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In Re Harpman





Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.


The respondent parents, David and Linda Rottinghaus, appeal from orders of the circuit court of McLean County which (1) found the three minors, Daisy Camille Harpman, Emily Rose Rottinghaus, and Violet Joy Rottinghaus, to be abused by reason of an injurious environment pursuant to section 2-4(2)(b) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1983, ch. 37, par. 702-4(2)(b)); (2) transferred guardianship of the minors to the guardianship administrator of the Department of Children and Family Services (Department) with authority to place pursuant to section 5-7 of the Act (Ill. Rev. Stat. 1983, ch. 37, par. 705-7); and (3) placed respondents under an order of protection pursuant to section 5-5 of the Act (Ill. Rev. Stat. 1983, ch. 37, par. 705-5).

In a prior appeal we reversed the orders of wardship for failure to state a cause of action for neglect. (In re Harpman (1985), 134 Ill. App.3d 393, 480 N.E.2d 873.) On remand the State amended its petitions to allege abuse. The previous allegations of neglect and the supporting facts were stricken, and allegations concerning David's sexual abuse of his female children by a prior marriage, the denial by David and Linda that such abuse had occurred and their failure to engage in meaningful therapy to provide a proper family environment, and their failure to resolve the prior issue of sexual abuse were substituted. The net effect was to change the stated cause of action from one of neglect by reason of not providing proper care for the minors to one of abuse by reason of maintaining an environment injurious to their welfare. This was in accordance with our mandate.

Respondents first filed a motion to dismiss which was denied by the trial court. After a shelter-care hearing at which temporary custody was granted to the Department, the court proceeded to a second adjudicatory hearing on October 22, 1985. At this hearing the court took judicial notice of all the evidence adduced at the first adjudication. An analysis of this evidence was not reached in our prior opinion, which was concerned with procedural questions. In addition, evidence was received from a child and adolescent therapist from the McLean County Center for Human Services. At the conclusion of the hearing the court found the petitions proved and entered the order of wardship as to all three minors.

The second dispositional hearing was held on November 25, 1985. At this hearing evidence was taken from a caseworker from the Department and from Linda. At the conclusion of this hearing the court ordered guardianship in the Department with authority to place as described above and entered an order of protection against the parents, David and Linda, for 36 months.

Three issues are raised in this appeal: (1) whether the amended petitions stated a cause of action; (2) whether the findings upon which the adjudications were based is against the manifest weight of the evidence; and (3) whether section 4-6(3) of the Act (Ill. Rev. Stat. 1983, ch. 37, par. 704-6(3)) is limited to minors within the same family group.

Some review of the evidence is necessary. It must be borne in mind that this case involves only a guardianship with authority to place coupled with a protective order. It does not involve the termination of parental rights. Counsel have cited no cases with the same general factual situation as exists here. All of the authorities cited concern the termination of parental rights, a much more drastic intrusion into the family structure, and to that extent are less persuasive. The critical question to be examined is this: Given the fact that David had previously been adjudged unfit because of sexual abuse of his daughters by a prior marriage and had been denied visitation rights, and given the further fact that there is no direct evidence of sexual or other abuse of the children by the present marriage, does the prior adjudication amount to an injurious environment within the meaning of the statute? We answer in the affirmative and hold that the trial court was correct in its adjudications and dispositions.

At the adjudicatory hearing after remand on October 22, 1985, the trial court took judicial notice of the evidence presented at the former adjudicatory hearing. This was briefly touched upon in our prior opinion but not elaborated. Since the question of the weight of the evidence has been raised in this appeal, a brief recapitulation of that evidence is in order.

The court admitted into evidence the files of a Sangamon County proceeding in which David was found unfit by reason of sexual abuse of his daughters by his prior marriage. A stipulation was entered into that the David Rottinghaus who is a respondent in the instant case was the same person who was the subject of the Sangamon County proceedings. That matter is now res judicata and therefore cannot be further controverted. Suffice it to say, David was found unfit and denied visitation privileges with those children.

The State called Maggie Wright, a caseworker with the Department, who testified that she had met with David and Linda on several occasions. David denied twice to her that he had abused the children of his former marriage. She stated that she had not observed any signs of physical abuse to the minors involved here.

Next called for the State was Stan Case, an investigator for the Department. He recounted an incident wherein he met with David at the hospital when Linda was giving birth to Violet, the third child of the present marriage. He asked for permission to examine Daisy, the first child, for a bruise. David granted permission but also said, "If her vagina is red, that's because of a urinary infection." Case found this suspicious. On cross-examination he stated that no bruise was found and he never saw any reports that the minors were abused. David denied to him also that he had had any past problem of abuse.

Finally, the State called Carol Barrett, a home interventionist of the Department. She related an incident which occurred when she was supervising a visit by David and Linda with the children. He noticed David staring at his daughters who were playing around his feet. He stood up and stated he was going to the bathroom. Barrett observed that he was in a state of sexual excitement. He returned about 15 minutes later looking "beet-red," in Barrett's words, and with two wet spots appearing on his trousers. The State then rested.

Respondents' evidence was largely of a good-character variety. Robert Cornwell, Linda's former employer at a community center, stated that she was involved there with children as a preschool teacher and secretary and did a very good job. Mary Harpman, Linda's mother, stated that Linda did a very good job with the children and that prior to the filing of the petitions she knew nothing of David's history of child abuse. Betty Rottinghaus, David's mother, testified that respondents acted as normal parents.

Linda testified that she pursued a major at Illinois State University in home economics with concentration in child and family community services. Her goal was to be a day-care director or teacher and she was three hours shy of her degree. She stated that she had worked with many children, including abused children, and had never observed any signs of abuse in her own children. She first learned of David's history when she talked with Maggie Wright at the hospital when giving birth to Violet. She once inquired of David's mother about the matter, but his mother did not want to talk about it. She regarded whatever happened as part of David's breakup of the prior marriage and as "part of the past."

David testified that he had worked at various jobs, such as a mechanic, auto body repair, picking up garbage, and truck driving. His mother had been appointed as his conservator. He denied any sexual abuse of his daughters of the prior marriage or of his daughters by the present marriage.

A psychological evaluation of David by Dr. Gerald Spence taken for the Bureau of Disability Adjudications Services was admitted into evidence. It showed that David had a full-scale IQ score of 62 and ...

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