J. W., In Interest of, s. 80-173
| Decision Date | 15 October 1980 |
| Docket Number | 80-66 and 79-974,Nos. 80-173,s. 80-173 |
| Citation | 89 Ill.App.3d 150,44 Ill.Dec. 933,412 N.E.2d 9 |
| Parties | , 44 Ill.Dec. 933 In the Interest of J. W., a minor, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Stephen Omolecki, Asst. State Appellate Defender, Robert J. Agostinelli, State Appellate Defender, Ottawa, for respondent-appellant.
John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, Edward Keefe, State's Atty., Rock Island, for appellee.
This appeal is taken by J. W., the minor respondent, from an order of the Circuit Court of Rock Island County revoking his probation and committing him to the Department of Corrections. J. W. had previously been adjudicated a delinquent and placed on probation as a ward of the court.
In this appeal, he contends the finding that he violated his probation and the order committing him to the Department of Corrections must be vacated, on the premise that the original order placing him on probation was void because it was for an indefinite term. He also asserts that the juvenile court lacked jurisdiction to revoke his probation and commit him to the Department of Corrections since his father was not given proper notice of the revocation hearings.
To clarify the issues presented, and to properly determine the issue of proper notice, the following chronology of events is given:
August 25, 1977-A petition was filed in Rock Island County alleging J. W., then age 13, was delinquent in that he committed a burglary. On the petition, J. W.'s mother's address in East Moline, Illinois was given. Service upon his mother is not contested by J. W. regarding this petition or any subsequent hearings or petitions. A receipt for certified mail indicates that J. W.'s father was apparently served at an address in East St. Louis, Illinois. Pending a hearing, J. W., was placed in the temporary custody of Arrowhead Ranch.
September 22, 1977-An adjudicatory hearing was held at which the trial court determined that the proof sustained the allegations of the August 25, 1977 petition. Both of J. W.'s parents were present. J. W. was allowed to live with his father in East St. Louis, Illinois pending the dispositional hearing.
November 4, 1977-At a dispositional hearing the court adjudged J. W. a delinquent ward of the court. J. W. was placed on probation and returned to the custody of his father. No indication of the length of the probationary period was given.
April 20, 1978-Notice of a review hearing scheduled for this date was sent to J. W. and to his parents, but the record contains no indication that the hearing was held.
May 18, 1978-A hearing was held on a petition for further disposition at which the court transferred J. W. to the custody of his mother and imposed additional probation restrictions; again, no time limitation is indicated for the probationary period. There is no indication that J. W.'s father was notified of this hearing.
April 23, 1979-A supplemental petition was filed alleging the delinquency of J. W. in that he committed a burglary. Personal service was had upon J. W. and his mother. His father's address is listed as "unknown".
May 3, 1979-An affidavit for service by publication for J. W.'s father was filed stating that the father lives outside the state and that his last known address was St. Louis, Missouri. The petitioner indicated that he had "talked to ex-wife and she hasn't seen him or heard from him in years."
May 11, 1979-Publication was made in the Rock Island Argus.
May 15, 1979-A copy of the publication was mailed to J. W.'s father at an East St. Louis, Missouri address.
June 5, 1979-Defense counsel filed a motion to dismiss the supplemental petition, citing inadequate service upon J. W.'s father as the basis for the motion.
June 5, 1979-The State also filed a motion to continue citing the inadequate service upon J. W.'s father.
June 7, 1979-The court continued the cause until June 28, 1979 and ordered that a summons be sent to the father by certified mail.
June 25, 1979-Defense counsel filed a second motion to dismiss, again citing inadequate service upon J. W.'s father.
June 28, 1979-At the hearing the trial judge asked whether defense counsel represented only J. W. or J. W. and his father. Upon the reply of counsel that he represented only J. W. and the court's statement that there appeared to be notice by certified mail, the motion of defense counsel to dismiss was denied. J. W. was found guilty of burglary and temporarily placed in the custody of Arrowhead Ranch. The trial judge did not indicate that notice by certified mail had been made upon J. W.'s father, although he did ascertain that such notice was received by defense counsel.
