¶1dissenting:
¶2I respectfully dissent and would reverse the order of the trial court adjudging N.S. an abused minor.
¶3The modern approach to competency is to let the evidence come in for whatever it is worth, and not prevent a witness from testifying on the basis of some arbitrary test. Nevertheless, where the witness fails to possess minimum credibility, the testimony of the witness should not be considered. A witness must possess some minimum ability to observe, record, recollect and recount as well as an understanding of the duty to tell the truth. (1 J. Strong, McCormick on Evidence §62, at 243-48 (4th ed. 1992).) The four-year-old child in this case insisted in her testimony that she had a unicorn, which she rode to the Ponderosa restaurant. She also told a caseworker, without prompting, that her father had made her say the things she said about her mother. At another visit where the same caseworker was present, the child volunteered the information that her father had abused her and told her to say that her mother had been the one who had done it. At trial, the child testified that she wanted to live with her father, and that she had told what her mother had done so that she could live with her father.
¶4Although minor discrepancies in a child’s testimony do not render the child incompetent to testify, it is clear the child in this case either is unable to separate fact from fiction, or does not understand what it means to tell the truth. To find N.S. competent on the record here is to reduce the competency requirement to a meaningless formality. In re E.S. (1986), 145 Ill. App. 3d 906, 915, 495 N.E.2d 1334, 1340 (Harrison, J., dissenting).
¶5Steve Wilson, a Danville juvenile investigator, testified that when he spoke to N.S. on July 27, 1992, he felt that she could distinguish between truth and falsity, and he found her believable. Marty Traver, a clinical psychologist, testified that N.S. could easily distinguish between truth and falsity, her thought processes were normal and she did not tend to fantasize (apparently the child did not tell Traver about the unicorn), but nevertheless she would not be a credible witness for a criminal prosecution. The majority ignores Traver’s opinion the child would not be a credible witness on the basis that this is a civil case, not a criminal case. The majority’s reading of Traver’s testimony is strained. Traver’s testimony does not support the proposition that the child would be a credible witness in a civil case.
¶6I question whether testimony that a witness is telling the truth, based on observation of that witness, is ever helpful to the court. I am unaware of any recognized field of expertise which qualifies an individual to be able to determine whether another person is telling the truth. (See People v. Enis (1990), 139 Ill. 2d 264, 288-89, 564 N.E.2d 1155, 1164-65 (eyewitness expert testimony excluded); People v. Douglas (1989), 183 Ill. App. 3d 241, 255, 538 N.E.2d 1335, 1344 (testimony regarding rape trauma syndrome not an improper comment on witness’ credibility).) Polygraph tests may be of some assistance in determining whether an individual is telling the truth, but such tests are not admissible in either criminal or civil cases. (Ill. Rev. Stat. 1991, ch. 38, par. 155 — 11; Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1104.) In In re Marriage of Dali (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109, a child was placed with DCFS while a psychiatrist attempted to determine who was telling the truth: whether the mother was guilty of sexual abuse, or whether the father had suborned perjury of the child. The psychiatrist was unable to give an answer, and the judge had to decide the case, ultimately returning the child to the mother.
¶7The argument could be made that child sexual abuse is so devastating that in these cases, where the focus is on the best interests of the child, the safest approach is to change custody whenever an accusation is made, regardless of the quality of the proof. I reject that argument. Dispensing with proof provides incentive for false accusations, and a parent who makes such false accusations, especially one who enlists the aid of the child in doing so, is no better a custodian than is a sex abuser. (See Mullins v. Mullins (1986), 142 Ill. App. 3d 57, 78, 490 N.E.2d 1375, 1389 (false allegations of sexual abuse harmed children and warranted change of custody).) There is no easy answer to these cases. Although the stakes are high, the court must decide them as it does any others, on the basis of the evidence presented, even though it is possible a child may be returned to the custody of a sex abuser. See In re Marriage of Sechrest (1990), 202 Ill. App. 3d 865, 876, 560 N.E.2d 1212, 1218-19 (custody awarded despite testimony child was abused by custodian’s husband).
¶8The majority opinion states that the child’s out-of-court statements were corroborated by her in-court statements, citing Marcus, and at any rate, “those to whom N.S. had given her previous statements testified and were subject to cross-examination.” (255 Ill. App. 3d at 776.) Accordingly, the majority concludes there was sufficient corroboration of the child’s out-of-court statements for them to be admissible under section 2 — 18(4)(c) of the Act. (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 18(4)(c).) Marcus agreed with In re Custody of Brunken (1985), 139 III. App. 3d 232, 487 N.E.2d 397, that it is not sufficient corroboration that several witnesses testify the child related the claims to them. (See In re T.L. (1993), 254 Ill. App. 3d 230, 234-35.) Marcus went on to say there is no requirement that a child’s trial testimony be corroborated or be clear and convincing. That is certainly true, but the question is not whether the trial testimony should be admitted, but whether the out-of-court statements should be admitted. A child’s out-of-court statement which rises to the level to bring it within a hearsay exception, such as a spontaneous declaration, might constitute corroboration, but the fact that the child is asked to repeat the statements to several witnesses does not. The mere fact that one of the repetitions occurred in court is no justification for admission of the child’s out-of-court statements. Here the child’s in-court testimony failed to possess minimum credibility and even that testimony should not have been considered.