People v. Karen P.

Fourth Division
February 26, 1998

Nos. 1-96-3323, 1-97-0003, 1-97-0024 Cons.

IN THE INTEREST OF J.P., a Minor.
----------------------------------
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Petitioner-Appellee, ) COOK COUNTY.
)
v. ) HONORABLE
) LEE PRESTON,
KAREN P., ) MARSHA HAYES,
) HARRY ARON,
Respondent-Appellant. ) JUDGES PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:
Courts, as they should, tread carefully when dealing with
claims of child abuse. This case concerns such a claim, and it
raises other compelling questions that must be addressed: When
is it legally appropriate for the State to exercise a degree of
power that removes a child from the custody of her mother, making
the child a ward of the court? What facts are required to
justify that kind of intrusion into family life?
In this case we find the trial court erred when it
determined a mother imposed excessive corporal punishment on her
daughter within the meaning of the Juvenile Court Act. Because
we find the child was not abused, we vacate the order making her
a ward of the court.
FACTS
On June 20, 1995, the Department of Children and Family
Services (DCFS) filed a Petition for Adjudication of Wardship and
Motion for Temporary Custody. In the petition, DCFS stated that
Jessica P., born April 24, 1991, had been removed from her
mother's home on June 16, 1995, because she was neglected and
abused. The petition alleged Jessica was neglected due to an
"injurious environment." 705 ILCS 405/2-3(1)(b) (West 1994).
The allegations of abuse were premised on physical abuse and
excessive corporal punishment. The petition said Jessica had
"sustained cuts, welts, and bruises on her buttocks and legs as a
result of being beaten by mother." 705 ILCS 405/2-3(2)(i), (v)
(West 1994). The petition further alleged there was a
substantial risk that Jessica might sustain physical injury in
the future because her mother "refused to accept services." 705
ILCS 405/2-3(2)(ii) (West 1994). The accompanying Motion for
Temporary Custody stated there was "urgent and immediate
necessity" to take the child into custody, the severity of the
injuries and seriousness of the allegations made it "too risky"
to leave the child in the home, and "reasonable efforts cannot
prevent or eliminate the necessity of removal of the child from
the home." See 705 ILCS 405/2-10(2) (West 1994). A temporary
custody hearing (705 ILCS 405/2-9, 10 (West 1994)) was held the
same day.
At the hearing, the court learned that Jessica's parents,
Scott (also Scott P.) and Karen (also Karen P. or respondent),
obtained a judgment of divorce on December 21, 1994. They had
been separated for more than a year before the divorce became
final. Pursuant to the agreed custody order in the divorce
judgment, Karen and Scott maintained joint custody of Jessica,
Karen was to have physical custody, and Scott received
visitation.
Six weeks after the divorce, Scott married Kim. Later,
Karen became engaged to marry Bill in September 1995.
On June 11, 1995, Scott visited the Schaumburg Police
Department and met with Detective Smith to report his ex-wife's
use of corporal punishment. Scott told Detective Smith about an
incident that occurred six months earlier, in December 1994.
When he got Jessica for visitation, Scott said, Karen told him
she had disciplined Jessica using a wooden spoon and had caused a
bruise on her buttocks. Scott didn't report this incident until
now, he said, because he hadn't been concerned until Jessica
reacted strangely on a recent boating trip. He said Jessica
became frightened by the boat's oars because they resembled "the
rod" Jessica's mother used to discipline her.
On June 12, 1995, Sharon Dorfman, a DCFS worker, was
assigned to investigate Scott's report, which had been relayed to
the child abuse hotline. Within 24 hours of receiving the
report, Dorfman visited Karen at her home. Dorfman described
Karen as "receptive" and cooperative. Karen readily admitted
using "the rod" (a wooden spoon) for discipline. Karen said she
did this because of parenting classes and teachings she received
in her church. Karen explained that she believed it was wrong to
hit with the hand because the hand represents love. Therefore,
it was better, Karen thought, to use an object such as the wooden
spoon, instead of the hand, to discipline.
