J.P.J., In re

• Decision Date: 18 October 1985
• Docket Number: 60055 and 60443,Nos. 60018,s. 60018
• Citation: 92 Ill.Dec. 802,485 N.E.2d 848,109 Ill.2d 129
• Parties: , 92 Ill.Dec. 802 In re J.P.J., a Minor, Appellant (The People of the State of Illinois, Appellee). In re K.B., a Minor, Appellant (The People of the State of Illinois, Appellee). In re J.K., a Minor, Appellant (The People of the State of Illinois, Appellee).
• Court: Illinois Supreme Court

Page 848

485 N.E.2d 848

109 Ill.2d 129, 92 Ill.Dec. 802

In re J.P.J., a Minor, Appellant (The People of the State of Illinois, Appellee) In re K.B., a Minor, Appellant (The People of the State of Illinois, Appellee) In re J.K., a Minor, Appellant (The People of the State of Illinois, Appellee).

Nos. 60018, 60055 and 60443.

Supreme Court of Illinois.

Oct. 18, 1985.

Rehearing Denied Dec. 2, 1985.

Daniel D. Yuhas, Deputy State Appellate Defender, Fourth Judicial Dist., Springfield, John J. Hanlon, Asst. Defender, G. Joseph Weller, Deputy Defender, Robert S. Hirschhorn, Asst. Defender, Office of the State Appellate Defender, Elgin, for appellant.

Neil F. Hartigan, Atty. Gen., State of Ill., Chicago, Phyllis J. Perko, Deputy Director, Marshall Stevens, Staff Atty., State's Attys. Appellate Service Com'n, Elgin, for appellee; James E. Ryan, State's Atty., DuPage County, Fred Foreman, State's Atty., Lake County, Thomas J. Difanis, State's Atty., Champaign County, of counsel.

MILLER, Justice:

The common question in these three appeals concerns the failure to provide actual notice of juvenile delinquency proceedings to the minors' noncustodial parents. In two of the cases, no notice was given; in the third, notice by publication was attempted, but it was flawed.

In cause No. 60018, a petition for an adjudication of wardship of the respondent minor, J.P.J., was filed in the circuit court of Du Page County on February 14, 1983. Named as respondents in the petition were the minor, his mother, and his father. The minor's parents were divorced, and the minor lived with his mother in Elmhurst, where they were served personally; the father's address was described in the petition as unavailable, and summons directed to him was returned unserved. The minor was found to have committed residential burglary and theft, and he was adjudicated a delinquent, made a ward of the court, and committed to the Department of Corrections, Juvenile Division. The minor was represented by counsel. The minor's father did not attend any of the hearings. The appellate court affirmed the judgment. (122 Ill.App.3d 573, 77 Ill.Dec. 955, 461 N.E.2d 578.) On the question of notice to the minor's father, the court held that the father was not an indispensable party and therefore notice was not required to have been given to him. We allowed the minor's petition for leave to appeal (94 Ill.2d R. 315(a)).

In cause No. 60055, a supplemental petition for an adjudication of wardship of the respondent minor, K.B., was filed in the circuit court of Lake County on March 11, 1983. Named as respondents in the petition were the minor, his mother, and his father. The minor's parents were divorced and the minor lived with his mother in Round Lake Beach; the father's address was described in the petition as unknown. The record does not show service of summons and the supplemental petition on any of the three respondents; the minor and his mother appeared at all the ensuing hearings, however. The minor admitted to several charges involving theft and criminal trespass to a motor vehicle, and he was adjudicated a delinquent and made a ward of the court. A period of probation, which previously had been imposed and later extended, was extended once more, and the minor was remanded to a residential placement and ordered to pay restitution as conditions of probation. The minor was represented by counsel. The minor's father did not attend any of the hearings. The appellate court affirmed the judgment. (120 Ill.App.3d 1166, 84 Ill.Dec. 317, 471 N.E.2d 1083 (order under Supreme Court Rule 23 (87 Ill.2d R. 23)).) On the question of notice to the minor's father, the court held that notice to the custodial parent alone was sufficient if the noncustodial parent did not have a significant relationship with the minor. We allowed the minor's petition for leave to appeal (94 Ill.2d R. 315(a)).

