E.D. Mc., In re

• Citation: 159 Ill.Dec. 873,216 Ill.App.3d 896,576 N.E.2d 542
• Decision Date: 26 July 1991
• Docket Number: No. 2-89-0750,2-89-0750
• Parties: , 159 Ill.Dec. 873 In re E.D. Mc., a Minor. (The People of the State of Illinois, Petitioner-Appellee, v. E.D. Mc., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 542

576 N.E.2d 542

216 Ill.App.3d 896, 159 Ill.Dec. 873

In re E.D. Mc., a Minor. (The People of the State of Illinois, Petitioner-Appellee, v. E.D. Mc Respondent-Appellant).

No. 2-89-0750.

Appellate Court of Illinois Second District.

July 26, 1991.

G. Joseph Weller, Deputy Defender, David Devinger, Elgin, for E.D. mc.

Dennis Schumacher, Ogle County State's Atty., Oregon, Ill., William L. Browers, Deputy Director, Marshall M. Stevens, State's Attorneys Appellate Prosecutors, Elgin, for the people.

Justice BOWMAN delivered the opinion of the court:

Respondent, E.D. Mc., appeals from orders of the circuit court of Ogle County which found him to be a delinquent minor, made him a ward of the court and placed him on probation for a period of two years. The disposition order also provided, among other things, that respondent was to apologize to the victim by letter and that respondent's mother was to pay restitution in the amount of $80. Respondent's sole contention on appeal is that the State's failure to notify respondent's father of the adjudicatory hearing deprived the trial court of jurisdiction so that the orders appealed from are void for lack of jurisdiction.

According to the juvenile probation officer's report, dated July 3, 1989, respondent was 11 years old. Respondent's mother, Carrie Wade, and father, Eugene Marth, were never married, but lived together for several years and had two children, respondent and his brother, Scott. Respondent's mother married Curtis Wade in 1984. Respondent then lived with his mother and Wade until he was removed from the home in 1986 following a finding that his mother and stepfather were guilty of neglect. Respondent was in foster care from September 1986 to January 1987, when he was placed with his father. He then lived with his maternal grandmother from August 1987 to January 1989, when he was returned to the custody of his mother. The report stated that respondent's father had no contact with his sons because, the father stated, their mother did not allow it. The father also stated that he would like to have custody of respondent, if there was no visiting with the mother.

The record shows that the State filed a petition on February 24, 1989, alleging that respondent was delinquent pursuant to section 5-3 of the Juvenile Court Act of 1987 (Act) (Ill.Rev.Stat.1989, ch. 37, par. 805-3). The petition alleged that, on or about August 6, 1988, respondent committed the offense of theft and stated that a hearing would be held on March 9, 1989. It named Curtis Wade as respondent's father and Carrie Mc. as his mother. Summons was served on respondent, Curtis Wade and Carrie Wade. Respondent, Curtis Wade and Carrie Wade appeared at the March 9 hearing. Respondent was admonished by the court, and the public defender was appointed to represent him.

An amended petition was filed on March 10, 1989. The petition was essentially identical to the original petition, but named Eugene Marth as respondent's father and Carrie Wade as his mother and stated that a pretrial conference was set for April 6, 1989. Respondent and Carrie Wade were again served with summons and notice of the hearing date. In addition, Eugene Marth was served with summons which stated that, on April 6, 1989, at 9 a.m., there would be a pretrial conference "on the attached Amended Petition."

On April 6, 1989, respondent, his appointed counsel, and his mother appeared. His father was not present. Respondent's counsel asked that the cause be set for an adjudicatory hearing, and a hearing was set for April 18, 1989. No notice of this hearing was given to Eugene Marth.

Respondent, his counsel, and his mother appeared at the adjudicatory hearing. At the hearing, various witnesses testified regarding the theft of a scooter and a bicycle. After hearing the evidence, the trial court found respondent guilty of the offense of theft (Ill.Rev.Stat.1989, ch. 38, par. 16-1(a)(1)) and entered an order finding that he was a delinquent minor. A wardship and dispositional hearing was set for May 25, 1989. Eugene Marth was served with summons advising him of the date of the wardship and dispositional hearing. On May 25, the hearing was continued to July 6, 1989. Written notice of this hearing was mailed to Eugene Marth.

Eugene Marth did not appear at the July 6, 1989, hearing. At that hearing, respondent was made a ward of the court and was placed on probation for two years. He was also ordered to send an apology to the victim of the theft, and his mother was ordered to pay restitution in the amount of $80. A review hearing regarding restitution status was set for October 12, 1989. Respondent filed a timely notice of appeal.

Respondent argues on appeal that, as respondent's father was not given notice of the adjudicatory hearing, the trial court lacked jurisdiction to conduct the delinquency hearing and all subsequent proceedings were rendered void. We cannot agree.