Karen demonstrated to Dorfman the manner and force she used
when disciplining Jessica. Karen said she hit Jessica only on
her buttocks, over clothing, and her intent was not to harm, but
to cause a "sting" to get her attention. Though Karen said she
had been using "the rod" regularly, Karen admitted to causing a
bruise on Jessica's buttocks on only one occasion, six months
earlier. Later in the investigation this bruise was found to
have been about 1" in size. Throughout the entire investigation,
DCFS never uncovered any further evidence that Jessica ever
sustained additional bruises or observable injury as a result of
the spankings.
Dorfman told Karen that hitting Jessica with a spoon could
be excessive corporal punishment if it caused bruises. She asked
Karen to refrain from using the rod for discipline. Dorfman also
offered Karen counseling and parenting classes so she could learn
some alternative methods of discipline. Karen refused the
counseling, but agreed to attend parenting classes.
Because Karen refused to allow Dorfman to inspect Jessica
for bruises, Dorfman asked Detective Smith to visit Karen.
Detective Smith, along with a female officer, visited Karen that
same day. Detective Smith said Jessica was wearing a swimsuit
and no bruises were evident.
Detective Smith spoke to Karen about using "the rod" and
urged her to stop this practice. Karen explained, however, that
she never hit Jessica out of anger. Going to get the rod gave
her a "cooling off" period. Karen also spoke to Jessica about
the behavior and, after the discipline, they would pray and she
would give Jessica forgiveness.
Detective Smith said he warned Karen she could be arrested
for battery. He confiscated the 9-inch wooden spoon Karen had
been using as "the rod." He also asked Karen to bring Jessica to
the Child Advocacy Center the next day for an interview.
The following day, on June 14, 1995, Jessica was interviewed
at the Child Advocacy Center. Detective Smith watched the
interview through a two-way mirror. He said Jessica exhibited no
signs of abuse. She was unafraid of the interviewer and appeared
"normal" and healthy. He said Jessica told the interviewer that
she got hit "lots" when she was "foolish" and she got hit even
more if she cried. He couldn't remember whether Jessica said her
butt sometimes got "blue" or if she said "red." He became
concerned, however, because Jessica reported that she had been
disciplined with the rod the night before.
Detective Smith informed Dorfman of Karen's recent use of
the rod. Dorfman made an appointment to visit Karen on June 16,
1995. At this second visit, Dorfman and Detective Smith
questioned Karen together. Again, Karen openly admitted that she
used the rod on Jessica. Karen said she disciplined Jessica "for
urinating." Karen told them she typically struck Jessica "about
four times or until her behavior was proper."
Dorfman asked Karen if she would refrain from using the rod
on Jessica until she began attending parenting classes. Karen
refused. After thoughtful reflection, Karen said she would not
stop using the rod because that would mean she didn't love
Jessica.
Dorfman characterized Karen as "honest" and straightforward.
Dorfman said she would have left Jessica in the home if Karen
said she would stop using the rod. Because Karen refused to stop
using the rod, however, Jessica was taken into protective
custody. A second, 12-inch wooden spoon, which Karen had used to
discipline Jessica, was confiscated by Detective Smith at this
time.
Karen testified at the temporary custody hearing. Though
she verified all that had been testified to by Dorfman and
Detective Smith, Karen said she would agree to stop using the rod
for discipline. Karen said she believed the rod was an effective
form of discipline, but she would discontinue its use because she
didn't want her child to have to go through the disruption and
confusion of the court proceedings. She also did not want to be
separated from her daughter anymore. Karen informed the court
she had already begun the process of signing up for parenting
classes.
After hearing the evidence, Judge Aron ruled:
"Okay; the court does find first of all that both
mother and father were present in court today; that
Probable Cause does exist; that the minor is abuse
(sic) or neglected based on the testimony heard today
about the mother admitting hitting the Minor with the
wooden spoons and leaving bruises and her belief in the
rod of correction.
