Filed 4/16/10              NO. 4-09-0925

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

IN RE: Ch. W. and Ca. W., Minors,      )  Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS,   )  Circuit Court of
           Petitioner-Appellee,        )  Champaign County
           v.                          )  No. 09JA57
JERRY WELLS,                           )
           Respondent-Appellant.       )  Honorable
                                       )  John R. Kennedy,
                                       )  Judge Presiding.
________________________________________________________________

           JUSTICE TURNER delivered the opinion of the court:

           In August 2009, the State filed a petition for adjudi-

cation of wardship as to Ch. W. (born in October 2001) and Ca. W.

(born in September 2002), the minor children of respondent, Jerry

Wells.   The minor children's mother, Dena Wells, is not a party

to this appeal.   After an adjudicatory hearing, the trial court

found the minor children were neglected and dependent.    In

December 2009, the court made the minor children wards of the

court and appointed the Department of Children and Family Ser-

vices (DCFS) as their guardian.

           Respondent appeals, contending (1) he was denied

effective assistance of counsel, (2) the State violated his due-

process rights, and (3) the trial court erred by finding the

minor children were neglected.    We remand with directions.

                           I. BACKGROUND

           Respondent and Dena adopted the minor children, who are
Dena's biological grandchildren, in 2004.   Dena suffers from

chronic obstructive pulmonary disease.   On March 26, 2009, DCFS

became involved with the family after allegations were made that

respondent had molested J.C., a neighbor child.   The next day,

Sheri Foley, a DCFS investigator, conducted separate forensic

interviews of J.C. and Ch. W., which were recorded by both video

and audio.   Under a DCFS safety plan, the minor children remained

in the home with Dena, and respondent lived elsewhere.

           In April 2009, respondent was arrested and incarcer-

ated.   People v. Wells, No. 09-CF-746 (Cir. Ct. Champaign Co.).

In June 2009, a grand jury charged respondent with one count of

predatory criminal sexual assault of a child (720 ILCS 5/12-

14.1(a)(1) (West 2006)) (Ch. W. alleged victim) and one count of

aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West

2008)) (J.C. alleged victim) for his actions in March 2008.     In

the criminal case, the State moved to admit, inter alia, Ch. W.'s

statements to Foley under section 115-10 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-10 (West 2006)).   After holding

a hearing on the motion and viewing the recordings of the inter-

views, Judge Heidi Ladd denied the motion as to Ch. W.'s state-

ments because Foley's questions were too leading to provide

sufficient safeguards of reliability.    On appeal, respondent has

supplemented the record with a verbatim transcript of Judge

Ladd's oral ruling on the motion.   In October 2009, the State


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dismissed all of the criminal charges against respondent, and he

was released from jail.

          On August 14, 2009, the police took protective custody

of the minor children when Dena was admitted to the hospital and

had no one to care for the minor children.   Three days later, the

State filed its petition, alleging the minor children were (1)

neglected under section 2-3(1)(b) of the Juvenile Court Act of

1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2008)),

in that their environment was injurious to their welfare when

they resided with Jerry as the environment exposed them to the

risk of sexual abuse; and (2) dependent under section 2-4(1)(a)

of the Juvenile Court Act (705 ILCS 405/2-4(1)(a) (West 2008))

because they lacked a parent, guardian, or legal custodian to

care for them due to respondent's incarceration and Dena's poor

physical health.

          On September 25, 2009, the trial court commenced the

adjudicatory hearing.   Dena admitted and stipulated to the

dependent count of the petition, and the shelter-care report

served as the factual basis for the admission.   The court entered

judgment in favor of the State and against Dena and then pro-

ceeded to hear evidence as to respondent. Only the pertinent

testimony presented at the adjudicatory hearing is set forth

below.

          Foley testified she had received specific training in


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forensic interviewing of children and had "conducted 185

sexual[-]abuse reports."   On March 27, 2009, Foley interviewed

Ch. W. at the Child Advocacy Center, which had a child-friendly

atmosphere.   Foley indicated Ch. W. was developmentally delayed

and that, while Ch. W.'s language was clear, it was more on the

level of a five-year-old than a seven-year-old.    According to

Foley, Ch. W. was comfortable during the interview and did not

seem nervous or fearful.   Foley stated that, due to Ch. W.'s

limited ability to answer open-ended questions, the questions

asked her were more direct as to sexual abuse.

          When Foley was asked about what Ch. W. said regarding

the charges being investigated, defense counsel made an objection

for the record, which the trial court overruled.    Foley testified

Ch. W. disclosed sexual touching by respondent, whom Ch. W.

referred to both as father and grandfather.    Specifically, Ch. W.

stated her father had touched her in the vaginal area.

