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People v. R.d.s.

OPINION FILED JANUARY 24, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

R.D.S., A MINOR, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Donald C. Courson, Judge, presiding.

JUSTICE MORAN DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION IN WHICH JUSTICE WARD AND JUSTICE CLARK JOIN:

The respondent, represented by appointed counsel at all times, was adjudged a delinquent minor and committed to the Department of Corrections, Juvenile Division, by the circuit court of Peoria County. The appellate court, by order (100 Ill. App.3d 1201), reversed, finding that the legal guardian did not receive proper notice of the proceedings. We allowed the State's petition for leave to appeal.

This case presents one issue: Is the jurisdiction of the circuit court properly invoked when the State fails to name or notify a court-appointed guardian of a minor in a proceeding brought against the guardian's charge?

On September 25, 1980, the court, in proceedings not relevant to this case, found that the parents were unable to care for the minor and appointed, as legal guardian over the minor, the Guardian Administrator of the Department of Children and Family Services (guardian). The guardian placed the minor in the temporary care of his mother while it sought alternate placement.

On October 16, 1980, a petition charging the minor with theft was filed. Supplemental petitions charging other thefts were filed on November 12 and 25, 1980. These three petitions named the minor and his parents as respondents, but not the guardian. The minor and his mother were served with each of the three petitions. The father's address was listed on the petitions only as Los Angeles, California. He was neither served with summons nor given notice by any means of the October 16 or November 12 petitions. He was given notice by publication of the November 25 petition. No summons was served on the guardian.

A temporary detention order was entered on November 25, 1980, which ordered the minor into the temporary custody of the Juvenile Detention Center. This order permitted release of the minor to the custody of the guardian for screening. In addition, the order referred to the three petitions served on the minor and his mother and set the date for the adjudicatory hearing.

The adjudicatory hearing was held on December 15, 1980. The minor, his attorney, his mother, and the State's Attorney were present. The guardian was not. The minor admitted to the theft charge alleged in the October 16 petition, and upon motion by the State, the other two petitions were dismissed. The court found the minor to be delinquent and adjudged him a ward of the court.

The initial dispositional hearing took place on December 22, 1980. At this hearing, the guardian's caseworker appeared for the first time in the proceedings. The matter was continued until January 15, 1981. On this date, after reviewing the minor's record and the evidence presented, the court terminated the guardianship and committed the minor to the Department of Corrections, Juvenile Division, for an indefinite term not to exceed his 21st birthday.

The State maintains that the wording of section 4-1(2)(d) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1979, ch. 37, par. 704-1(2)(d)) requires that the petition name as respondent either the legal guardian or the person having custody or control over the minor. Since the minor was living with his mother when the petitions were filed, the State reasons that the mother was a "person having custody or control of the minor." It concludes, therefore, that since the mother was named as a respondent and served, there was no longer any statutory requirement to name and serve the legal guardian.

The State further claims that the guardian had de facto notice of the proceeding through the November 25 temporary detention order. We find nothing in the record, however, to indicate that the guardian received a copy of this order. The State also asserts that the guardian had de facto notice based on its caseworker's involvement with the minor. Finally, the State contends that the guardian was not deprived of an opportunity to participate in the proceedings and that neither the minor nor the guardian was prejudiced by the lack of formal notice.

The minor responds that the guardian was appointed after the court had found the parents unfit or unable to care for him and removed him from their custody. The minor asserts that the State's interpretation of section 4-1(2)(d) is at odds with the purpose of appointing a guardian, which is "to make important decisions in matters having a permanent effect on the life and development of the minor * * *." (Ill. Rev. Stat. 1979, ch. 37, par. 701-11.) Moreover, he contends that the State's interpretation conflicts with the due process requirements of juvenile proceedings as set out by the Supreme Court in In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428. He also claims the State's reading of section 4-1(2)(d) is in conflict with this court's interpretation of that section. He points out that in In re J.W. (1981), 87 Ill.2d 56, 60, it was said: "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.)" The minor further maintains that the failure to name the guardian as a party respondent deprived the guardian of its "right to be present, to be heard, to present evidence material to the proceedings, [and] to cross-examine witnesses * * *." Ill. Rev. Stat. 1979, ch. 37, par. 701-20(1).

Due process of law requires that notice in juvenile proceedings be equivalent to that constitutionally required in criminal or civil cases. (In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428.) This constitutional mandate is enumerated in sections 4-1 to 4-4 of the Act (Ill. Rev. Stat. 1979, ch. 37, pars. 704-1 to 704-4), which set out the requirements for valid notice. Section 4-1(2) lists those interested parties who must be named as respondents. This section provides:

"The petition shall * * * set forth (a) facts sufficient to bring the minor under Section 2-1; (b) the name, age and residence of the minor; (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 can be found; and (e) if the minor upon whose behalf the petition is brought is detained or sheltered in custody, the date on which detention or shelter care was ordered by the court or the date set for a detention or shelter care hearing. If any of the facts herein required are not known by the petitioner, the petition shall so state." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 704-1(2).)

While subsection (d) reads in the disjunctive, we note that the entire section reads in the conjunctive. A petition filed pursuant to section 4-1(2) is required to set forth facts for each of the ...


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