I believe that Urgent and Immediate Necessity does
exist to support removal of the Minor from the home.
Once again I believe mother is probably one of the most
honest and sincere people that I have ever seen in this
room. I believe her religious beliefs are not
superficial, even though she wants to stop this
invasion of her home and her privacy; that I believe
those religious beliefs need to be talked out a little
more or thought about a little bit more; for that
reason I don't believe that she can change easily, even
though she wants to or says she wants to today.
I think reasonable efforts have been made but have
not eliminated the Urgent and Immediate Necessity to
remove this child from the home. The Minor should be
removed. Temporary Custody has been granted to DCFS
guardianship administrator (sic) with the right to
place the Minor into and consent to any medical or
dental treatment necessary to safeguard the life and
health of the Minor."
Jessica was initially placed with her paternal grandparents
while a homestudy was completed on Scott and his new wife, Kim.
All visitations with Jessica were to be supervised.
Subsequently, Judge Hayes issued an order dated July 7,
1995, placing Jessica with Scott under an order of protection.
Karen's visitation with Jessica was to remain supervised.
Though the adjudication hearing was originally set for
September 21, 1995, the hearing was not held until February 6,
1996. All of the witnesses who testified at the temporary
custody hearing testified again at this hearing. In addition,
however, Karen presented three witnesses in her defense: Sandy
Rabenda, who had been Karen's next door neighbor for three years;
Marie Amejia, Jessica's babysitter from November 1994 until June
1995; and Peggy Koehl, Jessica's godmother. All of these
witnesses testified that they had seen Jessica regularly and
never saw any bruises or evidence of abuse. They testified that
Karen was a good mother, though she believed in disciplining with
the wooden spoon she called the "rod." Everyone described Karen
as patient. Karen never raised her voice or shouted at Jessica
in anger. When Jessica misbehaved, Karen took Jessica into the
bathroom to discipline her.
Amejia said Karen had taken Jessica into the bathroom at her
home on a few occasions. She could overhear Karen explaining to
Jessica what was wrong with her behavior and then heard Karen
administer "two to three taps on the bottom." Amejia said that
Jessica always came out of the bathroom happy, not upset.
Amejia also testified about the bruise Jessica had in
December 1994. Amejia babysat for Jessica and didn't notice the
bruise. When Karen picked Jessica up that day she told Amejia
about the bruise she left on Jessica. The next day Amejia saw
the bruise. Amejia described it as "very small," a 1"-1«" bruise
on the center of Jessica's buttocks. She said Jessica was not
uncomfortable or bothered by the bruise.
Karen also testified at the adjudication hearing. She said
she had been horrified when she discovered the bruise she left on
Jessica that one time in December 1994. She immediately told
both the babysitter and Scott. Scott, Karen said, told her he
knew she was a good mother and "not to worry." He even gave her
a small kiss on the cheek. Scott had been unconcerned about the
bruise in December 1994.
On June 10, 1995, however, Scott brought Jessica home late
from a visitation. When Karen complained, Scott's wife, Kim,
became angry and stormed off. Scott also got angry. He told
Karen never to yell at him in front of his wife. Then Scott
threatened Karen, telling her he could have her arrested. Two
days later Karen came under investigation for child abuse.
After hearing the evidence and the arguments of counsel, the
court (Judge Preston) made the following determination:
"*** and this is a difficult case because it
doesn't fall within any of the reported cases***. The
testimony was that, in virtually all respects other
than this corporal punishment, that the home seemed to
be appropriate in that Jessica was well-clothed, well-
fed, well-cared for; but the issue of the corporal
punishment which brought this case into the system
remains, and I'm simply not indicating that I'm not
considering that corporal punishment seriously because
I certainly am, but I'm going to not make a finding of
neglect based on injurious environment. The allegation
of physical abuse and substantial risk of physical
injury -- all these are closely tied in with the
corporal punishment. I'm not going to make a finding
that there was physical abuse because I don't think
that the corporal punishment the mother used on Jessica
rose to that level, nor do I think that there's a
substantial risk of physical injury to this minor,
notwithstanding that she did sustain a bruise on the
one occasion.
