APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
536 N.E.2d 1355, 181 Ill. App. 3d 453, 130 Ill. Dec. 144 1989.IL.485
Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. KNECHT, J., concurs. PRESIDING JUSTICE McCULLOUGH, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On May 13, 1988, a petition was filed in the circuit court of Champaign County alleging S.L.S. was a delinquent minor (Ill. Rev. Stat. 1987, ch. 37, par. 805-3) because he had committed the offenses of obstructing Justice and driving without a valid driver's license. On May 25, 1988, an adjudicatory hearing was held at which S.L.S. admitted commission of the charge of obstructing Justice. The other charge was then dismissed. The court found S.L.S. to be a delinquent minor. Subsequently, a Dispositional hearing was held, and, on June 23, 1988, S.L.S. was committed to the Department of Corrections. S.L.S. has appealed.
On appeal, the sole contention of the minor is that the circuit court lacked jurisdiction to enter the decree of delinquency because his father, Junior Smith, had not been served or notified of the filing of the petition as required by sections 2-15 and 2-16 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, pars. 802-15, 802-16). The father's name and his residence, which was within Champaign County, were stated in the petition. He had appeared in court but not until the Dispositional hearing. The mother was properly served and appeared at the adjudicatory hearing.
The most significant case in regard to the requirements of service or notice prior to entry of adjudicatory orders is still People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297. There, the supreme court upheld an appellate court decision reversing a circuit court judgment finding a minor delinquent and committing him to the Department of Corrections. (In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139.) That minor's parents were divorced but lived in the same city at the addresses listed in the delinquency petition. The minor had lived with his mother but was in the physical custody of his father at the time of the proceedings. The mother had not been served with summons or given notice of the filing of the petition and, unlike the father here, did not appear at any of the proceedings.
Prior to its decision in R.S., in the case of In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, the supreme court held that failure to serve or give notice to a non-custodial parent listed in a petition alleging delinquency did not result in grounds to arrest a judgment of delinquency when the petition set forth that the name and whereabouts of the non-custodial parent were unknown. The court concluded that the attenuated nature of the relationship between this father and his blood son born out of wedlock was such that the father was not a necessary party, and proceeding without him did not deprive either the minor or the father of the due process rights as described in the case of In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.
In R.S., the supreme court distinguished the situation there, where service upon the mother could easily have been obtained, from the situation in J.W., where only notice by publication, likely to be futile, could have been given in regard to the father. The R.S. court determined no decision needed to be made as to whether the mother was an indispensable party, because, in any event, the statutory notice requirements had not been complied with. The majority held that the failure to notify the mother deprived the court of subject matter jurisdiction of the proceedings. A three-Justice minority concurred in the result but concluded the failure to follow the notice procedure did not deprive the court of subject matter jurisdiction but was merely reversible error.
In the case of In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848, the opinion noted the dispute within the court on the jurisdiction issue discussed in R.S. but did not delve further into the matter. In that case, the court held that, when the whereabouts of a parent are stated in the petition to be unknown, any failure of the petitioner to exercise diligence in locating that parent is waived if not raised in the circuit court. Since R.S. and J.P.J., the supreme court has not spoken on the issues involved here.
The State argues that the holding in J.P.J. negates any complaint by the minor as to the lack of notice to the father here because that issue was not raised in the trial court. We cannot agree. Waiver was applied in J.P.J. under circumstances where the petition set forth that the whereabouts of the parent were ...