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06/08/89 In Re D.W.

June 8, 1989

IN RE D.W., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee, v.

Wanda Wright, Respondent-Appellant)

539 N.E.2d 1337, 184 Ill. App. 3d 194, 132 Ill. Dec. 531 1989.IL.871

Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Respondent Wanda Wright appeals an order removing the minor, D.W., from her custody. The court found D.W. abused due to physical abuse, by other than accidental means, inflicted by Victor Blissit, D.W.'s father. (Ill. Rev. Stat. 1987, ch. 37, par. 802-3(2)(a)(i).) Respondent argues as to custody the order is against the manifest weight of the evidence. We agree the cause must be remanded as to custody.

The record reveals that respondent, 18 years old, and Blissit, 21 years old, are not married and live separately. On May 10, 1988, a petition was filed alleging D.W., 10 months old at the time, was physically abused by Blissit (count I) and abused due to an injurious environment when he resided with respondent and Blissit (count II). The court later dismissed count II alleging environmental abuse.

At a shelter care hearing on May 10, Patrick Flannigan, an employee of the Illinois Department of Children and Family Services , testified regarding the injury sustained by D.W. He stated that personnel at Mercy Hospital, where D.W. was taken on April 22, 1988, indicated that D.W.'s injury was not consistent with the version of events as reported by the parents. The examining physicians did not testify at this hearing; however, Flannigan testified regarding his conversations with three physicians involved in the case. The court found probable cause to sustain the allegations in the petition and ordered D.W. removed from the respondent and Blissit to the custody of DCFS with power to place.

An adjudicatory hearing was held on June 22, 1988. Two physicians testified regarding D.W.'s injuries. Dr. Stephen Monn, an internal medicine physician at Mercy Hospital, testified that he first examined D.W. in the emergency room at Mercy on April 22, 1988. Blissit brought D.W. to the emergency room. Blissit stated that D.W. was in his crib and crying when Blissit went to pick him up. According to Blissit, he was lifting D.W. out of the crib when he discovered his foot was caught in the rungs of the crib. Monn's examination of D.W. revealed a complete fracture of D.W.'s left femur across the shaft of the bone. Monn also stated that X-rays taken at that time revealed some compression had taken place in the leg. Compression means the two broken pieces of the bone had moved closer together, thereby shortening the bone.

Monn testified a significant amount of force was needed to cause D.W.'s leg to break as it had and he stated this was the first injury of its kind that he had seen in a child as young as D.W. He concluded the injury was not consistent with the story reported by D.W.'s parents. On cross-examination, Monn stated that if D.W.'s knee "was locked" and therefore his lower leg was prevented from moving, the fracture that resulted could occur. However, his examination of D.W. did not reveal any torsion was applied to D.W.'s leg.

Dr. Milton Carlson, an orthopedic surgeon practicing for 12 years and experienced in treating children with broken bones, testified that the bones of a 10-month-old child are hard to break. D.W.'s bones were normal other than the break to the left femur. He stated that the injury could have resulted from lifting D.W. as Blissit described; however, a significant amount of force on the leg was needed. He stated that he had never seen an injury like that D.W. sustained in a child through normal activity, even by catching a leg in a crib. While D.W.'s leg was swollen, Carlson found no bruises or marks on the skin of D.W.'s leg.

Respondent did not testify at the adjudicatory hearing. Flannigan testified that respondent told him she was not present when the injury occurred. Respondent reported that she was at Blissit's apartment watching TV with Blissit and his brother-in-law and left 20 minutes prior to the time D.W. was ...


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