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In Re Sparrow

OPINION FILED MARCH 23, 1978.

IN RE HATTIE SPARROW ET AL., MINORS. — (THE PEOPLE EX REL. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-APPELLEE,

v.

VIRGIL WARREN SPARROW ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Union County; the Hon. PAUL D. REESE, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE JONES delivered the opinion of the court:

Respondents-appellants, Virgil and Linda Sparrow, herein referred to as the parents, appeal from an order finding them to be unfit parents and awarding guardianship of their six minor children to the Illinois Department of Children and Family Services with authority to consent to their adoption.

Two petitions were filed on May 28, 1975, by the Illinois Department of Children and Family Services, herein referred to as the Department, invoking provisions of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 701-1 et seq.). One concerned the five children of Virgil and Linda Sparrow, ranging in age from infant to seven years, and the second concerned the child of Linda Sparrow and one John Qualls, a daughter aged nine years. The petitions contained the following allegations:

"The minors are neglected by reason of the following facts: Their environment is injurious to their welfare in that the mother is again hospitalized for drug abuse and the father has repeatedly exhibited an inability to care for the named children and both parents appear unfit persons to care for the named children because of their failure to maintain a reasonable degree of interest, concern and responsibility as to the children's welfare and further their substantial neglect has been repeated."

The petitions contained a prayer that the Department be appointed guardian with authority to consent to adoption as well as authority to consent to medical and surgical treatment.

A detention hearing was held May 28, 1975 pursuant to section 3-6 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 703-6). At that hearing the petitions were consolidated. Virgil Sparrow was present and requested a postponement until he could obtain an attorney. The court denied his request, advising him that the detention hearing was a temporary matter and that he would have the right to contest it when he obtained a lawyer. It appears from the record that Linda Sparrow was a patient at the Anna State Hospital at the time of this hearing. During the hearing the State's Attorney stated that Mr. Sparrow had just informed him that the natural father of the oldest child was one John Qualls and that Qualls was deceased.

A social worker for the Department and Mr. Sparrow testified. At the close of the testimony the court placed the children in the temporary custody of the Department and the matter was set for an adjudicatory hearing on June 19, 1975.

Subsequent to the detention hearing an attorney was appointed and entered an appearance on behalf of Linda Sparrow and a guardian ad litem was appointed for the minor children. Attorneys entered appearances for the Department and Mr. Sparrow was represented by counsel from the Legal Aid Society of the City and County of St. Louis.

The adjudicatory hearing was continued from June 19, 1975, and finally commenced on July 16, 1975. The hearing lasted three days. All parties were represented by counsel. Virgil Sparrow was personally present throughout the hearing and Linda Sparrow was personally present the first day. Thirteen witnesses testified. Witnesses were presented by the Department and by Mr. Sparrow. All attorneys for the respective parties cross-examined the witnesses at various times. The attorney for Linda Sparrow requested the court to receive into evidence documents pertaining to her involuntary commitment to Anna State Hospital. Following the hearing the court entered an order in which it found the children to be neglected and dependent and made them wards of the court. Temporary custody was continued in the Department with rights of visitation in the parents. The dispositional hearing was set for September 8, 1975, but later continued to January 28, 1976.

All attorneys for the parties were present at the dispositional hearing. Both the Sparrows were present. Eight witnesses were called to testify, including two foster parents with which certain of the children were living following placement by the Department. The Sparrows also testified. A predispositional report which the court had ordered prepared was the subject of discussion between the court and counsel. The attorney for Mr. Sparrow objected to the report but did not move to strike it. The court replied that no one had requested that the report be admitted into evidence. The court also remarked at this point that any incompetent evidence would not be considered in passing upon the merits of the case. The court then ruled that the Sparrows were unfit and improper persons to have custody of the children and ordered custody to remain in the Department. The court also granted the Department authority to consent to the adoption of the children and terminated the parental rights of Virgil and Linda Sparrow pursuant to section 5-9 of the Act (Ill. Rev. Stat. 1973, ch. 37, par. 705-9).

