Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re K.m.b.

OPINION FILED AUGUST 10, 1983.

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

v.

K.M.B., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of McLean County; the Hon. W. Charles Witte, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On February 9, 1982, respondent, K.M.B., was before the circuit court of McLean County pursuant to a petition alleging her to be a minor otherwise in need of supervision (Ill. Rev. Stat. 1981, ch. 37, par. 702-3) because of her truancy. Before any findings were made at this hearing, the parties requested a general continuance with the minor to be under supervision (Ill. Rev. Stat. 1981, ch. 37, par. 704-7). The court continued the case and placed the minor under a supervisory order requiring her to "attend school each and every day, each and every hour of every school day, that she be in attendance." On February 22, 1982, and June 18, 1982, petitions for rules to show cause contending that the minor had violated the order of continuance were filed. The former was dismissed. The latter was granted and on July 26, 1982, after a hearing, the court found that the minor had violated the terms of the order and was in contempt of court. On September 3, 1982, the court placed the minor on 24 months' probation conditioned on four days' imprisonment.

The minor has appealed, contending: (1) The trial court lacked jurisdiction to enter the orders of continuance and contempt; (2) the petition for rule to show cause failed to apprise the minor of the conduct which violated the supervisory order; (3) the order of continuance should have stated that the minor could be absent from school if she had a valid excuse; (4) the order of continuance was not subject to enforcement in an indirect criminal contempt proceeding; (5) the order of continuance did not inform respondent that tardiness would be a violation of the supervisory order; and (6) the contempt sanction imposed constituted cruel and unusual punishment.

The minor's contention that the trial court lacked subject matter jurisdiction of the proceeding in which the order of continuance was entered is based on the theory that the court's subject matter jurisdiction is based upon the sufficiency of the original petition. The minor's argument that the petition was insufficient arises from the statement in the original petition that the minor was truant for 11 days within a period of some 80 consecutive school days. Although section 2-3 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702-3) provided, at pertinent times, that one category of a minor otherwise in need of supervision was a minor who had been "habitually truant," the Act does not define that phrase. However, prior to January 1, 1982, section 26-2a of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26-2a) stated that an "habitual truant" was "a child subject to compulsory attendance and who [was] absent without valid cause from such attendance for 15 out of 90 consecutive school days." After January 1, 1982, the reference frame became 10 out of 40 consecutive school days. (Ill. Rev. Stat. 1981, ch. 122, par. 26-2a.) The minor maintains that (1) section 26-2 of the School Code defines the phrase "habitually truant" for purposes of section 2-3 of the Act, and (2) the petition showed on its face that any truancies by the minor were not severe enough to make her an "habitual truant."

We note that by Public Act 82-969 effective January 1, 1983, section 2-3 of the Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702.3) was amended to provide that the words "chronic or habitual truant" were to be defined by section 26a-2 of the School Code. We need not decide whether the previous intent of section 2-3 was to incorporate the definition of the School Code because we hold that the variance claimed here between the allegations of the petition and the requirements of section 2-3 of the Act, even if the section 26-2a definition was incorporated, would not deprive the circuit court of subject matter jurisdiction.

Section 9 of article VI of the Illinois Constitution of 1970 provides that the circuit court has "original jurisdiction of all justiciable matters" with minor exceptions not applicable here. In People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456, the supreme court stated that in a criminal case the circuit court's subject matter jurisdiction is not dependent upon the sufficiency of the charge. Similarly, in Lopin v. Cullerton (1977), 46 Ill. App.3d 378, 361 N.E.2d 6, the court determined that as long as a case presents a justiciable matter the circuit court has jurisdiction of the case and the failure to follow statutory provisions may constitute error, but does not deprive the court of jurisdiction. We have recently spoken upon this change in concept at some length in In re L.E.J. (1983), 115 Ill. App.3d 993, in holding that the circuit court's subject matter jurisdiction under the Juvenile Court Act is not dependent upon compliance with statutory provisions concerning notice to parents of the minor. See also In re Estate of Mears (1983), 110 Ill. App.3d 1133, 443 N.E.2d 289.

• 1 In view of the foregoing precedent, we have no hesitation in holding that subject matter jurisdiction was not lacking when the petition alleged that the minor was an habitual truant even if the petition set forth ultimate facts that were, of themselves, insufficient to support the allegation. The court had subject matter jurisdiction to enter the order of continuance and, thus, to make the minor subject to that order.