In cause No. 60443, a petition to revoke the probation of the respondent minor, J.K., was filed in the circuit court of Champaign County on September 1, 1983; the minor previously had been adjudicated a delinquent, made a ward of the court, and placed on probation. Named as respondents in the petition were the minor, his mother, and his father. The minor's parents had separated, and he lived with his mother in Rantoul, where they were served personally. In the petition to revoke probation the minor's father was listed as living in Chicago, but no street address was given. Notice to the minor's father was published in a newspaper in Champaign County. The father's first name was stated incorrectly in the petition, and the mistake was repeated in the published notice. In the revocation proceeding that followed, a charge of resisting a peace officer was established, and the court revoked the minor's probation and ordered him committed to the Department of Corrections, Juvenile Division. The minor was represented by counsel. The minor's father did not attend any of the hearings. The appellate court affirmed the judgment. (125 Ill.App.3d 1173, 89 Ill.Dec. 816, 481 N.E.2d 367 (order under Supreme Court Rule 23 (87 Ill.2d R. 23)).) On the question of notice to the minor's father, the court believed that whatever error occurred was waived. We allowed the minor's petition for leave to appeal (94 Ill.2d R. 315(a)).

We consolidated the three appeals for oral argument and disposition. The minor in each case argues that adequate notice, as required by due process and statute, was not provided to his father, depriving the circuit court of subject matter jurisdiction and rendering its judgment void.

In a juvenile proceeding adequate notice to the minor and his parents is a requirement of due process. (In re Application of Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. The notice provisions of the Juvenile Court Act (Ill.Rev.Stat.1983, ch. 37, pars. 701-1 through 708-4) provide several methods for fulfilling that requirement. Summons and a copy of the petition are to be directed to each of the respondents named in the petition (Ill.Rev.Stat.1983, ch. 37, par. 704-3(1); see In re R.D.S. (1983), 94 Ill.2d 77, 67 Ill.Dec. 813, 445 N.E.2d 293 (in certain situations a person other than the minor and his parents must also be named as a respondent).) Service is to be made personally or by leaving a copy at the person's abode and mailing a copy of the summons to that address. (Ill.Rev.Stat.1983, ch. 37, par. 704-3(5).) If personal or abode service is not made within a reasonable time or if the respondent lives outside the State, service may be made by certified mail. (Ill.Rev.Stat.1983, ch. 37, par. 704-4(1).) Finally, service may be made by publication if personal or abode service is not made within a reasonable time, if the person has been made a respondent under the general designation "All whom it may concern," or if the respondent's whereabouts are not known. (Ill.Rev.Stat.1983, ch. 37, par. 704-4(2).) Section 4-4(2) also provides, in pertinent part:

"Notice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment against any person who cannot be served with process other than by publication unless notice by publication is given or unless that person appears." Ill.Rev.Stat.1983, ch. 37, par. 704-4(2).

The method of notice appropriate to a particular respondent depends heavily on the State's ability to identify and locate that person. As the minors correctly observe, section 4-4(2) excuses only service by publication, and, therefore, if personal or abode service or service by certified mail is possible, the statute requires it. Accordingly, this court has interpreted the provisions as requiring service on a noncustodial parent whose whereabouts are known. (In re R.S. (1984), 104 Ill.2d 1, 83 Ill.Dec. 339, 470 N.E.2d 297.) The court also has held, under section 4-4(2), that no notice, even by publication, was necessary to the unknown father of a minor who resided with his mother. (In re J.W. (1981), 87 Ill.2d 56, 57 Ill.Dec. 603, 429 N.E.2d 501.) In J.W. the court noted, "The problem is that failure to give adequate notice to parents with a more significant relationship with the minor than the father in this case may be unfair to both the parent and the minor." (87 Ill.2d 56, 60, 57 Ill.Dec. 603, 429 N.E.2d 501.) It is urged here that the State must exercise some degree of diligence in attempting to ascertain the identity and whereabouts of a noncustodial parent who enjoys a significant relationship with the minor. Each of the three cases here involves a noncustodial parent whose identity was known or discovered but whose whereabouts were not, and the minors argue that the State failed in its duty to locate and notify the absent parents.

The State's lack of success in identifying and locating a parent does not, by itself, mean that the State has not been diligent in its efforts. Similarly, evidence of the minor's later contact with the missing parent, or even the eventual discovery of his identity and whereabouts, does not, by itself, mean that the parent could have been identified and found at the commencement of the proceedings. A continuing, significant relationship between a minor and a noncustodial parent may well increase the likelihood of identifying and locating the parent, but it does not guarantee success. That counsel, the minor, and the custodial parent stand silent on the matter during the proceedings in the circuit court may be mute acknowledgment of the difficulty of the task. With these considerations in mind, we conclude that unless some question is raised in the circuit court regarding the failure to identify or locate a noncustodial parent whose identity or address is not known to the State at the outset of the proceedings, the matter is waived and diligence may be assumed. To be sure, inquiry by the...