text:
      In re I.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Rosalee Dorsey, Respondent-Appellant).—In re I.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Jonathon Carter, Respondent-Appellant).
    Fourth District
    Nos. 4—89—0885, 4—89—0915 cons.
    Opinion filed November 29, 1990.

      Lynne R. Feldman, of Kirtley-Pavia-Marsh, of Urbana, for appellants.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael Q. Jones, of Urbana, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

On October 3, 1989, the circuit court of Champaign County entered an order finding the respondent mother, Rosalee Dorsey, and respondent father, Jonathon Carter, to be unfit parents as defined by section 1 of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501). On November 6, 1989, following a dispositional hearing, the court entered an order terminating the parental rights of both respondents and appointing a guardian for I.D. with the authority to consent to her adoption. These appeals followed.

On July 31, 1987, a petition was filed pursuant to the Juvenile Court Act of 1987 (Juvenile Court Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.), alleging that I.D., born March 16, 1985, was an abused minor. After the adjudicatory hearing, the court specifically found that respondent father had sexually abused two older girls at the residence while I.D. was in the residence, and that this conduct created a dangerous environment. The court also found that respondent mother had been advised of this abuse by the victims but, due to her mental limitations, she was unable to deal with and respond to the situation. Thus, she would be unable to protect I.D. if necessary. The court also observed the evidence established that I.D. was greatly-delayed in expressive verbalization, and it was the expert’s opinion that the environment I.D. lived in had caused much of the delay. Accordingly, the court found I.D. was abused in that the environment she lived in with respondents was injurious to her welfare. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(b).) The court ordered I.D. removed from the home and ordered a long list of remedial measures for the parents, including a course of counseling as recommended by the Department of Children and Family Services (DCFS).

On June 25, 1989, a petition seeking termination of respondents’ parental rights was filed. In regard to the mother, it was alleged that she is unfit in that she is unable to discharge her parental responsibilities due to a mental impairment, and that there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p).) The petition alleged that the father was unfit in that he failed to make reasonable efforts to correct the conditions which were the basis for removal of the minor from him, within 12 months after the adjudication of abuse; and, alternatively, that he failed to make reasonable progress toward the return of that minor within 12 months after the adjudication of abuse. Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m).

The hearing on this petition was conducted on October 3, 1989. Dr. Ronald Matthew, a clinical psychologist and director of the Moultrie County Counseling Center, testified that he conducted an assessment of respondent mother in 1987, which showed she is in the mild-retardation range, with an IQ of 53. This is comparable to a mental age of five or six years old. He believed she would have a difficult time managing herself without supervision. In regard to being a parent, it was his opinion that she would be quite limited and would be subject to poor judgment and deficiencies in being able to communicate. He was especially concerned with emergency situations or situations other than routine tasks. He believes she could be trained to handle the simple routine matters, but that she is incapable of addressing changing circumstances and that some high-risk situations might occur.

He has reviewed subsequent reports on the mother, and he conducted another interview with her in June 1989. It was his opinion that her intellectual functioning has remained quite static during that time. Further, he believed that there is not a very good prospect for improved functioning with her parenting skills in the future.

Cheryl Hutton, case coordinator for the Developmental Services Center, testified that respondent mother has been receiving services with them since 1988. She currently works 26 hours per week in the workshop. She lives in one of the agency’s apartments and receives services from their program staff. They teach her domestic things such as cooking, cleaning, and monitoring of her money. She is also involved in educational programs and has recently learned to tell time. She now gets herself up, makes lunch, catches the bus, and gets to work on time. It is their goal that she eventually learn to live independently, although they will continue to offer support services for as long as they are needed. They are hopeful respondent will be able to move out without so much support by August 1990.

Cassandra Woolfolk is a therapist at the Champaign County Mental Health Center. She testified she met with respondent father and the DCFS caseworker on February 15, 1989, to set up a counseling program. Since there was a waiting list, an appointment could not be made immediately. A letter was sent to him advising him of his appointment time. She did not hear from him again.

Larry Brannon is the counselor respondent father was to meet. The original appointment was for March 20, 1989. Respondent failed to call to cancel the appointment or to appear. Brannon had no contact from that date until August 7, 1989, at which time respondent called to set up a meeting. The appointment was scheduled for August 14, 1989. Respondent failed to call or cancel. Respondent called later seeking an appointment, but Brannon was on vacation. Both Brannon and Woolfolk were aware that respondent had difficulty reading, but respondent had advised there was someone who would read the mail to him.

Sharyne Wilson-Pendleton is the DCFS worker who has been involved with this case the entire time. She stated the initial client-service plan developed on July 30, 1987, for respondent father included a requirement that he participate in counseling. At that time, he was also supplied with the address and phone number of the Champaign County Mental Health Center. On January 22, 1988, a review meeting was held, and he was again admonished as to the counseling requirement. At the June 1988 and January 1989 reviews, this goal was again emphasized. In November 1988, respondent father was granted immunity from any prosecution based on any comments made during his counseling, to encourage him to comply. She also met monthly with respondent, at which time she further advised him of the need to begin his counseling. He did not attend any counseling.

In January 1989, he told her that he had been too busy to attend. Wilson-Pendleton then telephoned the mental health center for him to find out when Woolfolk would be available. This information and the phone number for the mental health center were given to respondent. In February 1989, he told her he had not gone to counseling due to conflicts. The final case review was on July 26, 1989. At that point, respondent indicated that he had attempted to call Woolfolk, but that he was too busy to attend counseling. Wilson-Pendleton then dialed the phone for the mental health center so that respondent could talk with Brannon. However, Brannon was not in.

Wilson-Pendleton testified that respondent mother was cooperative in complying with the services supplied to her. However, it was Wilson-Pendleton’s opinion, due to respondent mother’s limited functioning ability, that she is unable to care independently for I.D. She observed there is no support from family members who could assist her in day-to-day care.

The court, after hearing arguments, concluded the burden had been met and found both parents unfit for the reasons alleged. A dis-positional hearing was held on November 6, 1989. At that time, the court terminated the parental rights of both parents and appointed a guardian for I.D. with authority to consent to an adoption. Both the mother (No. 4 — 89—0885) and the father (No. 4 — 89—0915) appealed, and the appeals have been consolidated.

Respondents’ first argument is that the statutory provision under which the mother was found unfit is unconstitutional. Section l(D)(p) of the Adoption Act provides that a parent is unfit if there is an “inability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation *** or developmental disability *** and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period.” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p).) Respondents simply assert, without much citation or argument, that this provision is violative of the due-process and equal-protection provisions of the constitution.

Our supreme court has frequently emphasized that there is a strong presumption that legislative enactments are constitutional. (People v. Roos (1987), 118 Ill. 2d 203, 209, 514 N.E.2d 993, 996; People v. Greene (1983), 96 Ill. 2d 334, 338, 450 N.E.2d 329, 331.) Accordingly, the one who asserts otherwise has the burden of clearly establishing the constitutional violation. Roos, 118 Ill. 2d at 209-10, 514 N.E.2d at 996; Sayles v. Thompson (1983), 99 Ill. 2d 122, 125, 457 N.E.2d 440, 442.

The starting point for any due-process or equal-protection analysis is the selection of the proper test to be applied. We are not aware of, nor have the parties cited, any case in which our supreme court or the United States Supreme Court has directly decided the appropriate test for a constitutional challenge to a statutory ground for a finding of parental unfitness. In Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 436-37, 369 N.E.2d 858, 866, our supreme court, in addressing a constitutional challenge to parts of the Adoption Act, observed it was necessary to balance the concern of the State, as parens patriae, with the right of a parent to custody of her child. The court observed this parental right has been recognized as a right protected by the fourteenth amendment and may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to enact.

Thus, it appears from the language that the proper test for the due-process and equal-protection claims is the rational-basis test. (Accord In re Ray (1980), 88 Ill. App. 3d 1010, 1012-13, 411 N.E.2d 88, 90-91.) This provides that a statute will be upheld in the face of a due-process challenge, if it bears a rational relation to a legitimate State purpose and is neither arbitrary nor discriminatory (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 368, 489 N.E.2d 1374, 1382) and, when faced with an equal protection argument, it will be upheld as long as the distinctions drawn bear some rational relationship to a legitimate State end (Harris, 111 Ill. 2d at 371, 489 N.E.2d at 1383).

The State as parens patriae has a right and duty, as well as the authority, to legislate for the protection and welfare of children within its jurisdiction. (Regenold, 68 Ill. 2d at 437, 369 N.E.2d at 866.) Our legislature has done so by enacting the Juvenile Court Act and the Adoption Act. These have created a comprehensive scheme to ensure children receive the proper care and training. They authorize the removal of the children from the home if necessary. The ultimate goal is to reunite the families. However, the legislature recognizes there are those cases wherein this cannot be readily done. In such situations, it is the intent of the acts to avoid placement of children in long-term or permanent foster care with the accompanying detrimental impacts to the children by encouraging placement in a permanent, stable adoptive home. Section l(D)(p), the section in question, is clearly rationally related to this goal. Not all parents with these disabilities are affected. It is only those who cannot discharge their parental responsibility due to these disabilities and whose inability to do so will extend beyond a reasonable time. In such circumstances, it is necessary to ensure stability and an appropriate family life for the minor in a permanent family relationship. There is no constitutional defect.

