In re Ch. W. ( 2011 )

NOS. 4-09-0925, 4-10-0831 cons. Opn F: 3/10/11
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 judgment of the court,
with opinion.
Presiding Justice Knecht and Justice Appleton concurred
in the judgment and opinion.
OPINION
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 grandmother and adoptive mother,
Dena Wells, is not a party to this appeal. After an adjudicatory
hearing, the Champaign County circuit 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. Respondent appealed, 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.
In April 2010, this court retained jurisdiction of the
cause but remanded it to the Champaign County circuit court for
an evidentiary hearing on respondent's ineffective-assistance-of-
counsel claim. In re Ch. W., 399 Ill. App. 3d 825, 830, 927
N.E.2d 872, 876 (2010) (No. 4-09-0925). On remand, respondent
filed a motion for a new adjudicatory hearing based on ineffec-
tive assistance of counsel. In October 2010, the Champaign
County circuit court held a hearing on respondent's motion and
found respondent was not denied effective assistance of counsel
at the adjudicatory hearing. We now address the merits of all
three of respondent's arguments on appeal and affirm the trial
court's judgment.
I. BACKGROUND
In 2004, respondent and Dena adopted the minor chil-
dren, who are Dena's biological grandchildren. 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. Another DCFS investigator interviewed Ca. W. and
another playmate of respondent's children, H.S. Under a DCFS
safety plan, Ch. W. and Ca. W. 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-
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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 (Criminal Procedure Code) (725 ILCS 5/115-10
(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.'s statements because Foley's questions were
too leading to provide sufficient safeguards of reliability. In
October 2009, the State 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 respondent 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
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adjudicatory hearing, at which respondent was represented by
David Appleman. 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 pre-
sented at the adjudicatory hearing is set forth below.
Foley testified she had received specific training in
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
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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'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
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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 slightly aroused by bathing Ch. W.
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 testified that, due to his wife's medical
problems, it was his job to bathe and dress the children. He
denied touching Ch. W. inappropriately. Respondent also ex-
plained he had a problem with incontinence and could not always
get the door shut when using the bathroom. One time, when he was
unable to get the door shut, Ch. W. entered the bathroom and
touched his penis. He slapped her hand and told her not to do it
again. That had been three years earlier, and Ch. W. had not
done it again. Bush and Greg testified they had not had any
problems with respondent watching their children unsupervised.
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
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unable to care for the minors. The court made the minors wards
of the court and appointed DCFS as their guardian. The next day,
the court filed a written dispositional order, noting no just
reason existed to delay enforcement or appeal. 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 Illinois Supreme Court Rule
304(a) (eff. Jan. 1, 2006). See Ill. S. Ct. R. 660(b) (eff. Oct.
1, 2001) (providing the rules governing civil cases govern
appeals from final judgments in all proceedings under the Juve-
nile Court Act, except for delinquency ones).
On appeal, this court found the appellate record was
insufficient to address respondent's ineffective-assistance-of-
counsel claim and remanded the cause to the trial court for a
hearing on the issue. In doing so, we retained jurisdiction of
the appeal so we could address respondent's claims if needed.
Ch. W., 399 Ill. App. 3d at 830, 927 N.E.2d at 876.
On remand, respondent filed a motion for a new
adjudicatory hearing, alleging his counsel was ineffective
because counsel failed to (1) ask the trial court to take judi-
cial notice of Judge Ladd's ruling regarding Ch. W.'s statements,
(2) object to the testimony of Foley concerning her interview of
Ch. W., (3) submit the recordings of Foley's interviews of the
children, and (4) aggressively or thoroughly cross-examine Foley
regarding the conduct of the interview.
On October 6, 2010, the Champaign County circuit court
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commenced a hearing on respondent's motion. At the hearing, the
court considered (1) the verbatim transcript of the section 115-
10 hearing in case No. 09-CF-746, which included Judge Ladd's
oral ruling; (2) the recordings of the four DCFS interviews; (3)
the appellate record in this case; and (4) respondent's testi-
mony. Respondent testified he discussed Judge Ladd's ruling with
Appleman. At the adjudicatory hearing, respondent asked Appleman
how Foley could be testifying, and Appleman "shushed" him so
Appleman could hear what was being said.
