APPEAL from the Circuit Court of Du Page County; the Hon. S.
KEITH LEWIS, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 4, 1978.
Joyce Principato appeals from orders of the Circuit Court of Du Page County finding her minor children, Samuel Principato, Jr., and Angelina Principato, to be neglected children pursuant to section 2-4(1)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-4(1)(a)). The sole issue before this court on appeal is whether the findings of neglect were contrary to the manifest weight of the evidence. They were.
On November 30, 1976, petitions were filed by the State's Attorney of Du Page County alleging the children were neglected minors whose parents were unable or unwilling to provide "the proper or necessary support, education as required by law, or * * * medical or other remedial care or other care * * * necessary for [their] well-being, or who [are] abandoned by [their] parents, guardians or custodians * * *." Prior to the adjudicatory hearing of the petitions on September 14, 1977, the Public Defender, who had been appointed as guardian ad litem to represent the two Principato children, for reasons not apparent to us in this record admitted the allegations of the complaint on their behalf. In addition, the attorney for Samuel Principato, Sr., the father of the children and a respondent in this action, told the court Principato wished to stipulate, prior to the adjudicatory hearing, that both children were neglected on November 30, 1976, the date the petitions were filed. When asked by his attorney whether he wished to so stipulate, the respondent father replied:
"It didn't have nothing to do with support. It had to do with I was home alone with the kids.
Mr. Hayton [Samuel Principato, Sr.'s Attorney]: So you'll stipulate that they were neglected?
Mr. Principato: Yes. I was deserted at the time."
The evidence adduced at the hearing was that Joyce Principato and Samuel Principato, Sr., were the natural parents of the minor children, Angelina and Samuel, Jr., who were 4 months and 2 1/2 years old, respectively, when the neglect petitions were filed. During the fall of 1976 the Principatos underwent a very traumatic period in their marriage and in February 1977, after these neglect petitions had been filed and the children placed outside the home, one with each of their grandmothers, they were divorced. Samuel, Sr., testified that Joyce left the home "for days or weeks at a time" sometimes taking Angelina with her. He took care of Sam, Jr., by himself or took his son to stay with his paternal grandmother, Mrs. McCarthy. There was testimony that the family's apartment was dirty, with dishes and garbage piled up and laundry and toys in a disorganized state and that the children sometimes had wet diapers unnecessarily. There was no evidence of any physical abuse of the children by either parent nor was there any testimony suggesting the children were malnourished or deprived of medical care. By all accounts, the children were healthy and happy despite the tension and stress in the home caused by the conflict between their parents and both children spent a considerable amount of time with their grandmothers, who were apparently able and willing to assist the parents whenever necessary.
Samuel Principato, Sr., was permitted to testify extensively regarding the marital conflicts and the frequent absences of Joyce from the home. He testified that she was "running around" with friends of hers of whom he did not approve and that they argued frequently about her poor housekeeping.
A social worker for the Wheaton Police Department, Holbert Watson, testified there had been incidents of physical violence between the parents and that Samuel, Sr., was a martial arts expert. Joyce had complained to Watson that Sam had been beating her up and threatening her and that he was taking drugs.
Mrs. McCarthy, the paternal grandmother of the Principato children, testified Joyce always told her when she was leaving the apartment and that she often took care of her grandson when Joyce was gone. She stated Joyce told her Sam would not allow her to take the children with her and that she believed Sam would kill her if she tried to do so. Mrs. McCarthy's attorney, who was present in the courtroom during this hearing, asked the court if he might ask one question of his client, who was then testifying. He informed the court he intended to ask her whether Joyce was aware that Sam had killed his first wife. The objection of Sam's attorney was sustained by the trial court. Joyce's counsel similarly asked Sam whether it was true he had spent time in a California penitentiary for the murder of his first wife and an objection was sustained. The court also sustained objection to questions posed to Sam concerning whether he had threatened Joyce with physical harm if she took the children away from him.
Joyce Principato testified that Sam had battered her regularly during the fall of 1976 and that she had awakened several times to find Sam holding "a sword at her throat." When Joyce attempted through her own testimony to show why she left the children with Sam the court precluded such inquiry as irrelevant to the issue of whether the children were neglected during the period immediately prior to the filing of the neglect petitions.
At the conclusion of the hearing the court found "by the admissions of the respondent minors * * * and the natural father and by a clear preponderance of the evidence, * * * there was a lack of proper or necessary support and a lack of care necessary for the support" of both Angelina and Sam, Jr. The court specifically found no abandonment by the parents and no lack of proper education. It made no finding regarding medical care.
Section 2-4(1) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-4(1)) provides, in part, that a neglected ...