Respondents next contend the court erred in finding respondent mother to be unfit. As this court noted in an earlier case, a proper analysis under section l(D)(p) of the Adoption Act involves two steps. First, it must be shown by competent evidence that the parent suffers from a mental inability sufficient to prevent him or her from discharging a parent’s normal responsibilities and, second, there must be sufficient justification to find that the inability shall extend beyond a reasonable time period. (In re E.J.F. (1987), 161 Ill. App. 3d 325, 331, 514 N.E.2d 544, 548.) Respondents acknowledge that mental impairment of respondent mother was established, but insist the record fails to establish that she cannot now discharge her parental duties or that any inability of this nature would continue into the future.

In order for the trial court to find parental unfitness, there must be clear and convincing evidence to support such a finding. (In re Paul (1984), 101 Ill. 2d 345, 352, 461 N.E.2d 983, 986.) However, the question on review is whether the finding of the trial court is against the manifest weight of the evidence. (In re C.P. (1989), 191 Ill. App. 3d 237, 244, 547 N.E.2d 604, 608.) It is not the function of the reviewing court to reweigh the evidence or reassess the credibility of witnesses. (In re C.P., 191 Ill. App. 3d at 244, 547 N.E.2d at 608.) Great deference is given to the findings of the trial court since the judge had the opportunity to view the witnesses and evaluate the testimony. (In re R.M.B. (1986), 146 Ill. App. 3d 523, 527-28, 496 N.E.2d 1248, 1251.) For a finding to be against the manifest weight of the evidence, the opposite result must be clearly evident from a review of the evidence. Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 530-31, 536 N.E.2d 1329, 1340.

There is no such difficulty with this case. The record discloses that one of the main reasons I.D. was adjudicated abused was due to the mother’s inability to protect her or to understand how to deal appropriately with the allegations of sexual abuse. It should be remembered that the mother was assessed- as having an IQ of 53 and a mental age of five or six years old. Further, I.D. was developmentally delayed, which was attributable to the inability of the mother to provide a sufficiently enriching atmosphere to allow I.D. to develop normally. The record also establishes that mother had difficulty taking care of herself, let alone taking care of herself with I.D. present. Thus, there is sufficient evidence to establish the mother’s inability to discharge her parental responsibilities in 1987.

The termination hearing also established the likelihood of this inability continuing beyond a reasonable time frame. Dr. Matthew testified that the mother’s abilities had remained basically static over the two-year period. He acknowledged she could learn routine tasks, but opined that she would be unable to adjust to constantly changing circumstances. Unfortunately, these are just the circumstances that one would face raising a young child. Dr. Matthew also believed these difficulties would continue, and he was concerned about a high-risk situation developing if I.D. was returned to the care of her mother. This evidence is sufficient. Admittedly, the mother has made some progress and learned some skills. It is hoped her development will continue. However, the fact that after two years she has learned to tell time, get up by herself, and ride the bus to work (while a tremendous achievement in itself) is hardly the sort of development which would indicate she will, in the reasonable future, be able to discharge her parental responsibilities.

Respondents next complain that the finding of unfitness against respondent father is improper because the wrong standard of proof was applied. They observe that the court’s finding at the 1987 adjudicatory hearing that he abused the other girls was based on the preponderance-of-the-evidence standard. They maintain the court is now terminating respondent father’s parental rights based on that finding, rather than a finding made by clear and convincing evidence. They believe this “bootstrapping” is improper and the casé should be reversed. See In re Enis (1988), 121 Ill. 2d 124, 520 N.E.2d 362.

However, respondents misapprehend the nature of the court’s termination findings. The court is not finding respondent father unfit based on that earlier conduct. Rather, the court’s findings were based on new conduct. That conduct is the failure of the father to make reasonable efforts and reasonable progress toward the return of I.D. within 12 months after the earlier adjudication. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m).) It is to this determination that the clear and convincing standard applies. The first finding is only relevant as a starting point for the 12 months. Thus, the proper standard was applied and there can be no argument, based on father’s failure to receive the requested counseling, that the determination of the court’s finding him unfit is correct.

Finally, respondents insist the court erred by terminating their parental rights at the dispositional hearing. They observe the evidence shows they both made most of their scheduled visits, bonded with I.D., and were making improvements. In fact, the mother points out that DCFS recommended her parental rights not be terminated. It was their suggestion to keep the same status for six months and review how the mother was progressing at that time.

Once the court finds the parents are unfit, as did the court here, the court can, in determining whether to terminate the parental rights, consider the best interests of the minor. (In re Massey (1976), 35 Ill. App. 3d 518, 521, 341 N.E.2d 405, 407.) All the parents’ rights must yield to the best interests of the child. (In re T.G. (1986), 147 Ill. App. 3d 484, 488, 498 N.E.2d 370, 373.) As with other decisions in this context, the appropriate standard of review is whether the court’s determination is against the manifest weight of the evidence.

We have little difficulty in agreeing with the court’s decision to terminate the father’s parental rights based on his age, his lack of effort to obtain counseling following the sexual abuse finding to clarify whether he runs a future risk to I.D., and the fact that he was present in the home during the time that I.D. was found developmentally delayed. The evidence establishes that I.D. has made great progress and is now functioning more appropriately. Admittedly, the father made virtually all the visits, and there was some testimony that his interaction had improved. However, in considering the best interests of I.D., we conclude the decision was appropriate.

We also find the decision involving the mother, while being much more heartrending, to be correct. The evidence presented in the dispositional report establishes that I.D.’s IQ has now increased to the low-normal range. Her developmental lag times have decreased dramatically since she has been in placement. Dr. Matthews’ report indicates that research shows children growing up in those homes where poor maternal care and lack of stimulation existed could show an IQ decrease of up to 30 points. It was his opinion that if I.D. did reside with the mother without extensive involvement from outside sources, I.D. would likely show regression in measured behavior.

The record also establishes that I.D. and her mother are affectionate and closely bonded together, and that the mother has made dramatic improvements in certain aspects of her life. However, according to one report, she is still functioning in those areas at only the level of a 13 year old. Also, Dr. Matthews believed that due to her age, if I.D. is permanently placed now, she will be able to cope with the separation.

As the trial court explained, this is a sad, heart-wrenching decision. However, the prime concern is the best interest of I.D. Here, it would simply be speculative to conclude that things will change in six months. In fact, in essence, the court found this was not likely when it found the mother unfit. Even if the mother continued to improve, the evidence indicates that the return of I.D. to the mother without intensive involvement by others would have negative consequences. The mother has no family to help, and the level of government funding and resources is always questionable. Thus, there is a real concern whether the support will be there. While there will be trauma for I.D. at the separation, she is only five years of age and will have an opportunity to become part of a new, stable family unit which will better meet her needs. The decision by the trial court was emotionally difficult, but was ultimately correct.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT JUSTICE GREEN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. GWEN MARTIN, Director of the Department of Labor, Plaintiff-Appellant, v. DENNIS SMITH, d/b/a Smith and Son Oil, Defendant-Appellee.
    Fourth District
    No. 4—90—0297
    Opinion filed November 26, 1990.

      GREEN, J., dissenting.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant.
    J. Richard Gehlbach II, of John R. Gehlbach Law Office, of Lincoln, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The plaintiff, Director of the Illinois Department of Labor (Department), by the Illinois Attorney General, appeals a trial court decision dismissing its complaint against defendant, Dennis Smith, d/b/a Smith and Son Oil. This complaint alleged the defendant failed to pay overtime wages in accordance to the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, pars. 1003, 1004a(l), 1012(b)). The trial court dismissed this complaint as barred by the three-year statute of limitations contained in section 12(a) of the Minimum Wage Law. (Ill. Rev. Stat. 1987, ch. 48, par. 1012(a).) We reverse and remand.

Plaintiff filed its complaint on July 17, 1989, on behalf of Douglas Shumard, who was employed by defendant. This complaint alleged during the period from December 13, 1983, until May 23, 1986, Shumard was not paid overtime wages properly due him under the Minimum Wage Law. Plaintiff specifically filed this complaint under section 12(b) of the Minimum Wage Law. (Ill. Rev. Stat. 1987, ch. 48, par. 1012(b).) Defendant filed an affirmative defense, contending any claim for wages during the period alleged was barred by the three-year statute of limitations contained in section 12(a) of the Minimum Wage Law. Ill. Rev. Stat. 1987, ch. 48, par. 1012(a).

Defendant asserts the trial court’s ruling renders the question regarding the statute moot. The trial court’s docket entry reads as follows:

“Court finds in favor of defendant and against the Plaintiff and further finds that action not brought within statute of limitations (see letter to counsel). Case dismissed.”

