From the South Bend Tribune:


September 29, 2002

         Real life justice

         Everyday cases of abuse reflect
         difficult decisions

         By MARTI GOODLAD HELINE
         Tribune Staff Writer

         SOUTH BEND -- Worldwide
         attention on the Madelyne
         Toogood child battery case
         has prompted heated debate
         over what her punishment
         should be if she is
         convicted of beating her
         little girl.

         From the streets of South
         Bend to the call-in shows
         on talk radio and cable
         television on both coasts,
         the speculation continues.
         Strong emotions have been
         raised by the 25-year-old
         woman seen on a security
         camera videotape appearing
         to repeatedly hit her
         4-year-old daughter in the
         parking lot of a Grape Road
         shopping center.

         Some have expressed concern
         that the punishment will be
         too lenient. Others fear
         that all the media
         attention will lead to the
         mother being punished more
         severely than she deserves
         -- or more than someone who
         committed a more serious
         act of abuse.

         With all the attention
         focused last week on
         Toogood's case, St. Joseph
         Probate Judge Peter J.
         Nemeth noted, "This goes on
         every day. We have these
         cases all the time."

         Attorney Michael Gotsch,
         who works with CPS, noted
         that the Toogood case "is
         not the worst case of abuse
         in St. Joseph County. We
         see much more serious cases
         frequently."

         Here are some real child
         battery cases from St.
         Joseph County. In these
         crimes, the defendants
         pleaded guilty to charges
         like Toogood's. To protect
         the identities of the
         children, we're not
         publishing the defendants'
         names.

         Dirty kitchen, beaten
         children

         A 34-year-old father of
         four from South Bend was
         charged with beating his
         four children, aged 8 to
         14, with a thick,
         2-foot-long wooden rod when
         he became upset with them
         for not cleaning the
         kitchen and being
         disrespectful while their
         mother was sick in bed with
         the flu.

         After being alerted by
         school officials, police took the 11-year-old girl
         to a hospital to treat wrist and head injuries. The
         three boys had bruises in places such as their
         lower backs, legs, shoulders and heads, according
         to court documents.

         The children told police their father roused them
         from bed and beat them about 2:30 a.m. when he came
         home from work.

         The father pleaded guilty to two of the four felony
         counts of battery on a child and was sentenced
         earlier this month by Superior Court Judge Roland
         W. Chamblee Jr. to a suspended 18-month term on
         each charge. The father was placed on probation for
         18 months and ordered to participate in counseling.
         The prosecutor's office asked the judge not to
         suspend the sentence and to require the father to
         serve some time, but Chamblee chose not to.

         Mom uses extension cord

         A 45-year-old South Bend mother came home to find
         the bathroom a mess and her things moved around.
         She whipped her three children with an extension
         cord, causing large, red welt marks on the backs of
         the legs of her 11-year-old daughter and 10- and
         13-year-old sons.

         One child secretly called police and reported the
         beating. The children said their mother tied them
         to a pole in the basement before the whipping.

         The mother was charged with three felony counts of
         battery on a child and three counts of criminal
         confinement. She pleaded guilty last year to the
         three battery charges, and the confinement charges
         were dismissed. In the plea agreement, the
         prosecution agreed not to recommend prison time.

         Judge Jerome Frese treated the batteries as
         misdemeanors for sentencing and imposed a one-year
         sentence on each, which was suspended.

         He placed the mother on probation for three years
         and ordered her to complete whatever counseling was
         recommended in Probate Court.

         Stepfather uses belt on boy

         Last September, an 11-year-old boy told his
         stepfather he had done his homework and then later
         admitted he lied about it. The 28-year-old
         stepfather took the boy to the basement, where he
         used his belt to whip the boy on his buttocks and
         legs, leaving many bruises. Someone from the boy's
         school in Mishawaka contacted Child Protective
         Services.

         The stepfather was charged with battery on a child,
         a felony, and the boy was removed from the home for
         a time. Two months later, the stepfather pleaded
         guilty to the charge with an agreement with the
         prosecutor that the case would be treated as a
         misdemeanor for sentencing. The stepfather received
         a suspended six-month jail sentence from Superior
         Court Judge William H. Albright, who put him on
         probation for six months with an order to complete
         parenting classes.

         A similar charge of child battery was filed against
         the stepfather last month and is pending. He is
         accused again of using his belt to whip the boy,
         now 12, many times because the boy had not cleaned
         his room. The boy's mother has been charged with
         neglect. The boy's aunt contacted authorities when
         he came to her house after the latest beating.

         3-year-old stepdaughter hit

         A 22-year-old Mishawaka man was charged twice in
         four months with striking his 3-year-old
         stepdaughter, once in the face with his hands and
         another time by throwing a telephone
         caller-identification box that hit the girl. The
         second incident resulted in a deep cut that
         required stitches and the loss of a tooth.

         The stepfather pleaded guilty in 1999 to both
         felonies of battery on a child and was sentenced on
         each case to three years in prison, but Judge Frese
         suspended the sentences. The man was placed on
         probation for six years and ordered to spend two
         years on home detention. The man spent more than
         three months in jail while the cases were pending.
         He was also ordered to have no contact with the
         girl and her mother without the judge's prior
         approval.

         Two stepsons, two cases

         A 24-year-old South Bend man struck his 5-year-old
         stepson in the face, leaving bruises and a black
         eye, after the boy had run out of the house. The
         man pleaded guilty in 1999 to a felony charge of
         child battery in a plea agreement that said the
         prosecution would not oppose misdemeanor treatment.
         Judge Frese placed the man on probation for a year,
         suspended a one-year jail term and ordered the man
         to stay in counseling.

