May 25, 1988
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE
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
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 meaningless, especially when such infant's rights are protected by a guardian.
The effect of the 1988 amendment is clearly to reinstate the requirement of service on minor respondents eight years of age or older. We believe that the legislature would not have stated the exception for minors younger than eight years if it did not intend to impose a requirement of service on minors eight years old or over. (See also In re D.S., R.S., and I.S. (Ill. App., 1st Dist. March 11, 1988), Nos. 1-85-1796, 1-85-1797, 1-85-1798.) Thus, in the present case, where respondent was 14 years old, the trial court did not have jurisdiction until the minor was served with summons.
The State argues that the holding of In re Pronger that summons to a minor is no longer required is dispositive of the issue in this case. It maintains that the actual notice of and participation by respondent's DCFS guardian sufficiently protected respondent. However, because Pronger was filed prior to the effective date of the 1988 amendment to section 4-3, that case does not control the outcome here. The amendment to the statute, subsequent to the opinion in Pronger, reinstated the requirement of service upon minors eight years of age or older.
The State alternatively argues that the trial court properly exercised in personam jurisdiction by virtue of the presence of the minor and his DCFS representative at the proceedings. We do not believe that section 1-11 of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 701-11), grants the guardian the authority to appear and waive jurisdiction on behalf of the minor. Nor do we agree that the presence of the minor at the proceedings was sufficient to confer jurisdiction.
In juvenile delinquency proceedings, a minor cannot enter his or her appearance and jurisdiction can only be obtained by service of process. (In re R.R.S. (1987), 160 Ill. App. 3d 548, 514 N.E.2d 192; In re R.A.B. (1986), 146 Ill. App. 3d 993, 497 N.E.2d 811; In re Day (1985), 138 Ill. App. 3d 783, 486 N.E.2d 307.) These cases rely on the early holding of Bonnell v. Holt (1878), 89 Ill. 71. In In re R.R.S., the State similarly argued that a 14 year old's personal appearance and participation supports the court's jurisdiction in his delinquency proceedings. The R.R.S. court however, followed the holdings, as we do here, of Bonnell and Day that a minor cannot enter his or her appearance, and that jurisdiction can only be obtained by service of process.
In the present case, the trial court also violated the rights of the father by not having summons served upon him. The Act requires that even when the parents are not the legal guardians of a minor, the parents must be named as respondents in any petition and the clerk of the court must issue a summons to each respondent named in the petition. (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 37, pars. 704-1(2), 704-3.) This requirement was not excused in the present case because the minor's legal guardian waived service and appeared at every stage of the proceedings. In People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297, the court held that where a non-custodial parent was properly named as a respondent in the petition, with his or her address provided, any adjudication of wardship by the trial court, without compliance with the notice provisions, constituted a violation of the right of the parent and the child to due process. There, the court held that by failing to notify the minor's mother, a named respondent with a known address, of the juvenile proceedings against her son, the State did not invoke the jurisdiction of the court and the order of adjudication and all subsequent orders were void. This is the exact situation before us in the present case. The minor's father was a named respondent and his address was provided. However, he never received notice of the proceedings and therefore, as in R.S., the due process rights of the father and the minor were violated. Additionally, we do not believe that the appearance of the father at the July 30, 1986, Dispositional hearing on the supplemental petition retroactively alleviated the State's statutory duty to notify the minor's father of the initial petition and proceedings.
Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for proceedings consistent with the holdings of this opinion.
Judgment reversed and remanded.
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