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,

THE PEOPLE OF THE STATE OF ILLINOIS,

 Petitioner-Appellee,

 v.

JERRY WELLS,

 Respondent-Appellant.

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 Appeal from

 Circuit Court of 

 Champaign County

 No. 09JA57

 

 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 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'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 dueprocess 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
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an evidentiary hearing on respondent's ineffective-assistance-ofcounsel 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 ineffective 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 children, 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 incarcerated. 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 presented 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-toskin 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.'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 questions 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. Respondent 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 explained 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 interview 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 Juvenile Court Act, except for delinquency ones).

On appeal, this court found the appellate record was

insufficient to address respondent's ineffective-assistance-ofcounsel 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 judicial 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 testimony. 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 deficient 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 testimony.

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. Specifically, 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 ineffectiveassistance-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 unprofessional 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-ofcounsel 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 adjudication is identical with the one presented in

the suit in question, (2) there was a final

judgment on the merits in the prior adjudication, 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 conducted 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 statement[.]" 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 relating to any allegations of abuse or neglect." While such statements 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 statements 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 deficient 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 evidentiary 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 openended 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 criminalsexual-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 crossexamine 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 respondent'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 neglected 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 injurious 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 preponderance 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 uncorroborated 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, respondent 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 aforementioned 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 sufficient 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.