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In Re Anast

SEPTEMBER 5, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. IRVING KIPNIS, Judge, presiding.


James and Diana Anast were divorced and Mrs. Anast was awarded the custody of their two daughters, Valerie and Kathleen. Mrs. Anast then married the appellant, B. Alan Stone. They were later divorced and, in May 1972, the custody of Valerie, then age 15, and Kathleen, then age 13, was awarded to Stone, their stepfather. Two months later, petitions for adjudication of wardship were filed in the Juvenile Division of the Circuit Court by the Department of Children and Family Services on behalf of the two girls. Named as respondents in the petitions were the girls and their natural parents. The petitions alleged that the children were neglected and in need of supervision, under the terms of section 2-4 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-4):

"(1) Those who are neglected include any minor under 18 years of age

(b) whose environment is injurious to his welfare * * *."

No facts were alleged in the petitions to support their conclusion that the children's environment was injurious to their welfare. The petitioner was given temporary custody of the girls.

Thereafter Stone appeared, signed a waiver of service and defects in process, and over the succeeding weeks filed numerous motions and petitions seeking dismissal of the juvenile court action, asking that the girls be returned to him, their court-appointed guardian, and challenging the jurisdiction of the court. At a hearing in December 1972, the court ruled that it had jurisdiction. The court then heard a motion by a representative of the Department of Children and Family Services for a finding of inability of the parents to properly care for the minors. Pursuant to section 5-7 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 705-7), such findings were entered against both natural parents. The court further found that it was in the best interest of the minors that they be placed outside the home of the parents. The finding of neglect against the natural father was based on his signed admission of the allegations of the State's petition. The mother was defaulted for failure to appear and defend subsequent to her initial submission to the court's jurisdiction. It was the position of the State that Stone, not being a natural parent, was not entitled to an adjudicatory hearing as to his fitness before being deprived of custody, notwithstanding his legal relation to the minors and his custody of them under the divorce decree; that he only had the right to represent them in court and, following an adjudication of wardship, to petition for appointment as guardian. The court adopted this view. The girls were present during this hearing; the court asked them if they wished to live with Stone, and both stated they did not. The State submitted a report to the court which, although examined by the court, was not made part of the record. The court then vacated the temporary custody order and appointed Richard S. Layman of the Department of Children and Family Services the legal custodian of the children.

Stone raises a number of issues in his appeal; however, we need only consider two: first, whether the juvenile court possessed personal jurisdiction over Stone or jurisdiction of the subject matter; second, whether the court was empowered to remove the minors from his custody without holding an evidentiary hearing into his fitness.

• 1 Stone's attack on the juvenile court's jurisdiction is unfounded. As to himself, he argues that since he was not named in the original complaint the court did not have jurisdiction to divest him of custody. However, he signed a written waiver of service, entered his appearance and made every effort to contest the petitions on their merits. By so doing he waived jurisdiction over his person. Jones v. Jones (1963), 40 Ill. App.2d 217, 189 N.E.2d 33; Koplin v. Saul Lerner Co., (1964), 52 Ill. App.2d 97, 201 N.E.2d 763.

• 2, 3 As to the subject matter, Stone contends that the court did not have jurisdiction of the wardship proceeding because an adjudication on the same subject had been made in the divorce division of the Circuit Court. Posing the issue in this matter, the relation between the two courts is confused, a relation made clear in People ex rel. Houghland v. Leonard (1953), 415 Ill. 135, 112 N.E.2d 697 — a decision handed down under the Juvenile Court Act's predecessor statute, (Ill. Rev. Stat. 1951, ch. 23, par. 190, et seq.). The court explained in Leonard that the juvenile and divorce courts are courts of concurrent jurisdiction, but jurisdiction arising from different circumstances, related to the varying purposes of the acts enforced by each court and reflected in their disparate powers of disposition. A divorce court allocates property and other incidents of the marriage, including children, as between the two parties to the divorce. (Ill. Rev. Stat. 1971, ch. 40, par. 14.) The juvenile court, on the other hand, looks to the welfare of the children in determining whether they are delinquent, neglected, dependent or otherwise in need of supervision. It is not limited to the narrow range of dispositions which characterize divorce proceedings, but may place affected minors in the custody of the parties or in institutions. In this case, the juvenile court did not usurp jurisdiction over the action pending in the divorce division; it possessed jurisdiction to decide whether Valerie and Kathleen Anast were in a condition of neglect as defined in the Juvenile Court Act.

It does not follow, however, that the juvenile court could ignore Stone's interest in the girls. Although not a blood relative, he was their stepfather, and in the divorce action against their mother he had been granted legal custody of them. He was entitled to an adjudicatory hearing on the issue of his fitness before being deprived of custody by the court's adjudication of wardship. To hold otherwise would ignore the intent of the statute and the constitutional rights of Stone to due process and the equal protection of the laws.

• 4 In its petition, the State named only the natural parents as parties respondent, omitting the legal custodian. While the statute under which this case was tried nowhere states that any one person must be made a party-respondent, it obviously contemplates that if a minor is under legal guardianship at the time a petition is filed under the Act, the guardian should be named. The reasons why are apparent in this case, where an adjudication of neglect against the natural parents was virtually an empty act. They had already surrendered legal custody in earlier proceedings, and their inaction manifested their disinterest in the outcome of this one. But natural parents are not the only persons who may have a substantial interest in the welfare of minors. Numerous references appear in the Act listing in the conjunctive or disjunctive a whole constellation of potentially interested persons: the parents, guardian, legal custodian and/or a responsible relative. The category relevant to a particular case is presumed to be participating in proceedings under the Act. Thus,

"[Except as otherwise provided], the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, * * * the right to be represented by counsel * * *." (Ill. Rev. Stat. 1971, ch. 37, par. 701-20.)


"[The petition] shall * * * set forth * * * (c) the names and residences of his parents; (d) the name and residence of his legal guardian or the person or persons having custody or control of the minor, or of the nearest known relative if no parent or guardian ...

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