That leaves us with the allegation of excessive
corporal punishment which is indeed the most difficult
in this case because if we were to look at corporal
punishment as in severity from a continuum of (1) to
(100), if we were to make an assumption just for the
sake of this discussion that anything above (65) on
that continuum was considered to be excessive and
anything -- (65) was considered to be within the realm
of what is permitted pursuant to Illinois law, and the
law of the United States has been expressed in a number
of decisions including the INGRAHAM decision and
others, *** it's clear this case doesn't fall at the
higher level of that case ***.
What is added in this case of that instance of
December of 1994 is the prior and successive uses of
paddling with that spoon on many occasions. Some of
the testimony was as often as twice a week. Other
testimony was whenever Jessica misbehaved by lying or
acting foolish or doing something wrong. Did that make
that isolated instance along with these other instances
where bruises were not left, where there was no last
(sic) physical effect of that corporal punishment?
Does that nonetheless make this allegation rise to the
level of what is unreasonable in light of Illinois law?
And, I think it does.
I believe that while this is certainly in no
respect the most heinous of the circumstances that
could come before this Court and that, God, it's not
the most heinous but it does, I'll admit, just barely
-- but it does rise to the level of excessive corporal
punishment because of the frequency of the reliance on
using a paddle; and I'm not emphasizing the paddle in
this decision -- it's not the paddle that is what I
find offensive alone; it could be -- the paddle itself
is not terribly offensive. It's not very large. It's
not very heavy, but the corporal punishment is used
with such frequency for the infractions.
***
And I'm not going to get into teachings of the
church because the church doesn't tell a parent to use
excessive corporal punishment; and that somewhat was;
and again so our record is clear, just barely used in
this case." (Emphasis added.)
The case was held over until April 19, 1996, for the
dispositional hearing. Testimony was taken on April 19, 1996,
and again on May 2, 1996. The court learned of Karen's
successful completion of the STEP parenting classes. The court
also was given information about the interaction of Karen and
Jessica during supervised visitation. The court was provided
psychological evaluations, as well as reports from various
counselors involved with both Karen and Jessica.
After considering all the evidence, the court issued its
decision on August 23, 1996, saying:
"To make a long story short, I find that first: That
the minor, Jessica P., is adjudged a ward of the court.
Secondly, I find that both mother, Karen P., and the
father, Scott P., are both fit, able, and willing to
care for, protect, train and discipline this minor.
I'm going to dwell on that for just a moment here so
that the record is very clear on what this Court's
finding is.
Based on all the testimony that I heard, all of
the documentary evidence that had been admitted into
evidence, and considering arguments of counsel, that
not only do I find the parents, Karen and Scott, to be
fit, willing and able; but I also find their respective
spouses to be perfectly appropriate caretakers for
Jessica, but I'm not Solomon; and I don't have some of
the powers that he sought to dispense when he suggested
a child be cut in half. I have to make a dispositional
finding that will be appropriate for this child, and
the law tells me that I must at this point of our
proceedings consider what is in Jessica's best
interests and nothing else. And, in that regard since
Jessica has been doing well living at home with her
father this past year, I think that it would be in her
best interests to remain in her father's custody, and
that will be what this Court orders -- that Jessica
remain in the custody of her father under an Order of
Protection."
The court went on to explain that the order of protection
should contain detailed orders regarding visitation, to include
"liberal contact" between Karen and Jessica, "periods of time --
summer vacations and other vacations -- when mother will have
custody of Jessica, all visitation being unsupervised *** and
without restriction."
After the dispositional order was issued, Karen filed her
first Notice of Appeal. In this appeal Karen sought review of
the trial court's findings at the temporary custody hearing, the
adjudication hearing, and the dispositional hearing.