In this letter referred to by the court, dated November 28, 1989, the court stated:

“After having reviewed the appropriate statutes concerning this type of action I do hereby find that the Plaintiff has failed to bring this action within three years of the date of underpayment.
Plaintiff has failed to show that the limitations section in any way exempts the State of Illinois from the clearly stated limitations period. For this reason the case is dismissed.”

Since the docket entry first stated the court found in favor of the defendant and then stated the action was barred by the statute of limitations, defendant contends the court had already found in favor of defendant on the merits, and as such, its finding regarding the statute of limitations is superfluous, and a decision on this statute does not affect the outcome of this litigation.

However, the docket entry refers to the court’s letter, which specifically states the reason for dismissal was the plaintiff’s failure to show the limitations section exempted the State of Illinois from the stated limitations period. “A case is considered moot when it ‘presents or involves no actual controversy, interests or rights of the parties, or where the issues have ceased to exist.’ ” (People v. Boclair (1987), 119 Ill. 2d 368, 373, 519 N.E.2d 437, 439, quoting People v. Redlich (1949), 402 Ill. 270, 278-79, 83 N.E.2d 736, 741.) The letter indicates the reason for dismissal was only the court’s finding regarding the statute of limitations, not the merits of the case. This issue, central to the trial court’s decision, remains in controversy and the argument of the defendant has no merit.

The issue presented is whether the Department’s cause of action is barred by the statute of limitations contained in section 12(a) of the Minimum Wage Law. The relevant statute states:

“(a) If any employee is paid by his employer less than the wage to which he is entitled under the provisions of this Act, the employee may recover in a civil' action the amount of any such underpayments together with costs and such reasonable attorney’s fees as may be allowed by the Court, and any agreement between him and his employer to work for less than such wage is no defense to such action. Every such action shall be brought within 3 years from the date of the underpayment. Such employer shall be additionally liable to the employee for punitive damages in the amount of 2% of the amount of any such underpayments for each month during which such underpayments remain unpaid, or in an amount equal to such underpayments, whichever is smaller.
(b) The Director is authorized to supervise the payment of the unpaid minimum wages and the unpaid overtime compensation owing to any employee or employees under Sections 4 and 4a of this Act and may bring any legal action necessary to recover the amount of the unpaid minimum wages and unpaid overtime compensation and an equal additional amount as punitive damages, and the employer shall be required to pay the costs. Any sums thus recovered by the Director on behalf of an employee pursuant to this subsection shall be paid to the employee or employees affected. Any sums which, more than one year after being thus recovered, the Director is unable to pay to an employee shall be deposited into the General Revenue Fund.” Ill. Rev. Stat. 1987, ch. 48, par. 1012.

Plaintiff argues the trial court erred by applying the three-year statute of limitations to the Department, since this limitation appears only in section 12(a), and the suit was brought under section 12(b). The plaintiff contends this statute of limitations applies solely to actions brought by employees, but not to actions brought by the State. Defendant argues this three-year limitation applies to any action brought under section 12 and, therefore, applies both to actions by employees or the State.

“The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent in drafting the statute.” (International Bureau of Fraud Control, Ltd. v. Clayton (1989), 188 Ill. App. 3d 703, 710, 544 N.E.2d 416, 421.) When interpreting a statute to determine intent of the legislature, one must look first at the language of the statute itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371, 432 N.E.2d 855, 858.) An examination of the legislative history of section 12 reveals it was first enacted with no statute of limitations. (Ill. Rev. Stat. 1971, ch. 48, par. 1012.) A statute of limitations was first added by Public Act 83— 203, effective Jan. 1, 1984 (Pub. Act 83-203, §1, eff. Jan. 1, 1984 (Ill. Rev. Stat. 1983, ch. 48, par. 1012)), and as in the 1987 version of the statute (Ill. Rev. Stat. 1987, ch. 48, par. 1012), the statute of limitations appeared in section 12(a) only and only in connection with employee actions, with an action by the Department in a separate subsection, which included no statute of limitations. These characteristics of section 12 remained unchanged through another amendatory change in Public Act 84 — 532. Pub. Act 84 — 532, §1, eff. Jan. 1, 1986 (Ill. Rev. Stat. 1985, ch. 48, par. 1012).

We find it significant when the legislature first amended the statute to include a statute of limitations, it did not include this same statute of limitations in the subsection providing for a cause of action by the Department. This remained unchanged by the 1986 amendment in Public Act 84 — 532. The legislative history of section 12 shows the legislature had several opportunities to add this limitation provision to the clause dealing with actions by the Department but failed to do so. It is also significant the sentence in section 12(a) provides “[ejvery such action,” rather than “all actions,” indicating an intention to apply the statute of limitations specifically to actions brought by employees under section 12(a), not all actions brought under section 12. The language of section 12, as well as the history of amendments, indicates legislative intent to have the three-year statute of limitations apply only to circumstances enumerated in section 12(a), but not to section 12(b).

This same conclusion was arrived at by the Fifth District Appellate Court in People ex rel. Martin v. Schwartz Oil Field Services, Inc. (1990), 203 Ill. App. 3d 903, under substantially similar facts. In Schwartz, the Department’s complaint was filed in September 1988, alleging defendant failed to pay employees time and a half for overtime work for the period between July 1982 and January 1985. The trial court granted defendant’s motion to dismiss pursuant to the statute of limitations found in section 12(a) of the Minimum Wage Law. (Schwartz, 203 Ill. App. 3d at 904.) The appellate court reversed, holding the legislative history indicated “there was no legislative intent to impose a statute of limitations on actions brought by the State pursuant to section 12(b).” (Schwartz, 203 Ill. App. 3d at 907.) The Schwartz court also held the statutory language of section 12 was clear and unambiguous in showing “there is no statute of limitation on actions brought by the State pursuant to section 12(b).” (Schwartz, 203 Ill. App. 3d at 906.) We are persuaded the Schwartz analysis is correct and hold there was no legislative intent for the statute of limitations of section 12(a) to bar actions brought by the Department under section 12(b).

Defendant cites Amigleo v. Bernardi (1988), 175 Ill. App. 3d 449, 529 N.E.2d 1020, in support of his contention the statute of limitations applies to both sections 12(a) and 12(b). The facts here are closer to those of Schwartz, and the issue in Amigleo was sufficiently different from that here as to diminish its persuasive value. In Amigleo, the plaintiffs were employees who were dissatisfied with the amount the Department determined as unpaid overtime compensation, because the Department would pursue such compensation only going back two years from the date the employee filed his claim with the Department. The plaintiffs brought an action against the Department for injunctive and monetary relief and for a writ of mandamus to compel the Department to take further legal action on claims running as far back as 10 years prior to the filing of their claims with the Department. In Amigleo, the Department contended its two-year investigative policy was consistent with the three-year statute of limitations in section 12(a). The Amigleo court found for the Department, holding the Department’s policy was not unreasonable. Amigleo, 175 Ill. App. 3d at 458, 529 N.E.2d at 1026.

As part of its decision, the Amigleo court stated: “A logical interpretation of section 12 would be to apply the three-year limitations period to 12(b) as well as 12(a), because both sections deal with suits against the employer brought directly by or on behalf of the employee.” (Amigleo, 175 Ill. App. 3d at 457, 529 N.E.2d at 1026.) This statement was dicta, since the decision in Amigleo was in the context of a challenge to the Department’s two-year investigatory policy, and did not rest on the court’s interpretation of section 12; the policy is not established either by statute or by the pertinent provisions of the Illinois Administrative Code (56 Ill. Adm. Code §§200.100 through 200.840 (1985)). By contrast, the issue here rests on interpretation of section 12 and the applicability of the statute of limitations of section 12(a).

Further, the facts in Schwartz are much more congruent with this case than those in Amigleo. While the substantive issue in Amigleo was the reasonableness of the Department’s policy in view of the relief requested, both this case and Schwartz raise the issue of whether to bar the Department’s cause of action based on the statute of limitations in section 12(a). We find the reasoning of Schwartz persuasive on the issue before us, and Amigleo is inapposite.

Defendant further argues since an assignee is subject to a statute-of-limitations defense operable against the assignor, and the most recent amendment to section 12 allows an assignment of claims to the Department (Pub. Act 86 — 799, §2, eff. Jan. 1, 1990 (Ill. Rev. Stat. 1989, ch. 48, par. 1012)), the Department is subject to the same limitations defense as the employee. We disagree. This amendment, effective January 1, 1990, was not in effect when the instant complaint was filed or when the trial court ruled. This amendment concerns a procedural rule which would have the effect of shortening a statute of limitations so it cannot be applied retroactively so as to foreclose a cause of action which was otherwise timely filed within the limitations period. (Hupp v. Gray (1978), 73 Ill. 2d 78, 84, 382 N.E.2d 1211, 1214.) Therefore, the current version of section 12(a) cannot be the basis of judgment on this appeal, and any argument concerning assignment of rights is without merit. Moreover, the Department still has the right to bring an action in its own right irrespective of any assignment of rights the employee makes, and the possibility of assignment does not diminish this independent and separate legal right. (Schwartz, 203 Ill. App. 3d at 907.) Accordingly, the assertion the State is subject to the same statute of limitations solely on the basis of this optional statutory right of assignment is not persuasive.

