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08/24/89 In Re D.L.W. (the People of the State of Illinois

August 24, 1989

IN RE D.L.W. (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellee, v.

D.L.W., Respondent-Appellant)

543 N.E.2d 542, 187 Ill. App. 3d 566, 135 Ill. Dec. 159 1989.IL.1304

Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The respondent minor, born January 21, 1973, had been adjudicated delinquent and placed on probation. Thereafter, pursuant to proceedings on a petition to revoke his probation, the probation was revoked and he was committed to the Department of Corrections, Juvenile Division . This appeal followed.

This is another case wherein the sole issue on appeal is the failure to give statutorily required notice to a parent in a delinquency proceeding arising under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801-1 et seq.). Section 5-25(6) of the Act states: "Disposition after revocation of probation or of conditional discharge shall be under section 5-22." (Ill. Rev. Stat. 1987, ch. 37, par. 805-25(6), formerly Ill. Rev. Stat. 1985, ch. 37, par. 705-3(8) (referring to the notice requirements of section 5-1).) Section 5-22(2) provides in part: "Notice in compliance with Sections 5-15 and 5-16 must be given to all parties-respondents prior to proceeding to a Dispositional hearing." (Ill. Rev. Stat. 1987, ch. 37, par. 805-22(2) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 705-1(2) (referring to notice in compliance with sections 4-3 and 4-4)).) Under sections 5-15 and 5-16, notice by personal or substitute service is preferred, but where such service cannot be obtained for any of the listed statutory reasons, notice by certified mail or by publication is sufficient. (Ill. Rev. Stat. 1987, ch. 37, pars. 805-15, 805-16 (formerly Ill. Rev. Stat. 1985, ch. 37, pars. 704-3, 704-4).) Of particular note to the issue raised in this case is the provision on service of summons, set forth in section 5-15(5) of the Act, which provides:

"Service of a summons and petition shall be made by: (a) leaving a copy thereof with the person summoned at least 3 days before the time stated therein for appearance; (b) leaving a copy at his usual place of abode with some person of the family, of the age of 10 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the person summoned at his usual place of abode, at least 3 days before the time stated therein for appearance ; or (c) leaving a copy thereof with the guardian or custodian of a minor, at least 3 days before the time stated therein for appearance." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 37, par. 805-15(5) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 704-3(5)).)

Similar notice requirements adhere when a delinquency petition or supplemental petition is filed, and section 5 -- 15 further provides in pertinent part:

"(1) When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor's legal guardian or custodian and to each person named as a respondent in the petition.

(3) The summons shall be issued under the seal of the court, attested in and signed with the name of the clerk of the court, dated on the day it is issued, and shall require each respondent to appear and answer the petition on the date set for the adjudicatory hearing." (Ill. Rev. Stat. 1987, ch. 37, par. 805-15 (formerly Ill. Rev. Stat. 1985, ch. 37, par. 704-3).)

The type of notice required under the Act is clear, as is the legislative intent that notice be given prior to proceeding with the adjudicatory and Dispositional hearings. Further, this court has stated the statutory provisions regarding notice are mandatory (In re J.W.M. (1984), 123 Ill. App. 3d 1036, 1037, 463 N.E.2d 1023, 1024) and failure to comply with statutory notice provisions may constitute reversible error. (In re J.I.D. (1988), 177 Ill. ...


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