On October 13, 2010, the trial court reconvened the
hearing and heard the parties' arguments. The court found
Appleman was not deficient for failing to raise (1) Dr. Buetow's
opinion she did not find physical findings consistent with abuse
and (2) Judge Ladd's ruling because the court could not have
taken judicial notice of it. The court did find Appleman defi-
cient for not (1) cross-examining Foley's testimony about her
need to be more direct with Ch. W., (2) viewing the interview
recordings, and (3) using the interview recordings as evidence or
in cross-examination. While the court found some deficiencies,
it concluded no reasonable probability existed a different result
would have occurred given appropriate performance by trial
counsel. The court noted the recording of Ch. W.'s interview
would not have detracted from the credibility of Foley's testi-
mony.
When the cause returned to this court, we gave it an
additional number (No. 4-10-0831). Under the new number, the
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parties' filed briefs addressing the trial court's October 2010
ruling on the ineffective-assistance-of-counsel motion. We now
address the merits of all of respondent's contentions of error.
II. ANALYSIS
A. Ineffective Assistance of Counsel
Respondent argues the trial court erred by finding he
was not denied the effective assistance of counsel. Specifi-
cally, he asserts the court erred by finding (1) respondent's
counsel did not act unreasonably by failing to object to Foley's
testimony about Ch. W.'s out-of-court statements, (2) it could
not have taken judicial notice of Judge Ladd's ruling, and (3)
respondent's counsel's deficient performance did not prejudice
respondent.
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-
assistance-of-counsel claims in juvenile proceedings under the
standards set forth in Strickland v. Washington, 466 U.S. 668
(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
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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
(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.
Since the trial court held an evidentiary hearing on
this issue on remand, our review of this issue is similar to
reviewing an ineffective-assistance-of-counsel claim in a
postconviction petition after a third-stage evidentiary hearing.
In such cases, our supreme court has applied the manifestly
erroneous standard of review. See People v. Ruiz, 177 Ill. 2d
368, 384, 686 N.E.2d 574, 582 (1997). The term "manifest error"
means error that is "clearly evident, plain, and indisputable."
Ruiz, 177 Ill. 2d at 384-85, 686 N.E.2d at 582.
1. Objection to Foley's Testimony
Respondent argues the trial court erred by finding
respondent's counsel was not deficient for failing to object to
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Foley's testimony about Ch. W.'s out-of-court statements. On
appeal, respondent asserts such statements were inadmissible
under section 2-18(4)(c) of the Juvenile Court Act (705 ILCS
405/2-18(4)(c) (West 2008)) because they were not really made by
Ch. W. and did not relate to an allegation of sexual abuse.
Our supreme court has instructed us to begin our review
of a case by determining whether any issues have been forfeited.
See People v. Smith, 228 Ill. 2d 95, 106, 885 N.E.2d 1053, 1059
(2008). A review of the record shows that, in the trial court,
respondent emphasized he was not arguing Foley's testimony was
inadmissible but instead that it was unreliable. The supreme
court has held a party forfeits its right to complain of an error
where to do so would be inconsistent with the party's position in
an earlier court proceeding. McMath v. Katholi, 191 Ill. 2d 251,
255, 730 N.E.2d 1, 3 (2000). Additionally, a party cannot
complain of error that it induced the court to make or to which
it consented. McMath, 191 Ill. 2d at 255, 730 N.E.2d at 3.
Since respondent's argument on appeal is inconsistent with his
argument in the trial court, we conclude respondent has forfeited
this issue.
2. Judicial Notice
Respondent also asserts the trial court erred by
concluding it would not have taken judicial notice of Judge
Ladd's oral ruling at the section 115-10 hearing in respondent's
criminal case.
Judicial notice is an evidentiary concept that allows
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for the admission into evidence of matters without formal proof.
