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05/25/88 the People of the State of v. D.J.

May 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE

v.

D.J., A MINOR, RESPONDENT-APPELLANT 1988.IL.814 DATE FILED: MAY 25, 1988



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, HONORABLE CHARLES I. BARISH PRESIDING

APPELLATE Judges:

JUSTICE MCNAMARA, RIZZI and FREEMAN, J.J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Respondent, D.J., a minor, appeals from his adjudication as a delinquent and subsequent commitment to the Department of Corrections. On appeal, respondent contends that the failure to serve summons and notice on him and on his father in accordance with Ill. Rev. Stat. 1985, ch. 37, par. 704-3(1), deprived the trial court of jurisdiction and thus all its orders are void.

In May 1985, respondent was charged with battery and appeared before the juvenile division of the circuit court. An assistant Public Defender was appointed to represent respondent and entered a denial. Respondent was a ward of the Department of Children and Family Services at the time. Respondent's parents were not present at the initial proceeding. The summons issued by the court on the petition named respondent's mother and father as respondent parties. The mother received substituted service at her abode. The father and respondent never received service of summons.

On August 7, 1985, respondent entered an admission and was adjudicated a delinquent. On December 5, 1985, the court released respondent to the custody of his mother. On March 12, 1986, the court placed respondent on one year probation.

On June 11, 1986, a petition for supplemental relief was filed. Respondent's probation officer testified that respondent was uncontrollable and recommended that he be placed in custody. On June 25, 1986, respondent entered an admission on the charge of violation of probation. On July 30, 1986, with the respondent's father present for the first time, the court committed respondent to the Department of Corrections.

On appeal, respondent contends that the trial court lacked jurisdiction due to the fact that neither he nor his father received service of summons.

The basic requirements of due process and fairness must be satisfied in juvenile court proceedings. (In re Gault (1967, 387 U.S. 1.) To fulfill this requirement, the Juvenile Court Act of 1987 requires that a petition or supplemental petition for delinquency state the name, age, and residence of the minor, the names and residences of his parents, and the name and residence of his legal guardian or the person having custody or control of the minor. (Ill. Rev. Stat. 1987, ch. 37, par. 802-13(2).) At the time the summons in the present case was issued, the Act required that when a petition was filed, the clerk was to issue a summons with a copy of the petition attached, directed to the minor and to each person named as a respondent in the petition. (Ill. Rev. Stat. 1985, ch. 37, par. 704-3(1).) Effective January 12, 1987, the legislature amended the statute to require the summons to be directed to the minor's legal guardian or custodian and to each person named as a respondent in the petition. Ill. Rev. Stat. 1987, ch. 37, par. 802-15; In re Pronger (1987), 118 Ill. 2d 512, 517 N.E.2d 1076.

Significant to this appeal, the legislature amended the statute again, effective January 1, 1988. The statute now reads:

"§ 4-3 . . . . [t]he summons shall be directed to the minor's legal guardian or custodian and to each person named as a respondent in the petition, except that summons need not be directed to a minor respondent under 8 years of age for whom the court appoints a guardian ad litem if the guardian ad litem appears on behalf of the minor in any proceeding under this Act." Public Act 85-720, eff. Jan 1, 1988.

The first issue we must determine is which version of the statute applies to the present case. Respondent properly points out that in In re Pronger, the court held the 1987 amendment to section 4-3 to be retroactive. in that case, our supreme court found the legislature had intended to remedy the anomalous results of two decisions in In re Crouch (1985), 131 Ill. App. 3d 694, 476 N.E.2d 69, and In re Day (1985), 138 Ill. App. 3d 783, 486 N.E.2d 307, both of which held that failure to give notice to minors as known respondents in juvenile proceedings deprived the trial court of jurisdiction. Significantly, in Crouch and Day, the minors were infants, and admittedly, service upon such respondents is of limited value. The Pronger court noted that under the amended wording of section 4-3, the summons must be directed to the minor's legal guardian, rather than to the minor. The Pronger court held the amendment to section 4-3 to be in the nature of curative legislation, and so retroactive, provided final judgment has not been rendered. Thus, failure to serve a five month old infant in Pronger did not deprive the court of jurisdiction.

Based on this finding in Pronger , we believe that the 1988 amendment to section 4-3 must also be applied retroactively. This subsequent amendment serves to protect the due process rights of minors whose knowledge and participation in such proceedings would be ...


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