On this appeal the parents, under the rubric of "denial of a fair trial," address multiple issues. They first assert that none of the parents received adequate notice of the petitions or the hearing thereon. Linda Sparrow is the mother of all six children. Virgil Sparrow is the father of all of the children except the oldest, whose natural father was alleged to be one John Qualls. The parents assert that neither they nor John Qualls were ever served with summons.

• 1, 2 It is true that there is no return of summons endorsed to show personal service shown in the record. Notwithstanding, we think the record adequately shows that the court had jurisdiction of the persons of the parents. There is a record sheet entry showing that summons was served on the Sparrows return made thereon. Virgil Sparrow volunteered information in open court during the detention hearing as to the name of the eldest child's natural father and the fact that he was deceased. He cannot now be heard to complain that the information he provided to the court was wrong. Most importantly, however, both Virgil and Linda Sparrow appeared by their attorneys at both the adjudicatory and dispositional hearings and Virgil Sparrow appeared personally at all three hearings. Linda Sparrow appeared personally for one day of the adjudicatory hearing and at the dispositional hearing. These actions constitute a general appearance and waiver of process even had summons not been served and returned. (People ex rel. Houghland v. Leonard, 415 Ill. 135, 112 N.E.2d 697.) We note, too, that the Sparrows did not seek to invoke section 3-6(3) of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 703-6(3)) which would have obtained for them a rehearing de novo of the detention hearing by the simple expedient of filing an affidavit stating that either or both of them had received no notice of that hearing.

• 3 Next, the parents contend that they were denied a timely hearing, and the court lost jurisdiction to proceed, in that there was no compliance with the provisions of section 4-2 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 704-2). That section provides in pertinent part that:

"When a petition has been filed alleging that the minor is a person described in Section 2-4 or 2-5, it shall be set for adjudicatory hearing within 30 days and acted upon within 90 days."

However, a review of the record indicates that there was compliance with this section. The petition was filed May 28, 1975, and the detention hearing held. On that date the court set the adjudicatory hearing for June 19, 1975, well within the 30-day period. The adjudicatory hearing was continued and did not commence until July 16, 1975, and was concluded on July 18, 1975, a time well within the 90-day period required by the statute.

However, the parents argue that this is too literal a reading of the statute. They point out that 246 days elapsed between the date the petitions were filed, May 27, 1975, and the date of convening of the dispositional hearing in which parental rights were terminated, January 28, 1976. The parents cite In re Armour, 59 Ill.2d 102, 104, 319 N.E.2d 496, 498, which held that it was not reversible error to set a case for adjudicatory hearing 32 days after the filing of a petition. They contend the case is distinguished by the fact that it was concerned with a delay of but two days while the delay here was 216 days beyond the statutory deadline.

We must disagree with the appellants' attempt to distinguish the application of Armour to this case. In Armour the court stated:

"That the legislature used the word `shall' in providing for the setting of a hearing within 30 days will not require an interpretation that the provision is mandatory and not directory. In Cooper v. Hindrichs, 10 Ill.2d 269, 272, this court said: `The terms of the statute do not themselves indicate unequivocally whether the statute is mandatory or discretionary in character. The word "shall" appearing therein does not have an exclusive, fixed or inviolate connotation, and has been construed as meaning both "must" and "may," depending upon the legislative intent.'" (59 Ill.2d 102, 104.)

The Armour court concluded that the failure to schedule a hearing on the petitions within 30 days from the date of their filing did not deprive the court of its jurisdiction to proceed with a determination of the merits of the case. This same conclusion must be applicable here. This is especially so since we must be primarily concerned with the best welfare of the children involved rather than a strict compliance with procedural steps utilized to present the case for adjudication. We believe this result is further prompted by In re Nyce, 131 Ill. App.2d 481, 268 N.E.2d 233, where it was held that the failure to comply with section 4-2 of the Act did not deprive the court of jurisdiction, the result being premised on the court's concern with the welfare of the child is contradistinction to procedural safeguards to be accorded minors whose cases might have an outcome similar to a criminal proceeding. See also People v. Dean, 52 Ill. App.3d 383, 367 N.E.2d 419, where this court followed ...


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