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People v. Berger





Appeal from the Circuit Court of Lake County; the Hon. William Homer, Judge, presiding.


Christine Berger attended high school 12 1/2 days out of 352 school days during the academic years 1979-80 and 1980-81.

Her parents, Delores Berger and Lawrence Berger, were each charged with permitting the truancy of a child in violation of the Illinois compulsory attendance statute (Ill. Rev. Stat. 1979, ch. 122, par. 26-10). Following a consolidated bench trial, the defendants were both found guilty and sentenced to one year's probation.

On appeal, the defendants contend that (1) they were not proved guilty beyond a reasonable doubt of knowingly and wilfully permitting a child to be truant, (2) they were denied the effective assistance of trial counsel, and (3) the trial judge erred in permitting prosecutors to introduce evidence of a pending criminal prosecution at the sentencing hearing.

Section 26-10 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26-10) provides:

"Fine for noncompliance. Any person having custody or control of a child subject to the provisions of this Article to whom notice has been given of the child's truancy and who knowingly and wilfully permits such a child to persist in his truancy within that school year, upon conviction thereof shall be guilty of a Class C misdemeanor and shall be subject to not more than 30 days imprisonment and/or a fine of up to $500."

The facts are hardly disputed. The defendants do not deny that Christine Berger did not attend school 339 1/2 days during the school years 1979-80 and 1980-81. Christine Berger was 14 and 15 years old during those school years. Jan Howes, a Lake County truant officer, testified that she sent the defendants a letter which notified them of Christine's absence on February 15, 1980, and advised them of their legal responsibility to see that she attend school. She further advised that a doctor's certificate was required to excuse a child's illness. Howes sent a second letter on February 25, 1980, advising that the matter was being referred to Probation Intake for action and that prosecution for noncompliance was possible. She also phoned Mr. and Mrs. Berger who explained that Christine was ill. Howes informed them that Christine could receive home-bound tutoring if she obtained a doctor's certification that she was unable to attend school.

Elvera Kasberger, dean of students, testified that on August 27, 1980, Mrs. Berger brought Christine to the registrar, but when Christine complained of a headache, Mrs. Berger took her home. Dean Kasberger informed Mrs. Berger that the parent of a sick child should inform the attendance office each day a child is sick and that a doctor's verification should be presented to reinstate a student absent for more than five consecutive days. The following day Christine also left school early and she did not return during that year. Dean Kasberger received no doctor's excuses. She sent three truancy letters to the defendants, the second two of which were refused and returned. She was unable to contact them by phone. Kasberger testified that on November 12, 1980, she received a letter from Doctor Aven excusing Christine from school for three weeks to undergo allergy testing, but that excuse was later rescinded.

Doctor Allen Aven, a family practitioner specializing in clinical ecology, testified that he saw Christine in November 1980. He performed a series of 35 tests for different materials found in the environment and Christine exhibited a sensitive reaction to 13 of the tests, including formaldehyde, a variety of molds, tobacco, milk, some pollens, insect spray, and some dust particles. He suggested that with proper treatment Christine could function adequately and perhaps normally and he concluded that she probably could attend school. He excused Christine from school during the testing, but rescinded the excuse when she stopped coming in for testing. Cora Friedl, the attendance clerk at Christine's high school, verified that during the 1979-80 year Christine attended only 3 1/2 days out of 176. Friedl was told by Mrs. Berger that Christine had allergies and was too ill to attend school. In the 1980-81 school year, Christine was credited with attending nine days out of 176. Mrs. Berger called three times in September to report a doctor's appointment and Christine's illness, and although Friedl requested a medical certification, none was ever received. She notified the defendants that Christine was not present for her first semester's exams and was told that Christine was at a clinic.

The school nurse, Ardell Frandsen, stated that Christine came to her office twice in August and September of 1979, complaining of cramps and allergies and left school. Nurse Frandsen requested a physical examination report for Christine's records and later received one filled out by Doctor Goldberg, which indicated allergic rhinitis, or "a little nasal congestion." She received another note from Doctor Goldberg stating that Christine was suffering from headaches due to allergies. When she called him, he said that the allergies alone were not severe enough to warrant Christine's absence from school. Christine went to Nurse Frandsen's office twice in August of 1980, complaining of a headache and an earache. On September 12, 1980, Nurse Frandsen received a note from Doctor Pollock excusing Christine from gym class. She phoned the doctor and he said that Christine's allergies were not severe enough nor was there any medical reason for Christine to be absent from school. Neither Nurse Frandsen nor her office ever received a medical certificate excusing Christine from class.

