sexual abuse prosecution in which the appellate court upheld the admission of the child’s statements, through the mother, as spontaneous declarations; however, as the defendant in that case was not the child’s father, visitation was not riding on the outcome.

In light of the foregoing facts and principles, we think that the supposed statements were too unreliable to justify an exception to the hearsay rule in this case. In other words, the alleged statements lack sufficient indicia of reliability to warrant application of the spontaneous declaration exception. Consequently, the order of October 26, 1987, granting mother’s petition to abate visitation, and denying father’s petition for a rule to show cause, must be reversed.

Although we have concluded that daughter’s alleged statements should not have been admitted under the spontaneous declaration exception to the hearsay rule, the foregoing discussion demonstrates that those statements were not the only evidence of sexual abuse. Rather than weigh the remaining evidence ourselves, prudence dictates that we remand the case to the circuit court for another hearing. The Illinois Marriage and Dissolution of Marriage Act provides:

“(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health. ***
* * *
(c) The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional

health.” Ill. Rev. Stat. 1985, ch. 40, pars. 607(a), (c).

On remand mother bears the burden of proving, by a preponderance of the evidence, that visitation by father would endanger daughter. (See In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048, 428 N.E.2d 1093, 1095.) The endangerment standard has been described as onerous, stringent, and rigorous. (See Neat, 101 Ill. App. 3d at 1048, 428 N.E.2d at 1095; see also Ashby, 193 Ill. App. 3d at 378, 549 N.E.2d at 930, and Dunn, 155 Ill. App. 3d at 254-55, 508 N.E.2d at 255-56.) The courts of this State have been reluctant to deny visitation rights because of the principle that parents have a natural or inherent right of access to their children, and because sound public policy encourages the maintenance of strong family relationships, even in post-divorce situations; only extreme circumstances allow courts to deprive a parent of visitation. See Neat, 101 Ill. App. 3d at 1048-49, 428 N.E.2d at 1096.

The plain language of section 607, however, reminds us that daughter’s best interests must be considered. The parties seem to have lost sight of those interests, as evidenced by the fact that they refer to all family members by their full names in court documents, which are a matter of public record. Accordingly, we direct the circuit court to appoint a guardian ad litem, who is also an attorney, to represent her interests on remand. (See Ill. Rev. Stat. 1989, ch. 40, par. 506.) We further direct the circuit court to work with the parties and the guardian to establish a reasonable schedule of supervised visitation, until the proceedings on remand can be completed.

Finally, we come to the matter of attorney fees. The award of fees in mother’s favor was predicated upon her success in persuading the circuit court to modify father’s visitation rights. (See Ill. Rev. Stat. 1985, ch. 40, par. 508.) Since we are reversing the circuit court’s decision, and remanding the case for further proceedings, the attorney fee award cannot stand. But after completion of the proceedings on remand, the parties are free to seek such fees again.

IV

For the stated reasons, the circuit court’s order abating father’s visitation is reversed, the order directing him to pay mother’s attorney fees is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded, with directions.

MURRAY and LORENZ, JJ., concur.

      In order to protect the identity of the parties’ minor child, we shall not refer to family members by their full names.

      On remand, mother may seek admission of the alleged statements under the recently enacted statutory hearsay exception, mentioned above, which provides:
      “(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.
      (b) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given to the statement and that, in making its determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.
      (c) The proponent of the statement shall give the adverse party reasonable notice of an intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1989, ch. 110, par. 8 —2601.)
      This statute did not become effective until February 1, 1989, well after the hearing in the circuit court. Thus, although daughter did not testify below, there was no finding that she was unavailable as a witness. In the event daughter testifies on remand, of course, there need be no such finding.