National Aircraft Leasing, Ltd. v. American Airlines, Inc., 74
Ill. App. 3d 1014, 1017, 394 N.E.2d 470, 474 (1979). Since it is
an evidentiary concept, the rules regarding the admission of
evidence apply. See In re J.G., 298 Ill. App. 3d 617, 629, 699
N.E.2d 167, 175 (1998) (noting the proper way for a party to ask
the court to take judicial notice of material in the court file
so that the court could determine what matters where admissible
under the rules of evidence). In his ineffective-assistance-of-
counsel motion, respondent asserted his counsel should have asked
the trial court to take judicial notice of Judge Ladd's ruling
but did not provide an evidentiary basis for doing so. At the
hearing on the motion, respondent raised the issue of collateral
estoppel, asserting the State should have been estopped from
arguing Ch. W's statements to Foley were reliable because of
Judge Ladd's ruling.
For collateral estoppel to apply, the following minimum
requirements must be met:
"(1) the issue decided in the prior adjudica-
tion is identical with the one presented in
the suit in question, (2) there was a final
judgment on the merits in the prior adjudica-
tion, and (3) the party against whom estoppel
is asserted was a party or in privity with a
party to the prior adjudication." (Emphasis
in original.) Nowak v. St. Rita High School,
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197 Ill. 2d 381, 390, 757 N.E.2d 471, 478
(2001).
Moreover, "[a]pplication of the doctrine of collateral estoppel
must be narrowly tailored to fit the precise facts and issues
that were clearly determined in the prior judgment." Nowak, 197
Ill. 2d at 390-91, 757 N.E.2d at 478.
Section 115-10(a)(2) of the Criminal Procedure Code
(725 ILCS 5/115-10(a)(2) (West 2006)) provides an exception to
the hearsay rule in criminal cases for out-of-court statements
made by the victim, "describing any complaint of such act or
matter or detail pertaining to any act which is an element of an
offense which is the subject of a prosecution for a sexual or
physical act against that victim." However, section 115-10(b)
provides, in pertinent part, such evidence is only admissible if:
"(1) The court finds in a hearing con-
ducted outside the presence of the jury that
the time, content, and circumstances of the
statement provide sufficient safeguards of
reliability; and
(2) The child *** either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and
there is corroborative evidence of the
act which is the subject of the state-
ment[.]" 725 ILCS 5/115-10(b) (West
2006).
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In cases under the Juvenile Court Act, section 2-18(4)(c) of that
act (705 ILCS 405/2-18(4)(c) (West 2008)) provides for the
admissibility of "[p]revious statements made by the minor relat-
ing to any allegations of abuse or neglect." While such state-
ments are admissible, they are insufficient in themselves to
support an abuse or neglect finding if they are uncorroborated
and not subject to cross-examination. 705 ILCS 405/2-18(4)(c)
(West 2008).
In this case, Judge Ladd concluded Ch. W.'s statements
to Foley were inadmissible under section 115-10 because the
leading nature of Foley's questions did not provide sufficient
safeguards of reliability. See 725 ILCS 5/115-10(b)(1) (West
2006). Judge Ladd did not expressly find Ch. W.'s statements
were not (1) hers or (2) statements relating to an act of sexual
abuse. In fact, in his brief, respondent asserts Judge Ladd's
finding was "tantamount" to a finding Ch. W.'s were not state-
ments made by the minor relating to abuse. Collateral estoppel
only applies to "issues that were clearly determined in the prior
judgment." (Emphasis added.) Nowak, 197 Ill. 2d at 391, 757
N.E.2d at 478. Thus, collateral estoppel would not apply as
argued by respondent on appeal.
Since respondent has not provided a proper basis for
the admissibility in this case of Judge Ladd's ruling in the
criminal case, we find the trial court did not err by finding it
could not have taken judicial notice of Judge Ladd's ruling.
3. Prejudice
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Respondent last asserts the trial court erred by
concluding respondent's counsel's deficient performance did not
prejudice respondent.