Subsequently, despite the court's order with regard to
visitation, DCFS unilaterally decided to restrict visitation,
allowing Karen only supervised visits with Jessica. This
decision was based on the recommendation of Jessica's therapist,
Debra Warren, due to unverified comments Jessica made about fears
she had of Karen's church.
A hearing was held November 19, 1996, due to the change in
visitation. The court ordered DCFS to resume unsupervised
visitations in accord with its initial order. The court also
signed an order, however, allowing DCFS to restrict visitation in
the future without court intervention.
Thereafter, on December 18, 1996, DCFS suspended all
visitation between Karen and Jessica. DCFS said Karen had
behaved "inappropriately" because she went to the office of
Jessica's pediatrician to be present for Jessica's appointment
concerning a possible urinary or bladder problem.
Karen filed a motion to cancel DCFS's suspension of her
visitation and to rescind DCFS's unfettered discretion to
restrict visitation in the future. At a hearing on December 20,
1996, the court denied the motion and announced its intention to
transfer the case to Domestic Relations Court. It never was.
At a subsequent hearing on January 15, 1997, the court again
refused to consider the motion to restore visitation and suspend
DCFS's right to unilaterally restrict visitation. Karen's second
Notice of Appeal is from this order.
DECISION
The first step in our review is to note the standard by
which we must judge the trial court's decisions. The trial court
is vested with "wide discretion" when making a determination as
to abuse and neglect. In re Ashley F., 265 Ill. App. 3d 419,
425, 638 N.E.2d 368 (1994). In fact, courts have held the
discretion afforded the trial court is even greater than the
typical "manifest weight" standard. In re D.L., 226 Ill. App. 3d
177, 185, 589 N.E.2d 680 (1992). This higher degree of
deference, the courts say, is justified "by the delicacy and
difficulty of child custody cases." In re Stilley, 66 Ill. 2d 515, 520, 363 N.E.2d 820 (1977); In re D.L., 226 Ill. App. 3d at
185. Consequently, a court's decision should not be disturbed
unless it is manifestly unjust or palpably against the weight of
the evidence. In re Stilley, 66 Ill. 2d at 520; In re D.L., 226
Ill. App. 3d at 185. The State must prove its allegations of
abuse and neglect by a preponderance of the evidence. In re
Enis, 121 Ill. 2d 124, 520 N.E.2d 362 (1988).
Though the manifest weight standard appears daunting, and
certainly the vast majority of trial court determinations on
abuse and neglect are affirmed, the standard should not be
impossible to meet or there would be no purpose for review.
In this case the Petition for Adjudication of Wardship
alleged Jessica was neglected on the basis of injurious
environment, and physically abused because of injury and
excessive corporal punishment. All of the charges were based on
allegations that Jessica had "sustained cuts, welts, and bruises
on her buttocks and legs as a result of being beaten by her
mother."
When ruling on this petition at the February 6, 1996,
adjudicatory hearing, the court found: (1) Karen's home was
appropriate and Jessica was well-clothed, well-fed, and well-
cared for in Karen's home; (2) Jessica was not neglected due to
injurious environment; (3) the type of corporal punishment Karen
employed never rose to the level of physical abuse; (4) there is
no substantial risk of physical injury to Jessica; (5) the wooden
spoon used by Karen was not heinous or "terribly offensive;" (6)
there was only one instance when Jessica was bruised as a result
of being disciplined with the wooden spoon and this one instance
did not rise to the level of excessive corporal punishment; and
(7) the one incident of a bruise, coupled with the frequency with
which Karen resorted to the use of the wooden spoon for
discipline, "just barely" amounted to excessive corporal
punishment.
We accept and agree with the trial judge's factual findings.
We believe, however, the trial judge committed manifest error
when he drew the legal conclusion that the facts amounted to
excessive corporal punishment within the meaning of the Juvenile
Court Act.
