In re Marcus H.

SIXTH DIVISION
June 30, 1998

No. 1-97-1921

)
IN THE INTEREST OF: )
)
MARCUS H., ) Appeal from the
) Circuit Court of
Minor-Appellant, ) Cook County,
) Domestic Relations
(THE PEOPLE OF THE STATE OF ILLINOIS, ) Division,
)
Petitioner-Appellee, )
) No. 92 J 22461
v. )
)
EFFIE H., ) Honorable
) Lee Preston,
Respondent-Appellee.) ) Judge Presiding.
)

JUSTICE QUINN delivered the opinion of the court:
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 Group Exhibit #5
as photographs showing an additional previous burn wound on
Marcus' left arm. These exhibits were admitted without
objection.
Dr. Gamelli testified that when he examined Marcus, he noted
well-circumscribed burns at the waist level, extending downward
to the buttocks, perineum (genitalia), and both legs.
Approximately 18 percent of Marcus' body surface area had deep
second and likely third degree burns. The deepest penetration
and tissue damage was in the area of the buttocks and perineum.
The right leg had more injuries than the left. Dr. Gamelli's
diagnosis was that Marcus' burns were consistent with scalding
from an "immersion-type injury" caused when someone is placed in
a scalding liquid.
Dr. Gamelli testified that he did not find any signs that
would be consistent with an injury caused by pulling a tea kettle
off a table and water spilling down, because of the sharp cut-off
of the wounds. There were no splash marks on the upper body and
no signs of run-down. The wounds were well-demarcated between
injured and uninjured tissue. Dr. Gamelli testified that if
Marcus had pulled the tea kettle off the table, there would
likely be evidence of other "zones of contact," such as burns on
the hands and splash marks. The burns on Marcus were "very well
confined to the lower body."
Dr. Gamelli testified that Marcus' burns were consistent
with having occurred in a bath. Immersion burns tend to have
relatively sharp cut-offs, and, often in children, the wounds are
over the back side, the buttocks, the perineum, and the lower
extremities. Dr. Gamelli testified that while an eighteen-month-
old child would suffer severe burns if immersed in boiling water
for less than thirty seconds, such burns would occur in cooler
water only if the child was immersed for a longer period of time.
Such a lenth of time of immersion is not consistent with the
burns being accidental. Dr. Gamelli testified that the pattern
of burn injury on Marcus was entirely typical of child abuse. He
further testified that Marcus fit the pattern for a child abuse
burn victim because the typical child abuse burn victim is a male
child less than two years old. The history given to Dr.
Gamelli's team by Effie about the tea kettle accident did not fit
the physical findings. Dr. Gamelli's diagnosis was that Marcus
was a victim of child abuse.
After Dr. Gamelli's testimony, counsel for Dixon called
Effie. Effie testified that the morning Marcus was burned she
went to the store to get something for Dixon to eat. She
testified that Dixon was going to run some bath water and boil
water for tea, but had not put the water on to boil when she
left. Effie testified that the water in the apartment had to run
a minute or two before it got hot, but then the water would get
hot enough to cause a burn.
Effie was at the store for about five minutes. She
testified that when she came back to the apartment, Dixon was
holding Marcus and told her to call an ambulance. Effie
testified that she saw steam coming up from the kitchen floor
between the table and stove. Dixon told her Marcus had pulled
the tea kettle off the table. Effie grabbed Marcus and opened
his diaper, which was saturated with hot water. The skin on
Marcus' leg had started peeling, and skin from his buttocks and
genital area came off when she took off the diaper.
Dixon testified that he had been taking care of Marcus for
approximately three or four months before the burn incident while
Effie was in school during the day. Dixon testified he put water
in the tea kettle and placed it on the stove before Effie left to
go to the store. After she left, Dixon turned on the hot and
cold faucets in the bathtub so he could take a bath. He heard
the tea kettle whistling, took it off the stove and put it on the
edge of a table about three feet high. He returned to the
bathroom to check if the water was hot enough. He then heard
Marcus pull down the tea kettle. Dixon testified that he went to
the kitchen and saw Marcus sitting on the floor between the stove
and the table with the tea kettle next to him and water on the
floor, but Marcus was not crying. At that point, Effie came in
the door. Dixon testified that Marcus was like a son to him.
