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12/05/89 In Re M.L.R.

December 5, 1989

IN RE M.L.R., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Petitioner-Appellee, v.

M.R., Respondent-Appellant). -- In re M.K.R., a Minor (The

People of the State of Illinois, Petitioner-Appellee,

v. M.R., Respondent-Appellant).

548 N.E.2d 67, 191 Ill. App. 3d 607, 138 Ill. Dec. 837 1989.IL.1877

Appeal from the Circuit Court of Marion County; the Hon. Robert F.A. Stocke, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. WELCH, P.J., and HOWERTON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

The parental rights of M.R., mother of M.L.R. and M.K.R., were terminated on August 17, 1988, pursuant to order of the circuit court of Marion County. M.R., the respondent in this consolidated appeal, raises two issues for our review. The first issue is whether proper service of process was made on the minor M.L.R. The second issue is whether the circuit court's finding that respondent was an unfit parent was supported by clear and convincing evidence.

M.R. argues that the circuit court did not have jurisdiction of the proceedings at the termination hearing since proper service of process had not been made on M.L.R. It is undisputed that the petitions to terminate parental rights as to each child, filed June 23, 1986, were served upon the Department of Children and Family Services. Service was not made personally on each child. At the time the petitions were filed, M.L.R. was nine years of age, and M.K.R. was three years of age. Service of process as to M.K.R. is not contested by the respondent on this appeal.

At the time the petition in question was filed, section 4-3 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 704-3) required that "[t]he summons shall be directed to the minor and to each person named as a respondent in the petition." The statute was later amended, effective January 12, 1987, to require that "[t]he 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 (Pub. Act 84-1460 § 1, eff. Jan. 12, 1987).) 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 excuses service of summons upon a minor in a juvenile neglect proceeding. The Pronger court held that the section as amended allowed for service upon the child's legal guardian or custodian to establish jurisdiction. The court's decision was applied retroactively to the effective date of section 4-3 prior to that section's amendment. Subsequent to the Pronger decision, the statute was again amended to 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 this Act." Ill. Rev. Stat., 1988 Supp., ch. 37, par. 804-14.

In the case at bar respondent urges us to adopt the reasoning of the court in In re D.S. (1988), 168 Ill. App. 3d 76, 522 N.E.2d 625. That court held that the effect of section 4 -- 14 was to reinstate the requirement of service on the minor respondent, at least as to minors eight years of age or older. We decline to adopt the holding in that case. We choose instead to follow the rationale of the court in In re R.W. (1988), 176 Ill. App. 3d 868, 531 N.E.2d 924, where the court thoroughly examined the legislative debates to discern the legislature's intent in enacting section 4 -- 14. We believe that where a guardian ad litem was appointed, was ...


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