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In Re D.m.c.

OPINION FILED JULY 23, 1982.

IN RE D.M.C., A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

A.M. CONEKIN ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Jefferson County; the Hon. LEHMAN C. KRAUSE, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

The minor child, D.M.C., was adjudicated neglected based upon his environment being injurious to his welfare with a further finding that he had been the victim of physical abuse by both parents. He was made a ward of the Juvenile Court and placed in the guardianship and custody of the Illinois Department of Children and Family Services (D.C.F.S.) and the child and parents were ordered to participate in counseling as a family unit. The parents appeal from the adjudication of neglect and abuse and from the disposition placing the child with D.C.F.S. We affirm the decision of the trial court.

D.M.C., a nine-year-old boy, was adjudicated neglected by reason of abuse following a three-day adjudicatory hearing on a juvenile court petition on April 23, 1981. Testimony indicated that D.M.C.'s parents had disciplined him by means of a leather belt, at least 50 strokes each and perhaps as many as 100 strokes each, administered to the boy's unclothed buttocks and rear and side thighs. Photographs introduced in evidence showed the entire area to be solidly bruised.

Testimony was introduced which indicated the child was hyperactive and perhaps had a learning disability "in the social behavior realm." The parents are both professional psychologists and have educational training and professional experience in dealing with hyperactive and learning-disabled children. Testimony indicated that they believed he had a high threshold of pain. The mother testified that she, the father, and the child all bruise easily and that she used the belt instead of her hand because she had bruised her hand spanking the child in the past.

The incident that triggered the punishment involved the boy's having taken his father's cowboy hat to school for "Show and Tell" without permission and then having lied to cover up. Testimony was conflicting regarding the communications between the teachers and authorities at school and the parents regarding the boy's misbehavior at school over the previous months.

The parents testified that they had "spanked" the boy before, usually a maximum of 10 or 12 strokes at a time but on other occasions they had delivered "quite a number of strikes with a belt."

On the day in question, the father testified that 10 or 12 strokes were not enough because "I wasn't getting any reaction. I wasn't getting any tears; I wasn't getting any yelling. When I stopped, he looked at me. It had no impact; nothing was happening."

The boy testified that on the day of the "spanking" he told his parents it was hurting but they didn't stop. He said he cried afterwards but not while they were hitting him with the belt. He said he really didn't know why, "it's just that it wouldn't come out."

The psychologist expert witness called by the State, who examined D.M.C. and administered a series of psychological tests to him, testified that in his professional opinion corporal punishment should never be used on hyperactive children, "because I feel it makes them more aggressive." He said that in his counseling of families he did recommend corporal punishment sometimes for flagrant violations of family rules. Even in those instances, however, he did not feel that 200 strokes with a belt was beneficial or appropriate punishment.

The psychologist expert witness called by the parents testified that she could understand the stresses and frustrations of living with a hyperactive learning-disabled child since she had such a child herself. When she was shown the photographs of D.M.C. she said, "I, as a professional, would not like to see a child who was whipped in this manner. I would immediately try to investigate some support and help for those parents and for the child, in terms of family therapy, working through the situation. I would also look and see if this has ever happened before."

There is no indication in the record that the court admonished the parents regarding their rights pursuant to section 1-20(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701-20(3)), at their first appearance in court or subsequently. The parents were, however, vigorously represented by privately retained counsel at all stages of the proceedings.

At the shelter care hearing, held on April 1, 1981, the child testified that he was afraid to go home. The court, after hearing other testimony but not seeing the photographs which were not yet available, placed the child in the temporary custody of the Department of Children and Family Services pending the adjudicatory hearing.

At the close of the adjudicatory hearing the judge adjudicated the minor neglected by reason of physical abuse by both parents and made him a ward of the court. It ordered him continued in the temporary custody of the Department of Children and Family Services pending the dispositional hearing. It declined to hear testimony from the parents regarding their current attitudes toward corporal punishment and the state of the home environment prior to making the child a ward of the court.

Following a dispositional hearing and a hearing on a petition to establish fitness filed by the parents, the court placed the custody and guardianship of the child with the Department of Children and Family Services and ordered the family to attend counseling as a group. The court denied the parents' petition to establish fitness and ruled they were still "unfit" to have the child home. This was not, however, a finding of unfitness in an effort to terminate parental rights and place the child for adoption. That was not contemplated by the original petition or ever argued by the State. The court set the matter for review on December 18, ...


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