When deciding the issue of "excessiveness," the court
invented a mathematical equation or "continuum," suggesting that
corporal punishment could be weighed against a theoretical scale
of seriousness (i.e. a scale from 1 to 100, with 65 being the
starting point for excessive corporal punishment). Though the
judge found the corporal punishment employed here "doesn't fall
at the higher level," the court still ruled that Jessica was
abused. The court was careful, however, to specify that his
finding of abuse was due to excessive corporal punishment and was
not a finding of "physical abuse." The court specifically
corrected the order to note that the abuse was not "physical"
abuse.
Once the trial court found Jessica to have been abused by
her mother, Jessica was not returned to Karen's custody pending
the dispositional hearing. Jessica remained a ward of the court,
in the custody of DCFS, and continued to reside with her father.
Karen was allowed only supervised visitation with her daughter
under rather stringent regulation.
Because the court found no basis other than excessive
corporal punishment for holding Jessica was abused or neglected,
we limit our review to that determination. We consider whether
the facts of this case fall within the meaning of "excessive
corporal punishment" as that term is used within the Juvenile
Court Act. If it does not, there is no reason to consider the
best interests of the child.
When defining an abused minor, the Act states:
"(2) Those who are abused include any minor under 18
years of age 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;
(iii) commits or allows to be committed any sex offense
against such minor, as such sex offenses are defined in
the Criminal Code of 1961, as amended, and extending
those definitions of sex offenses to include minors
under 18 years of age;
(iv) commits or allows to be committed an act or acts
of torture upon such minor; or
(v) inflicts excessive corporal punishment." 705 ILCS
405/2-3 (West 1994).
The term "excessive corporal punishment" is not defined in
the Act. Perhaps this is because cases involving the
adjudication of abuse, neglect, and wardship are sui generis;
that is, each case must be decided on its own distinct set of
facts and circumstances (In re Edricka C., 276 Ill. App. 3d 18,
25, 657 N.E.2d 78 (1995)) and, given the varying circumstances in
these types of cases, courts must have "broad discretion to reach
a just determination" (In re F.W., 261 Ill. App. 3d 894, 897, 634 N.E.2d 1123 (1994)).
It is clear that a parent has the "right" to corporally
discipline his or her child, a right derived from our
constitutional right to privacy. See In re F.W., 261 Ill. App.
3d at 898. But this right, like any other, must be exercised in
a "reasonable" manner. In re F.W., 261 Ill. App. 3d at 898; In
the Interest of L.M., 189 Ill. App. 3d 392, 545 N.E.2d 319
(1989).
A number of courts have been faced with the dilemma of
determining what constitutes "excessive" or "unreasonable"
corporal punishment. A survey of these cases provides some
insight.
In In re F.W. the court found it was neglect when the mother
hit her 13-year-old daughter using a 24-inch-long board with two
metal brackets on it. The mother said she hit her daughter
because she wanted her to "shut up." The "discipline" resulted
in a knot on the girl's arm and gashes on her leg. The 13-year-
old and her sister also reported being physically disciplined
almost daily with a variety of objects, including ball bats,
broomsticks, extension cords, and ropes. When questioned, the
mother noted she carried scars from being punished by her own
parents and didn't feel she had been abused.
In assessing the matter the F.W. court said the degree of
physical injury stemming from the discipline was not the
"exclusive or determinative factor in evaluating the
reasonableness of a parent's conduct." Other factors considered
by the court were: (1) the likelihood of future, more serious
injury; (2) the psychological effects on the child; and (3) the
circumstances surrounding the discipline, including the parent's
demeanor, i.e., whether the parent was calm or "lashing out" in
anger.
In In re D.L.W., 226 Ill. App. 3d 805, 589 N.E.2d 970
(1992), the father of two sons, ages 5 and 10, was found unfit
and his parental rights terminated because, the court said, he
could not differentiate between corporal punishment and physical
abuse. On different occasions, the father punched the older son
in the face with his fist, grabbed him by the throat and kneed
him in the groin, spanked his bare buttocks with a 1«-foot-long
board while saying, "I don't care if I have to beat you to death,
you are going to learn not to wet the bed any longer," and hit
him with a wooden spoon until it broke in pieces. The father
believed his children should fear him.