The defendant argues an interpretation of section 12 which does not hold the Department to this three-year statute of limitations affords the Department broader power under section 12 than that accorded an individual employee. Such an interpretation allows the possibility an employee, who would be held to a three-year statute of limitations, may wait until after such a limitations period has passed, and still be able to bring his action through the Department, extending the time frame into infinity and raising a question as to the effectiveness or practical value of any limitations provision in section 12(a). If this is a problem, it is one of drafting, not of statutory interpretation. If the legislature intended such a limitations period to apply to both subsections, it could have provided a statute-of-limitations clause within section 12(b). It did not do so despite several opportunities, and it is not our role to redraft section 12. We draw our conclusion as to legislative intent by reference to the clear language of the statute (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 219, 447 N.E.2d 394, 398), and any indication of a change in this intent will have to come from the legislature, not the courts.

As we hold the statute of limitations within section 12(a) does not apply to bar the Department’s action under section 12(b), we need not address the issue raised by the Department on governmental immunity to statutes of limitation.

The decision of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

STEIGMANN, J., concurs.

JUSTICE GREEN,

dissenting:

I agree with the majority that the circuit court rendered judgment for the defendant based on the statute of limitations affirmative defense. I also agree we cannot give retroactive application to amendments of the legislation in question. I do not agree that the statute-of-limitations defense was inapplicable to the suit brought by the Department. Thus, I am in disagreement, not only with the majority, but also with the decision in Schwartz.

Section 12(b) of the Minimum Wage Law is not without some ambiguity. It speaks of the “Director” recovering sums “on behalf of an employee” from “legal action” necessary to do so. This can be interpreted as indicating that the Department brings such action as the employee has. (Ill. Rev. Stat. 1987, ch. 48, par. 1012(b).) Under such circumstances, the action would be subject to defenses which the employer would have against the employee indicating a time limitation. The decision in Amigleo gives support to the theory that the statute is ambiguous.

In construing statutes, courts presume that legislative bodies do not intend absurdity. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374; People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) The majority’s interpretation of section 12 of the Minimum Wage Law nullifies the protection defendant has from the limitation period set forth in section 12(a) by concluding that the limitation disappears if suit is then brought for the benefit of the employee by the Department. Such an interpretation makes no sense. No purpose has been suggested for shutting off suits by the employee after three years but permitting suits on behalf of the employee forever.

I find nothing in the legislative history which requires the interpretation placed on the legislation by the majority. The history is entirely consistent with a continued understanding that the three-year limitation period was applicable to actions on behalf of the employee if it was applicable to actions by the employee. In County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076, and City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874, the supreme court has set forth a rule that a statute of limitations will not bar governmental action involving “public rights” unless the statute clearly so provides. (County of Du Page, 109 Ill. 2d at 152, 485 N.E.2d at 1080; City of Shelbyville, 96 Ill. 2d at 461-62, 451 N.E.2d at 876-77.) The Schwartz court deems the action brought by the Department here is on behalf of public rights because of the public interest in seeing to proper administration of labor laws. I cannot agree. However much public policy may be enhanced by enabling individuals to obtain that to which they are justly entitled, I deem the right here being enforced to be a private right.

I would affirm the judgment of the circuit court of Logan County.


author: JUSTICE LUND

text:
      In re MARRIAGE OF JOAN L. SCOTT, Petitioner-Appellee, and TIMOTHY R. SCOTT, Respondent-Appellant.
    Fourth District
    No. 4—90—0134
    Opinion filed November 8, 1990.

      Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, for appellant.
    Edward H. Rawles, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Respondent appeals an order of the trial court denying his petition to terminate or modify a maintenance award under section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510). The trial court held the maintenance award was nonmodifiable and could be modified or terminated only upon the events and circumstances enumerated in the settlement agreement incorporated in the dissolution judgment. We reverse the judgment insofar as it holds that the award is nonmodifiable.

In 1984, petitioner Joan Scott filed a petition for dissolution of marriage against respondent Timothy Scott. The trial court, in its order granting dissolution, expressly retained jurisdiction for subsequent hearings regarding “ancillary matters.” On April 9, 1985, the court filed its judgment on these ancillary matters (ancillary order). In this ancillary order, the court stated, “The parties have entered into an oral Property Settlement Agreement which the Court finds is fair and reasonable, and which both parties have agreed to, and that the Agreement provides as follows.” This property settlement agreement was then enumerated in full within the ancillary order, stating the terms of this agreement regarding child custody, child support, and other matters, including the maintenance award, which provided as follows:

“The Defendant will pay to the Plaintiff as and for maintenance the sum of One Thousand Dollars ($1000) per month *** and that said sum is to be for maintenance and to terminate upon the death of the Plaintiff, upon the occurrence of any of the factors set forth in Illinois Revised Statute, Chapter 40, Section 510, it being the intention of the parties that the payments under this paragraph be taxable to the Plaintiff and deductible by the Defendant, said maintenance to continue unless terminated pursuant to the aforementioned statute or by order of the Court.”

In April 1989, the petitioner petitioned the court to modify the child support award and for leave to remove the children from the State. The respondent filed a response and counterpetition for the termination or reduction of maintenance. At hearings on these two petitions, however, respondent focused on termination of maintenance based on substantial change of circumstances and made no alternative argument for reduction in the amount of maintenance. The circuit court denied the relief requested on the petition and the counterpetition from the bench; with respect to the counterpetition, the court’s remarks focused on its conclusion that the judgment of dissolution, by its express terms, precluded termination based on a substantial change in circumstances. The court directed petitioner’s counsel to prepare a written order. The written order, as prepared, provided in pertinent part:

“3. As to the Counter-Petition for termination or reduction of maintenance the Court finds that the maintenance provided for in the Judgment of April 9, 1985, is non-modifiable, can be terminated only upon the death of the Plaintiff or upon the occurrence of circumstances contained in §510, Chapter 40, Illinois Revised Statutes, and further finds that the Court is without authority to terminate or modify the maintenance based upon substantial change in circumstances of the parties.” (Emphasis added.)

Respondent filed a timely motion to modify and vacate a portion of this order (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203), arguing the references to nonmodifiability were erroneous as a matter of law. Respondent requested that the court reconsider its ruling that maintenance is nonmodifiable and to modify and vacate the portion holding it had no authority to modify maintenance based on a substantial change of circumstances. This motion was denied, and respondent appeals both the October 26, 1989, order and the denial of his section 2 — 1203 motion. In his notice of appeal, respondent asks this court to reverse the order insofar as it holds the maintenance award nonmodifiable, hold the award modifiable based on a substantial change of circumstances, modify and vacate portions of this order accordingly, and reverse and remand for further proceedings.

Section 510 provides in pertinent part:

“(a) Except as otherwise provided in paragraph (f) of Section 502, *** the provisions of any judgment respecting maintenance *** may be modified only *** upon a showing of a substantial change in circumstances.
* * *
(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1989, ch. 40, pars. 510(a), (c).)

Section 502 states:

“(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for *** maintenance of either of them * * *
* * *
(f) Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, pars. 502(a), (f).)

Maintenance agreements may be modified or terminated under circumstances stated in statutory provisions, unless the parties’ intent is clearly manifested in such agreement to limit or preclude such judicial modification or termination. In such a case, the maintenance award may be deemed nonmodifiable or such modification is restricted to circumstances allowed by the agreement. Simmons v. Simmons (1979), 77 Ill. App. 3d 740, 743, 396 N.E.2d 631, 634.

If, however, the language of the agreement does not expressly preclude or limit modification of its terms, it is error to hold the maintenance nonmodifiable. (In re Support of Bowman (1980), 89 Ill. App. 3d 110, 111-12, 411 N.E.2d 567, 569, citing Dull v. Dull (1979), 73 Ill. App. 3d 1015, 392 N.E.2d 421, appeal denied (1979), 79 Ill. 2d 620.) In Bowman, despite the limiting language “ ‘[t]he monthly payments to Wife for her support and maintenance shall continue until her death or remarriage,’ ” this court held maintenance was modifiable. (Bowman, 89 Ill. App. 3d at 111, 112, 411 N.E.2d at 568, 569.) In Schoenhard v. Sehoenhard (1979), 74 Ill. App. 3d 296, 300, 392 N.E.2d 764, 767, the language “permanent alimony” did not preclude modification. In In re Marriage of Martino (1988), 166 Ill. App. 3d 692, 698, 520 N.E.2d 1139, 1143, an order stating specific reasons for termination, but containing no language regarding modification, was held not to preclude modification.

Both Bowman and Martino distinguish Simmons in that neither agreement had language comparable to that in Simmons. (Bowman, 89 Ill. App. 3d at 112, 411 N.E.2d at 569; Martino, 166 Ill. App. 3d at 698, 520 N.E.2d at 1143.) The agreement in Simmons stated, “ ‘in no event is the amount of alimony to be modifiable except for death or remarriage of wife’ ” (emphasis added), which was held to make the maintenance award nonmodifiable. (Simmons, 77 Ill. App. 3d at 741, 396 N.E.2d at 632.) Here, the ancillary order does not contain such a limitation, e.g., that “in no event” would maintenance be modifiable apart from enumerated circumstances. Hence, Simmons is also distinguishable from this case.

