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In Re Tolbert

OPINION FILED JUNE 30, 1978.

IN RE CHARLES TOLBERT ET AL., MINORS. — (THE PEOPLE EX REL. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-APPELLEE,

v.

MARIE TOLBERT, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Hardin County; the Hon. JOHN D. DAILY, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Marie Tolbert appeals an order of the Circuit Court of Hardin County declaring her an unfit parent, terminating her parental rights to Charles, John, Carmen, and Robert Tolbert, and appointing a guardian empowered to consent to their adoption.

On October 21, 1975, Mary Gullo of the Department of Children and Family Services filed a petition requesting that the children be adjudged wards of the court. This petition was amended on December 10, 1975, and on March 4, 1976. The final petition alleged that Marie Tolbert had "failed to maintain a reasonable degree of interest, concern or responsibility as to her children's welfare and shown substantial neglect of the children." The petition listed as particulars that Charles was not in school, that respondent refused to have the children innoculated, that the children suffered from malnutrition, that respondent failed to provide the children adequate medical care, and that Carmen and John were anemic.

At the adjudicatory hearing Dr. Kimbel Ewall testified regarding the medical care of the Tolbert children. He had delivered Carmen in 1973 but had not seen her again until December of 1975. His diagnosis at that time had been that she was suffering from malnutrition, severe iron deficiency anemia, severe asteatosis, round worm and hook worm. His report indicated a suspicion that she was a neglected child. He admitted her to a hospital and her condition, including her lethargy and unwillingness to speak, improved. Had she not been treated, she could have experienced a cardiac failure which would have endangered her life.

Dr. Ewall stated that John was in fairly good condition but showed signs of malnutrition. He had multiple skin lesions which appeared to be insect bites, small lacerations with superficial infections, a large ringworm on his hand, and some mild dental caries. Dr. Ewall believed that Robert's social development was retarded. Upon further examination, however, after Robert had temporarily been placed in a foster family and had begun to receive treatment, his condition improved markedly and Dr. Ewall observed that, contrary to his original opinion, John did not appear retarded in any way and seemed in fact of above average intelligence.

Charles Tolbert was nonverbal and appeared to Dr. Ewall to be perhaps chronically ill. An examination disclosed, however, that he had no afflictions or gross abnormality, although he did have round worms and his blood count showed signs of possible parasitic infection. Robert Tolbert was in fairly good health. He had impetigo on the buttocks secondary to urine excoriation, which Dr. Ewall noted might have been caused by wet diapers, and mild anemia. He also had pin worms. None of the children had received the standard childhood innoculations.

The testimony of Dr. Fransisco Villanueva concerning his examination of the children did not contradict in any significant way that of Dr. Ewall.

Mary Gullo, a social worker for the Department of Children and Family Services, then testified. She had visited Marie Tolbert several times at home. She lived in two small separate trailers, three rooms in all, with no bathroom, electricity, or running water. Debris was piled up around the outside of the trailers and the children, except Robert, were very dirty and ill-kept. There were flies swarming and several dogs outside the trailers. Gullo observed that the children had had bloated stomachs and were pale; Carmen was particularly listless. Gullo attempted to convince Marie Tolbert to take the children to a doctor but she refused to do so because she believed nothing was wrong with them. In October of 1975, under pressure from the state's attorney, whom Gullo had contacted, Marie Tolbert took the children to Dr. Villanueva for a checkup. Gullo had not visited respondent's home since August 1975, because respondent had clenched her fists and caused Gullo to fear she would be struck. In Gullo's opinion Marie Tolbert loves her children but is incapable of providing adequate care for them.

The next witness was Ailene Donithan, who had been the Department of Public Aid caseworker assigned to Marie Tolbert. When visiting Marie Tolbert, she had noticed disposable diapers and other garbage strewn around the area outside the trailer. Donithan's opinion was that Marie Tolbert loved her children but did not see the need for education and cleanliness.

Jane Williams, formerly public health nurse for Hardin County, testified that she saw respondent frequently between 1969 and 1975 in the course of giving her mother insulin shots. Respondent rejected Williams' suggestions that the children could be immunized for free and that respondent should sign up for a supplemental food program.

Marie Tolbert was the first witness for the respondent. She described her domestic routine at the time she lived in the trailer. She carried well water three times a day, cut wood, cooked on a range stove with wood, and kept perishables in an ice cooler. Her only income was $190 Aid to Dependent Children and social security. When John was a baby she had taken him to the doctor because he had digestive problems and he was operated on. She testified that she sought medical attention for her children whenever she felt they needed it. She stated that she would have taken the children to the doctor at Gullo's suggestion if Gullo had not pressed her to do so. She testified that she wanted her children and could adequately take care of them.

The next witness was respondent's mother, Pauline Palmer. She said that Marie Tolbert cleaned the trailers often, cooked good meals, and bathed the children twice a day. In her opinion the children were always healthy and active.

At the close of respondent's evidence, the court found the children to be neglected and adjudged them wards of the court.

On June 21, 1977, the dispositional hearing was held. At that time the court found the putative fathers, who had received notice of these proceedings and had waived whatever rights they may have had, to be unfit by reason of abandonment. After hearing some testimony of a cumulative nature the court found respondent an unfit parent because she failed to protect her children from conditions of their environment ...


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