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10/25/89 the People of the State of v. R.G.

October 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

R.G., A MINOR, ET AL., APPELLEES

THE MRAI, THROUGH SECTION 3-3 OF THE ACT (ILL. REV. STAT. 1987, CH. 37, PAR. 803-3), REPLACED SECTION 2-3 OF THE ACT, ENTITLED MINORS OTHERWISE IN NEED OF SUPERVISION (ILL. RE

v.

STAT. 1981, CH. 37, PAR. 702-3). THE MINS PROVIDED:



Before we review the constitutionality of the MRAI, we must first resolve an ambiguity in section 3 -- 3(1). The ambiguity is whether the phrase "in circumstances which constitute a substantial or immediate danger to the minor's physical safety" (the "immediate danger" phrase) modifies both subsection (a), which applies to minors absent from home without parental consent, and subsection (b), which applies to minors beyond parental control, or only subsection (b). The interpretation of section 3 -- 3(1) is important because it affects some of the constitutional issues addressed later.

SUPREME COURT OF ILLINOIS

546 N.E.2d 533, 131 Ill. 2d 328, 137 Ill. Dec. 588 1989.IL.1687

Appeal from the Circuit Court of Du Page County, the Hon. Margaret O. Coffin, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. JUSTICE MILLER, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

The State filed a petition under the Juvenile Court Act (the Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801-1 et seq. (formerly Ill. Rev. Stat. 1985, ch. 37, par. 701-1 et seq.)) alleging R.G., a minor, required authoritative intervention (Ill. Rev. Stat. 1987, ch. 37, par. 803-3 (formerly Ill. Rev. Stat. 1985, ch. 37, par. 702-3)), and requesting the circuit court adJudge R.G. a ward of the court. The State filed a similar petition regarding B.R., also a minor. The mother of B.R. filed a motion to dismiss the petition concerning B.R., alleging that the provisions of the Act relating to Minors Requiring Authoritative Intervention (the MRAI) (Ill. Rev. Stat. 1987, ch. 37, par. 803-1 et seq.) were unconstitutional. The circuit court of Du Page County found the MRAI violative of substantive and procedural due process, and equal protection provisions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2); therefore, it held the MRAI unconstitutional and allowed the

A minor requiring authoritative intervention is defined as follows:

"ny 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." (Ill. Rev. Stat. 1987, ch. 37, par. 803-3.)

If a law enforcement officer takes a minor into limited custody for a fifth or subsequent instance, the circuit court may immediately adjudicate the minor as one requiring authoritative intervention without offering the minor crisis intervention services or alternative placement. (Ill. Rev. Stat. 1987, ch. 37, par. 803-3.) If one year has elapsed since the last instance of the State's taking the minor into limited custody, the State must again afford the minor the 21-day period. Ill. Rev. Stat. 1987, ch. 37, par. 803-3.

An officer may take a minor into "limited custody" if the officer reasonably believes the minor is one requiring authoritative intervention. (Ill. Rev. Stat. 1987, ch. 37, par. 803-4(a) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-1.1(a)).) The officer must notify the parents of the minor's whereabouts, and inform the minor of the reasons why the officer took the minor into custody. (Ill. Rev. Stat. 1987, ch. 37, par. 803-4(b) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-1.1(b)).) If the minor wishes to return to his or her parents, the officer must arrange for the minor's transportation. (Ill. Rev. Stat. 1987, ch. 37, par. 803-4(c) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-1.1(c)).) If the officer cannot contact the minor's parents, the minor refuses to return to his or her parents, or the officer cannot otherwise arrange for the safe release of the minor, the officer must arrange to take the minor to an agency or association which provides interim crisis intervention services. Ill. Rev. Stat. 1987, ch. 37, par. 803-4(d) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-1.1(d)).

An agency or association may provide interim crisis intervention services to a minor if a police officer takes the minor into limited custody, if the minor requests such services, or if the minor is referred for assistance. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-3.1(a)).) In order to provide crisis intervention services, the agency or association must "immediately investigate the circumstances of the minor and the facts surrounding the minor being taken into custody and promptly explain these facts and circumstances to the minor." (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a)(i) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-3.1(a)(i)).) The agency or association must also notify the minor's parents of the minor's whereabouts. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a)(ii) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-3.1(a)(ii)).) The agency or association may refer the minor and/or parents to medical, psychological, psychiatric or social services. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a).) If the minor consents, the agency or association must arrange to release the minor to his or her parents. Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a)(iii) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-3.1(a)(iii)).