In People v. Sambo, 197 Ill. App. 3d 574, 554 N.E.2d (1990),
the court found it was not reasonable discipline for the parents
to hit their daughter with a plastic baseball bat, kick her,
throw liquor in her face, and pull her hair.
In In the Interest of L.M., 189 Ill. App. 3d 392, 545 N.E.2d 319 (1989), the mother of two sons, age 7 and 9, was found to
have abused them as a result of excessive corporal punishment.
The children were left unattended for more than a day, were
dirty, and had colds. When the father found them, he discovered
the younger boy had 5 "whip marks" on his back. The marks were
between 6 and 10 inches long and were "pink-fleshy lines after
the scabs that had initially formed had fallen off." The child
reported that he had been beaten with a belt and stick for
playing ball in the house.
In In the Interest of Weber, 181 Ill. App. 3d 702, 537 N.E.2d 428 (1989), a two-year-old boy was found to have been
physically abused by his mother because he repeatedly was found
to have bruises. On one occasion he had bruises on his head,
arms, buttocks, and back. Another time he was found to have 30
to 40 small bruises under his diaper. A doctor reported that the
bruises extended from the lower neck to the buttocks and appeared
to be thin, parallel lines as if caused by a small stick.
In People v. Tomlianovich, 161 Ill. App. 3d 241, 514 N.E.2d 203 (1987), a mother was convicted of cruelty to her children.
The court said a parent's disciplinary authority had to be
exercised within the bounds of reason and humanity. These bounds
were passed, said the court, when it was shown that the mother
hit her 11-year-old son with a paddle, causing bruising to the
child's buttocks. A doctor testified he had never seen such a
severe condition. The bruises were to the point of hematoma and
were visible until the third visit to the doctor's office, 16
days after the incident.
In In the Interest of D.M.C., 107 Ill. App. 3d 902, 438 N.E.2d 254 (1982), the court found it to be excessive corporal
punishment for the parents of a 9-year-old boy suffering from
hyperactivity and learning disabilities to discipline him with a
leather belt. On one particular instance, when the boy brought
his father's cowboy hat to school without permission, the child
received as many as one hundred strokes to his bare buttocks,
resulting in the entire area of the buttocks and thighs being
"solidly bruised."
In People v. Swanson, 84 Ill. App. 3d 245, 405 N.E.2d 483
(1980), the mother's paramour was found guilty of battery and
reckless conduct because he disciplined her 5-year-old son using
a belt, leaving a number of marks on the child's back and chest.
We are guided by the Illinois Administrative Rules, which
are relied on by DCFS. Section 300 provides a list of various
allegations which could support a finding of abuse or neglect.
See 89 Ill. Admin. Code 300. Allegation #11/61, entitled "Cuts,
Bruises, and Welts," notes that "not every cut, bruise, or welt
constitutes an allegation of harm." The Code suggests
considering such factors as the child's age, the severity of the
injury, the location of the injury, whether an instrument was
used, and the pattern and chronicity of similar incidents of harm
to the child. Other factors to be considered are the child's
medical condition and whether the child suffers from behavioral,
mental, or emotional problems, developmental disabilities or
physical handicaps. The parent's history of reports of abuse or
neglect may also be significant.
Here, Karen readily admitted to disciplining Jessica with a
wooden spoon and said she began using this form of discipline
when Jessica was 2« years old. However, the frequency of these
spankings and the number of blows administered never were
established with any exactitude. Karen spanked Jessica on the
buttocks, over her clothes. As the court determined, there was
only one instance when bruising occurred on Jessica's buttocks --
the isolated occasion in December 1994. Karen was so horrified
when this occurred that she felt compelled to "confess" to her
ex-husband and babysitter. Neither of them was very concerned at
the time. The father expressed no concern for six months. The
babysitter said the bruise was "very small," about 1-1« inches in
size, and when the bruise was visible Jessica was not in any
pain.