         A year later, the same man was charged with child
         battery for beating his 10-year-old stepson with a
         leather belt, leaving behind severe bruises on his
         leg and buttocks. A police report showed the
         younger boy, the 10-year-old's brother, had also
         been whipped.

         The stepfather pleaded guilty to the charge under
         an agreement that called for an 18-month suspended
         sentence, parenting classes and counseling.
         Superior Court Judge William T. Means placed the
         man on probation for 18 months, ordered 80 hours of
         community service, counseling and no contact with
         the victims without approval.

         When parents fail

         Sometimes, a parent or guardian fails to meet those
         or other court-ordered requirements.

         "While it's our initial goal to reunify the family,
         unfortunately, we do fairly regularly terminate the
         rights of parents," said Charles Smith, director of
         the St. Joseph County Office of Family and
         Children, which oversees CPS.

         In such cases, the child is put up for adoption, or
         guardianship arrangements are made. Parents could
         also face further criminal action.

         Reports of child abuse often come through third
         parties such as relatives, neighbors, schools,
         hospitals, physicians and police.

         According to statistics from the Indiana Family and
         Social Services Administration, of the 434 cases of
         physical abuse to children reported in St. Joseph
         County in 2001, 166 were substantiated.

         "Every case we substantiate, or unsubstantiated, a
         copy of the complaint and findings go to the
         prosecutor's office," Smith said.

         It is then up to the prosecutor's office to decide
         whether criminal charges are warranted.

         Tough choices

         Professionals who deal with child abuse cases say
         no case is typical and that often there are only
         hard choices to make.

         "There's no one action we do in every case. Each
         has different circumstances," said Carolyn Hahn,
         executive director of CASIE Center, an agency that
         coordinates investigations of child abuse cases.

         "Children are usually attached to the people who
         abuse them," Hahn noted. "You don't want to punish
         the victim when you're trying to rehabilitate the
         offender. It's a real tough call."

         Child Protective Services, the agency that
         investigates cases of child abuse and neglect,
         handles every case according to its circumstances,
         which can vary widely, Smith said.

         The severity and type of abuse are among factors
         taken into account.

         "It's a situation where there is a range of
         seriousness within which any number of things can
         happen," Smith said.

         The victims of substantiated cases of child abuse
         often are placed in foster or residential care, as
         Toogood's little girl was, at least long enough to
         begin to resolve the issues that led to the abuse.
         While the victims may undergo counseling and/or
         treatment for physical injury, the parent or
         guardian may have to meet a number of requirements
         to regain custody, such as counseling, alcohol- and
         drug-abuse treatment, and classes in parenting,
         anger management and home management.

         Nemeth's court deals with the children's issues and
         decides whether youngsters should be removed from
         their home.

         "I think, where possible, the child should be with
         family members," Nemeth said last week. "I think
         the statute requires the Office of Family and
         Children to look at that. I think it's certainly
         preferential to the child rather than to be with
         strangers. It all depends on the individual
         circumstances."

         How the system works

         The Superior Court where the criminal cases of
         child abuse are heard attempts to work with the
         Probate Court, which oversees the children if they
         are removed from the home by CPS.

         In a typical St. Joseph County case of child
         battery, a defendant pleads guilty to the Class D
         felony charge and receives a suspended jail
         sentence along with a term of probation that
         mandates counseling and, sometimes, community
         service, fines or other requirements.

         A Class D felony carries a sentence of up to three
         years but can also be treated as a misdemeanor,
         which has a one-year maximum sentence.

         Whether the St. Joseph County prosecutor's office
         will agree to a suspended sentence or try to
         persuade the judge to impose some jail time depends
         on the circumstances of a case.

         From his experience, longtime defense attorney
         Philip Skodinski believes probation to be
         appropriate in child abuse cases when the parent is
         making an effort to turn around his or her
         situation.

         He also believes that a child battery offense
         should not be treated any differently than any
         other Class D felony, so that someone with no prior
         record should be entitled to have the conviction
         entered as a misdemeanor just as much as someone
         charged with theft.

         Records show that many child battery convictions do
         end up as misdemeanors.

         "I would say there are a lot of cases that are not
         serious enough to prosecute," Smith said.

         It's extremely rare to have videotaped evidence of
         abuse as in the Toogood case. "There's a witness
         for the child," said Chief Deputy Prosecutor Ellen
         Corcella.

         Without that, the case may not have been charged at
         all or possibly charged as a misdemeanor, she said.

         Many felony child abuse cases involve an injury --
         bruises that were noticed or a fracture that
         required medical attention -- which result in the
         incident being reported. Photos of the injuries
         provide critical evidence.

         If the Toogood case happened without the videotape
         and some security guards or shoppers were
         witnesses, it's questionable the case would have
         been charged or even been sent to the prosecutor's
         office, Corcella said.

         Even if the child in a situation said she was hit,
         the parent could explain it away by saying it was
         just a spanking and that witnesses did not have a
         clear view.

         A spanking -- like a hand clapping a child's rear
         end -- is not illegal or considered abuse, CPS
         attorney Gotsch said. It becomes abusive if it
         leaves visible injuries.

         But repeatedly striking a child in the face or
         pulling hair as Toogood is alleged to have done in
         the video can be considered abusive.

         Regarding what the prosecutor's office will seek as
         a penalty in Toogood's case, Toth has said,
         "Obviously, jail is something you have to seriously
         consider in a case like this. In all child abuse
         cases, there has to be some kind of accountability.
         As the case progresses through the criminal justice
         system, we will be making more decisions about how
         we are going to proceed."


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