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In Re J.w.

OPINION FILED NOVEMBER 20, 1981.

IN RE J.W., A MINOR, APPELLEE (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT). IN RE LOWELL CHATMAN, A MINOR, APPELLEE (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT).


No. 54256. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Rock Island County, the Hon. William K. O'Connor and Conway L. Spanton, Judges, presiding.

No. 54636. — Appeal from the Circuit Court of Cook County, the Hon. John R. Rogers, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Tyrone C. Fahner, Attorney General of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Melbourne A. Noel, Jr., and Thomas E. Holum, Assistant Attorneys General, of Chicago, and Michael E. Shabat, Stephen Y. Brodhay, and Marcia B. Orr, Assistant State's Attorneys, of counsel), for the People.

Percival Harmon, of Washington, Kennon, Hunter & Samuels, of Chicago, for appellee.

After finding Lowell Chatman, appellee in cause No. 54636, to be a delinquent minor, the circuit court of Cook County allowed his motion in arrest of judgment, deciding that it lacked jurisdiction. We permitted the State to appeal directly to this court under Rule 302(b) (73 Ill.2d R. 302(b)).

The issue is whether the juvenile court could properly hold an adjudicatory hearing without serving notice upon the minor's father by publication. The petition for adjudication of wardship identified the father as "unknown." The minor is illegitimate and seems to have had no contact whatever with his biological father. The record is unclear whether anyone knows who the father is; it is clear that no one knows where he is. The State did not attempt to serve notice by publication. The minor's mother was not formally served either, but she appeared at both the detention and adjudicatory hearings, she attended court every day of the proceedings, and she testified as a witness for her son. At the detention hearing, the minor was represented by the public defender; private counsel was then appointed and has represented the minor at all subsequent proceedings. At no time before or during the adjudicatory hearing did anyone object to the proceedings or demand publication of notice. The mother died after the adjudicatory hearing, and no father has yet been found.

The unknown father is a stranger to the minor. If alive, he knows nothing of the minor or of the facts to be adjudicated. The minor could not reasonably repose in him any special trust or confidence. The minor has not suggested how the father's presence could have aided his defense, and the father's absence was not, therefore, unfair to the minor. The minor had the assistance of his mother, who was his only known parent and his sole custodian, as well as of legal counsel; the minor, the mother, and counsel all had adequate notice of the charges and an opportunity to defend against them. The failure to publish notice to the phantom father did not deprive the minor of liberty without due process of law, much less deprive the court of jurisdiction over the person of the minor.

The court, then, had jurisdiction of the subject matter and of the persons of the minor and his mother, but not of the person of the father. The father, although mentioned anonymously as a respondent in the petition for adjudication of wardship, was never properly made a party. For several reasons, however, he is not an indispensable party; it was proper to go forward with the delinquency proceedings in his absence.

The father is not being deprived of any substantial rights. Even if he still has, after years of abandonment, some parental rights or status, no one in the delinquency proceeding here at issue contemplates depriving him of them. If the minor is adjudged a ward of the court, his parents may lose custody; but the father does not have custody, never did have it, and at the time of the adjudicatory hearing had no prospect of getting it. Thus, the court could proceed without unfairly jeopardizing the interest of the absent father.

The minor, his mother, and the State all have vital interests at stake here, interests that overwhelm the speculative interest of the anonymous father. The minor, in particular, has a right to a speedy adjudicatory hearing. The father's absence should not prevent that adjudication or necessitate a time-consuming, expensive, and predictably futile fiction of service by publication.

We note that determining the rights of those before the court in the absence of others whose interest might be impaired and by whom the judgment might later be attacked is not an unrecognized procedure in the law. Rule 19 of the Federal Rules of Civil Procedure, promulgated by the United States Supreme Court, allows for a pragmatic approach to the problem of necessary parties, and a mistake in the decision to proceed does not deprive the court of the power to adjudicate as between the parties before it. 28 U.S.C. Fed. R. Civ. P. 19, Notes of Advisory Committee on 1966 Amendments to Rules (1976); Annot., 21 A.L.R. Fed. 12 (1974).

We conclude that the facts of this case afford no grounds for considering the adjudicatory hearing and the finding of delinquency invalid, erroneous, or unfair.

The problem is that failure to give adequate notice to parents with a more significant relationship with the minor than the father in this case may be unfair to both the parent and the minor. Unquestionably, an adjudication of wardship without notice to parents may in some cases deprive both parent and child of liberty without due process of law (In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428), and be absolutely void (People ex rel. McEntee v. Lynch (1906), 223 Ill. 346). Unfortunately for courts>, family relationships vary greatly, and a decision about whether to publish notice must be made early in the proceedings, without exhaustive investigation.

Fortunately, the question has been generally settled by statute. The Juvenile Court Act sets out the proper procedure for protecting the interests involved. Every parent, legal guardian, and custodian, or when necessary the nearest relative, must be named as a respondent in the case. (Ill. Rev. Stat. 1979, ch. 37, par. 704-1.) Each is to be individually served, if possible; if that is not feasible, service must normally be had by publication. (Ill. Rev. Stat. 1979, ch. 37, pars. 704-3, 704-4.) Section 4-4, however, goes on to say that "[n]notice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment ...


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