{ "id": 4299401, "name": "In re Ch. W. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Jerry Wells, Respondent-Appellant)", "name_abbreviation": "People v. Wells", "decision_date": "2010-04-16", "docket_number": "No. 4\u201409\u20140925", "first_page": "825", "last_page": "830", "citations": [ { "type": "official", "cite": "399 Ill. App. 3d 825" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "469 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "397", "parenthetical": "\"a reviewing court in Illinois is not divested of jurisdiction until the parties' rights of appeal have been exhausted\"" } ], "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562015 ], "year": 1984, "pin_cites": [ { "page": "797", "parenthetical": "\"a reviewing court in Illinois is not divested of jurisdiction until the parties' rights of appeal have been exhausted\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0793-01" ] }, { "cite": "895 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "994" } ], "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278826 ], "year": 2008, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0784-01" ] }, { "cite": "699 F.2d 1102", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1510757 ], "year": 1983, "pin_cites": [ { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/f2d/699/1102-01" ] }, { "cite": "538 U.S. 500", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9031093 ], "weight": 15, "year": 2003, "pin_cites": [ { "page": "504" }, { "page": "720" }, { "page": "1694" }, { "page": "504-05" }, { "page": "720" }, { "page": "1694" }, { "page": "505" }, { "page": "720" }, { "page": "1694" }, { "page": "506" }, { "page": "721" }, { "page": "1694" }, { "page": "506" }, { "page": "721" }, { "page": "1694" } ], "opinion_index": 0, "case_paths": [ "/us/538/0500-01" ] }, { "cite": "708 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "1163-64" }, { "page": "1163" }, { "page": "1163-64" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "93" }, { "page": "93" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "807 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "1248" }, { "page": "1248" } ], "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3949177 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0476-01" ] } ], "analysis": { "cardinality": 794, "char_count": 14740, "ocr_confidence": 0.776, "pagerank": { "raw": 5.973126083369309e-08, "percentile": 0.37173035956922584 }, "sha256": "4159f4234ea3c48f17d50672d5e4ce0ca61ee736ec4de4f1711a0070640d4b3f", "simhash": "1:2acaf0e832765fb1", "word_count": 2398 }, "last_updated": "2023-07-14T20:57:29.923092+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Ch. W. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Jerry Wells, Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nIn August 2009, the State filed a petition for adjudication 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\u2019s 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 Services (DCFS) as their guardian.\nRespondent 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.\nI. BACKGROUND\nRespondent and Dena adopted the minor children, who are Dena\u2019s 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.\nIn April 2009, respondent was arrested and incarcerated. People v. Wells, No. 09 \u2014 CF\u2014746 (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 \u2014 14.1(a)(1) (West 2006)) (Ch. W alleged victim) and one count of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c)(l)(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.\u2019s statements to Foley under section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 10 (West 2006)). After holding a hearing on the motion and viewing the recordings of the interviews, Judge Heidi Ladd denied the motion as to Ch. W.\u2019s statements because Foley\u2019s questions were too leading to provide sufficient safeguards of reliability. On appeal, respondent has supplemented the record with a verbatim transcript of Judge Ladd\u2019s oral ruling on the motion. In October 2009, the State dismissed all of the criminal charges against respondent, and he was released from jail.\nOn 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 \u2014 3(l)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2 \u2014 3(l)(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 \u2014 4(1) (a) of the Juvenile Court Act (705 ILCS 405/2\u2014 4(1) (a) (West 2008)) because they lacked a parent, guardian, or legal custodian to care for them due to respondent\u2019s incarceration and Lena\u2019s poor physical health.\nOn 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 proceeded to hear evidence as to respondent. Only the pertinent testimony presented at the adjudicatory hearing is set forth below.\nFoley testified she had received specific training in forensic interviewing of children and had \u201cconducted 185 sexual[-]abuse reports.\u201d 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.\u2019s 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.\u2019s limited ability to answer open-ended questions, the questions asked her were more direct as to sexual abuse.\nWhen 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.\nDuring 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 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\u2019s hand and touched it to the girl doll\u2019s vaginal area. Ch. W. indicated it was skin-to-skin touching and Ch. W. was not wearing clothes. Foley testified Ch. W. stated it happened more than once but it was difficult to know a number with Ch. W\u2019s age and developmental delays.\nOn cross-examination, defense counsel asked Foley if she was able to make an estimate of Ch. W.\u2019s mental age and what term Ch. W. used for \u201cvagina.\u201d He also asked a couple of questions about (1) what Ch. W. called respondent and (2) Ch. W.\u2019s biological father. In total, respondent\u2019s counsel asked Foley six questions on cross-examination.