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In re T.Z.

Court of Appeals of Illinois, Fourth District

December 21, 2017

In re T.Z., a Minor,
v.
T.Z., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from Circuit Court of Champaign County No. 17JD23 Honorable Thomas J. Difanis, Judge Presiding.

          JUSTICE KNECHT delivered the judgment of the court, with opinion.Presiding Justice Turner and Justice Harris concurred in the judgment and opinion.

          OPINION

          KNECHT JUSTICE

         ¶ 1 Respondent, T.Z. (born January 5, 2002), appeals from the trial court's orders adjudicating him delinquent and committing him to the custody of the Illinois Department of Juvenile Justice (DOJJ). On appeal, respondent argues (1) his right to confrontation was violated at his adjudicatory hearing by the manner in which the trial court permitted a child witness to testify, (2) his trial counsel operated under a conflict of interest at his dispositional hearing when she advocated for his best interests, and (3) he was improperly assessed a $50 court finance fee. We reverse and remand for a new adjudicatory hearing and, if necessary, a new dispositional hearing.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Petition for Adjudication of Delinquency and Wardship

         ¶ 4 On February 15, 2017, the State filed a petition for adjudication of delinquency and wardship, alleging respondent committed the offenses of aggravated criminal sexual assault (720 ILCS 5/11-1.30(b)(i) (West 2016) (count I)) and criminal sexual assault (720 ILCS 5/11- 1.20(a)(3) (West 2016) (count II)) against T.W., his seven-year-old nephew. In both counts, the State alleged respondent, "[o]n or about June[ ] 2016 and January 1, 2017, *** placed his penis in [T.W.'s] mouth."

          5 B. Respondent's Motion for the Appointment of a Guardian Ad Litem

         ¶ 6 On February 21, 2017, respondent filed a motion for the appointment of a guardian ad litem (GAL). Following a March 3, 2017, hearing, the trial court granted respondent's motion and appointed a GAL.

         ¶ 7 C. Adjudicatory Hearing

         ¶ 8 On March 30, 2017, the trial court held an adjudicatory hearing. The State elicited testimony from T.W.'s mother, Jessica Y., and T.W. Respondent testified on his own behalf. No other evidence was presented.

         ¶ 9 Jessica Y. testified that during the period from June 2016 through January 1, 2017, T.W. stayed the night at her mother's home approximately once every two weeks, where respondent, Jessica Y.'s younger brother, also resided. Jessica Y. testified that on an occasion in the fall of 2016, T.W. stayed the night at her neighbor's home, where respondent was also staying the night. According to Jessica Y., sometime in the fall of 2016, T.W. reported respondent "did adult things." However, Jessica Y. testified, T.W. "didn't say whether [respondent] touched him or anything." Jessica Y. spoke with respondent, who "denied it." She then told family members she did not want T.W. and respondent alone together. Jessica Y. continued to allow T.W. to stay the night at her mother's home after her conversation with T.W.

         ¶ 10 Seven-year-old T.W. "promise[d]" to tell the truth. He testified in open court as to his age, schooling, living situation, and familial relationship with respondent. T.W. also identified respondent as being present in the courtroom. T.W. testified he recalled an occasion when he stayed the night at his neighbor's home, where respondent was also staying the night. The following examination then occurred:

"[STATE]: Did something happen with you and [respondent]?
[T.W.]: Yes.
[STATE]: Can you tell the judge what happened?
THE COURT: Go ahead
([T.W.] whispers to [t]he [c]ourt.)
THE COURT: Do you want me to say what you just said or can you say it?
[T.W.]: You.
THE COURT: You want me to say that he touched you in your privates? Is that what you told me?
[T.W.]: Yes.
THE COURT: Okay.
[STATE]: Were there other times when you slept over at ...

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