• 2 The minor maintains that her father received no notice of the hearing on the rule to show cause and, as a result, the court lacked subject matter jurisdiction to enter the order of contempt. Although the contempt proceeding was criminal in nature, the minor contends that because of her minority, the Juvenile Court Act procedures should have been followed and her father given notice. Under In re L.E.J., lack of notice to the father would not have deprived the court of subject matter jurisdiction even if compliance with the Act's procedures was required. In any event, we know of no authority which requires giving notice to the parents of a respondent when the court is exercising its inherent power to punish for contempt. See In re G.B. (1981), 88 Ill.2d 36, 430 N.E.2d 1096.

We consider the well-known decision in In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428, to be applicable only to juvenile proceedings. There, the United States Supreme Court was concerned with summary procedures often used in juvenile proceedings where the traditional safeguards of a criminal proceeding were ignored. The contempt order was rendered neither void nor erroneous because of any failure to notify the minor's father.

• 3 The minor maintains she was not sufficiently apprised of the conduct she was charged with because the petition for rule to show cause failed to allege that her conduct in not attending school was wilful. We called attention to the importance of an allegation of willfulness in charging indirect criminal contempt in the case of In re T.V.P (1980), 90 Ill. App.3d 800, 414 N.E.2d 209, but we reversed on other grounds. The petition did allege that the minor's absences were "without authority." Thus, the petition gave some indication that the minor was being charged with missing classes when she had no valid excuse to do so. Accordingly, the failure to allege willfulness is not fatal when the issue is raised for the first time on appeal. People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437.

• 4 The minor attacks the terms of the continuance order for its failure to provide that she might be properly absent for a reason recognized by section 26-2a of the School Code (e.g., illness, family emergency, etc.). Notably, section 4-7(6)(k) of the Juvenile Court Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 704-7(6)(k)), which became effective September 8, 1982, five days after the contempt order, lists as a permissible condition of continuance under supervision, a requirement that the minor "attend school." Thus, that statutory provision does not set forth the qualifications of such a requirement. Although the continuance order's provisions were unnecessarily broad for failure to indicate that certain absences might be excused (see In re K.S.Y. (1981), 93 Ill. App.3d 6, 416 N.E.2d 736), there is some inherent implication in the order that noncompliance on reasonable grounds was permitted by the order. The record gives no indication that the minor here was confused in regard to whether she was required to attend school when she had a reasonable excuse not to do so. The order of continuance did not contain error.

The court entered an oral order of continuance setting forth the conditions of supervision. No written order was ever filed. When a minor is placed on probation or conditional discharge, section 5-3(2) of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 705-3(2)) requires that the minor be given a certificate setting forth the conditions thereof and section 5-3(9) (Ill. Rev. Stat. 1981, ch. 37, par. 705-3(9)) provides that rules or orders of the court "must specify the term and conditions of supervision ordered under this Act." The minor contends that her contempt conviction was erroneous because she never received a written document setting forth the rules of her supervision during continuance.

The minor cites the case of In re Serna (1978), 67 Ill. App.3d 406, 409, 385 N.E.2d 87, 89. There, a minor was also placed on supervision during continuance under section 4-7 of the Act. The court admonished the minor "`to stay out of trouble'" and "`to listen to his mother and to his probation officer'" and stated that a set of rules would be given to him. The appellate court concluded that termination of the minor's supervision for violating a condition of supervision, about which he was never told, violated due process. The court noted that section 5-3(9) required that rules or orders of court specify the conditions of supervision. Here, the court order did specify that the minor was to attend school every day and each hour of the day. Although it is highly desirable that the minor receive a concise written statement of the conditions of supervision, the Act does not expressly so require. Because the record gives no indication that the minor was unaware of what was required of her, clearly no due process violation occurred. We again find no reversible error.

A further problem has arisen in this case because the conditions of the order of continuance made no express reference to the minor being tardy, yet all of the absences shown to have been committed by the minor were actually instances of tardiness. In the case of In re M.C. (1980), 89 Ill. App.3d 1130, 412 N.E.2d 709, a court direction to a minor to attend school was held to be insufficient to support a finding of contempt for tardiness. However, there was no direction in that case that the minor attend "each and every hour of every school day" as here. Technically, the minor could be less than an hour late in the morning and thus attend during every hour. However, we deem the direction for the minor to attend "each and every hour" to prohibit tardiness. Although the record indicates dispute as to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.