Delores Berger, Christine's mother, testified in her own defense that she had explained Christine's situation to Dean Kasberger. Mrs. Berger said Christine could not attend school because she would experience headaches and a severe ringing in her ears. She spoke to Truant Officer Howes and a man from the Lake County Youth Service Bureau about Christine's truancy. Christine had to be hospitalized in May 1980; she was diagnosed at the Monroe Clinic as having migraines; she was in the hospital in November 1979, she began seeing Doctor Randolph in December 1980, and she saw Doctor Goldberg for allergy treatments from September 1979 to March 1980. Mrs. Berger testified that she had taken Christine to 13 doctors in two years. She said that Doctor Goldberg gave her a verbal medical excuse the school would not accept and that she was not told about home-bound tutoring and that she requested it and was refused. She acknowledged that the note she received from Doctor Aven was to dismiss Christine from school for testing. She had asked Doctor Goldberg not to communicate with the school because she said the school nurse told him that Christine got headaches only at school and not at home. She never inquired of Doctor Goldberg about home-bound tutoring. Mrs. Berger testified that Doctor Goldberg gave her some notes regarding Christine's allergies which she gave to the school and that she thought the people at the school were hiding all of the doctor's notes. She then said that she had requested a note from Doctor Goldberg and he replied that he could not write one because he did not yet know what was wrong with Christine. Mrs. Berger said her daughter's absences had always been because of allergies. When Christine was at home she would read if her eyes did not hurt, watch TV or listen to the radio. Mrs. Berger stated that even when Christine was able to read she could not attend school because of the chemicals in the school environment, such as chlorine in the pool, alcohol in the laboratory and nurse's office, and mimeographic paper, and the fact that the school was heated by natural gas. She testified that she smoked at home but not around her daughter. Her daughter's specific complaints to her were pain in her knees, ringing in her ears, severe eyeache and chest pains. Mrs. Berger said the chest pains had disappeared having been caused by medication prescribed by the doctors and that which the school nurse ordered Christine to take on several occasions. Mrs. Berger testified that her daughter attended school two or three days in 1980-81; she stopped seeing Doctor Aven before he finished testing Christine saying that she was seeking answers to Christine's symptoms. Doctor Pollock had told Mrs. Berger that Christine had a chemical imbalance but could not test for it so she went to Doctor Aven. Doctor Aven told her that some of Christine's reactions could be counteracted but that he was not sure whether Christine could take a formaldehyde antitoxin. Christine was supposed to take two years of biology and Doctor Aven had proposed to discuss the formaldehyde and insecticide problems with the school after he finished testing. Mrs. Berger testified that Christine's illness, though present, was not the same as it had been because Christine had been taking some medicine for three weeks, but she had not attended school because she had nothing to counteract her alcohol allergies.

Lawrence Berger, Christine's father, testified that Christine had been sick for quite awhile, had been to numerous doctors, a clinic and a hospital for tests and had taken numerous prescriptions but nothing seemed to help. He acknowledged that he was aware that his daughter was not attending school; that he received a letter and a phone call from the school authorities and explained Christine's absence. He further testified that his wife procured a medical certificate allowing Christine to remain out of school on a permanent basis and that she presented letters from different doctors which either ran out of time or were not acceptable. Doctor Theron Randolph testified that he began seeing Christine on December 22, 1980. After testing, he found that Christine was highly susceptible to a wide range of environmental exposures frequently found in both the outside air and the inside air at school and at home. Christine's symptoms were sore throat, headache, earache, nervousness, excessive gas, abdominal cramps, elbow and knee joint problems, muscle cramps, extreme fatigue, nasal stuffiness, occasional hives, intermittent depression, sometimes fits of anger and screaming, and extreme irritability and intermittent excessive perspiration. He presumed that Christine's condition developed as the result of exposure to a sewage disposal plant near her home and possibly the gas utilities in her home, or certain exposures in her school. He recommended that she move to an all-electric home in a less polluted area. On cross-examination, he testified that he was told by Christine and her mother that Christine was more ill when she attended school upon which he based his opinion of the effects of the school. He never wrote to the school directly. He last saw Christine at his office in April 1981, and her diagnosis as to allergies was unchanged.

The defendants' first contention is that they were not proved guilty beyond a reasonable doubt. They do not deny that Christine failed to attend almost all of the two school years in question. Rather, their defense is based upon the assertion that mere absence from school does not constitute truancy. As support for their argument, the defendants cite section 26-2a of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26-2a), which reads as follows:

"A `truant' is defined as a child subject to compulsory school attendance and who is absent without valid cause from such attendance for a school day or portion thereof.

`Valid cause' for absence shall be illness, death in the immediate family, family emergency, and shall include such other situations beyond the control of the student as determined by the board of education in each district, or such other circumstances which cause reasonable concern to the parent for the safety or health of the student.

`Chronic or habitual truant' shall be defined as a child subject to compulsory attendance and who is absent without valid cause from such attendance ...

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