As stated, to satisfy the prejudice prong of the
Strickland test, respondent had to demonstrate "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
466 U.S. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland,
466 U.S. at 694.
The trial court found respondent's counsel was defi-
cient for failing to (1) cross-examine Foley about needing to be
more direct in questioning Ch. W. and (2) review and present the
recording of Foley's interview of Ch. W. However, the court
found respondent was not prejudiced by the deficiency because the
recording of Ch. W.'s statements made her report of abuse more
credible. The court noted Foley did not lead Ch. W. to the
conclusion respondent was the one who did the inappropriate
touching.
After reviewing the evidence presented at the eviden-
tiary hearing on the ineffective-assistance-of-counsel claim, we
conclude the trial court's reasoning and conclusion on the issue
of prejudice were not manifestly erroneous. While Foley had to
repeat and rephrase questions for Ch. W. and sometimes asked
leading questions, the question to which Ch. W. pointed to a
drawing representing respondent was open-ended. Foley had asked
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Ch. W. if anyone touched her privates. Moreover, when Ch. W.
responded by using the diagrams and dolls, it again was to open-
ended questions.
Respondent places a great deal of weight on Judge
Ladd's ruling. However, he has failed to show the trial court
was bound by that ruling. Moreover, Judge Ladd considered Ch.
W.'s statements in the context of a criminal proceeding. In a
criminal proceeding, a defendant has a sixth-amendment right to
confront and cross-examine a witness. U.S. Const., amend VI.
The hearsay exception contained in section 115-10 of the Criminal
Procedure Code is a narrow one that is also limited by our
supreme court's decision in Crawford v. Washington, 541 U.S. 36,
68 (2004). See People v. Reed, 361 Ill. App. 3d 995, 1001, 838
N.E.2d 328, 333 (2005). Neglect proceedings are civil in nature,
and the respondent does not have a sixth-amendment right to
confront witnesses and Crawford does not apply. In re C.M., 351
Ill. App. 3d 913, 916-17, 815 N.E.2d 49, 52 (2004). Accordingly,
Judge Ladd had to consider the interview in the context of
protecting an accused's constitutional right that is not present
in this case.
B. Due Process
In his original brief, respondent further asserted the
State's offering of Foley's testimony at the adjudicatory hearing
violated his right to due process.
"Parents have a constitutional right to the custody of
their children ***." In re O.S., 364 Ill. App. 3d 628, 637, 848
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N.E.2d 130, 137 (2006). The State's deprivation of that right
must comply with due-process principles. O.S., 364 Ill. App. 3d
at 637, 848 N.E.2d at 137. Compliance with the provisions of the
Juvenile Court Act and fundamental fairness provides the parent
due process. O.S., 364 Ill. App. 3d at 638, 848 N.E.2d at 138.
The applicable exceptions to the hearsay rule are
different under the Criminal Procedure Code and the Juvenile
Court Act. In the trial court, respondent admitted Ch. W.'s
statements were admissible under section 2-18(4)(c) of the
Juvenile Court Act. Thus, the State complied with the Juvenile
Court Act.
Respondent further argues the State's presentation of
the evidence was fundamentally unfair. We disagree for several
reasons. First, respondent has not shown the trial court in this
case would have been bound by Judge Ladd's ruling. We note the
First District rejected the argument collateral estoppel bars a
proceeding under the Juvenile Court Act based on criminal sexual
abuse when the alleged perpetrator was acquitted of the criminal-
sexual-abuse charges. In re A.A., 307 Ill. App. 3d 403, 405, 718
N.E.2d 569, 571 (1999). Second, as explained, Judge Ladd was
dealing with a more narrow hearsay exception and had to take into
consideration respondent's sixth-amendment right to confront
witnesses, which he did not have in the neglect proceedings.
Third, proceedings under the Juvenile Court Act have a different
purpose than criminal proceeding. In proceedings under the
Juvenile Court Act, the purpose is "to secure for each minor
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subject thereto the care and guidance which will best serve the
minor's safety and moral, emotional, mental and physical welfare,
and the best interests of the community." In re Austin W., 214
Ill. 2d 31, 43, 823 N.E.2d 572, 580 (2005); 705 ILCS 405/1-2(1)
(West 2008). Finally, respondent had the ability to cross-
examine Foley and present the recordings of the interview to make
the trial court aware of any reliability issues. (We have
already addressed his counsel's failure to do so in the previous
section.) Accordingly, we find the State did not violate respon-
dent's due-process rights by introducing Foley's testimony about
Ch. W.'s statements.