The basic requirements of due process and fairness must be satisfied in juvenile court proceedings. (In re Application of Gault (1967), 387 U.S. 1, 30-31, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548.) In a juvenile proceeding, due process requires adequate notice to a minor and his parents. Gault, 387 U.S. at 33, 87 S.Ct. at 1446-47, 18 L.Ed.2d at 549; In re J.P.J. (1985), 109 Ill.2d 129, 135, 92 Ill.Dec. 802, 485 N.E.2d 848; In re J.K. III (1989), 191 Ill.App.3d 415, 417, 138 Ill.Dec. 655, 547 N.E.2d 1276.

The Act requires that petitions set forth the names and the addresses of the minor, the parents, and the legal guardian or the person or persons having custody and control of the minor. (Ill.Rev.Stat.1989, ch. 37, par. 805-13(2); J.K., 191 Ill.App.3d at 416, 138 Ill.Dec. 655, 547 N.E.2d 1276.) Section 5-15 of the Act provides that, when a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached and that the "summons shall be directed to the minor's legal guardian or custodian and to each person named as a respondent in the petition." (Ill.Rev.Stat.1989, ch. 37, par. 805-15(1).) The summons "shall require each respondent to appear and answer the petition on the date set for the adjudicatory hearing." (Ill.Rev.Stat.1989, ch. 37, par. 805-15(3).) Through the notice provisions of the Act, the legislature has therefore determined that parents are necessary respondents who must be named and served with notice in order for the trial court to conduct an adjudicatory hearing. People v. R.S. (1984), 104 Ill.2d 1, 6, 83 Ill.Dec. 339, 470 N.E.2d 297; In re T.A. (1989), 181 Ill.App.3d 1034, 1038, 130 Ill.Dec. 789, 537 N.E.2d 1118.

Respondent contends that his father did not receive notice of the adjudicatory hearing as required by the statute and this lack of notice rendered the proceedings below void. He relies on People v. R.S. (1984), 104 Ill.2d 1, 83 Ill.Dec. 339, 470 N.E.2d 297, In re J.K. III (1989), 191 Ill.App.3d 415, 138 Ill.Dec. 655, 547 N.E.2d 1276, and In re D.L.W. (1989), 187 Ill.App.3d 566, 135 Ill.Dec. 159, 543 N.E.2d 542. These cases are inapposite, however.

In R.S., no notice of any of the proceedings was served on the minor's mother, even though she was named a respondent and her address was listed in the petition for adjudication. She did not appear at any of the proceedings. (R.S., 104 Ill.2d at 3, 83 Ill.Dec. 339, 470 N.E.2d 297.) In J.K., the minor's mother also did not appear at any of the proceedings, and the record showed that, although her address was known, she was not served or otherwise notified of the petition for adjudication. (J.K., 191 Ill.App.3d at 416, 138 Ill.Dec. 655, 547 N.E.2d 1276.) Both courts therefore held that the failure to serve a named parent, whose address was contained in the petition, violated the right of the parent and the child to due process so that the trial court's jurisdiction was not properly invoked and the court's orders were void. (R.S., 104 Ill.2d at 6, 83 Ill.Dec. 339, 470 N.E.2d 297; J.K., 191 Ill.App.3d at 418-19, 138 Ill.Dec. 655, 547 N.E.2d 1276; see also In re S.L.S. (1989), 181 Ill.App.3d 453, 456-57, 130 Ill.Dec. 144, 536 N.E.2d 1355; People v. D.J. (1988), 175 Ill.App.3d 491, 494-95, 124 Ill.Dec. 931, 529 N.E.2d 1048.) This is true even where the unserved parent does not have custody or a close relationship with the minor. (S.L.S., 181 Ill.App.3d at 455, 130 Ill.Dec. 144, 536 N.E.2d 1355.) In this case, however, it is not disputed that respondent's father was served with the amended petition and was given notice of the first hearing regarding the amended petition.

Respondent's reliance on D.L.W. is also misplaced. In D.L.W., neither of the minor's parents was given formal, written notice of a dispositional hearing. The court held that this fact required reversal of the order entered at that hearing which revoked the minor's probation and committed him to the Department of Corrections. (D.L.W., 187 Ill.App.3d at 570-72, 135 Ill.Dec. 159, 543 N.E.2d 542.) The jurisdiction of the court to conduct an adjudicatory hearing was not at issue. The only issue was whether reversible error occurred because of the lack of proper notice to the parents of the dispositional hearing. (D.L.W., 187 Ill.App.3d at 571-72, 135 Ill.Dec. 159, 543 N.E.2d 542; see also In re J.I.D. (1988), 177 Ill.App.3d 733, 736-37, 126 Ill.Dec. 864, 532 N.E.2d 549.) In this case, respondent's father was served with notice of the dispositional hearing.

The State, citing In re J.P.J. (1985), 109 Ill.2d 129, 92 Ill.Dec. 802, 485 N.E.2d 848, argues that the issue raised by respondent has been waived because it was not raised prior to appeal. The facts of J.P.J., however are also inapposite to the facts of this case. In J.P.J., the supreme court held that the State's diligence in identifying or locating a parent whose identity or address was not known to the State at the start of the proceedings may not be attacked on appeal if the question was not raised in the trial court. (J.P.J...