Dixon's grandmother, Delois Powell (Powell), also testified
on behalf of Dixon. Powell testified that Dixon treated Marcus
and his two children with Effie, Stephen and Stephanie, well.
On February 4, 1997, the court heard arguments. The State
requested a finding of physical abuse and neglect based on a lack
of necessary care and an injurious environment under the Juvenile
Court Act. 705 ILCS 405/2-3(2)(i) (West 1994); 705 ILCS 405/2-
3(1)(a), (b) (West 1994). The guardian ad litem requested
findings of physical abuse, neglect based on an injurious
environment, and abuse based on a substantial risk of physical
injury.
The court made the following findings:
"*** I don't know if Marcus pulled the tea kettle
on him or not; but he may have; he may not but in
either event I believe that Mr. Dixon did immerse
Marcus in the bathtub and that the bathtub was filled
with scalding water. I haven't heard any evidence that
this was done as punishment as a means and intent on
the part of Mr. Dixon to harm this child.
***
[Dixon] indicated in this testimony that he
considered Marcus like his own child; and I believe
that he was sincere. I believe he did just a
horrendously negligent act that resulted, that resulted
in just horrendous injuries to this poor child so I
find that Marcus H[.] was neglected based on a lack of
care and in his exposure to an injurious environment.
I'm not making an abuse finding because I just haven't
heard that there was intent to harm this child. I
think it was a seriously negligent act and the results
were horrendous, again, to this child.
***
[F]or me to find abuse in the [sic] situation I'd
have to find that there was some intent to harm the
child; and I don't find that there was that intent
here. I think it was based on negligence."
The court denied the State and guardian ad litem's motion to
reconsider its ruling.
The dispositional hearing was held on April 17, 1997.
Michael Julian (Julian) of the International Children's Center
testified that he had referred Effie to parenting classes in
January 1997. However, she registered for these classes just two
days before the hearing. Julian had referred Effie to parenting
classes previously, but she never completed the classes. Julian
also recommended that Effie attend therapy sessions, but Effie
did not complete these sessions. Also, a 1995 psychological
evaluation of Effie had recommended she enroll in a GED program
and receive counseling, but Effie did not enroll in a GED
program. Julian testified that Effie was visiting Marcus
consistently, but not her other children, Stephen III and
Stephanie. Julian also offered services to Dixon, but he did not
participate. Julian offered services to William Harris (Harris),
Marcus' father, in 1995 and 1996, but he refused services.
The court found Effie unable to care for the children and
found Harris unable, unwilling, and unfit. The court found Dixon
unable, unwilling and unfit because he had declined services and
because of the nature and seriousness of Marcus' injuries. The
court ordered the children placed with the DCFS guardianship
administrator.
The first issue on appeal is whether the trial court's
finding of no abuse was against the manifest weight of the
evidence.
In a proceeding for the adjudication of abused, neglected,
or dependent minors, allegations in a petition must be proved by
a preponderance of the evidence. In re N.S., 255 Ill. App. 3d
768, 776, 627 N.E.2d 1178 (1994). The primary consideration in
such juvenile court proceedings is the best interest and welfare
of the child. N.S., 255 Ill. App. 3d at 776. A finding of abuse
or neglect by the circuit court will not be disturbed on review
unless it is against the manifest weight of the evidence. In re
A.P., 179 Ill. 2d 184, 204, 688 N.E.2d 642 (1997).
At the close of the adjudicatory hearing, the trial court
found that Marcus was neglected, but not abused. For the
following reasons, we find that the trial court's finding was
against the manifest weight of the evidence.