          During the interview, Foley used both anatomically

correct drawings and dolls.    Ch. W. was able to identify and

describe all the body parts on both the male and female drawings.

Ch. W. also knew the differences between the genders and, for the

most part, knew what every body part did in her own language.

Foley admitted that, at certain points, Ch. W. was unable to

identify certain body parts.    Foley explained the dolls were

tools used to help her understand what the child had stated


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happened.    Foley showed Ch. W. all of the parts on the dolls,

which were fully clothed.    Foley asked Ch. W. to show her what

happened, and Ch. W. took the male doll's hand and touched it to

the girl doll's vaginal area.    Ch. W. indicated it was skin-to-

skin touching and Ch. W. was not wearing clothes.    Foley testi-

fied Ch. W. stated it happened more than once but it was diffi-

cult to know a number with Ch. W.'s age and developmental delays.



            On cross-examination, defense counsel asked Foley if

she was able to make an estimate of Ch. W.'s mental age and what

term Ch. W. used for "vagina."    He also asked a couple of ques-

tions about (1) what Ch. W. called respondent and (2) Ch. W.'s

biological father.    In total, respondent's counsel asked Foley

six questions on cross-examination.

            The State also presented the testimony of Jeffrey

Smith, the DCFS caseworker for respondent's family; Investigator

Dwayne Roelfs, who interviewed respondent twice; and Deputy

Andrew Good, an investigator with the Champaign County sheriff's

department who observed Investigator Roelfs' two interviews of

respondent.    Investigator Roelfs testified respondent recalled an

incident in his bathroom, in which Ch. W. touched his partially

erect penis.    Respondent told her never to do it again.   Respon-

dent also recalled a time when he was giving Ch. W. a bath and

was sightly aroused by bathing Ch. W.


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           The guardian ad litem presented the testimony of Deputy

Kristin Zimmer, who had interviewed J.C.

           Respondent testified on his own behalf and presented

the testimony of his sister, Kathy Bush, and his brother, Greg

Wells.   Respondent's counsel did not raise Judge Ladd's ruling.

On appeal, respondent supplemented the record with an affidavit,

in which he states he told his counsel before the adjudicatory

hearing about Judge Ladd's ruling.

           In adjudicating the minor children neglected, the trial

court noted it found the testimony of Foley to be "particularly

convincing."   Specifically, the court noted it found her inter-

view was conducted under circumstances that enhanced the minor's

credibility, rather than detracted from it.   Besides Foley's

testimony, the court noted Investigator Roelfs' testimony that,

on at least one occasion, Ch. W. had touched respondent's penis.

           At the December 2, 2009, dispositional hearing, the

trial court found respondent was unfit and unable and Dena was

unable to care for the minor children.   The court made the minor

children wards of the court and appointed DCFS as their guardian.

The next day, the court filed a written dispositional order.     On

December 9, 2009, respondent filed a notice of appeal in compli-

ance with Supreme Court Rule 303 (Official Reports Advance Sheet

No. 15 (July 16, 2008), R. 303, eff. May 30, 2008), and thus this

court has jurisdiction under Supreme Court Rule 301 (155 Ill. 2d


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R. 301).   See 210 Ill. 2d R. 660(b) (providing the rules govern-

ing civil cases govern appeals from final judgments in all

proceedings under the Juvenile Court Act, except for delinquency

ones).

                           II. ANALYSIS

           Respondent first contends he was denied his right to

effective assistance of counsel.

           Section 1-5(1) of the Juvenile Court Act (705 ILCS

405/1-5(1) (West 2008)) grants minors and their parents the right

to be represented by counsel in juvenile proceedings.    While the

right to counsel in juvenile proceedings is statutory and not

constitutional, "Illinois courts apply the standard utilized in

criminal cases to gauge the effectiveness of counsel in juvenile

proceedings."   In re S.G., 347 Ill. App. 3d 476, 479, 807 N.E.2d

1246, 1248 (2004).   Thus, courts review ineffective-assis-

tance-of-counsel claims in juvenile proceedings under the stan-

dards set forth in Strickland v. Washington, 466 U.S. 668, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984).    S.G., 347 Ill. App. 3d at

479, 807 N.E.2d at 1248.

           To establish ineffective assistance of counsel under

Strickland, one must prove (1) his counsel's performance failed

to meet an objective standard of competence and (2) counsel's

deficient performance resulted in prejudice to the defendant.

People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163-64


                               - 7 -
(1999).    To satisfy the deficiency prong of Strickland, the party

must demonstrate counsel made errors so serious and counsel's

performance was so deficient that counsel was not functioning as

"counsel" guaranteed by the sixth amendment (U.S. Const., amend.

