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In re Gonzales

November 27, 1974


The opinion of the court was delivered by: Hallett, Justice

As Modified on Denial of Rehearing Jan. 28, 1975.

In the circuit court of Cook County, (Juvenile Division) Carmen Gonzales, the minor child of Ramona Melendez, was adjudged to be a neglected minor within the meaning of the juvenile Court Act. (Ill.Rev.Stat.1971, ch. 37, par. 702-4(1)(b).) At the subsequent dispositional hearing, the child was placed in the custody of Richard S. Laymon of the Illinois Department of Children and Family Services. The mother has appealed from both orders.

The issues are (1) whether the evidence at the adjudicatory hearing was sufficient to support the finding of neglect; (2) whether the State was constitutionally required to fund the non-resident and indigent mother's travel expenses to attend the adjudicatory and dispositional hearings; (3) whether the admission of hearsay evidence at the dispositional hearing, over the objection of respondent, was proper; and (4) whether evidence, which related to the respondent's emotional condition, admitted at the dispositional hearing, was violative of the respondent's psychiatrist-patient privilege.

After a careful review of the record, we conclude that the finding at the adjudicatory stage (that Carmen Gonzales was a neglected minor in that her environment was injurious to her welfare) is not supported by and is contrary to the manifest weight of the evidence. Accordingly, we reverse both orders and remand the cause to the trial court.

This case presents a novel factual situation in that Carmen and her mother, Mrs. Melendez, were both non-residents of the State of Illinois on December 20, 1972, the date the petition for adjudication of wardship was filed. Mrs. Melendez, Carmen, and other members of Carmen's family permanently resided in Springfield, Massachusetts. It appears, from the record that sometime late in 1972, Mrs. Melendez and her children came to Chicago for the purpose of visiting Anita Lebron, the child's aunt. It was during this visit that Carmen was admitted to the Illinois Masonic Hospital. Dr. Frederick G. Berlinger, the treating physician, testified that Carmen was hospitalized for a complication of diabetes known as diabetes acidosis. Upon the stabilization of her condition, Carmen was released from the hospital.

During the first hospitalization of Carmen, Lois Fuhrer, a registered nurse who taught classes for diabetic patients, met with Carmen to instruct her on the care of her diabetic condition. Ms. Fuhrer testified that Carmen, who was then eight years of age, seemed very knowledgeable about her condition and the manner of treating it. Carmen informed her that she had attended a summer camp for diabetic children while in the custody of her mother. Ms. Fuhrer testified that she had supervised Carmen's insulin injection technique and considered it very good, and also had supervised Carmen in the testing of her urine. According to the testimony of Ms. Fuhrer, Carmen knew that it was imperative that she report certain symptoms if experienced by her. In addition, her testimony revealed Carmen had knowledge of the principles of a proper diabetic diet.

Ms. Fuhrer was unsuccessful in her attempts to contact Mrs. Melendez regarding her child's medical problem. However, upon discovering that Carmen would be staying with her aunt when released from the hospital, Ms. Fuhrer contacted her aunt, who subsequently attended a seminar on dietary management for the diabetic and received printed literature on the disease. Ms. Fuhrer testified that in speaking with Carmen's aunt, she was informed that she was a nurses' aid, familiar with the testing of urine in such cases.

After Carmen was released from the hospital, she was visited by Lee Bovian from the Visiting Nurse Association, upon the request of the Illinois Masonic Hospital. At her initial visit on December 11, 1972, Ms. Bovian reported that Carmen did not have her diet list, nor did she have the proper urine testing equipment, consisting of tablets usually provided to patients upon their release from the hospital. (The testimony was uncertain as to whether such items were provided to Carmen.) On this occasion, Carmen had already administered her insulin injection. Ms. Bovian returned the following day for the purpose of observing Carmen administer the prescribed dosage of insulin and to supply the dietary list. At this second visit, according to the testimony of Ms. Bovian, Carmen used the proper procedure in administering the prescribed dosage of insulin.

On that same day of Ms. Bovian's second visit, Carmen was scheduled for a routine "follow-up examination" by Dr. Berlinger. He testified that she was once again in a state of diabetes acidosis, and he readmitted her to the hospital. When asked his opinion as to what was the cause of Carmen's relapse in so short a period of time, Dr. Berlinger responded,

"Well, there can be any number of causes for a diabetic to go out of control, but in such a short time, four days after leaving the hospital in excellent shape, . . . the most common cause of that is the misuse of insulin at home."

Upon readmitting Carmen to the hospital for treatment of the relapse of diabetes acidosis, a suspected case of child neglect was reported by the hospital. Pursuant to the report, the petition for adjudication of wardship was filed, alleging that Carmen's environment was injurious to her welfare in violation of Ill.Rev.Stat.1971, ch. 37, par. 702-4 (1) (b).

On the basis of the above testimony, the trial judge entered a finding that Carmen was a neglected child within the said statute in that her environment was injurious to her welfare, and accordingly declared her a neglected minor, placing her in the custody of Richard S. Laymon of the Illinois Department of Children and Family Services.

Before the adjudicatory hearing, Mrs. Melendez had returned, with the other members of the family, to her permanent residence in Massachusetts. Counsel for the respondent presented a motion requesting an order that the State provide travel funds, enabling Mrs. Melendez to return to Chicago for the purpose of testifying at the adjudicatory hearing. This motion was denied by the trial court. Counsel for the respondent argued that because Mrs. Melendez was an indigent welfare recipient in Massachusetts, she was without the financial means to have the opportunity to be heard at the hearing as provided by statute. (Ill.Rev.Stat.1971, ch. 37, par. 70120(1))

"Except as provided in this Section and paragraph (2) of Section 5-1, the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be ...

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