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In Re M.d.b.

OPINION FILED JANUARY 12, 1984.

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

v.

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



Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Respondent, M.D.B., a minor, appeals from an order committing him to the Department of Corrections. A petition for adjudication of wardship was filed against the minor-respondent, M.D.B., in which it was alleged that the minor was delinquent due to his involvement in four incidents of burglary and theft and one of residential burglary.

The cause proceeded to a hearing at which, after conferring with his appointed counsel, the minor waived his right to a preliminary hearing and admitted to the allegations set forth in the petition. Thereupon the court properly admonished the minor regarding his rights and the sanctions which could be imposed upon him. The State then presented a factual basis for the minor's admissions, which the minor stated was accurate. Thereafter, the minor was found to be delinquent and made a ward of the court.

A dispositional hearing was had on the instant cause. Prior to the hearing, the court had been furnished with a social investigation report on the minor and a written psychiatric evaluation of him by Dr. Marvin Ziporyn. Neither the State's Attorney nor counsel for the minor called any witnesses nor offered additional evidence at the hearing. In its argument, the State urged the court to place the minor in the Department of Corrections. The minor's counsel then made the following remarks on behalf of his client:

"THE COURT: Mr. Rodkey?

MR. RODKEY: Well, your Honor, I really can't argue too much against that because the minor was having problems getting involved in some pretty heavy matters here, it was criminal conduct, but he also was just not attending school on a regular basis either and so it seems to me that when he gets these authority problems worked out that he just hasn't been functioning very well, he does need good protection and help and I think that he will get it, we really don't have any facilities to handle somebody with his problems, so I think that under the circumstances [the Department of Corrections] is probably the best solution."

The minor was then committed to the Department of Corrections. The court also filed a written "Basis for Commitment of Minor" which concluded as follows:

"Based upon the testimony heard at the Dispositional Hearing and on the contents of the social history and the psychiatric evaluation submitted to the court, the minor needs a structured and rehabilitative setting that can best be supplied by the Department of Corrections. The community resources and facilities are unavailable to this minor. The minor has both a history of delinquency and as such presents a threat to both persons and property. The best interest of the minor and the public requires the minor be committed to the Department of Corrections, Juvenile Division, State of Illinois."

Two issues are raised in this appeal:

(1) Whether there is a record basis for the court's finding that the minor's parents are unable to care for, protect, train and discipline him and that the best interests of the minor and society would not be served by placing him pursuant to section 5-7 of the Juvenile Court Act.

(2) Whether the minor received ineffective assistance of counsel at the dispositional hearing and is entitled to a new dispositional hearing with different counsel.

• 1 The Juvenile Court Act provides that a minor may be committed to the Department of Corrections only if the court finds that (a) his parents are unfit or unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and (b) the best interest of the minor and the public will not be served by placement under section 5-7 of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 705-10(1)). The basis of the respondent's appeal is that the evidence presented at the dispositional hearing did not sustain the court findings mandated by section 5-10(1) of the Act and that respondent was therefore improperly committed to the Department of Corrections. The evidence at issue consisted of two written reports, namely, the required social investigation report (Ill. Rev. Stat. 1981, ch. 37, par. 705-1(1)) and a psychiatric evaluation by Dr. Marvin Ziporyn.

With respect to subsection (b) of section 5-10(1) cited above, respondent claims that neither the social investigation report nor the psychiatric evaluation mentioned any placement or program alternatives to the Department of Corrections and because of this deficiency the court could not have given fair consideration to alternative placement dispositions under section 5-7 of the Act. The respondent contends that the court's decision that the minor's and society's best interests would not be served by a section 5-7 disposition lacked a sufficient basis in fact.

In support of respondent's argument is the fact that the instant case was the minor's first appearance in juvenile court and probation or placement had never been tried. Nevertheless, the respondent concedes that very unusual circumstances could have furnished a basis for the court's findings. It is our conclusion that the record of this case reveals that both unusual circumstances existed and that alternative ...


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