If the agency or association cannot contact the minor's parents, or the minor refuses to return home, or the agency or association cannot otherwise arrange for the minor's return home, then the agency or association may place the minor in a temporary living arrangement. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(a).) A temporary living arrangement includes a foster family home, group home or the residence of any person agreed to by the minor's parents and the agency or association. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(b); Ill. Rev. Stat. 1987, ch. 23, par. 2211 et seq.) An agency or association may shelter a minor in a temporary living arrangement only if it "seeks to effect the minor's return home or alternative living arrangements agreeable to the minor and the parent . . . as soon as practicable." (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(b) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-3.1(b)).) An agency or association cannot shelter a minor in a temporary living arrangement for more than 48 hours without parental consent unless the agency or association cannot contact the minor's parents. (Ill. Rev. Stat. 1987, ch. 37, par. 803-5(b).) Under these circumstances, the agency or association cannot shelter the minor for more than 21 days and it must document its unsuccessful efforts to contact the parents. Ill. Rev. Stat. 1987, ch. 37, par. 803-5(b).

The minor and the minor's parents may agree, at any time after the State takes the minor into custody, to alternative voluntary residential placement of the minor without a court order. (Ill. Rev. Stat. 1987, ch. 37, par. 803-6(a) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-9(a)).) Alternative placement involves placing the minor in a foster family home or group home. (Ill. Rev. Stat. 1987, ch. 37, par. 803-6(a); Ill. Rev. Stat. 1987, ch. 23, par. 2211 et seq.) Unlike a temporary living arrangement, alternative placement only occurs if the minor and the minor's parents agree to such placement. If the minor and the minor's parents cannot agree to alternative placement, and the minor refuses to return home, then the minor, a person acting on behalf of the minor, or the minor's parents may file a petition alleging that the minor requires authoritative intervention. Ill. Rev. Stat. 1987, ch. 37, par. 803-6(b) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 703-9(b)). II. History of the MRAI

"Those otherwise in need of supervision include (a) any minor under 18 years of age who is beyond the control of his parents, guardian or other custodian ; (b) any minor subject to compulsory school attendance who is habitually truant from school; (c) any minor who is an addict . . .; and (d) . . . any minor who violates a lawful court order made under this Act." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 37, par. 702-3.)

While the MINS applied to minors beyond the control of their parents, the MRAI applies not only to minors beyond parental control (Ill. Rev. Stat. 1987, ch. 37, par. 803-3(1)(b)), but also to minors absent from home without parental consent (Ill. Rev. Stat. 1987, ch. 37, par. 803-3(1)(a)). Under the MINS, therefore, the State had to prove that a runaway minor was beyond parental control before the State could intervene. For a runaway minor to come under the MRAI, the State must prove that the minor is either beyond parental control or absent from home without parental consent. On the other hand, both the MINS and the MRAI, through the beyond-parental-control provisions, apply to minors who are not runaways or absent from home, but who are nevertheless beyond the control of their parents. III. Ambiguity in the MRAI

The circuit court, as well as B.R.'s mother and the State, interpreted section 3 -- 3(1) such that the "immediate danger" phrase did not modify subsection (a). The minors in the case at bar, however, point out that the appellate court in In re J.M. (1988), 170 Ill. App. 3d 552, 559-60, found that the "immediate danger" phrase modifies both subsections (a) and (b). Nevertheless, we conclude that the "immediate danger" phrase does not modify subsection (a). We can uphold the constitutionality of section 3 -- 3(1)(a) even without the modification. Before we dispose of this issue, however, we must discuss the reasoning of the J.M. court.

The J.M. court based its decision on In re Polovchak (1983), 97 Ill. 2d 212, and the legislative history of the MRAI. The J.M. court concluded:

"t is clear that minors to whom the MRAI statute would be applicable are those whose behavior is the same type of behavior which was found to require supervision under the MINS statute [citation], i.e., as noted . . . in Polovchak, supervision was predicated on the fact the minor was incorrigible, a frequent runaway, or that the minor's acts posed serious hazards to himself or to others." (J.M., 170 Ill. App. 3d at 560-61.)

The J.M. court found that in order for the MRAI to apply to the same type of behavior as the MINS, the "immediate danger" phrase had to modify subsection (a).

The Polovchak decision involved the MINS. In Polovchak, Michael and Anna Polovchak and their children, including their son, 12-year-old Walter, moved to Illinois from the Ukraine. Michael and Anna decided to return to the Ukraine but Walter did not want to leave the United States. Walter's parents did not want him to stay in the United States without them. Walter and his sister, without their parents' consent, moved in with their cousin for several days. Michael reported Walter's disappearance to the police. The police located Walter and called the Federal authorities regarding Walter's request to stay in the United States. The circuit court later adJudged Walter a ward of the court after finding him to be a minor in need of supervision. The circuit court denied Michael and Anna's request to have Walter returned to them.

This court disagreed with the ruling of the circuit court:

"While this court has not previously construed the phrase 'beyond the control' of one's parents, . . . it seems manifest that the legislature could not have intended that phrase to include an isolated act by a 12-year-old minor which poses no hazard to him or anyone else. Decisions in this court, while involving different issues, demonstrate that the initial determination that the minor was in need of supervision was predicated on the fact that he was incorrigible, a frequent runaway or his acts posed serious hazards to himself or others. [Citations.]