VI).    Further, the party must overcome the strong presumption the

challenged action or inaction could have been the product of

sound trial strategy.    Evans, 186 Ill. 2d at 93, 708 N.E.2d at

1163.   To satisfy the prejudice prong, the party must prove a

reasonable probability exists that, but for counsel's unprofes-

sional errors, the proceedings' result would have been different.

Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-64.

            Respondent asserts his counsel failed to (1) object to

Foley's testimony about her interview with Ch. W.; (2) request

the trial court to take judicial notice of Judge Ladd's ruling in

the criminal case; (3) submit to the court the recordings of

Foley's interview with Ch. W., which Judge Ladd reviewed; and (4)

aggressively cross-examine Foley about her interview techniques

used with Ch. W.

            In Massaro v. United States, 538 U.S. 500, 504, 155 L.

Ed. 2d 714, 720, 123 S. Ct. 1690, 1694 (2003), the United States

Supreme Court recognized the preference of having ineffective-

assistance-of-counsel claims brought on collateral review rather

than on direct appeal and rejected a rule requiring defendants to

bring such claims on direct review or face forfeiture of the


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claim.    One of the problems with raising an ineffective-assis-

tance claim on direct appeal is the "appellate counsel and the

court must proceed on a trial record not developed precisely for

the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose."    Massaro, 538 U.S. at

504-05, 155 L. Ed. 2d at 720, 123 S. Ct. at 1694.    Another

problem is the record likely does not reflect counsel's reasoning

behind his or her actions or omissions, and thus the reviewing

court may lack a "way of knowing whether a seemingly unusual or

misguided action by counsel had a sound strategic motive or was

taken because the counsel's alternatives were even worse."

Massaro, 538 U.S. at 505, 155 L. Ed. 2d at 720, 123 S. Ct. at

1694.    However, in a collateral proceeding, "the defendant 'has a

full opportunity to prove facts establishing ineffectiveness of

counsel, the government has a full opportunity to present evi-

dence to the contrary, the district court hears spoken words we

can see only in print and sees expressions we will never see, and

a factual record bearing precisely on the issue is created.'"

Massaro, 538 U.S. at 506, 155 L. Ed. 2d at 721, 123 S. Ct. at

1694, quoting United States v. Griffin, 699 F.2d 1102, 1109 (11th

Cir. 1983).

            The problems associated with addressing an ineffective-

assistance-of-counsel claim raised for the first time on appeal

described by the Supreme Court in Massaro are present in this


                                - 9 -
case.   While respondent has supplemented the record on appeal

with Judge Ladd's ruling, he did not supplement the record with

the recordings of Foley's interview of Ch. W.   Moreover, while

juvenile proceedings are not meant to be adversarial (People v.

Santiago, 384 Ill. App. 3d 784, 790, 895 N.E.2d 989, 994 (2008)),

the State may still present evidence to refute respondent's

claim, such as the testimony of respondent's counsel, to permit a

full review of the ineffective-assistance-of-counsel issue.     The

appellate record also lacks any statements from respondent's

counsel.   Further, this court will not simply assume the trial

court would have ruled the same way as Judge Ladd regarding

Foley's interview of Ch. W., especially with the appellate record

lacking the recordings.   Additionally, respondent did not raise

his claim in the trial court, and thus a hearing focused on the

ineffective-assistance-of-counsel issue has not yet taken place.

           Since the Juvenile Court Act does not provide for

collateral review of its judgments, we retain jurisdiction of

this matter and remand the cause for a hearing on respondent's

ineffective-assistance-of-counsel claim.   See 155 Ill. 2d R.

366(a)(5) (granting reviewing courts in civil cases the powers to

grant any relief including remandment); Jones v. Board of Fire &

Police Commissioners, 127 Ill. App. 3d 793, 797, 469 N.E.2d 393,

397 (1984) ("a reviewing court in Illinois is not divested of

jurisdiction until the parties' rights of appeal have been


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exhausted").   Such a hearing will give respondent a full opportu-

nity to prove facts establishing ineffectiveness of counsel, the

State a full opportunity to present evidence to the contrary, and

the establishment of a factual record on the issue.   See Massaro,

538 U.S. at 506, 155 L. Ed. 2d at 721, 123 S. Ct. at 1694.    If

respondent does not receive a new trial as a result of ineffec-

tive assistance of counsel, we will then address respondent's

remaining arguments.

                          III. CONCLUSION

          For the reasons stated, we retain jurisdiction and

remand the cause for a hearing on respondent's ineffective-

assistance-of-counsel claim.

          Remanded with directions.

          KNECHT and APPLETON, JJ., concur.




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