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10/20/88 In Re S.B. Et Al.

October 20, 1988

IN RE S.B. ET AL., MINORS (THE PEOPLE OF THE STATE OF


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Illinois, Petitioner-Appellee, v.

Denise B., Respondent-Appellant)

530 N.E.2d 1031, 176 Ill. App. 3d 43, 125 Ill. Dec. 622 1988.IL.1542

Appeal from the Circuit Court of Cook County; the Hon. Gerald T. Winiecki, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Respondent appeals from the judgment of the circuit court of Cook County that awarded to the Department of Children and Family Services the guardianship with right to place over her five minor children. Respondent contends that the judgment is void because the minors were not served with summons or notice as required by the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, pars. 701-1 et seq.) in effect when the neglect petitions were filed. We affirm.

Background

The proceedings in this case began in September 1983 when five petitions for the adjudication of wardship were filed alleging that respondent's minor children (S.B., D.M., C.M., C.M., and S.M.) were neglected as to necessary care and were dependent based on the mental and/or physical disability of the parent. (Ill. Rev. Stat. 1983, ch. 37, pars. 702-4(1)(a), 702-5(1)(b).) Respondent and the father of the minors were named in the petition and summonses issued advising them of the hearing set for October 19, 1983. Although the summonses were returned unserved, respondent appeared in court on the specified date and counsel was appointed to represent her. The court also appointed a guardian ad litem for the minors. There is no indication in the record that any attempt was made to personally serve the minors.

In the proceedings which followed, respondent's counsel stipulated to probable cause and filed a denial on her behalf. The court entered an order of protection with respect to respondent's care of the minors (Ill. Rev. Stat. 1983, ch. 37, par. 705-5) and ordered that an alias summons be served on the father. The father, served by certified mail, appeared in court on February 17, 1984, and acknowledged paternity of the children. The court appointed counsel to represent him and the case was continued by agreement of the parties.

Thereafter a petition for supplemental relief was filed which alleged that three of the minors had been left alone and unsupervised. The petition requested that the protective order be vacated and the DCFS given temporary custody with the right to place. Summonses again issued to respondent and the father at the same address, but were returned unserved. No summons or notice was served upon the guardian ad litem for the children, nor on the children themselves. The supplemental petition was subsequently dismissed without prejudice.

On May 9, 1985, a second petition for supplemental relief was filed asking the court to modify the previous order of protection. No summonses were issued with respect to this second petition for supplemental relief. At a hearing on the second petition held a few weeks later, the parents were represented by their appointed counsel and the minors by their guardian ad litem. Parents' counsel informed the court that they had no objection to the supplemental petition and stipulated to probable cause and urgent and immediate necessity. Counsel also agreed to the vacature of the order of protection and the appointment of the guardianship administrator of the DCFS as temporary custodian of the minors with the right to place, without prejudice. An order to that effect was entered and the matter was continued for trial on the merits.

An adjudicatory hearing was held by the court approximately a year later, on April 23, 1986. At that time the parents were present and represented by counsel, and the minors were represented by two guardians ad litem. At least two of the minors were also in court. At the close of evidence and argument, the court entered a finding of neglect as to care and necessity. It postponed until Dispositional hearing any ruling ...


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