It is significant that the babysitter witnessed the mother's
form of discipline on a number of occasions. She said Karen
never lashed out at Jessica in anger. Karen was generally calm
and patient. More importantly, Jessica appeared happy and
unaffected after being disciplined.
We agree with the court's comments in In re F.W., 261 Ill.
App. 3d 894, 902, 634 N.E.2d 1123 (1994): It is not a court's
function to determine whether "parents measure up to an ideal,
but to determine whether the child's welfare has been
compromised."
We agree, too, that corporal punishment as a method of
discipline is a "controversial issue" and the mere fact that an
object is employed to conduct the discipline raises immediate
concerns. But the use of an object, especially when the court
finds the object was not "terribly offensive" or "heinous,"
should not blind a court to the many other factors which should
and must be considered when weighing the evidence to determine
the "reasonableness" of the discipline. We must take care not to
create a legal standard from our personal notions of how best to
discipline a child.
Section 405/2-3 of the Juvenile Court Act places "excessive
corporal punishment" within the category of "abused" minor, a
category which contains much more severe forms of injury, such as
"death, disfigurement, impairment of physical or emotional
health, or loss or impairment of bodily function" and "torture."
Our review of Illinois decisions discloses no case where
facts close to those found by this trial court were enough to
allow the State to wrest custody of a child from its mother. We
find no precedential support for the proposition that the mere
frequency of relatively mild, non-bruising contacts by an object
other than a hand rises to the level of "excessive corporal
punishment" as that term is used in the Juvenile Court Act.
We believe our conclusion is consistent with the letter and
spirit of the Juvenile Court Act. Making a child a ward of the
court is a serious thing to do. When that child is being well
cared for by fit and able parents, when the child's environment
is not injurious, when the child is neither physically nor
psychologically abused or neglected, and when there is no
substantial risk of physical injury to the child, courts should
exercise grave prudence before allowing the State to violate the
privacy our law promises to the family.
We cannot draw a firm line between excessive and non-
excessive corporal punishment. Nor do we wish to give license to
parents who would use the force of physical objects to discipline
their children. We simply hold the unusual circumstances in this
case do not "barely" cross the line to excessive corporal
punishment. They do not cross the line at all. The trial
court's finding to the contrary was against the manifest weight
of the evidence.
We can understand the trial court's reluctance to implicitly
give approval to Karen's use of the wooden spoon, but we believe
the trial court exceeded its authority and unjustifiably intruded
on the respondent's privacy rights and her fundamental liberty
interest in the care and custody of her child. See, Santosky v.
Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95, (1982).
While the State contends the evidence proves Karen's conduct
caused psychological damage to Jessica, the trial judge made no
such finding. We take his silence on the matter, making no
comment on the "oar" incident, to be a rejection of the State's
claim. Further, we see no need to examine the record for
possible psychological harm since we end our inquiry with the
conclusion that there was no excessive corporal punishment in
this case.
Because we decide there was no excessive corporal punishment
here, there is no need to discuss other, troublesome matters
raised by Karen in this appeal--including DCFS's exercise of
power to modify a judge's visitation order without prompt
judicial review, the failure of the trial judge at the probable
cause hearing to make written findings in support of his ruling,
and the trial court's failure to document DCFS's efforts, if
there were any, to eliminate or prevent the necessity for removal
of the child in the first place.
Because we conclude Karen did not violate section 405/2-3
(2)(v), all orders entered at and after the adjudicatory hearing
are vacated. We remand this cause to the Juvenile Court for
proceedings consistent with this opinion. We anticipate the
trial court will eliminate any roadblocks to the return of
Jessica to her mother's custody.
REVERSED AND REMANDED.
McNAMARA and SOUTH, JJ., concur.