Respondent cites In re Marriage of Sutton (1989), 178 Ill. App. 3d 928, 533 N.E.2d 1125, affd (1990), 136 Ill. 2d 441, 557 N.E.2d 869. The appellate court in Sutton held certain language, stating the terms of the separation agreement would not be changed absent “ ‘agreement and consent of both parties,’ ” did not preclude modification. (Sutton, 178 Ill. App. 3d at 930, 533 N.E.2d at 1126.) The Illinois Supreme Court recently considered Sutton and upheld the appellate court’s decision on modifiability, but also determined that section 502(f) of the Act was inapplicable since Sutton involved a legal separation rather than a dissolution of marriage (Sutton, 136 Ill. 2d at 449, 557 N.E.2d at 872), a determination which is inapplicable here.

The trial court, explaining its ruling during the hearing, referred specifically to cohabitation and remarriage as being statutory conditions permitting termination of the maintenance award. These conditions, as well as petitioner’s death, are circumstances permitting a petition to terminate maintenance under the express terms of the ancillary order and section 510(c) of the Act. The ancillary order refers to section 510 in its entirety. This section, while allowing termination upon death, remarriage, or cohabitation under section 510(c), also allows modification upon a showing of substantial change of circumstances under section 510(a). Ill. Rev. Stat. 1989, ch. 40, pars. 510(a), (c).

The specific reasons for termination set forth in the ancillary order do not render the maintenance award nonmodifiable. “The specific enumeration of reasons for termination of maintenance in a marital settlement agreement is not sufficient to preclude modification.” (In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 650, 540 N.E.2d 919, 924, citing Martino, 166 Ill. App. 3d at 698, 520 N.E.2d at 1143.) In Martino, the court rejected the argument that specific enumeration of reasons for termination of maintenance also precluded modification. Martino, 166 Ill. App. 3d at 698, 520 N.E.2d at 1143.

As in Martino, although the ancillary order limited termination of maintenance to the conditions therefor in section 510 of the Act, it made no express reference to any conditions precluding modification as to the amount of maintenance. The phrase, “said maintenance to continue unless terminated,” does not expressly preclude modification, since it encompasses maintenance in either its present or modified form. As such, the trial court erred insofar as the judgment appealed suggests that by limiting the bases for termination, the ancillary order limited or precluded modification as to amount as well.

We conclude this result is consistent with the decisions of, for example, this court in Bowman, of fifth district in Dull, of second district in Schoenhard, Martino and In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 513 N.E.2d 1146, and of first district in In re Marriage of Silber (1988), 176 Ill. App. 3d 853, 531 N.E.2d 910.

Moreover, a review of this line of cases leads to the conclusion that if parties to a marital settlement agreement intend, on dissolution, to preclude judicial modification of maintenance as to amount, it may be better practice to do so in clear and express terms in a paragraph separate from that limiting termination of maintenance. See, e.g., Silber, 176 Ill. App. 3d at 855, 531 N.E.2d at 911; McFarlane, 160 Ill. App. 3d at 723-24, 513 N.E.2d at 1147-48; see also Wilcher, Marital Settlement Agreements, in II Illinois Family Law ch. 16, §16.71 (Ill. Inst, for Cont. Legal Educ. 1988 & Supp. 1989) (form clause for nonmodifiability of maintenance payments).

Consequently, we find the order appealed is in error in stating the maintenance provision in the dissolution judgment is nonmodifiable, and in stating the court was without authority to modify maintenance as to amount based on a substantial change in circumstances. Accordingly, the judgment order is reversed in that regard and the cause remanded with directions to strike the words “is non-modifiable” and “or modify” from paragraph 3 thereof. The judgment is otherwise affirmed. As respondent did not argue below for a reduction in amount, apart from having referred to it in his counterpetition, we need not remand for reconsideration in that regard.

Affirmed in part; reversed in part and remanded with directions.

GREEN and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NELSON COLEMAN, Defendant-Appellant.
    Fourth District
    No. 4—89—0800
    Opinion filed November 8, 1990.

      C. Steve Ferguson, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On August 1, 1989, defendant Nelson Coleman was found guilty by a jury sitting in the circuit court of Coles County of committing the offense of aggravated criminal sexual assault in violation of section 12 — 14(b)(1) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)). Defendant was subsequently found eligible for an extended-term sentence and was sentenced to 35 years’ imprisonment with the Illinois Department of Corrections. Defendant now appeals.

Defendant was charged by information on March 29, 1989, with committing the offense of aggravated criminal sexual assault. The information alleged that defendant was in excess of 17 years of age, and that he committed several acts of sexual penetration with C.S., who was under 13 years of age at the time. In fact, C.S., defendant’s stepdaughter, was five years old at the time of the offense. The jury trial commenced on July 26, 1989.

The State called Dr. James Monteleone and Nurse Tish LaRock, who are employed by St. Louis University at Cardinal Glennon Hospital for children. Since 1980, Dr. Monteleone has been chairman of the child abuse and neglect team and the sexual abuse management team at the hospital. LaRock has worked on Dr. Monteleone’s teams for the last five years. Dr. Monteleone has seen over 6,000 abused children. Within the last year, he has seen 1,300, with 450 of those having been sexually abused. He estimates that over the last four years he has examined over 2,000 sexually abused children. He is board certified in pediatrics and pediatric endocrinology.

On March 1, 1989, C.S. was brought to the hospital, with LaRock taking the case history from Department of Children and Family Services (DCFS) worker Maria Miller. Dr. Monteleone then examined C.S. He explained that his examination showed that she had scarring in the vagina just outside the hymen. She also had some knots on the hymen that can be due to irritation and to abuse.

He then examined her anus. He explained that children who have been sexually abused often have an anus that will gape open, which C.S.’s did in this case. She also had a cupping of some tissue from inside the anus.

Dr. Monteleone and Nurse LaRock explained there are certain behavioral characteristics of children who have been sexually abused. These include (1) abnormal fears, including nightmares; (2) acting out sexually with dolls or other children; (3) precocious sexual knowledge and the ability to relate explicit sexual behavior; (4) excessive masturbation; and (5) regressive behavior, including bed-wetting.

Dr. Monteleone explained there are three aspects to evaluating an allegation of sexual abuse. The first is what the child says. The second is the behavioral indicators. The third is the physical findings. It was his opinion that the injuries to the vagina and anus were caused by sexual abuse. He acknowledged that the knots on the hymen are nonspecific in that they do not require a finding of sexual abuse by themselves, and that the anal findings are consistent with the passage of large stools. However, he did not believe this was very likely. He did clarify that the vaginal scar was pretty specific for sexual abuse. It was his opinion, based on all the factors, that C.S. had been sexually abused. LaRock expressed a similar opinion.

Mary Anna Ludington has been employed as a child and family therapist with the Human Resources Center of Clark and Edgar Counties for 11 years. She has a master’s degree and approximately 119 hours of continuing education credits. She has counseled with approximately 70 sexually abused children since 1980 and became C.S.’s therapist on February 28, 1989, seeing her 16 times since then.

She explained that of the children she has observed who are sexually abused, many had similar characteristics. These are (1) sleep disturbances and nightmares, (2) bed-wetting, (3) regressive behavior, (4) being fearful and clinging to certain people, (5) making sexual comments that a child that age would not usually know, (6) being overly sexualized, (7) tantrums and sudden mood swings, (8) acting out sexually with other children and with their toys, including excessive masturbation, and (9) complaints of pain in the vaginal or anal areas. She explained she found several of these characteristics in C.S. For exam-pie, C.S. gave explicit details of sexual acts, including physical sensations and emotional feelings. She was preoccupied in the pictures she drew and in her thoughts with genitals and sex. She acted out sexually with other children and with her toys. Her moods would abruptly swing from one to another. She complained about discomfort in the vaginal and anal area. She had trouble sleeping, and she had nightmares. Ludington explained that in her opinion there was no situation she could think of as an explanation for C.S.’s behavior, other than that she had been sexually abused.

On cross-examination, Ludington acknowledged that sleep problems and clinging to adults can occur due to a foster placement, and that minor mood swings would be expected. However, she did not believe these would occur to the degree she saw in C.S. She observed that C.S. enjoyed seeing other people in trouble and that she would at times provoke fights with the other children. C.S. also expressed that she was continually subject to unfair treatment.

Sally Cox became foster mother to C.S. and her sisters about 10 months prior to this time. She had observed that C.S. was overly affectionate. For example, C.S. goes up to strangers and will climb up in their laps and start giving them kisses. One day, she took a doll and spread its legs out and pretended to have oral sex with it. Another time, during a bath, she put a finger in her sister’s vagina. She has also had a problem with bed-wetting. Cox’s daughter also testified to the incident where C.S. put her hand on her sister’s vagina.

