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In Re Smith





APPEAL from the Circuit Court of Clay County; the Hon. WILLIAM H. SPITLER, Judge, presiding.


Louise Simpson appeals the judgment of the Circuit Court of Clay County in which her minor son, Anthony Smith, was adjudicated a neglected child and made a ward of the court and which awarded custody of the son to Richard S. Laymon, guardianship administrator of the Department of Children and Family Services (the Department).

On August 22, 1977, Marilyn Wilkinson, on behalf of the Department, filed a petition alleging that Anthony Smith, age 8 years, was a neglected child because:

"(a) his behavior is injurious to his own welfare in that:

1. On 7-16-77 said minor broke into a grocery store and stole candy and soda.

2. On 8-10-77 mother of said minor requested that DCFS place said minor in foster care due to her inability to cope or control the minor.

3. During the past 12 months said minor has been a behavior problem in school and has been seen weekly by a therapist from the Mental Health Clinic, with no apparent improvement in behavior."

On the same date the petition was filed, the mother appeared in open court and consented to the minor being placed in the temporary custody of the Department until September 26, 1977, the date of the adjudicatory hearing. The court then informed the mother that she was entitled to an attorney at the upcoming hearing and was further informed that if she could not afford to hire an attorney, one would be appointed. The mother acknowledged that she had that right but chose not to exercise it.

At the adjudicatory hearing, Marilyn Wilkinson, a social worker for the Department, testified that approximately one year earlier both the minor's school and mother had informed her that they were having problems with Anthony. Apparently, upon receiving this information, the Department initiated counseling or therapy sessions which had little success. In July of 1977, after the minor was caught breaking into a store in Sailor Springs, the mother called Ms. Wilkinson and asked the Department to "take placement" of her child. The reason the mother gave for this request was that "she couldn't control him and she was concerned Anthony would really get into a lot of trouble." At the hearing, the mother presented no evidence but asked Ms. Wilkinson how long her child would be in foster care. Ms. Wilkinson responded that the Department was "trying to get him back in the home by next summer."

The court found that the minor was a neglected child and found that it was in his best interests that he be made a ward of the court. The court gave temporary care and custody of the child to Richard S. Laymon, guardianship administrator of the Department until June 26, 1978, the proposed date of the dispositional hearing.

The dispositional hearing was continued on the motion of the State and ultimately heard on November 16, 1978, approximately 14 months after the adjudicatory hearing. The first witness called by the State was Ms. Wilkinson, who reiterated much of her prior testimony but in greater detail. She testified that in November, 1976, she was called by the grade school principal regarding the minor's conduct. The principal informed her that the minor was "very negative"; had no friends; stole from the school and the community; lied even when the truth would serve him better; was having learning problems; had run away from home; and was very hostile. Ms. Wilkinson spoke with the mother, who did not know why the child behaved as he did. Weekly appointments for the mother and child were set up at the mental health clinic from November of 1976 until the following August. These services had only a temporary positive effect on the child and were largely unsuccessful. Shortly after the son had been caught in the candy store, the mother agreed with Ms. Wilkinson to have him placed in temporary foster care. Thereafter, the juvenile petition was filed.

Ms. Wilkinson testified that the minor has been in the same foster home since August 1977, where he has demonstrated remarkable improvement. The minor used to have nightmares and wet his bed on a regular basis. His nightmares have since ceased and his school behavior and skills have improved considerably. Ms. Wilkinson added that the minor had at first refused to visit his natural home and that the mother had likewise refused to see her son at the Department office. The mother finally changed her mind in February of 1978 and went to the office to visit with her son for a period of one to 1 1/2 hours, during which time no one ever sat down. The minor has since made a couple of home visits; however, he preferred to stay with his foster family and did not want to return to his home. After these home visits, the minor would start wetting his bed again. It was Wilkinson's opinion that the child has done well in foster care and would lose whatever progress he has gained by returning to his home.

Kay Goodman, the minor's foster parent, substantiated much of Ms. Wilkinson's testimony concerning the minor's improvement since joining her family. Janice Cook, a teacher specializing in learning disabilities, testified that the child had previously been unable to pay attention, was incapable of listening, was extremely unhappy and could not read at all. She indicated that within a year the minor was accepted by the other students in the school, is able to pay attention, is able to read, and most importantly appears happy.

The mother, who had not cross-examined any of the State's witnesses, chose to testify in her own behalf. She stated that her son had erratic eating habits and would often "run off" during meal times. She indicated she had been pregnant and "couldn't chase around all over the town all the time" after ...

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