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W.L.W. v. A.W.

October 27, 1998

IN RE W.L.W. III, A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
A.W. AND W.W., RESPONDENTS-APPELLANTS).



The opinion of the court was delivered by: Presiding Justice Geiger

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Kendall County.

Honorable James M. Wilson, Judge, Presiding.

No. 96--JA--9

The respondents, A.W. and W.W., appeal from the October 7, 1997, and February 18, 1998, orders of the circuit court of Kendall County terminating their parental rights to their minor child W.L.W. III and appointing the Illinois Department of Children and Family Services (DCFS) as guardian of the minor with the power to consent to adoption. On appeal, the respondents argue that they were denied the effective assistance of counsel when their trial counsel failed to arrange for a court reporter to transcribe the trial proceedings below. Lacking these transcripts, the respondents contend that they have been effectively deprived of their right to appeal under section 1--5(1),(3) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1--5(1),(3) (West 1996)). We affirm.

On April 16, 1996, two days after the birth of the minor, the State filed a petition for adjudication that the child was abused and neglected. Specifically, the petition alleged that the mother, A.W., had abused and neglected her other children. Additionally, the petition alleged that the father, W.W., had abused and neglected his other children, including committing acts of sexual molestation.

On May 2, 1996, the trial court entered an order adjudicating the minor neglected as a result of the risk of harm alleged in the petition. On June 6, 1996, the parties entered into an agreed Dispositional order whereby the minor was made a ward of the court and placed into the care, custody, and guardianship of DCFS for appropriate placement. With reference to the obligations of the respondents, the Dispositional order provided as follows: (1) that the respondents undergo any evaluations or assessments recommended by DCFS and Catholic Social Service (CSS); (2) that the respondents participate and successfully complete any and all service tasks recommended by DCFS and CSS; (3) that the respondents submit to random drug and alcohol testings at 24 hours' notice; (4) that W.W. cooperate with a sexual offender assessment and successfully comply with all recommendations; and (5) that all visitation be supervised by DCFS and CSS.

Thereafter, periodic progress reports were submitted to the trial court by DCFS and CSS. On June 4, 1997, the State filed a petition to terminate the respondents' parental rights. As amended, the petition alleged that the respondents had failed to cooperate with the requirements detailed in the Dispositional order. Specifically, the State alleged that (1) neither parent had visited the minor on a regular basis; (2) neither parent had displayed a reasonable degree of interest in the minor; (3) A.W. failed to obtain suitable housing for herself and the minor; (4) A.W. failed to obtain a drug assessment and to follow recommendations; (5) A.W. failed to complete a parenting assessment; and (6) A.W. failed to provide an adequate care plan for the minor.

On September 9, 1997, the trial court held a hearing on the State's petition for termination and entered an order terminating the respondents' parental rights on October 7, 1997. Specifically, the trial court found that the respondents had failed to (1) make reasonable efforts to correct the conditions which initially resulted in the removal of the minor; (2) make reasonable progress toward the return of the minor; (3) visit with the minor on a regular basis; (4) display a reasonable degree of interest in the minor or to cooperate with DCFS and CSS plans; (5) provide suitable housing for themselves or the minor; and (6) comply with the directives of DCFS/CSS regarding assessments, care plans, visitations, and parenting classes.

On February 18, 1998, the trial court held a best interests hearing. Following the hearing, the trial court entered an order granting DCFS guardianship of the minor with the power to consent to adoption. Both respondents filed a timely notice of appeal and these appeals were consolidated by this court on April 15, 1998.

As their sole contention on appeal, the respondents argue that they have been deprived of their right to the effective assistance of counsel and the protections provided by the Act (705 ILCS 405/1--5(1),(3) (West 1996)) by reason of the absence of a complete record on appeal. Specifically, the respondents argue that their trial attorney was ineffective because he did not request that a court reporter be present for the relevant hearing dates culminating in the trial court's judgment terminating their parental rights. Moreover, the respondents contend that their trial counsel did not prepare a bystander's report or agreed statement of facts as permitted by Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)). As a result of these omissions, the respondents contend that they have been deprived of any meaningful appellate review of the proceedings below and that they have therefore been deprived of their right to be heard under the Act (705 ILCS 405/1--5(1),(3) (West 1996)).

At the outset, we note that the responsibility for the proper preservation of the record before the trial court rests on the appellant. People v. Smith, 42 Ill. 2d 479, 483 (1969). If the appellant fails to preserve the record for appeal, he waives his right to that record. People v. Malley, 103 Ill. App. 3d 534, 536 (1982). Where the record on appeal is incomplete, the reviewing court will indulge in every reasonable presumption favorable to the judgment or order appealed from. People v. Bruhn, 51 Ill. App. 3d 269, 271-72 (1977).

Moreover, when there is no verbatim transcript, the appellant is obligated to take advantage of the other available alternatives. People v. Gregorich, 71 Ill. App. 3d 251, 255 (1979). Supreme Court Rule 323 provides the appellant with a means to reconstruct an absent record. 166 Ill. 2d R. 323(c). Under this rule, a proposed report of proceedings may be prepared by the appellant from the best available sources, including recollection, and submitted to the trial court for approval. 166 Ill. 2d R. 323(c). Alternatively, the parties may stipulate to a statement of facts material to the controversy. 166 Ill. 2d R. 323(d).

The respondents assert that their trial counsel was ineffective in failing to preserve an adequate record on appeal. As respondents correctly note, parents are entitled to effective assistance of counsel in proceedings that seek the termination of their parental rights. In re R.G., 165 Ill. App. 3d 112, 127 (1988). In order to show ineffective assistance of counsel, the respondents must demonstrate that trial counsel's representation fell below an objective standard of reasonableness and ...


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