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In re K.O.

December 19, 2002


Appeal from the Circuit Court of Cook County. Honorable Dennis J. Burke, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman


This appeal arises out of two petitions for adjudication of wardship filed by the State requesting the adjudication of both C.W. (born March 23, 1989) and K.O. (born December 1, 1990) as wards of the court and temporary removal from custody of their parents, Winfred O., the respondent, and Charlotte O. *fn1 Respondent is C.W.'s step-father and K.O.'s biological father. Charlotte is the biological mother of both children. After an adjudicatory hearing, the circuit court found that respondent neglected both minors due to an injurious environment and that C.W. was sexually abused by respondent. The court subsequently found Charlotte fit, willing and able to care for the minors and respondent unfit, unwilling and unable to maintain custody. The court granted Charlotte's motion to close the case. Respondent appeals.

The issues presented for review include whether: (1) the circuit court abused its discretion by denying respondent a continuance for the adjudication hearing; (2) the circuit court's findings of neglect and/or abuse of C.W. and K.O. were against the manifest weight of the evidence; and (3) respondent was denied a fair trial due to ineffective assistance of counsel.

On December 17, 1997, the State filed petitions for adjudication of wardship on behalf of both C.W. and K.O., alleging that both girls were abused and neglected due to a substantial risk of physical injury and injurious environment. The petition for C.W. alleged she suffered sexual abuse, specifying that, for the previous two years, respondent would take her into his bedroom; tell her to get into his bed and take off her underwear; remove his pants and force her to kneel down; and rub his penis on her vagina and ejaculate on her.

At a temporary custody hearing on the same date, without respondent present, the parties stipulated that if Department of Children and Family Services (DCFS) Child Protection Investigator Sharon Dorfman were called to testify, she would state that respondent abused C.W. sexually for two years, has been convicted of child pornography in 1988 *fn2 and aggravated criminal sexual assault in 1990 and is registered as a sex offender. The stipulation also stated that Charlotte was aware that respondent was a registered sex offender; she had married him two years ago; and she allowed him to baby-sit the minors while she was at work. The circuit court awarded temporary custody of the minors to DCFS. On March 31, 1998, the circuit court appointed attorney Patrick Schlee to represent respondent in the abuse and neglect proceedings. At that time, respondent was in custody at the Cook County Correctional Center awaiting trial in relation to criminal proceedings in this matter.

On August 4, 1998, respondent moved to compel the children to testify at the adjudication hearing. The circuit court denied the motion after considering the minors' ages, the statutory corroboration requirement, the possibility of in camera testimony and respondent's pending criminal trial.

Thereafter, the adjudication hearing was set for August 19, 1999, but was continued three times: on August 16, 1999, on the State's motion; on October 15, 1999, on respondent's motion; and on December 7, 1999, on the Public Guardian's motion.

Prior to the adjudication hearing on February 3, 2000, respondent moved to continue the proceeding in order to subpoena several witnesses, claiming that he had not been present at the last court date, was unaware of the adjudication date and was prepared inadequately because "he needed to know that [February 3, 2000] was a definite trial date." The circuit court denied respondent's motion, stating that it was in the best interests of the minors that the case proceed to trial and that it was respondent's duty to keep track of his case, even when represented by an attorney.

At the adjudication hearing, Dorfman testified that this case first came to her attention when a mandated reporter called a telephone hotline stating that C.W. had made an outcry of sexual abuse by respondent. She spoke with Charlotte on December 15, 1997 regarding the allegations of sexual abuse. She asked Charlotte, who was aware of respondent's prior sex offense convictions, why he was allowed into her home. Charlotte answered that respondent told her he had completed therapy and she believed him even though he never presented any documentation. Charlotte was unaware that C.W. was being abused sexually.

Dorfman testified that she was present at C.W.'s victim sensitive interview. Dorfman stated that there was no physical evidence linking respondent to the offense, but K.O. told her that she saw respondent and C.W. on top of each other, "in a compromising position," and heard C.W. say "I won't tell mom," or "mom won't know."

Dorfman also performed a background check on respondent and discovered that he had previous convictions of child pornography, aggravated criminal sexual assault and failure to register as a sex offender.

Skokie Police Detective Thomas Nelis testified that he interviewed C.W. on December 15, 1997. During that conversation, she related that when she was at home and her mother was at work, respondent "would have her get into the bed with him and pull his pants down, and make her get on her knees, and he would be behind her and would rub his private part on her butt." C.W. also told Nelis that when respondent would do this, she saw "pee which was sticky and yellow," with a "white-like stream."

Nelis stated that he was unaware of any scientific evidence of the abuse, but understood that DCFS had been trying to conduct a medical exam. During the investigation, respondent told Nelis to write down whatever C.W. said in writing and he would sign it. When Nelis requested respondent's side of the story, he refused.

Following Nelis' testimony, the State entered two exhibits into evidence. The first exhibit, C.W.'s medical assessment, stated that the "[e]xamination does not rule out sexual abuse," and "confirmed the history of stepfather laying on top of her with his -- his or her clothes off and rubbing his penis over her vagina almost every night ***." *fn3 The second exhibit was a certified copy of respondent's indictment and conviction of predatory criminal sexual assault of C.W. The State and Public Guardian then rested their cases-in-chief.

Respondent testified on his own behalf against the advice of counsel. He stated that he never sexually abused C.W. He acknowledged that a jury found him guilty of criminal charges pertaining to this matter.

The circuit court found that C.W. was abused sexually, placed at a substantial risk of physical injury and subjected to an injurious environment. Respondent was named the perpetrator of the abuse. The court further held that K.O. was subjected to an injurious environment due to the abuse of her sister. The court based its findings on witness testimony, medical records and respondent's certified copy of his criminal conviction.

Following the adjudication, the circuit court proceeded to a disposition hearing, where it heard testimony from a DCFS caseworker and the children's therapist. The court found that Charlotte was fit, willing and able to care for the children, and closed their cases. Respondent was found unable, unwilling and unfit to care for C.W. and K.O.

On August 21, 2000, the circuit court heard argument on respondent's motions for a new trial and appointment of other counsel and pro se addenda. With respect to respondent's ineffective assistance of counsel claims, the court found that there was "very effective assistance of counsel here." According to the court, Schlee "presented each and every motion and sometimes I questioned why he was doing it, but every possible, I think, issue that could have been visited here ***." The court noted that some of the arguments respondent raised involved strategy limited to counsel's decision and, regardless of counsel's ...

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