. . . Neither psychiatrist, testifying in response to hypothetical questions based on these and other relevant facts, believed that Walter was beyond the control of his parents. . . . Walter's actions, which can hardly be characterized as those of a runaway, and posed no hazard to himself or anyone else, simply do not establish that he was beyond parental control." (Polovchak, 97 Ill. 2d at 224-26.)

The Polovchak court also pointed out that Walter never stated "he would not remain with his parents if released." (Polovchak, 97 Ill. 2d at 223.) Moreover, this court noted that Walter's reluctance to return home did not originate "from his opposition to being reunited with his parents but rather from his desire not to return to the Ukraine, an unlikely possibility, had the court released him to his parents, in view of the interest manifested by the Federal agencies." (Polovchak, 97 Ill. 2d at 224.) For all of these reasons, the court in Polovchak held that Walter was not beyond the control of his parents and thus not in need of supervision.

Our decision in the case at bar in no way conflicts with Polovchak. Polovchak only concerned whether a particular minor was beyond the control of his parents under the MINS. Under the MRAI, Polovchak would apply to section 3 -- 3(1)(b) rather than section 3 -- 3(1)(a). We conclude, therefore, that Polovchak does not mandate the interpretation of section 3 -- 3(1) asserted by the J.M. court.

The J.M. court also based its interpretation of section 3 -- 3(1) on its finding that the legislature intended the MRAI to cover the same type of behavior covered by the MINS. The J.M. court pointed to the following exchange during the debate on the MRAI in the Illinois House of Representatives:

"[Representative] Kulas: Representative Grossi, Senate Bill 623 abolishes the category of minors known as minors in need of supervision, and it replaces this category with a second category called a minor requiring authoritative intervention. Could you explain the difference between the two categories to me?

[Representative] Grossi: My understanding [is] that it is simply a change in the description of these types of minors.

[Representative] Kulas: There is no difference, as far as factual differences? Is it just a name change, in other words?

[Representative] Grossi: What is described [is] the same type of behavior, instead of identifying them as minors in need of supervision, they are now known as minors in need of authoritative intervention, and there's the addition of twenty-one days before they are brought before the court." 82d Ill. Gen. Assem., House Proceedings, June 25, 1982, at 158.

Our interpretation of the MRAI is not inconsistent with the substance of the House debate reiterated above. Even when section 3 -- 3(1)(a) is interpreted as not requiring any proof of "immediate danger" to the minor, the MRAI and the MINS still apply to the same type of behavior; that is, both statutes apply to runaway minors. The MINS and the MRAI, however, are not exactly alike. The MINS only applied to minors beyond the control of their parents. The MRAI, however, not only applies to minors beyond the control of their parents, but also to minors absent from home without parental consent. If the legislature had intended the MRAI to cover exactly the same conduct as the MINS, the legislature would not have included the absentee category in the MRAI. In fact, section 1 -- 4 of the Act reveals that the legislature intended to cover a broader range of activity under the MRAI:

"Nothing in this Act shall be construed to give . . . any court jurisdiction . . . over any minor solely on the basis of the minor's (i) misbehavior which does not violate any federal or state law or municipal ordinance, (ii) refusal to obey the orders or directions of a parent, guardian or custodian, (iii) absence from home without the consent of his or her parent, guardian or custodian, or (iv) truancy, until efforts and procedures to address and resolve such actions by a law enforcement officer during a period of limited custody, by crisis intervention services . . . and by alternative voluntary residential placement . . . have been exhausted without correcting such actions." (Ill. Rev. Stat. 1987, ch. 37, par. 801-4(b) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 701-19(b)).)

Consequently, while we agree with the decision in J.M. upholding the constitutionality of the MRAI, we overrule that portion of the decision which interpreted the "immediate danger" phrase as modifying section 3 -- 3(1)(a). IV. Substantive Due Process

Under substantive due process (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, ยง 2), a statute is unconstitutional if it impermissibly restricts a person's life, liberty or property interest. (Kelley v. Johnson (1976), 425 U.S. 238, 244, 47 L. Ed. 2d 708, 713, 96 S. Ct. 1440, 1444.) Procedural due process, on the other hand, addresses the constitutionality of the specific procedures employed in the statute. (Kelley, 425 U.S. at 244, 47 L. Ed. 2d at 713, 96 S. Ct. at 1444.) If the life, liberty or property interest is a fundamental right, then any statute limiting that right "may be justified only by a 'compelling state interest,' [citations] and . . . must be narrowly drawn to express only the legitimate state interests at stake." (Roe v. Wade (1973), 410 U.S. 113, 155, 35 L. Ed. 2d 147, 178, 93 S. Ct. 705, 727-28.) If the interest is not a fundamental right, ...


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