C. Neglect Finding
Last respondent asserts the trial court erred by
finding the minors were neglected.
The State's petition alleged the children were ne-
glected under section 2-3(1)(b) of the Juvenile Court Act (705
ILCS 405/2-3(1)(b) (West 2008)), which provides a neglected minor
is "any minor under 18 years of age whose environment is injuri-
ous to his or her welfare." Our supreme court has explained the
terms "neglect" and "injurious environment" do not have fixed
meanings, but rather the meanings vary with the particular case's
facts and circumstances. In re Arthur H., 212 Ill. 2d 441, 463,
819 N.E.2d 734, 746-47 (2004). However, courts have interpreted
"injurious environment" to include "'the breach of a parent's
duty to ensure a safe and nurturing shelter for his or her
children.'" (Internal quotation marks omitted.) Arthur H., 212
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Ill. 2d at 463, 819 N.E.2d at 747 (quoting In re N.B., 191 Ill.
2d 338, 346, 730 N.E.2d 1086, 1090 (2000)). Cases involving
neglect allegations and adjudication of wardship are sui generis
and thus are decided on the basis of their unique circumstances.
Arthur H., 212 Ill. 2d at 463, 819 N.E.2d at 747. The State
bears the burden of proving the neglect allegations by a prepon-
derance of the evidence, which means the neglect allegations are
more probably true than not. Arthur H., 212 Ill. 2d at 463-64,
819 N.E.2d at 747.
On review, this court will not reverse a trial court's
neglect finding unless it is against the manifest weight of the
evidence. Arthur H., 212 Ill. 2d at 464, 819 N.E.2d at 747. "A
finding is against the manifest weight of the evidence only if
the opposite conclusion is clearly evident." Arthur H., 212 Ill.
2d at 464, 819 N.E.2d at 747.
Respondent contends the trial court erred by finding
the minor children were neglected because Ch. W.'s statements to
Foley were not corroborated as required by section 2-18(4)(c) of
the Juvenile Court Act. While section 2-18(4)(c) allows for the
admission of the minor's previous statements regarding abuse or
neglect allegations, it provides "no such statement, if uncorrob-
orated and not subject to cross-examination, shall be sufficient
in itself to support a finding of abuse or neglect." 705 ILCS
405/2-18(4)(c) (West 2008).
We must begin our analysis by examining what the
State's petition actually alleged. The State's petition alleged
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the minors were neglected because their environment was injurious
to their welfare when they resided with respondent in that said
environment exposed the minors to risk of sexual abuse. Thus,
the State had to prove a risk of sexual abuse to the minors, and
not that Ch. W. was sexually abused by respondent.
Investigator Roelfs testified that, during his second
interview of respondent, respondent noted a time in which he was
slightly aroused by bathing Ch. W. During the interview, respon-
dent also recalled a time when he was in the bathroom with his
penis exposed. Ch. W. touched his partially erect penis, and he
told her never to do it again. For the first time at the
adjudicatory hearing, respondent explained he had incontinence
and did not have time to shut the bathroom door. The aforemen-
tioned testimony is evidence of the minors being at risk of
sexual abuse by respondent, and thus the trial court's finding of
neglect was not based solely on Ch. W.'s statements. Since other
evidence of neglect as alleged in the petition existed, this case
does not present a situation where the minor's hearsay statements
alone supported the neglect finding.
Foley's and Investigator Roelfe's testimony was suffi-
cient for the State to prove by a preponderance of the evidence
the minors were neglected as alleged in the wardship petition.
Accordingly, we conclude the trial court's neglect finding was
not against the manifest weight of the evidence.
III. CONCLUSION
For the reasons stated, we affirm the judgment of the
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Champaign County circuit court.
Affirmed.
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