APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
Charles Warner, Respondent-Appellant)
531 N.E.2d 924, 176 Ill. App. 3d 868, 126 Ill. Dec. 297 1988.IL.1678
Appeal from the Circuit Court of Cook County; the Hon. Peter F. Costa, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
The respondent, Charles Warner, appeals from an order of the circuit court of Cook County placing his minor son, R.W., under the guardianship of the State of Illinois. The respondent asserts that the trial court's order is void for want of jurisdiction over R.W.
On May 12, 1986, a petition was filed for an adjudication of wardship of R.W. The petition alleged that R.W., who was born August 9, 1974, was abused through excessive corporal punishment and an injurious environment. At a hearing on the temporary custody of R.W., respondent was represented by the public defender. R.W. was represented by a guardian ad litem who had been appointed by the court. The guardian ad litem appeared, accepted the appointment, stipulated to the jurisdiction of the court, and waived service of summons or process upon the minor, R.W. Following the temporary custody hearing, the court entered a finding of probable cause and appointed a temporary guardian of R.W. The case was then continued for an investigation and for a subsequent adjudicatory hearing.
At the adjudicatory hearing, respondent appeared and testified. The record reflects that R.W. was initially present, but he was later excused without objection and did not participate in any part of the hearing. It does not appear from the record that R.W. was ever served with a summons or a copy of the petition. At the Conclusion of the hearing, the trial court made a finding of abuse based upon excessive corporal punishment and continued the case for Disposition. At the Dispositional hearing, the court adjudicated R.W. a ward of the court, vacated the temporary guardianship, and appointed a guardian with the right to place. The only issue raised by respondent on appeal is whether the trial court's adjudication is void for lack of jurisdiction over R.W., who was not personally served with a summons or a notice of the proceedings.
At the time of the filing of the petition in the instant case, section 4-3 of the Juvenile Court Act required that "the summons shall be directed to the minor and to each person named as a respondent in the petition." (Ill. Rev. Stat. 1985, ch. 37, par. 704-3.) The statute was later amended, effective January 12, 1987, to require that "[the] summons shall 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 Supp., ch. 37, par. 704-3.) Our supreme court in In re Pronger (1987), 118 Ill. 2d 512, 517 N.E.2d 1076, held that this 1987 amendment to section 4-3 excused service of summons upon a minor in a juvenile neglect proceeding. Instead, the court found that the section as amended now allowed for service upon the child's legal guardian or custodian to establish jurisdiction. The supreme court, quoting from debates in the House of Representatives, found that this interpretation was clearly consistent with the intent of the legislature. The court noted that the report of the House proceedings (84th Ill. Gen. Assem., House Proceedings, June 30, 1986, at 173), reflected the legislature's intention to reverse the result of a previous appellate court decision in In re Day (1985), 138 Ill. App. 3d 783, 486 N.E.2d 307, where the court had held that failure to give notice to minors in juvenile proceedings deprived the trial court of jurisdiction. Representative Bowman, the sponsor of the legislative bill, as noted by the supreme court, identified this as the primary purpose of the bill during the house debates, and stated: "[We] are not limiting the service requirement. We are just saying that it [service] can be discharged satisfactorily under the law by providing service to a representative . . . a court appointed representative of the minor." 84th Ill. Gen. Assem., House Proceedings, May 15, 1986, at 43-44.
Consequently, the supreme court, in Pronger, found that this amendment was enacted specifically to correct the error of the Day court, which had misinterpreted section 4 -- 3 (84th Ill. Gen. Assem., House Proceedings, May 15, 1986, at 43), and that, under such circumstances, the amendment must have also been intended to be applied retroactively. Accordingly, the supreme court ruled that the amendment could be applied in the Pronger case, since final appellate judgment had not been rendered, and held that service on the guardian ad litem in that case satisfied the statute.
However, subsequent to the amendment considered by the Pronger case, the statute was again amended to now provide:
"The 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 the Act." (Emphasis ...