The next witness was the victim, C.S., who was age six at the time of the trial. She stated that at one time she lived with her mother and with defendant in Mattoon. She remembers talking to Maria Miller about defendant. She said she understood the difference between a “good touch” and a “bad touch.” She explained a “good touch” is giving a hug.

She then stated that defendant had given her a “bad touch.” She stated this happened more than once. At that point, C.S. froze up and would answer no other questions. The court took a recess and attempted to speak with C.S. It appears during the court’s questioning and on cross-examination that she would respond to general questions by either shaking or nodding her head. However, the record indicates she would give no response whatsoever concerning the incidents. C.S. was excused as a witness.

Maria Miller has been employed as an investigator for DCFS since January 1986. Since that time, she has conducted over 400 child-abuse and -neglect reports, of which approximately 130 dealt with sexual abuse. DCFS has given her special training in the field of sexual abuse. During these years, she has interviewed 500 to 600 children.

Miller testified that on January 13, 1989, she responded to the Sally Cox residence to investigate a report involving C.S. She was with Illinois State Police investigator Collin McClain. After ascertaining that C.S. knew the difference between right and wrong and the truth and a lie, Miller asked her about any sexual abuse. The court had earlier entered an order prohibiting Miller from identifying the person that C.S. said gave her the bad touch, other than by the generic “he.” Miller stated that C.S. told her that he had touched her between her legs with his hand; he had placed his finger in her private part; and, after he placed his finger there, he took it out and put his finger in his mouth. C.S. stated very clearly that when someone touches you there it feels “yucky” and it tastes “yucky.” C.S. told Miller that this has happened more than once. C.S. also stated that he wanted her to touch his “thing” with her hand and she did that. When she did that, the “pee” came out and it was peach-colored. C.S. said he also touched her butt with his hand.

Miller then asked C.S. to demonstrate with the anatomically correct dolls. C.S. took the child doll, which she identified as herself, and took the adult male doll, which she identified as the perpetrator. She then took the fingers of the male doll, bending a couple of them back, and put the remaining fingers in the vagina of the child doll. She then took the fingers of the doll and put them in her own mouth and said that is what happened between the two of them. She then placed the adult male doll on top of her and said he touched her with his hand in her butt.

The State’s next witness was Dr. Jerry Boyd, a clinical psychologist in private practice. He stated that over the years he has counseled 500 to 800 sexually abused children. He also identified the behavior characteristics of sexually abused children. In response to a hypothetical question including the facts the State had presented, Dr. Boyd stated the behavior of the child would be consistent with a child who had been sexually abused. He found the physical evidence and the knowledge of sexual behavior on the part of the child particularly relevant. He also explained that testifying can be a traumatic experience for a six year old.

On cross-examination, Dr. Boyd testified that several of the psychological indicators are nonspecific to a sexually abused child. He also stated it was his opinion that if a six-year-old girl of average intelligence was exposed to books containing pictures portraying sexual behavior, the child would be able to describe that behavior in age-appropriate language. The State rested at this point.

Defendant’s first witness was Pat Stuart, C.S.’s grandmother. She testified that during the time in question she and C.S.’s family lived in a duplex home. She lived in one apartment, and C.S.’s family lived in the other apartment. She described C.S. as a mischievous child who likes to be the center of attention. She also explained she had a good relationship with C.S., and C.S. never complained about defendant doing anything inappropriate to her. Also, C.S. has always had a bed-wetting problem.

Carrie Cummins is a friend of the family, and she has been in the household at various times. She has observed defendant with the children, and it is her opinion that it is a loving-type relationship. During all her visits there, she never saw defendant touch C.S. or any of the other girls in an inappropriate fashion. She is very close to C.S., and C.S. never told her that defendant touched her in an inappropriate manner. She observed that C.S. is very creative in making up stories.

At this point, the parties entered into a stipulation as to the testimony of Gail Steidl, who is a caseworker for DCFS. Her stipulation would be that she has monitored the visitation between defendant and the children since 1988. Defendant and the children display appropriate hugging, kissing, and exchanging of affection.

Defendant’s next witness is Shelly Coleman, mother of C.S. and wife of defendant. She explained that she has known defendant since 1978. They have two children. One is Nichole and the other is Elizabeth. She also has two other children, Patricia and C.S. Nichole is the oldest, followed by Patricia, C.S., and then Elizabeth. In 1987, after he was discharged from the military, she married defendant.

She described C.S. as being very active and tomboyish. C.S. liked to climb trees and, in fact, would slip and fall down on the branch in a straddle position. The few times C.S. did that, she would complain of pain afterward. C.S. also had a Hot Wheels, which she liked to ride down an incline and run into a wall. She did that several times and then began complaining of pain in her pelvic area.

She stated that C.S. was potty trained for day, but that she continually wet the bed at night. During the latter part of the summer of 1988, C.S. developed a condition of constipation. When C.S. finally had a bowel movement, she would complain about the pain. Eventually she took C.S. to a Dr. Dutta in Charleston. Dr. Dutta performed a pelvic exam on C.S. Coleman testified that Dutta was very rough when he completed these exams. She also stated that he did a rectal exam by placing his finger in her anus. Eventually, he gave them some suppositories to ease the constipation.

She stated that Gary and Joy Bernard were friends of the family. The families visited together often. The Bernards have a son named Hubert, age six. During the summer of 1988, C.S. and Hubie were caught in three sexual incidents. Coleman observed that Hubie had a lewd vocabulary and seemed to know sexual matters beyond his age. One of these times, C.S. said Hubie had his finger in her.

Coleman explained that after these incidents C.S. seemed more interested in sexual matters. She began getting into some sexual manuals that they had. These manuals had pictures portraying people in different sexual positions and engaging in different sexual activities. On at least two occasions, she caught C.S. with these books. She also explained that C.S. has a habit of making up stories. When she is confronted with having done something wrong, she will either deny it or not say anything.

Gary Bernard testified similarly to the incidents between Hubie and C.S. He also stated that Hubie had gotten into trouble at school for grabbing girls about his age somewhere where he should not.

Defendant described C.S. as being a tomboy and wanting to roughhouse. He stated he has previously seen C.S. get very quiet, as when she was trying to testify. That is when she has been caught in a story or when she does not wish to admit doing something. He denied ever committing any of the sexual acts with C.S. The defense rested.

Once deliberation started, the jury requested transcripts of the testimony of Miller and C.S. After discussions, the court, over defendant’s objection, granted the request and had the transcripts prepared for the jury. The jury returned with the guilty verdict.

The sentencing hearing was conducted on September 11, 1989. The court, finding defendant eligible for an extended-term sentence pursuant to section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2), imposed a sentence of 35 years. This appeal followed.

Prior to trial, defendant made a motion to dismiss the charge, alleging that his due process rights were violated by his being charged with the offense of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) He renews this argument now.

Defendant observes that section 12 — 13(a)(3) of the Criminal Code defines the offense of criminal sexual assault as occurring when an act of sexual penetration is committed on a victim under 18 years of age by a family member. (Ill. Rev. Stat. 1989, ch. 38, par. 12— 13(a)(3).) Defendant qualifies as a family member. (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12.) This offense is a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b).) He further observes the crime with which he is charged occurs when an act of sexual penetration is committed by someone 17 years of age or older and the victim is under age 13. This offense is a Class X felony. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(d).) He believes that since specific statutes will prevail over general ones (see 34 Ill. L. & Prac. Statutes §133 (1958)), he should have been more properly charged with the section 12 — 13 offense since he more particularly fits that offense.

Our supreme court has repeatedly held that the State’s Attorney has a responsibility for evaluating the evidence and other pertinent factors in determining what offense can and should properly be charged. (People v. Rhodes (1967), 38 Ill. 2d 389, 396, 231 N.E.2d 400, 403; People v. Keegan (1971), 52 Ill. 2d 147, 153, 286 N.E.2d 345, 348; People v. MeCollough (1974), 57 Ill. 2d 440, 444, 313 N.E.2d 462, 464; People v. Brooks (1976), 65 Ill. 2d 343, 349, 357 N.E.2d 1169, 1172.) The court has also repeatedly denied arguments that question the “unguided discretion” of the prosecutor in charging a felony or misdemeanor, where the alleged conduct comprises either offense. (Keegan, 52 Ill. 2d at 153, 286 N.E.2d at 348; MeCollough, 57 Ill. 2d at 444, 313 N.E.2d at 464; Brooks, 65 Ill. 2d at 349, 357 N.E.2d at 1172.) In Brooks, the court addressed the question of whether a specific statute with a lesser penalty required the defendant to be charged with that rather than with a violation of a general statute. The court concluded that when a defendant’s act has violated more than one statute, and each statute requires different proof for conviction, even though there may be some overlapping, the defendant may be prosecuted under the statute which provides the greater penalty. (Brooks, 65 Ill. 2d at 347, 357 N.E.2d at 1171; see also People v. Gordon (1976), 64 Ill. 2d 166, 170, 355 N.E.2d 3, 6.) Here, it is clear the two sections in question have some different elements. Thus, the determination of which offense to charge was properly placed in the State’s Attorney’s discretion, and there is no error.

