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In re Marcus H.

June 30, 1998


The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County, Domestic Relations Division,

No. 92 J 22461

Honorable Lee Preston, judge Presiding.

The minor, Marcus H. (Marcus), through the Public Guardian's Office, appeals from a juvenile court Dispositional order entered on April 17, 1997. The minor-appellant argues that the trial court abused its discretion in declining to find that the minor had been physically abused, and finding neglect instead. The minor-appellant also argues that the trial court misstated the law in requiring evidence of intent to harm or punish before making a finding of physical abuse under the Juvenile Court Act. We agree with the minor-appellant's contentions and reverse the court's decision.

On December 12, 1992, a petition for adjudication of wardship was filed on behalf of Marcus alleging physical abuse as a result of scalding. The father of Marcus was defaulted in the case in March of 1993.

On January 29, 1997, an adjudication hearing was held. At the hearing, the parties signed a written stipulation to the following facts and testimony.

On November 24, 1992, respondent-appellee, Effie H. (Effie), was living with her boyfriend, Stephen Dixon (Dixon), and her son Marcus, who was 14 months old. That morning, Effie went to the store, leaving Marcus in Dixon's care. Dixon was running a bath and boiling water for tea when Effie left. When she returned, Marcus had second and third degree burns from his waist down. Effie changed Marcus' hot wet diaper and called an ambulance. The night before Marcus was burned, Effie had asked her mother to take custody of Marcus, "for insurance purposes."

Effie has two other children fathered by Dixon, Stephanie and Stephen Dixon III, who were born after the incident involving Marcus. These two children were removed from Effie's custody and were also the subject of petitions for adjudication of wardship.

The parties stipulated to the following testimony.

If called to testify, Charlene Harris (Harris), a child protection investigator with the Illinois Department of Children and Family Services (DCFS), would testify that she investigated Marcus' case. Harris interviewed Dixon on December 5, 1992 at the apartment. Dixon told Harris that after he boiled the water, he put the tea kettle on a table. Dixon said Marcus had been sleeping, but then got out of bed, went into the kitchen, and pulled the hot tea kettle off the table.

James Daniels (Daniels), a DCFS worker, would testify that he brought the petition for adjudication of wardship of Stephanie on December 18, 1993, based on a risk of harm due to Marcus' burn injuries. Marcus was discharged from the hospital one month before Stephanie was born.

Karlton Shaw (Shaw) would testify that he was the DCFS caseworker for the family when the petition for the adjudication of wardship of Stephen III was filed. Shaw would testify that Effie was in family and individual counseling and had completed parenting classes. However, she was not visiting Stephanie on a weekly basis. Dixon was not participating in parenting classes.

Exhibits were then entered into evidence. People's Group Exhibit #1, medical records for Marcus from Loyola University Hospital, were entered into evidence without objection. People's Group Exhibit #2, the curriculum vitae of the State's witness, Dr. Richard Gamelli (Dr. Gamelli), was admitted into evidence.

The following witnesses then testified at the adjudicatory hearing: Dr. Gamelli, Effie, Dixon, and Dixon's grandmother.

Dr. Gamelli testified that he is Chairman of the Department of Surgery and Professor of Surgery and Pediatrics at Loyola University Medical Center, and also Director of the Burn and Shock Trauma Institute and Chief of the Burn Center. At the court's suggestion, the State laid a further foundation for Dr. Gamelli's qualification as an expert witness, which included speaking at and attending dozens of seminars and lectures, visiting clinics around the country to treat hundreds of burn patients, and treating child burn patients who were victims of child abuse. Approximately forty percent of the four hundred patients a year admitted to Loyola for burns are children. Dr. Gamelli authored an article that comprehensively analyzed a six-year study involving several hundred children and patterns of abuse. Abuse is part of the diagnostic scenario and part of the standard teaching in burn cases since burn injury is one of the more common mechanisms of child abuse. Indeed, the most common cause of injury to a child hospitalized for abuse and under the care of a surgeon is burns. Dr. Gamelli was chief of the Burn Unit at Loyola University Hospital (Loyola) since 1990. Previously, Dr. Burns had held various positions at the University of Vermont College of Medicine from 1979 to 1990, including Professor of Surgery and Chief of the Section of General Surgery. He was also Associate Surgeon-in-Chief from 1985 to 1990, and was founder and director of the Burn Program at the Medical Center Hospital of Vermont.

Dr. Gamelli testified that he treated Marcus at the Burn Unit at Loyola on November 24, 1992. Marcus had been admitted to a different hospital, but was transferred to Loyola that same day because it had a burn center. Dr. Gamelli identified State's Group Exhibit #3(a-g) as photographs taken at the time of Marcus' admission that accurately depicted his injuries. Dr. Gamelli also identified State's Group Exhibit #4(a-d) as photographs taken several weeks later showing the skin grafts he performed on Marcus. Dr. Gamelli further identified State's ...

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