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In Interest of Burr

JANUARY 26, 1970.

IN THE INTEREST OF KATHY SUE BURR, A MINOR. PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

SUSAN BURR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. JOHN P. SHONKWILER, Judge, presiding. Affirmed.

SMITH, J.

The matter before us arises under the Juvenile Court Act of 1965, Ill Rev Stats 1967, ch 37, § 701, et seq. However, the appeal is not by the minor, but rather an adult, her mother. The mother appeals from an order holding her in contempt for violating an order of protection resulting in a sentence of five days in jail.

She raises a number of points — some concern the Order of Protective Supervision itself, others, whether it was in fact violated. With regard to this Order, it is said that such was beyond the court's authority, being unreasonable, and if not, it was otherwise bad because entered in a context devoid of procedural safeguards. As to the contempt order, she argues lack of a finding of willful disobedience and no evidence to support one anyway.

The Order of Protective Supervision on which the contempt was based, reads:

"It is therefore ordered, adjudged and decreed that Susan Burr, mother of Kathy Sue Burr, see that minor is in school on every school day on or before 8:10 A.M.; that if the minor Kathy Sue Burr is absent because of sickness, for each day of absence she shall present a doctor's certificate; that in violation of this order, the mother shall be sentenced to the Macon County Jail."

The mother had been made a party to the proceedings involving her daughter, hence, she was before the court from a jurisdictional standpoint. Under this Act this is possible, § 4-1(4) (Ill Rev Stats 1967, ch 37, § 704-1 (4)):

"If an order of protection under Section 5-5 is sought against any person, the petition shall so state, shall name that person as a respondent and give the address where he resides."

The petition alleged that her daughter was otherwise in need of supervision because of truancy. At the hearing on this petition an attorney was appointed to represent both mother and daughter. Though the truancy was admitted, the daughter was not declared a ward, rather the cause was continued for a period of one year with the minor permitted "to remain in the custody of her mother, under the friendly supervision" of the court. Neither objected. The authority for the continuance and "friendly supervision" is § 4-7(1):

"In the absence of objection made in open court by the minor, his parent, guardian, custodian or responsible relative, the court may, before proceeding to findings and adjudication, continue the hearing from time to time, allowing the minor to remain in his own home subject to such conditions as to conduct and visitation and supervision by the probation officer as the court may prescribe."

Some months after this continuance, a "Report of Violation of Friendly Supervision" was filed and a hearing held. It turned out that there was no evidence to support the Report, but the court on its own initiative (apparently) entered the Order of Protective Supervision against the mother set forth above. Again, there was no objection. The Act with regard to protective orders as to "any person" provides in § 5-5(1):

"The court may make an order of protection in assistance of or as a condition of any other order authorized by this Act. The order of protection may set forth reasonable conditions of behavior to be observed for a specified period by any person who is before the court on the original or supplemental petition. . . ."

Shortly after this order became effective, another Report of Violation was filed. As a result, and without going into all the details, the mother was cited to show cause why she should not be held in contempt for not abiding by the Order of Protective Supervision. Separate counsel for the mother was appointed and a hearing set. At the hearing before a magistrate on reference, evidence was presented of continued truancy and the mother was thereupon directed to show cause. In her own behalf she testified that the absences were due to illness; that she worked until 1:00 a.m. as a waitress; that she had two other children at home and was their sole support. She further testified that she had done nothing to keep her daughter out of school or dissuade her from going. There were a few doctor's "excuses," but not enough. The finding and holding of contempt followed.

We proceed to the points cited for reversal. Was the Order of Protective Supervision consonant with § 5-5(1)? The question is one of reasonableness. To us it seems eminently so. The daughter was alleged in the petition to be a "Minor `Otherwise in Need of Supervision,'" which definitionally, in § 2-3, includes "any minor subject to compulsory school attendance who is habitually truant from school." Section 5-5, as we have seen, states that the court can prescribe reasonable conditions of behavior to be observed by any person who is before the court.

An order directing a mother to so comport her behavior to insure her daughter's attendance unless ill, and that such must be supported by a physician's certificate, is not unreasonable. The Act stresses care and guidance in the environment of the home in furtherance of its purpose of maintaining "family ties." § 1-2, "Purpose and Policy." Custody was in the mother. It was she and only she who had the day-to-day ability to end the truancy. The requirement of the doctor's certificate seems to us to be a reasonable condition. After all, the court could reasonably conclude that to order a mother to have her child in school, without more, had a built-in susceptibility to easy evasion — sickness. The temptation to overuse such "excuse" could be thwarted by the requirement of a professional opinion. It also had the virtue of forestalling assertions of sickness long after the fact when proof to the contrary would in the nature of things be almost nil. It was not unreasonable to require that someone other than the child or the person responsible for her should make that determination. Foreknowledge that failure to ...


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