Defendant next contends he was not proved guilty beyond a reasonable doubt. The standard of review in cases of this nature used to be that the victim’s testimony must be either clear and convincing or corroborated. (See People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019.) However, this court has recently concluded that now conventional reasonable-doubt analysis should control. See People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, 741; People v. Roy (1990), 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208,1221.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, if after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

In the present case, we find the evidence sufficient. C.S. identified defendant as the person who gave her the “bad touch.” When she refused to testify further, Miller’s testimony filled in the details of the assaults and included C.S.’s conduct with the dolls, which corroborated this testimony. Medical testimony establishes that C.S. was sexually abused, and it was the opinion of all the experts that C.S. showed the behavior of a sexually abused child.

Defendant, of course, denied this conduct occurred. He also tried to blame C.S.’s precocious sexual knowledge and the evidence of the sexual abuse on the incidents between C.S. and Hubie. However, the jury was not required to accept the defendant’s testimony. Similarly, the jury could have reasonably concluded that C.S. gained this particular knowledge from her incidents with defendant and was merely acting out in her conduct with Hubie. The questions of the credibility of witnesses and the resolution of evidentiary conflicts are for the trier of fact. (Collins, 106 Ill. 2d at 261-62, 478 N.E.2d at 277.) After considering all the evidence in the proper light, we conclude the jury could have properly found defendant guilty.

Defendant next contends the court improperly restricted his right of cross-examination. After the close of the State’s case, defendant sought to recall Miller to testify concerning the videotaping of the victim taken on January 18, 1989, five days after the original interview to which Miller testified. Defendant maintained C.S. made statements in that interview which were inconsistent with the earlier interview, and that these inconsistencies are admissible to attack the credibility of the first interview. The State objected. Miller testified outside the presence of the jury so the court could determine its admissibility. The court concluded the evidence would only confuse the jury and, accordingly, refused to allow this testimony.

As a general rule, the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court. (People v. Peter (1973), 55 Ill. 2d 443, 451, 303 N.E.2d 398, 404; People v. Gallo (1973), 54 Ill. 2d 343, 356, 297 N.E.2d 569, 576.) Such cross-examination should be kept within fair and reasonable limits, and it is only in a case of clear abuse of discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere. Peter, 55 Ill. 2d at 451-52, 303 N.E.2d at 404; Gallo, 54 Ill. 2d at 356, 297 N.E.2d at 576.

We find that the court did improperly restrict the testimony. The evidence shows that during this second interview C.S., at one point, indicated no one touched her “wiener,” and later stated a person other than defendant touched her. This evidence could clearly have an impact on what weight the jury might give the earlier hearsay statement. Since C.S. is, in essence, allowed to testify through her earlier out-of-court statement, it is only appropriate that “impeachment” of this “testimony” by other out-of-court statements she made which are inconsistent be admissible. Of course, as the trial court indicated, once defendant is allowed to show inconsistencies in the subsequent statement, the State is allowed to present evidence of the rest of the statement to show that it is not, in fact, inconsistent. However, the determination of whether it is inconsistent, what weight to give it, and how it would impact the earlier statement are all appropriately left to the trier of fact. Here, we find this restriction did manifestly prejudice defendant, and we must therefore reverse the conviction and remand for a new trial.

Defendant raises numerous other allegations of error. However, most we will not now need to consider. We will address those issues which are likely to recur at the retrial.

Defendant argues next that the court erred by allowing Miller to testify to the content of the January 13, 1989, interview she conducted with C.S. Following a hearing, the court allowed the testimony pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Defendant believes this violated his right of confrontation.

Section 115 — 10(a)(2) of the Code provides that for any prosecution of a sexual offense committed on a child under age 13, the testimony of an out-of-court statement made by the child, describing any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense, is admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115— 10(a)(2).) Parenthetically, we observe the trial court limited Miller’s testimony by not allowing her to relate who C.S. identified as the offender. This was a good-faith attempt by the court to reconcile this court’s holdings under the pre-1988 version of section 115 — 10 with the present version. However, we have now made clear that, under the present version, evidence of all the details, including the offender’s identity, are admissible once the initial requirements are met. People v. Morton (1989), 188 Ill. App. 3d 95, 100-03, 543 N.E.2d 1366, 1370-71; see also People v. Rushing (1989), 192 Ill. App. 3d 444, 450-52, 548 N.E.2d 788, 792-93; People v. Rocha (1989), 191 Ill. App. 3d 529, 536, 547 N.E.2d 1335, 1339.

The requirements for admission of this testimony are included in section 115 — 10(b), which provides:

“Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or ' (B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b).

Defendant believes this section, as written and as applied to him, effectively denied his confrontation rights since he was unable to cross-examine C.S. In Rocha, the Second District Appellate Court, after an exhaustive analysis, concluded that no such problem existed. In Roy, this court reached a similar, conclusion. However, subsequent to those decisions and oral arguments in the present case, the United States Supreme Court issued a more definitive statement on the interplay between the confrontation clause and hearsay testimony of child sexual-abuse victims in Idaho v. Wright (1990), 497 U.S. _, 111 L. Ed. 2d 638, 110 S. Ct. 3139. It is to this case we must turn to answer defendant’s question.

The Wright case involved the hearsay testimony of a 21/2-year-old victim who had been found incompetent to testify. The trial court allowed this evidence pursuant to the Idaho residual hearsay exception. The Idaho Supreme Court found the testimony inadmissible as violating the confrontation clause, with the United States Supreme Court affirming that decision.

In making its analysis, the Supreme Court observed that in Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, it had previously set forth “a general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the confrontation clause. (Wright, 497 U.S. at_, 111 L. Ed. 2d at 651, 110 S. Ct. at 3146.) This approach was as follows: first, in the usual case, the prosecution must either produce or demonstrate the unavailability of the witness; second, once a witness is shown unavailable, his statement is admissible only if it bears adequate “indicia of reliability.” Wright, 497 U.S. at_, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146; Roberts, 448 U.S. at 65-66, 65 L. Ed. 2d at 607, 100 S. Ct. at 2539.

The Court then observed that the “indicia of reliability” standard can be met in two ways. The first is where the statement falls within a firmly rooted hearsay exception, and the second is where the statement is supported by “a showing of particularized guarantees of trustworthiness.” (Wright, 497 U.S. at_, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147; Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.) The court, observing the case before it did not fall into the first test, then explained how the second determination is to be made.

The Court concluded that the “ ‘particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” (Wright, 497 U.S. at_, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) This test is based on the belief that evidence admissible under this exception must be, just as it is for firmly rooted hearsay exceptions, “so trustworthy that adversarial testing would add little to its reliability.” (Wright, 497 U.S at_, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149.) The Court specifically held that this determination is to be made without the use of other evidence which may corroborate the statement. Wright, 497 U.S. at _, 111 L. Ed. 2d at 657,110 S. Ct. at 3150.

The Court identified a number of factors which relate to whether hearsay statements made by child witnesses in child sex-abuse cases are reliable. These include spontaneity and consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. (Wright, 497 U.S. at_, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) However, the Court further explained:

“These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining ‘particularized guarantees of trustworthiness’ under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” (Wright, 497 U.S. at_, 111 L. Ed. 2d at 656,110 S. Ct. at 3150.)

The Court also observed that, while it would not require procedural safeguards such as videotaping of the interview, such procedural safeguards may well enhance the reliability of out-of-court statements of children regarding sexual abuse. (Wright, 497 U.S. at _, 111 L. Ed. 2d at 654, 110 S. Ct. at 3148.) Ultimately, the Court concluded in Wright that the statements were inadmissible.

In applying this analytical framework to the case now before us, we must first turn to the question of the unavailability of the witness. In Roberts, as noted, the Court indicated that in the “usual” case this was a prerequisite. However, subsequent Supreme Court decisions have indicated that it is not always a requirement (see United States v. Inadi (1986), 475 U.S. 387, 89 L. Ed. 2d 390, 106 S. Ct. 1121; Bourjaily v. United States (1987), 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775), and, in fact, have suggested that in this regard Roberts was limited to the facts it addressed (Inadi, 475 U.S. at 392-93, 89 L. Ed. 2d at 397, 106 S. Ct. at 1125). Roberts itself, in a footnote, suggests that a showing of strict unavailability is not always necessary. (See Roberts, 448 U.S. at 65 n.7, 65 L. Ed. 2d at 607 n.7, 100 S. Ct. at 2538 n.7.) Thus, this court has concluded that the unavailability of a witness is not a prerequisite in every case for compliance with the confrontation clause. (See People v. White (1990), 198 Ill. App. 3d 641, 656-64, 555 N.E.2d 1241, 1251-56; Roy, 201 Ill. App. 3d at 184, 558 N.E.2d at 1220-21.) To what extent the Wright opinion, by its strong reliance on Roberts and the analysis contained therein, reinvigorates the requirement that the witness is unavailable is unclear since the Court stated:

“Applying the Roberts approach .to this case, we first note that this case does not raise the question whether, before a child’s out-of-court statements are admitted, the Confrontation Clause requires the prosecution to show that a child witness is unavailable at trial — and, if so, what that showing requires. *** For purposes of deciding this case, we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause.” Wright, 497 U.S. at _, 111 L. Ed. 2d at 652, 110 S. Ct. at 3147.

