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12/23/94 B.J. & D.J. v. DIANA R. BARSHNEY

December 23, 1994

IN THE INTEREST OF B.J. & D.J., MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
DIANA R. BARSHNEY, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 91J79. Honorable John R. DeLaMar, Judge Presiding.

As Corrected January 4, 1995. Second Correction Feburary 1, 1995.

The Honorable Justice Steigmann delivered the opinion of the court: Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j. Concurring, Honorable Robert W. Cook, Dissenting

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In June 1991, the trial court found B.J. (14 years old) and D.J. (13 years old), the children of respondent, Diana R. Barshney, to be neglected and abused minors due, in part, to respondent's inappropriate and excessive use of force disciplining them. In January 1992, thecourt formally adjudicated the children wards of the court, placed them under the guardianship of the Illinois Department of Children and Family Services (DCFS), and removed them from respondent's custody. At that dispositional hearing, respondent appeared personally and by counsel, and the court explicitly ordered her to cooperate fully and completely with DCFS, including but not limited to establishing and maintaining a regular course of visitation with her children.

In March 1993, the State filed a petition for adjudication of indirect criminal contempt, alleging that respondent wilfully violated the court order by (1) failing to contact DCFS between June 1992 and March 1993, and (2) failing to visit the children during that same time span. In June 1993, the trial court conducted a hearing on that petition, found respondent had wilfully and contumaciously violated the court's orders, and found her guilty of indirect criminal contempt. In September 1993, the court conducted a sentencing hearing and ordered respondent to serve 180 days in jail, but provided that after she served the first 30 days, the court would conduct monthly remission hearings to determine whether she should serve the remainder of her sentence.

Respondent appeals, arguing that (1) the evidence did not support the trial court's finding that she was guilty of indirect criminal contempt of court, and (2) the trial court abused its discretion by sentencing her to 180 days in jail.

We disagree and affirm.

I. BACKGROUND

At the June 1993 hearing on the State's contempt petition, a DCFS caseworker testified that since April 1992, she had been the primary DCFS caseworker involving respondent and her children. The caseworker stated that respondent declined visitation between June 1992 and March 11, 1993. During that time, if respondent had changed her mind at any time and wanted to see her children, all she had to do was call the caseworker in order to start visiting them again. Respondent also told the caseworker that she did not wish to have any contact with the caseworker or DCFS. The caseworker explained that respondent told her that she did not want to see her children "until 'they began telling the truth'" about her. The caseworker also indicated that during the period of time in question, respondent's children did not want to visit with her.

Respondent testified that she suffers from osteoarthritis, which makes it difficult for her to get around. She admitted telling the caseworker that she did not want to see her children until "they toldthe truth." She further admitted that she told DCFS staff that if they "had anything to say to me, they could say it through my attorney." She also explained that she had been told her children did not want to visit with her, and during one counseling session with her son, he made that position quite clear.

Respondent acknowledged that her health did not prevent her from using a telephone. When pressed on-cross-examination about what efforts she had made between June 1992 and March 1993 to comply with the court's orders, she finally admitted, "none whatsoever."

At the conclusion of the hearing, the trial court first noted that, "It's absolutely immaterial whether the children wanted to visit or not. The order was that the respondent mother was to visit." The court explained that the obligation to reach out to her children appropriately fell upon respondent because it was she who had physically abused them and caused their placement in foster care. The court further explained that it had ordered respondent to visit her children so that she could say, in effect, "'I love you, I don't blame you for anything that has happened, I take responsibility for it, I want to see you, I want to help you through this, and I want to help you through the pain you're enduring.'" (Compare In re J.C. (1993), 248 Ill. App. 3d 905, 911, 617 N.E.2d 1378, 1381, 187 Ill. Dec. 657 (affirming the trial court's requiring a parent ...


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