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In Re C.o.

OPINION FILED JUNE 27, 1979.

IN RE C.O., A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

C.O., RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Lake County; the Hon. BERNARD E. DREW, JR., Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

C.O., the respondent minor, appeals from a dispositional order of May 18, 1978, committing him to the custody of the Department of Corrections.

On October 31, 1973, respondent, then 11 years old, was found to be a neglected child and made a ward of the court. On May 13, 1976, after having been found to have committed the offense of theft, he was declared to be delinquent and again adjudged a ward of the court. On September 16, 1976, he admitted the offense of criminal damage to property and on January 27, 1977, he admitted the offense of resisting a peace officer. On January 12, 1978, he admitted the offense of criminal trespass to a motor vehicle, was again found to be delinquent, and was committed to the custody of the Department of Corrections for a 30-day diagnostic program. On March 17, 1978, the juvenile court again found the minor to be delinquent, he having again committed the offense of criminal trespass to a motor vehicle. He was placed in the temporary custody of the Lake County Youth Home pending dispositional hearing, which was set for April 18, 1978. On April 18, 1978, the court ruled that the respondent minor should continue at a foster home under the supervision of the Department of Children and Family Services subject to certain conditions and continued the matter until May 11 for review. On May 11, the minor having fled to Kentucky, a juvenile warrant was issued for his arrest. He was arrested and detained but escaped from custody. Another warrant was issued and he was again arrested. On May 18, 1978, after a lengthy hearing, the minor was committed to the custody of the Department of Corrections. On May 23 the minor was picked up after fleeing again.

Respondent raises two issues on appeal, contending (1) that he was denied certain due process procedural rights, and (2) that an alternative to the Department of Corrections should have been utilized.

Resolution of the first issue is dependent upon what interpretation we place on the trial court's order of April 18, 1978, which includes, inter alia, the following:

"* * * the minor shall continue in placement at the Zervos foster home under the supervision of the Department of Children & Family Services subject to the following conditions:

1. The minor shall continue counseling with the Family Services of North Lake County.

2. The minor shall continue training and employment with Mr. Zervos.

3. The minor shall cooperate with the Department of Children & Family Services and UDIS in any program deemed necessary.

4. The minor shall attend Alternative School if minor chooses to work on a part time basis.

THE COURT FURTHER ORDERS that this manner is continued to May 11, 1978, at 9:30 a.m. for review."

Respondent contends that this order was a final placement pursuant to section 5-2 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 705-1 et seq.). More specifically, he claims that this order represents either placement under subsection 1(a)(1) (probation or conditional discharge) of section 5-2 or subsection 1(a)(4) (commitment to the Department of Children and Family Services) of the same section. The State disagrees, contending that the order in question did not represent a final or permanent disposition of custody pursuant to any subsection of section 5-2, but was merely a continuance permitted by section 5-1(4) of the Juvenile Court Act, which provides that:

"* * * the court may adjourn the hearing for a reasonable period to receive reports or other evidence and, in such event, shall make an appropriate order for detention of the minor or his release from detention subject to supervision by the court during the period of the continuance."

The nature of the April 18 order is critical because a grant of probation and conditional discharge pursuant to section 5-2(1)(a)(1), and arguably, a commitment to the Department of Children and Family Services pursuant to section 5-2(1)(a)(4) brings into play the section of the Juvenile Court Act specifically regulating the revocation of probation or conditional discharge, section 5-3. There is no question that section 5-3 was not complied with in ...


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