Fortunately, we also do not need to answer this question because we find that under the facts of this case C.S. should properly be considered an unavailable witness. In Rocha, the court specifically addressed the unavailability requirement of section 115 — 10(b)(2)(B). After a long analysis and reference to decisions of other jurisdictions, the court concluded:

“The legislature, then, has provided section 115 — 10 as a mechanism for allowing into evidence the out-of-court statements of children who are the victims of sexual abuse. This court holds that the legislature’s intent was to include within the meaning of ‘unavailable’ witnesses those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence.” (Rocha, 191 Ill. App. 3d at 539, 547 N.E.2d at 1341-42.)

A similar conclusion as to when a child witness becomes “unavailable” has been reached by the Federal courts (see, e.g., Gregory v. North Carolina (4th Cir. 1990), 900 F.2d 705 (and cases cited therein)), and in the State courts (see, e.g., State v. Jones (1989), 112 Wash. 2d 488, 772 P.2d 496; State v. Chandler (1989), 324 N.C. 172, 376 S.E.2d 728; State v. Drusch (1987), 139 Wis. 2d 312, 407 N.W.2d 328). We find the analysis in Rocha persuasive and adopt its conclusion as our own.

It is clear in the present case that C.S. ceased testifying due to her fears and, despite the best efforts of the court, she would not proceed, which is entirely understandable considering her tender years and the circumstances. We find that under these circumstances she is properly considered unavailable for the purposes of section 115 — 10. The fact she testified for a short time prior to stopping does not change that conclusion. (See Chandler, 324 N.C. 172, 376 S.E.2d 728.) Once a child witness is unable to proceed with his or her testimony, whether that point occurred prior to taking the stand or subsequently, he or she is properly considered unavailable. Thus, to whatever extent the unavailability of the witness is a prerequisite to the statement’s admission, that burden has been met.

This takes us to the second prong of the Roberts analysis, and that is whether the statement contained sufficient “indicia of reliability.” Since the hearsay exception contained in section 115 — 10 is not a firmly rooted hearsay exception (Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1342; Roy, 201 Ill. App. 3d at 184, 558 N.E.2d at 1220), the statement must show a particular guarantee of trustworthiness to be admissible.

Section 115 — 10(b)(1) provides that, prior to the evidence being found admissible, a hearing should be conducted, and the court must find that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)(1).) By providing for such a hearing, our statute has been held to comply with thé confrontation clause’s required showing of particular guarantees of trustworthiness. (Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1342.) However, as noted, Wright has more particularly indicated what is needed to meet this requirement. Accordingly, it is necessary to construe the general language of section 115 — 10(b)(1) to be in line with the more particular language of Wright. Thus, the required finding that the statement provides “sufficient safeguards of reliability” must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant “particularly worthy of belief” and, in reaching this decision, the court must consider only those circumstances which surround the making of the statement.

In the present case, the court conducted a hearing outside the presence of the jury in which Miller testified. The court, reciting the statutory language, found the statement admissible. Wright has now given greater definition to the required hearing and the finding necessary to allow admission of the evidence. Accordingly, it is necessary upon remand for the court to conduct a hearing and make a determination in accordance with Wright. If the court determines that the statement shows the particular guarantees of trustworthiness, then the statement is properly admissible. If it does not, then the statement is inadmissible.

Defendant next raises various objections to the testimony of Dr. Monteleone, Nurse LaRock, and therapist Ludington concerning the characteristics of child sex-abuse victims and whether C.S., in their opinions, had been sexually abused.

Expert testimony will be admitted if the expert has some knowledge or experience which will aid the court or jury in arriving at determinations on the issues and if the subject matter is sufficiently beyond the common experience. (Server, 148 Ill. App. 3d at 897, 499 N.E.2d at 1025-26.) The indicia of expertise is not a given level of academic qualifications, but whether the expert has knowledge and experience beyond the average citizen which would assist the jury in evaluating the evidence. (People v. Douglas (1989), 183 Ill. App. 3d 241, 254, 538 N.E.2d 1335, 1343.) Irrespective of how specialized knowledge was acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, he may testify. (Douglas, 183 Ill. App. 3d at 254, 538 N.E.2d at 1343.) This determination is directed to the sound discretion of the trial court and will only be disturbed when it constitutes an abuse of that discretion. People v. Bradley (1988), 172 Ill. App. 3d 545, 550, 526 N.E.2d 916, 920.

In the present case, due to combinations of education and experience, it is evident all three witnesses qualify as experts. It is also apparent that the behavior of children who have been sexually abused is beyond the knowledge of the common layman and that this information would be of benefit to the jury. Accordingly, we find no error with its admission.

Defendant further argues, incorrectly, that it was improper for Dr. Monteleone to rely on the relevant history of C.S. as related to him by LaRock, who received it from Miller, in expressing his opinion that C.S. was sexually abused. In J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106,116-17, 483 N.E.2d 273, 278, the court stated:

“Firestone also contends that the expert testimony of Richard Bliss, a vocational counselor, was improperly admitted. It maintains that Bliss’ testimony and opinions were all based on hearsay evidence derived from Boone during interviews conducted by Bliss. Based upon this court’s opinion in Wilson v. Clark (1981), 84 Ill. 2d 186, the appellate court concluded that the testimony was properly admitted. We agree with the appellate court because expert testimony may be based on data presented to the expert ‘ “outside of court and other than by his own perception.” ’ (84 Ill. 2d 186, 193, quoting Fed. R. Evid. 703, Advisory Committee Note.) The fact that the data was obtained from Boone is relevant only to the weight it should be given, a jury decision, and not to its admissibility. Therefore, the appellate court correctly decided that the expert testimony was properly admitted.”

Thus, it is clear the source of the information is relevant only to the question of the weight to be given the evidence and does not affect the admissibility of Dr. Monteleone’s opinion.

The last issue we need address, in the event defendant is again found guilty, is the permissibility of the imposition of an extended-term sentence. The court found defendant eligible for such a sentence, pursuant to the provisions of section 5 — 5—3.2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(c)), which authorizes an extended-term sentence for “any offender who was convicted of aggravated criminal sexual assault where the victim was under 18 years of age at the time of the commission of the offense.” Defendant believes this is improper. He observes that an element of the offense with which he was convicted is that the victim is under 13 years of age. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) He maintains that the extended-term provision thus results in an impermissible double enhancement in this case.

Generally, a factor implicit in the offense for which the defendant has been convicted cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative intent to accomplish the result. (People v. Ferguson (1989), 132 Ill. 2d 86, 97, 547 N.E.2d 429, 433; Fitzsimmons v. Norgle (1984), 104 Ill. 2d 369, 374, 472 N.E.2d 802, 805.) In determining whether the legislature intended a double enhancement, the courts must look to the text of the statute itself as the best indicator of legislative intent. Ferguson, 132 Ill. 2d at 97, 547 N.E.2d at 434.

Ferguson involved a number of consolidated appeals addressing application of what is now section 5 — 5—3.2(b)(4)(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(b)(4)(i)), which authorizes imposition of an extended-term sentence upon a defendant who is convicted of committing a felony against a person under the age of 12, to cases involving either aggravated criminal sexual abuse or aggravated criminal sexual assault in which an element of the offense is the fact that the victim is under age 13. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 16(c)(1)(i), 12 — 14(b)(1).) The court found this section ambiguous and, relying on the doctrine resolving penal statutes in favor of defendant, the court held the section created an impermissible double enhancement. Ferguson, 132 Ill. 2d at 97-98, 547 N.E.2d at 434.

However, the court in explaining its decision stated:

“This conclusion is supported by the fact that section 5 — 5— 3.2 was subsequently amended to provide that an extended-term sentence may be imposed upon any offender who was at least 17 years old on the date the crime was committed and who was convicted of aggravated criminal sexual assault against a victim who was under 18 years of age at the time of the commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(c).) Although the State argues that this amendment simply clarifies the legislature’s intent to apply harsher penalties in cases where the assaults involve children, we regard it as an example of a clear expression of legislative intent to permit a double enhancement of the penalty, an expression that we find to be lacking in section 5 — 5—3.2(b)(3)(i).” Ferguson, 132 Ill. 2d at 98-99, 547 N.E.2d at 434.

While section 5 — 5—3.2(c) of the Unified Code of Corrections has undergone some minor amendments since Ferguson (see Pub. Act 85-1433, §5, eff. Jan. 11, 1989 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—3.2(c))), they do not affect this analysis. Thus, Ferguson resolves the question, and the enhancement is permissible.

Therefore, for the reasons mentioned above, it is necessary that defendant’s conviction and sentence be reversed and the matter remanded for further proceedings.

Reversed and remanded with directions.

KNECHT, P.J., and GREEN, J., concur.