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06/13/88 In Re J.M.

June 13, 1988

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


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, v.

William McCarron, Respondent-Appellant)

524 N.E.2d 1241, 170 Ill. App. 3d 552, 121 Ill. Dec. 193 1988.IL.926

Appeal from the Circuit Court of Du Page County; the Hon. Kevin P. Connelly, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Respondent, the minor's father, appeals pro se from the trial court's order adjudicating his 16-year-old daughter, J.M., a minor requiring authoritative intervention (Ill. Rev. Stat. 1985, ch. 37, par. 702-3). We dismissed his prior appeal of this same order for the reason it was neither an appeal from a final judgment nor a proper interlocutory appeal, and the cause was remanded for a Dispositional hearing. (In re J.M. (1987), 151 Ill. App. 3d 1037.) On remand at the Dispositional hearing, the trial court determined it was in the best interests of J.M. to be made a ward of the court, placed her under supervision for a one-year period, until April 8, 1988, and released her to the continued care and custody of her foster parents, the Redmonds. Respondent then brought the instant appeal.

He contends (1) section 2-3 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-3) (the MRAI statute) is unconstitutional; (2) he was deprived of due process at the Dispositional hearing; (3) the adjudication of J.M. as an MRAI was against the manifest weight of the evidence; and (4) the MRAI statute does not further the basic purpose of the Juvenile Court Act.

In the introduction to its brief, the State asserts respondent's appeal will be moot as of October 8, 1987, the date of J.M.'s eighteenth birthday, with the possible exception of respondent's argument that the MRAI statute is unconstitutional because it subjects him to liability for payment for the minor's placement without due process of law. Accordingly, the State expressly reserved to itself "the right to move to dismiss certain portions of the instant appeal once has attained the age of majority." The State has not so moved, however, and we do not find the instant appeal moot.

A cause is considered moot on appeal if the decision of the reviewing court could have no practical effect on the parties. (Bunge Corp. v. Lewis (1986), 146 Ill. App. 3d 1094.) Although it is true the MRAI statute does not apply to persons over 18 years of age (Ill. Rev. Stat. 1985, ch. 37, par. 702-3), wardship and custodianship may continue until the age of 21 (Ill. Rev. Stat. 1985, ch. 37, pars. 705-7(6), 705-11; see also In re J.J. (1979), 71 Ill. App. 3d 227). Hence, we proceed to consider the merits of the appeal.

At the outset, we note that pro se litigants are held to comply with the same rules of procedure required of attorneys. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 451.) We further note respondent's brief contains an inadequate appendix in violation of Supreme Court Rule 342, citations to specific page numbers and the official reports are not provided in all instances, the statute at issue is neither set forth verbatim nor in the appendix, the argument sections do not contain citations to pages of the record relied on, and the last two issues argued are unsupported by any citation to relevant authority, all in violation of Supreme Court Rule 341. 107 Ill. 2d Rules 342(a), 341(d), (e)(5), (e)(7).

Although failure to comply with supreme court rules governing briefs can operate as a waiver or can warrant dismissal of the appeal (Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42), the impropriety of respondent's brief is no limitation on our jurisdiction (Miller v. Miller (1988), 167 Ill. App. 3d 176, 177), and we shall consider respondent's arguments to the extent they are properly presented. See Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1092.

Respondent contends the MRAI statute is unconstitutional in several respects. First, he asserts it is vague and without standards in that the terms "absent from home" and "beyond the control" are not defined. Respondent, citing Connally v. General Construction Co. (1925), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127, states that an unconstitutionally vague statute is one which is written in terms so vague that men of common intelligence must guess at its meaning and differ as to its application. Thus, he finds the MRAI statute vague inasmuch as the language does not require habituality or repeated conduct, no limitation is placed upon time and duration, and there is no indication given as to the seriousness of the behavior which can invoke application of the statute.

The State argues the statute is not unconstitutionally vague as exemplified by a complete reading of all the provisions of the statute and by reference to the manner in which the statute and its predecessor statute (minor otherwise in need of supervision (Ill. Rev. Stat. 1981, ch. 37, par. 702-3)) have been interpreted and applied in past cases. Further, the State points to the legislative history of the statute, which makes it clear that it is not intended to apply to the child or teenager who merely acts like a child or teenager in the ordinary and contemporary sense of those terms. It argues the lack of rigid definition is necessary for flexibility in application of the statute to cases which are sui generis and in which the best interests of the child are paramount.

There is a strong presumption that legislative enactments are constitutional, and the person who asserts otherwise has the burden of clearly establishing the constitutional violation. (Bernier v. Burris (1986), 113 Ill. 2d 219, 227.) To succeed in a facial challenge to a law on grounds of vagueness, it must be demonstrated that the law is impermissibly vague in all of its applications. (Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 71 L. Ed. 2d 362, 371, 102 S. Ct. 1186, 1193; People v. Matkovick (1984), 101 Ill. 2d 268, 275.) A statute is unconstitutionally vague if its terms are so indefinite that persons of common intelligence must necessarily guess at its meaning and differ as to its application. (Rackow v. Human Rights Comm'n (1987), 152 Ill. App. 3d 1046, 1057; Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1986), 144 Ill. App. 3d 325, 331.) "To hold a statute unconstitutionally vague, its terms must be so ill-defined that their meaning will be determined by the opinions and whims of the trier of fact rather than by any objective criteria. [Citations.]" Rackow, 152 Ill. App. 3d at 1057.

