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In Re K.s.y.

OPINION FILED FEBRUARY 3, 1981.

IN RE K.S.Y., A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

K.S.Y., RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This proceeding represents yet another attempt by the circuit court of Champaign County to erect a parallel system of juvenile justice to that provided by the Juvenile Court Act. We have recently indicated (In re T.V.P. (1980), 90 Ill. App.3d 800, 414 N.E.2d 209) our disapproval of the effort. The instant case bears a remarkable resemblance on its facts and its results to In re T.V.P.

A petition was filed alleging that K.S.Y. was a minor otherwise in need of supervision pursuant to section 2-3 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702-3). The grounds alleged were habitual truancy. On July 26, 1979, the minor stipulated as to the allegations of the petition and the court purported to continue the matter for one year under supervision as provided in section 4-7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704-7).

Thereafter, on September 6, 1979, a petition for rule to show cause was filed by the State's Attorney, alleging that the minor had been absent from school on August 30, 1979. An order to show cause was issued based on the petition, and on October 29, 1979, the minor appeared and stipulated to the absence on August 30, 1979. The court then found the minor in indirect criminal contempt of the court, ordered a presentence investigation report and on December 3, 1979, sentenced the minor to 12 months' probation with a special condition that he serve 60 days in jail.

This appeal followed in which the minor alleges that the order on which the contempt was based was void, and subject to attack on appeal. He also claims, alternatively, that he did not receive admonishments under Supreme Court Rule 402 (73 Ill.2d R. 402), and that the 60-day jail term was an abuse of discretion.

• 1 In their briefs and arguments the parties dwell at length on the validity of the order of contempt in terms of its requirement that the "minor must attend school each and every day that school is in session." The minor argues that since the order makes no provision for excused absences, it is void. The State asserts that any such defect is non-jurisdictional and was waived by the minor by his admission of the absence on August 30, 1979. While we believe that the order is too broad in the sense as argued by the minor, we find more serious defects in the proceedings than that.

The contempt power as used to enforce supervisory orders under the Juvenile Court Act was recognized by the supreme court in In re Baker (1978), 71 Ill.2d 480, 376 N.E.2d 1005. However, in Baker, the juvenile had been adjudicated as a ward of the court in need of supervision. No such posture exists in the instant case.

As indicated above, the trial court purported to proceed under section 4-7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704-7(1)), which reads as follows:

"(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, or after hearing the evidence but before noting in the minutes of proceeding a finding of whether or not the minor is a person described in Section 2-1, 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 or other designee of the court as the court may prescribe."

It can thus be seen that this provision is a humane one which stops short of the full panoply of adjudication of wardship and disposition, and affords the minor the opportunity to rehabilitate himself without incurring an adjudication of wardship on his record. It is thus parallel to similar provisions in section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1410).

In the instant case, the trial court violated section 4-7 of the Juvenile Court Act which dictates that the court proceed "after hearing the evidence but before noting in the minutes of proceeding a finding of whether or not the minor is a person described in Section 2-1." The record discloses that the minutes of July 26, 1979, read in part as follows: "The Court enters finding that the minor respondent is a person described in the petition filed June 5, 1979." The formal order, signed and entered the same day, recites that a dispositional hearing was held, although none appears in the record, and then purports to place the minor under supervision under the provisions of section 4-7.

• 2 The result is a flawed proceeding whether viewed from the perspective of section 4-7 or from the subsequent provisions of the Juvenile Court Act. The finding had been entered which forfended further proceedings under section 4-7, yet there was no adjudication of wardship and time set for disposition as required by section 4-8(2) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 704-8(2)).

The question then becomes whether the proceeding is so seriously flawed as to deprive the trial court of jurisdiction. We believe that it was.

In City of Chicago v. King (1967), 86 Ill. App.2d 340, 354, 230 N.E.2d 41, 48, cert. denied sub nom. Ditto v. Chicago (1969), 393 U.S. 1028, 21 L.Ed.2d ...


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