Under the Juvenile Court Act (the Act), a minor is neglected
when he or she is not receiving "the proper or necessary support,
education as required by law, or medical or other remedial care
recognized under State law as necessary for a minor's well-being
***." 705 ILCS 405/2-3(1)(a) (West 1994).
The Act delineates what circumstances constitute abuse:
"(2) Those who are abused include any minor ***
whose parent or immediate family member, or any person
responsible for the minor's welfare, or any person who
is in the same family or household as the minor, or any
individual residing in the same home as the minor, or a
paramour of the minor's parent:
(i) inflicts, causes to be inflicted, or
allows to be inflicted upon such minor physical
injury, by other than accidental means, which
causes death, disfigurement, impairment of
physical or emotional health, or loss or
impairment of any bodily function;
(ii) creates a substantial risk of physical
injury to such minor by other than accidental
means which would be likely to cause death,
disfigurement, impairment of emotional health, or
loss or impairment of any bodily function ***."
705 ILCS 405/2-3(2) (West 1994).
Moreover, the Act provides that a prima facie case of abuse
or neglect is established in the following circumstance:
"Proof of injuries sustained by a minor *** of
such a nature as would ordinarily not be sustained or
exist except by reason of the acts or omissions of the
parent, custodian or guardian of such minor shall be
prima facie evidence of abuse or neglect ***." 705
ILCS 405/2-18(2)(e) (West 1994).
The facts presented by the instant case go well beyond
neglect. Marcus was not a minor who was simply not receiving
"the proper or necessary support, education as required by law,
or medical or other remedial care ***." 705 ILCS 405/2-3(1)(a)
(West 1994). Rather, there is prima facie evidence of abuse in
this case. Marcus was injured by Dixon by "other than accidental
means." The testimony of Dixon and Effie regarding the manner in
which Marcus sustained his burns was entirely inconsistent with
the testimony of the State's expert witness, Dr. Gamelli. Dixon
testified that Marcus was burned when he tipped over a tea kettle
Dixon had left on the kitchen table while Dixon was checking the
water in his bath. Effie testified that she found Dixon and
Marcus in the kitchen next to a puddle on the floor.
However, the nature of Marcus' burns was completely
inconsistent with an accidental scalding theory. Dr. Gamelli
testified that Marcus had well-circumscribed burns at the waist
level, extending downward to the buttocks, genitalia, and both
legs. The burn wounds were sharply cut off between the injured
and the uninjured skin tissue. There were no injuries on Marcus'
upper body, except for an old burn wound on his left arm. Had
the tea kettle fallen on Marcus, he would have had splash burn
wounds on his upper body. Dr. Gamelli testified that Marcus'
injuries were consistent with immersion in a bath, and were
inconsistent with an injury caused by a fallen tea kettle. This
testimony constituted prima facie evidence that Marcus was
abused. See 705 ILCS 405/2-18(2)(e) (West 1994).
The trial court rejected Effie and Dixon's version of how
the injuries were sustained and found credible Dr. Gamelli's
testimony that the injuries were sustained when Marcus was
immersed in scalding liquid. The trial court erred in
disregarding Dr. Gamelli's testimony that the injuries were the
result of abuse and drawing its own inference that Dixon was
merely "negligent." As this court held in In re Ashley K., 212
Ill. App. 3d 849, 890, 571 N.E.2d 905 (1991):
"The circuit court cannot disregard expert medical
testimony that is not countervailed by other competent
medical testimony or medical evidence. Moreover, the
circuit court, itself, cannot second-guess medical
experts. If the circuit court does not follow medical
evidence that is not refuted by other medical evidence,
the circuit court is acting contrary to the evidence."
Ashley K., 212 Ill. App. 3d at 890.
In Ashley K., the circuit court ordered that the six-year
old minor, Ashley K., not receive any additional therapy and that
no visitation be allowed between the minor and her foster parents
of five years. Ashley K., 212 Ill. App. 3d at 851-52. The
circuit court rejected the recommendations of two "eminently
qualified" psychiatrists, Dr. Leventhal and Dr. Zinn, in so
ruling. Ashley K., 212 Ill. App. 3d at 888. Both psychiatrists
testified that the minor was a very "complicated" child, and that
she required continuing psychotherapy. Both recommended that it
was in Ashley's best interest to have visitations with her foster
parents of nearly five years. However, the court accepted the
testimony of a psychologist, Anne Brown, and the minor's
therapist at Leyden Mental Health Center, both of whom had
minimal training in their fields, that Ashley K. should not have
contact with her foster parents. Ashley K., 212 Ill. App. 3d at
889-90. Anne Brown testified that visitation with the foster
parents "would be actively harmful to the child." Ashley K., 212
Ill. App. 3d at 887. Brown testified that Dr. Leventhal's report
was "confusing," and that she disagreed with his recommendations.