July 19, 1979-At a dispositional hearing J. W. was placed with U.D.I.S. to participate in the Underway Wilderness Stress Program for six months with the placement to be reviewed after six months. No indication is given that J. W.'s father was notified of this hearing.
September 21, 1979-A petition for further disposition was filed alleging that J. W. committed the offense of attempt burglary. The assistant state's attorney certified that notice was served on the father by mail.
September 27, 1979-Defense counsel moved to dismiss the petition based on inadequate service to J. W.'s father.
October 12, 1979-A dispositional hearing was held. J. W. and his mother received notice of the hearing. The assistant state's attorney outlined the attempts made to serve the father: a summons was sent to the sheriff of St. Clair County by certified mail; the sheriff attempted to personally serve the father at his last known address, but the father apparently had moved. A person with the same name was located, but it was discovered that he was not J. W.'s father. The trial court determined that the lack of notice to J. W.'s father did not deprive the court of jurisdiction. J. W. was found guilty of attempt murder and was placed through U.D.I.S. at the Peoria Youth Farm for a period of three and one-half months. A notice of appeal was filed following this disposition.
November 28, 1979-J. W. was removed from the Peoria Youth Farm.
December 31, 1979-Petition for further disposition pursuant to the Juvenile Court Act, Illinois Revised Statutes, Chapter 37, Section 705-2(3) was filed. The petition alleged that J. W. was removed from the Youth Farm due to constant behavior problems. J. W.'s father was not listed on the petition, nor was he certified as having received notice by the assistant state's attorney.
January 3, 1980-Defense counsel filed a motion to dismiss alleging that J. W.' § father had not been served with notice.
January 10, 1980-Another petition for further disposition was filed, alleging the same facts as the December 31, 1979 petition, but this time J. W.'s father was listed on the petition and an attempt was made to serve him by certified mail.
January 21, 1980-Hearing held on the petition for disposition. After the prosecutor stated that notice had been sent to J. W.'s father by certified mail on January 10, the court denied defense counsel's motion to dismiss. After hearing testimony, the trial judge's stated that every alternative short of a long term commitment to the Department of Corrections had been tried with J. W. The judge then committed J. W. to the Department of Corrections in St. Charles. A notice of appeal was filed with respect to this disposition.
January 23, 1980-A petition to revoke J. W.'s probation was filed. It alleged that J. W. had been adjudicated a delinquent ward of the court and placed on probation on November 4, 1977. It further alleged that J. W. violated the terms of his probation by committing the offense of resisting a peace officer on or about January 21, 1980. The incident which formed the basis for the charge occurred as J. W. was being taken from the courtroom following the January 21, 1980 hearing. The assistant state's attorney certified that he mailed notice of the projected January 29, 1980 hearing to J. W.'s father on January 23, 1980.
January 24, 1980-Defense counsel filed a motion to dismiss the January 23, 1980 petition, alleging that since J. W.'s probation had been effectively revoked on January 21, the January 23 petition was moot.
January 29, 1980-A hearing was held on the petition to revoke probation. The trial court, upon motion by the prosecutor, vacated its order of January 21, 1980, on the basis that it was improper to have committed J. W. to the Department of Corrections without actually revoking his probation. Arguments were heard on whether adequate attempts had been made to serve notice of the hearing upon J. W.'s father. Upon learning that notice had been sent by regular mail, the judge ruled that proper attempted service had been made and there was jurisdiction over the matter. After hearing evidence relating to the scuffle which occurred between J. W. and a police officer at the conclusion of the January 21 hearing, the trial court stated that it appeared J. W. had resisted the police officer. The court then entered an order revoking the minor's probation.
January 30, 1980-A dispositional hearing was held during which the trial...
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