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01/27/88 In Re A.H.

January 27, 1988

IN RE A.H., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Plaintiff-Appellee, v.

A.H., Respondent-Appellant)

519 N.E.2d 59, 165 Ill. App. 3d 543, 116 Ill. Dec. 469 1988.IL.89

Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

A petition for adjudication of wardship was filed on June 5, 1986, alleging the minor had committed attempted armed robbery. Named as respondents in the petition were the minor, his mother, and his father. However, the parents' addresses were described in the petition as "Unknown." The parents were never personally served with notice of the proceedings, although the mother was served by publication. A summons was personally served on the minor's maternal grandmother, Queen Esther Higgins, although she was not named as a respondent in the petition. An adjudicatory hearing was held on July 23, 1986. The minor's parents were not present for this hearing. The record indicates the minor's grandmother was present, as was a representative of the Department of Children and Family Services (the Department).

At the hearing, 14-year-old Almer Yancey, Jr., testified that on May 22, 1986, he was walking between two buildings on the campus of Carbondale Community High School East when he observed two young people about 40 feet in front of him. One of the youths was tall, the other short. He heard one of them say, "We will get some here," but he was not sure which one made this comment. When he came closer to the pair, the shorter of the two youths asked Yancey if he had a dollar. Yancey told the youth he did not have a dollar, then continued on and "tried to get away." The youth who had asked for a dollar then said, "Stop." Meanwhile, the taller youth stood in front of Yancey so he could not get away, and Yancey felt this taller youth reach into his back pocket for his billfold. As the youth started to pull the billfold out, Yancey knocked the youth's arm away so he could not get it. Yancey then went to the school and told a secretary someone had tried to rob him. At the hearing, Yancey identified the minor in these proceedings as the shorter of the two boys whom he had encountered at the school.

Paul Echols, an officer with the Carbondale police department, testified that he assisted another officer who had apprehended two suspects in connection with this incident. Echols took the suspects to the school, where Yancey was able to identify them as the youths he had encountered. Echols further testified that he found a folding pocket knife under the seat of his squad car where the minor had been sitting. At first the minor told Echols the knife was not his, but after the officer told him police did not believe the knife had been used in the robbery and that police only wished to return the knife to its owner, the minor admitted the knife was his.

After hearing this evidence, the court determined that the evidence did not support a finding that the minor had committed attempted armed robbery, but concluded the evidence did prove the minor had committed attempted robbery. The court adjudicated him a delinquent, and later committed him to the Department of Corrections, Juvenile Division.

The minor first contends the court's order adjudicating him a delinquent is void because the State failed to name the minor's guardian and custodian as respondents in the petition and failed to serve the guardian with notice of the proceedings. While the record is not entirely clear regarding who was serving as guardian or custodian at various stages in the proceedings, the minor assumes for purposes of this appeal that his grandmother was his actual custodian and the Department was his legal guardian.

Section 4-1(2) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 704-1(2)) requires that a petition under the Act shall set forth the names and residences of the minor's parents, and "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." Section 4-3(1) of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 704-3(1)) requires that summons be served upon each named respondent. The minor further cites our supreme court's opinion in People v. R.D.S. (1983), 94 Ill. 2d 77, 83, 445 N.E.2d 293, 296, for the proposition that when a necessary respondent is not named in the petition or notified of the proceedings, the petition fails to invoke the jurisdiction of the court and any order subsequently entered is void. See also People v. S.S. (1986), 146 Ill. App. 3d 681, 496 N.E.2d 1165.

We do not believe R.D.S. controls the case before us. In R.D.S., the minor's guardian did not receive notice, was not present at the proceedings and did not participate in any way. In the present case, the minor's custodian (his grandmother) was personally served with notice, and the minor's guardian (the Department) had actual notice of the proceedings. The court's order states that both the grandmother and the Department were present at the adjudicatory hearing. We believe the circumstances here are more analogous to the situation addressed by the supreme court in In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501. There the minor's mother was not formally served with notice of the charges against her son, but had actual notice and appeared in court and participated actively in the proceedings. The court stated that, "[We] do not read section 4 -- 4 as demanding useless formality. The mother had actual notice of the charges against her son and the correlative threat to her own rights; she appeared in court and participated actively in the proceedings without objection. She thereby waived formal service of process and submitted to the jurisdiction of the court. The lack of formal service in no way prejudiced the minor or his mother." (87 Ill. 2d 56, 62, 429 N.E.2d 501, 504.) A similar holding is found in In re J.A. (1986), 145 Ill. App. 3d 816, 495 N.E.2d 1340, where, in the context of a proceeding to ...


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