\nThe State also presented the testimony of Jeffrey Smith, the DCFS caseworker for respondent\u2019s family; Investigator Dwayne Roelfs, who interviewed respondent twice; and Deputy Andrew Good, an investigator with the Champaign County sheriff\u2019s department who observed Investigator Roelfs\u2019 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. Respondent also recalled a time when he was giving Ch. W a bath and was sightly aroused by bathing Ch. W.\nThe guardian ad litem presented the testimony of Deputy Kristin Zimmer, who had interviewed J.C.\nRespondent testified on his own behalf and presented the testimony of his sister, Kathy Bush, and his brother, Greg Wells. Respondent\u2019s counsel did not raise Judge Ladd\u2019s 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\u2019s ruling.\nIn adjudicating the minor children neglected, the trial court noted it found the testimony of Foley to be \u201cparticularly convincing.\u201d Specifically, the court noted it found her interview was conducted under circumstances that enhanced the minor\u2019s credibility, rather than detracted from it. Besides Foley\u2019s testimony, the court noted Investigator Roelfs\u2019 testimony that, on at least one occasion, Ch. W. had touched respondent\u2019s penis.\nAt 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 compliance with Illinois Supreme Court Rule 303 (eff. May 30, 2008), and thus this court has jurisdiction under Supreme Court Rule 301 (155 Ill. 2d R. 301). See 210 Ill. 2d R. 660(b) (providing the rules governing civil cases govern appeals from final judgments in all proceedings under the Juvenile Court Act, except for delinquency ones).\nII. ANALYSIS\nRespondent first contends he was denied his right to effective assistance of counsel.\nSection 1 \u2014 5(1) of the Juvenile Court Act (705 ILCS 405/1 \u2014 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, \u201cIllinois courts apply the standard utilized in criminal cases to gauge the effectiveness of counsel in juvenile proceedings.\u201d In re S.G., 347 Ill. App. 3d 476, 479, 807 N.E.2d 1246, 1248 (2004). Thus, courts review ineffective-assistance-of-counsel claims in juvenile proceedings under the standards 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.\nTo establish ineffective assistance of counsel under Strickland, one must prove (1) his counsel\u2019s performance failed to meet an objective standard of competence and (2) counsel\u2019s deficient performance resulted in prejudice to the defendant. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163-64 (1999). To satisfy the deficiency prong of Strickland, the party must demonstrate counsel made errors so serious and counsel\u2019s performance was so deficient that counsel was not functioning as \u201ccounsel\u201d 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\u2019s unprofessional errors, the proceedings\u2019 result would have been different. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-64.\nRespondent asserts his counsel failed to (1) object to Foley\u2019s testimony about her interview with Ch. W; (2) request the trial court to take judicial notice of Judge Ladd\u2019s ruling in the criminal case; (3) submit to the court the recordings of Foley\u2019s interview with Ch. W, which Judge Ladd reviewed; and (4) aggressively cross-examine Foley about her interview techniques used with Ch. W.\nIn 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 claim. One of the problems with raising an ineffective-assistance claim on direct appeal is the \u201cappellate 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.\u201d 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\u2019s reasoning behind his or her actions or omissions, and thus the reviewing court may lack a \u201cway of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel\u2019s alternatives were even worse.\u201d Massaro, 538 U.S. at 505, 155 L. Ed. 2d at 720, 123 S. Ct. at 1694. However, in a collateral proceeding, \u201cthe defendant \u2018has a full opportunity to prove facts establishing ineffectiveness of counsel, the government has a full opportunity to present evidence 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.\u2019 \u201d 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).\nThe 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 case. While respondent has supplemented the record on appeal with Judge Ladd\u2019s ruling, he did not supplement the record with the recordings of Foley\u2019s 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\u2019s claim, such as the testimony of respondent\u2019s counsel, to permit a full review of the ineffective-assistance-of-counsel issue. The appellate record also lacks any statements from respondent\u2019s counsel. Further, this court will not simply assume the trial court would have ruled the same way as Judge Ladd regarding Foley\u2019s 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.\nSince 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\u2019s 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) (\u201ca reviewing court in Illinois is not divested of jurisdiction until the parties\u2019 rights of appeal have been exhausted\u201d). Such a hearing will give respondent a full opportunity 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 ineffective assistance of counsel, we will then address respondent\u2019s remaining arguments.\nIII. CONCLUSION\nFor the reasons stated, we retain jurisdiction and remand the cause for a hearing on respondent\u2019s ineffective-assistance-of-counsel claim.\nRemanded with directions.\nKNECHT and APPLETON, JJ., concur.", "type": "majority", "author": "JUSTICE TURNER" } ], "attorneys": [ "John B. Hensley, of Kennedy & Hensley, of Champaign, for appellant.", "Julia Rietz, State\u2019s Attorney, of Urbana (Patrick Delfino and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re Ch. W. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Jerry Wells, Respondent-Appellant).\nFourth District\nNo. 4\u201409\u20140925\nOpinion filed April 16, 2010.\nJohn B. Hensley, of Kennedy & Hensley, of Champaign, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Patrick Delfino and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0825-01", "first_page_order": 841, "last_page_order": 846 }