APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
521 N.E.2d 652, 167 Ill. App. 3d 670, 118 Ill. Dec. 370 1988.IL.479
Appeal from the Circuit Court of Macon County; the Hon. John K. Greanias, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
On May 12, 1987, the Macon County circuit court adjudicated the minor respondent delinquent based on one count of attempt (robbery), one count of aggravated battery, and illegal consumption of alcohol. Respondent was ordered to serve three days in detention, perform 90 hours of community service, and placed on six months' probation. On appeal, respondent contends he was denied due process where the State failed to give notice of the delinquency proceedings to the noncustodial father. He requests the court vacate the orders against him and remand the cause for new proceedings. We affirm.
On the evening of November 29, 1986, a Decatur police officer arrested the respondent and took him into custody. Respondent's mother was notified of her son's arrest and went to the station. At the station, Decatur juvenile officer Diane Beggs interviewed the respondent and the mother sat through the interview with her son. The respondent's noncustodial father also came to the station near the end of the interrogation. It is not known how he knew his son was in custody.
The minor and his mother were served with summons on January 7, 1987. The State did not serve the minor's father personally, by certified mail, or by publication. His address was listed as unknown in the petition. A probation department report indicated the father may have been incarcerated in the Macon County jail. The mother was present at the adjudicatory and Dispositional hearings; the father was not.
The issue presented is whether due process was violated where the State failed to serve the non-custodial father by summons, certified mail or publication either before the adjudicatory and Dispositional hearings, where the non-custodial father appeared at the police station during his son's interrogation prior to the filing of the delinquency petition.
A person named as a respondent in a petition is required to be served with summons. (Ill. Rev. Stat. 1985, ch. 37, par. 704-3.) If the person's address is unknown, service should be made by publication in a newspaper of general circulation in the particular county. (Ill. Rev. Stat. 1985, ch. 37, par. 704-4(2).) Yet notice by publication is not necessary if the minor's legal custodian has already been served personally or by certified mail. (Ill. Rev. Stat. 1985, ch. 37, par. 704-4(2).) In this case the non-custodial father was named as a respondent, and his address was unknown. Service by publication was not necessary because the legal custodian, the mother, was served with summons personally.
Non-custodial parents should be served personally or by mail whenever possible, but notice to the custodial parent is what is crucial. (In re S.W.C. (1982), 110 Ill. App. 3d 695, 442 N.E.2d 961.) Here the respondent's mother is the custodial parent and she was properly notified.
The Illinois Supreme Court has held that where a minor fails to question the State's diligence in locating the non-custodial parent at trial, the matter is waived for purposes of appeal. (In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848.) We agree. Minors should not remain silent at trial and then complain later about inadequate notice. At no time during the proceedings did the respondent, his ...