Ashley K., 212 Ill. App. 3d at 888. This court took judicial
notice that Anne Brown's forensic credibility also was questioned
in another case, where the court held that her testimony was
"questionable" because it was based upon a test that she was too
"inexperienced" to conduct. Ashley K., 212 Ill. App. 3d at 889.
The therapist at Leyden was "a licensed social worker who `had
been out of school for about a year to a year and a half and had
been licensed in Illinois for nine months.'" Ashley K., 212 Ill.
App. 3d at 868. Several psychiatrists who testified, including
Dr. Zinn, disagreed with the therapist's judgment. Ashley K.,
212 Ill. App. 3d at 868. This court held that the circuit court
erred in rejecting the competent medical testimony of the
psychiatrists. Ashley K., 212 Ill. App. 3d at 890.
Similarly, in the instant case, the circuit court should not
have rejected the conclusions of Dr. Gamelli. Once the court
accepted Dr. Gamelli's testimony that Marcus was burned by
immersion in scalding water in a bathtub, it could not reasonably
then choose to reject Dr. Gamelli's competent opinion that
Marcus' burns were the result of abuse. Just as in Ashley K.,
the trial court was acting contrary to the evidence in rejecting
Dr. Gamelli's determination of abuse.
The instant case is strikingly similar to People v. Cooper,
283 Ill. App. 3d 86, 669 N.E.2d 637 (1996). In Cooper, the
medical expert also testified that the minor, Reggie, could not
have been accidentally burned because of the nature of his burns.
Cooper, 283 Ill. App. 3d at 89-90. The defendant claimed that
Reggie scalded himself by turning off the cold water faucet when
he left him alone in the bathtub. Cooper, 283 Ill. App. 3d at
91. However, the physician testified, just as in the instant
case, that there was a "very sharp line of demarcation between
the burned and unburned areas." Cooper, 283 Ill. App. 3d at 89.
Reggie had first and second degree burns on his buttocks, thighs,
and penis. There were no splash marks on other parts of his
body, which indicated that Reggie did not fall into the tub.
Cooper, 283 Ill. App. 3d at 90. Also, the burn wound on Reggie's
buttocks was in a ring shape and was less severe than the rest of
the wounds, which indicated that he was held in that position.
Cooper, 283 Ill. App. 3d at 89-90. The physician who treated
Reggie testified that it was not likely that the burns were
accidental because "'to sustain a burn in this distribution, he
would have had to be sitting, sitting with his feet up in the air
and a child of two years of age *** would not be able to sit in a
tub and turn on a tap.'" Cooper, 283 Ill. App. 3d at 90.
This court in Cooper held that this evidence was sufficient
to establish the defendant's guilt beyond a reasonable doubt of
heinous battery. The medical evidence regarding the immersion
burns was sufficient to support a jury's finding that the
defendant intentionally or knowingly burned the child. Cooper,
283 Ill. App. 3d at 93.
If the evidence in Cooper was sufficient to sustain the
burden of proof beyond a reasonable doubt, surely the evidence in
the instant case establishes abuse under the civil burden of
proof by a preponderance of the evidence.
The trial court also erred in requiring evidence of intent
to harm or punish in order to make a finding of abuse.
All that is necessary under the Act for a finding of abuse
is that the physical injury occur by "other than accidental
means." 705 ILCS 405/2-3(2)(i) (West 1994). There is no
statutory requirement of specific intent to harm or punish the
child. Here, the trial court specifically found that Marcus was
burned by immersion in the bathtub, and not by the tea kettle
accidentally falling on him. This finding alone establishes that
Marcus was burned by other than accidental means. Once the trial
court determined that Marcus' injuries occurred non-accidentally,
the trial court erred in refusing to make a finding of abuse.
Therefore, the order of the trial court is reversed and the case
is remanded for proceedings consistent with this opinion.
Reversed and remanded.
GREIMAN, J., and ZWICK, J., concur.