It is not necessary that each term used in a statute be specifically defined and that exact application of the statute to all actual variations be delineated therein. (O'Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 269; Forsberg v. City of Chicago (1986), 151 Ill. App. 3d 354, 362.) Absent a contrary legislative intent, the words used in a statute have their ordinary and popularly understood meaning. (People v. La Pointe (1981), 88 Ill. 2d 482, 499.) Words of common usage may acquire a special and limited significance in the context in which they are used. (People ex rel. Adamowski v. Chicago Land Clearance Comm'n (1958), 14 Ill. 2d 74, 82.) "A statute satisfies the requirement of certainty if the words and phrases employed have a technical or other special meaning sufficiently well known to enable those within their reach to apply them. [Citation.]" (Adamowski, 14 Ill. 2d at 82.) In determining whether a statute is unconstitutionally vague, in addition to the language used, consideration is also given to the legislative objective and the evil the statute is designed to remedy. La Pointe, 88 Ill. 2d at 499.

We find respondent has not met his burden of establishing the MRAI statute is unconstitutional. The statute provides as follows:

"Those requiring authoritative intervention include any minor under 18 years of age (1) who is (a) absent from home without consent of parent, guardian or custodian, or (b) beyond the control of his or her parent, guardian or custodian, in circumstances which constitute a substantial or immediate danger to the minor's physical safety; and (2) who, after being taken into limited custody for the period provided for in this Section and offered interim crisis intervention services, where available, refuses to return home after the minor and his or her parent, guardian or custodian cannot agree to an arrangement for an alternative voluntary residential placement or to the continuation of such placement. Any minor taken into limited custody for the reasons specified in this Section may not be adjudicated a minor requiring authoritative intervention until the following number of days have elapsed from his or her having been taken into limited custody: 21 days for the first instance of being taken into limited custody and 5 days for the second, third, or fourth instances of being taken into limited custody. For the fifth or any subsequent instance of being taken into limited custody for the reasons specified in this Section, the minor may be adjudicated as requiring authoritative intervention without any specified period of time expiring after his or her being taken into limited custody, without the minor's being offered interim crisis intervention services, and without the minor's being afforded an opportunity to agree to an arrangement for an alternative voluntary residential placement. Notwithstanding any other provision of this Section, for the first instance in which a minor is taken into limited custody where one year has elapsed from the last instance of his having been taken into limited custody, the minor may not be adjudicated a minor requiring authoritative intervention until 21 days have passed since being taken into limited custody." Ill. Rev. Stat. 1985, ch. 37, par. 702-3.

Respondent likens the instant statute to the one found unconstitutional in People ex rel. O'Connell v. Turner (1870), 55 Ill. 280, and asserts that, as in O'Connell, "there is not a child in Illinois who could not be proved by [two] or more witnesses to be 'absent from home' or 'beyond the control' of his parents."

In O'Connell, the court struck down a statute that provided for the confinement and reformation of minors who are "destitute of proper parental care, and growing up in mendicancy, ignorance, idleness or vice." (O'Connell, 55 Ill. at 282.) The court opined that no two of the "best and kindest parents" could scarcely agree on what is proper parental care and, thus, that any child in the land could be proved by two or more witnesses to be destitute of same.

A most obvious distinction between the law at issue in O'Connell and the one here is that confinement of a minor found to require authoritative intervention is not a possible Disposition. (Ill. Rev. Stat. 1985, ch. 37, par. 705-2(b).) Further, as the State points out, the scope of the phrase "absent from home" is narrowed considerably in that the absence must be "without the consent of parent, guardian, or custodian."

Respondent's contention that the statute can apply to a child who disobeys a mother's warning and thereby places himself in danger, or to a child who ditches school once on a dare, or to a child who sneaks out to a forbidden movie is without merit. As stated in In re Polovchak (1983), 97 Ill. 2d 212, 225, "it seems manifest that the legislature could not have intended [the] phrase ['beyond the control' of one's parents as used in the predecessor MINS statute] to include an isolated act by a . . . minor which poses no hazard to him or anyone else." By the same token, a single isolated act by a minor in Illinois can be sufficient to establish that the minor is beyond the control of his parents provided the minor's conduct is seriously harmful and points to grave danger. (In re Polovchak (1981), 104 Ill. App. 3d 203, 210.) Moreover, neither absence without consent nor being beyond the control of one's parents, by itself, is sufficient to confer jurisdiction under the act upon any court (except as otherwise provided in sections 3-3 and 3-9 of the Act) "until efforts and procedures to address and resolve such actions . . . have been exhausted without correcting such actions." Ill. Rev. Stat. 1985, ch. 37, par. 701-19(b).

As noted in Polovchak, prior decisions of that court concerning minors otherwise in need of supervision demonstrate that the initial determination of the need for supervision was predicated on the fact that the minor was incorrigible, a frequent runaway, or that the minor's acts posed serious hazards to himself or to others. (In re Polovchak, 97 Ill. 2d at 225; see, e.g., In re R.R. (1982), 92 Ill. 2d 423 (minor tried to poison her mother and was beyond her parents' control); In re Baker (1978), 71 Ill. 2d 480 (minor repeatedly ran away from home); In re Sekeres (1971), 48 Ill. 2d 431 (minor frequently absented herself from home).) Thus, it is not adequate to prove a minor ...


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