People v. Winlund

576 N.E.2d 346, 216 Ill. App. 3d 410, 159 Ill. Dec. 677, 1991 Ill. App. LEXIS 1106
CourtAppellate Court of Illinois
DecidedJune 28, 1991
DocketNo. 1—89—3070
StatusPublished
Cited by1 cases

This text of 576 N.E.2d 346 (People v. Winlund) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Winlund, 576 N.E.2d 346, 216 Ill. App. 3d 410, 159 Ill. Dec. 677, 1991 Ill. App. LEXIS 1106 (Ill. Ct. App. 1991).

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

The circuit court found that one-year-old B.W. and four-year-old R.W. were neglected, and that B.W. was abused. Respondent-mother, Tracy Winlund (Tracy), appeals, raising as issues whether (1) the State proved by a preponderance of the evidence that B.W. was abused and neglected; (2) R.W.’s hearsay declaration was properly admitted; and (3) the circuit court erred in denying her motion to dismiss for failure to conduct an adjudicatory hearing within the statutory period. We affirm.

On July 12, 1988, petitions for adjudication of wardship were filed on behalf of both R.W. and B.W., alleging that the children were neglected due to their injurious environment. B.W.’s petition also alleged that he was abused. The Cook County public guardian was named guardian ad litem for both minors, and an adjudicatory hearing on the petitions was held on April 20,1989.

Dr. Starves Maltezos, an expert in neurosurgery, testified on behalf of the State. He had performed a detailed neurological examination of B.W. on July 7, 1988, and found that the child was quadriplegic, was able to move only his head, had no bladder or bowel control, and subsequently became respirator-dependent. B.W. had a five-centimeter fracture at the back of his skull, contused lips, and part of his face was discolored as if it had been bruised. There were no other signs of external trauma. Although a CT scan of B.W.’s cervical spine appeared normal, an MRI scan showed that his spinal cord was swollen.

Tracy told Maltezos that B.W. had been playing at the pool in her apartment complex with David Young, her live-in boyfriend. When B.W. became listless, she laid him on a towel and covered him. Thinking that the child had become overheated, she took him inside and tried to cool him in the bathtub. His condition did not improve, and Tracy took him to the hospital. Young told Maltezos that B.W. bruised his lips when he fell against a lawn chair; Tracy said that the discoloration on his face was from a rug burn and had been there since May, and the skull injury may have been due to a fall from a swing on the previous day or a fall in the bathtub two weeks earlier. Maltezos found it unlikely that a child experiencing a routine fall would sustain so severe an injury and Tracy’s explanations were inconsistent with B.W.’s injuries. Maltezos concluded that there was a high probability of child abuse and contacted the Department of Children and Family Services (DCFS). He said that B.W. was probably a victim of the “shaken baby syndrome,” which occurs when the child is held by the torso and shaken violently. Maltezos testified that B.W. could have received these injuries from being thrown into a crib.

On cross-examination, Maltezos said that B.W. had been hospitalized in May 1988 for treatment of a febrile and septic condition, but that he had not seen the medical records from that prior visit. Although the child had undergone spinal taps at that time, Maltezos was unaware of the results of the spinal fluid analysis. B.W. also had been treated for a rash on his forehead. Maltezos said that the skull fracture, by itself, could not cause paralysis. The paralysis resulted from damage to the spinal cord, which was caused by either direct contusion, vascular infarction, or inflammation from an infection.

Robert W, father of both R.W. and B.W., testified that on July 10, 1988, his ex-wife Tracy told him that B.W. had experienced a seizure; had fallen from a swing, had slipped and fallen while in the bathtub; and had hit his head on a table in her apartment. After he had received custody of R.W. in July 1988, R.W. told Robert that “daddy Dave had thrown [B.W.] in the crib.” According to Robert, “daddy Dave” referred to Young.

Following this testimony, the State rested. Robert and the guardian ad litem, both rested without presenting any evidence.

Mary Riley and Morgan Riley, Tracy’s mother and sister, testifying on her behalf, said that B.W. was able to move all his limbs when they saw him on July 6, 1988. He had diarrhea and was crabbier than usual, but was otherwise normal. Following his hospitalization in May 1988, B.W. was unable to use one of his legs and dragged it for the next two weeks.

Dr. Dale Buchbinder, an expert in surgery, reviewed B.W.’s medical records and interviewed Tracy. He never examined B.W. He testified that B.W.’s paralysis was unusual in that there was no evidence of a cervical spinal fracture and no documented traumatic injuries to the spine. Further, B.W.’s quadriplegia was not causally connected to any. physical trauma. In his opinion, the records could not justify a finding of abuse. B.W. might have experienced seizures, or may have sustained an infection, as evidenced by the diarrhea. Although the skull fracture could have been caused by any of the incidents which Tracy related, Buchbinder was unable to explain the paralysis.

Tracy testified that B.W. had experienced many health problems since his birth. In May 1988, he had developed a rash on his head, was listless, and was not eating properly. He was hospitalized for five days and, following his discharge, dragged his left leg. The hospital staff told Tracy that B.W. only had a muscle spasm.

On July 7, 1988, B.W. ate and was able to use all his limbs. Tracy left at 10:30 a.m. on that day and returned home in the afternoon. Young, who had stayed with B.W., reported that the child had fallen against a lawn chair in the pool area and hit his lip. Tracy laid B.W. on a towel and he began to convulse, vigorously shaking his head. When Tracy picked him up, the child was sweating and moved very little. After Young tried to cool B.W. in the bathtub, Tracy took him to the hospital. She explained that B.W. had fallen against a chair, had previously fallen in the bathtub, and had fallen while at her mother’s house. She cried and felt very upset when the doctor told her that B.W. was quadriplegic. She testified that she never struck B.W. and had not seen anyone else hit him.

The court concluded that B.W. had been abused (see Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(2)(i)), and that both B.W. and R.W. were neglected due to their injurious environment (see Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(b)).

At a further hearing held October 12, 1989, on Tracy’s motion to vacate the court’s previous findings, Tracy offered the affidavit of Dr. Peter Huttenlocher, a pediatric neurologist, who had reviewed B.W.’s medical records, including the 1988 CT scan of B.W.’s head. The skull fracture occurred in May 1988 and could not have been sustained in June or July of 1988. B.W. had a syrinx, a fluid-filled cavity within the spinal cord, which caused his paralysis. Trauma was a possible cause of a syrinx. He concluded that the records and testing did not indicate that B.W. had been abused. After argument, the court denied Tracy’s motion. At B.W.’s dispositional hearing, pursuant to the recommendation of a DCFS child welfare specialist, the court awarded guardianship to DCFS with the right to place.

I

Tracy first contends that the State failed to prove by a preponderance of the evidence that B.W. had been abused and neglected. Specifically, she argues that Dr. Maltezos’ testimony failed to establish that B.W.’s paralysis was caused by child abuse.

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Related

In Interest of Bw
576 N.E.2d 346 (Appellate Court of Illinois, 1991)

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Bluebook (online)
576 N.E.2d 346, 216 Ill. App. 3d 410, 159 Ill. Dec. 677, 1991 Ill. App. LEXIS 1106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-winlund-illappct-1991.