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03/19/97 PEOPLE STATE ILLINOIS v. D.T.

March 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
D.T., A MINOR, PETITIONER-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM HIBLER, CATHERINE HABERKORN, JUDGES PRESIDING.

Released for Publication April 24, 1997.

The Honorable Justice Gordon Delivered The Opinion OF The Court. Cousins, Jr., P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

D.T., a minor, was taken into custody on April 5, 1996 for possession of a controlled substance. He was released from temporary custody that day and appeared at all subsequent court dates. On June 21, 1996, after hearing testimony from D.T.'s probation officer, Judge Haberkorn ordered that D.T. be temporarily detained and set his adjudicatory hearing for July 3, 1996. D.T. thereupon filed an emergency petition for writ of habeas corpus. That petition was heard and denied on June 25, 1996 by Judge Hibler, presiding judge of the juvenile division of the circuit court.

D.T. appeals from the denial of his emergency petition for writ of habeas corpus arguing that his petition should have been granted because his detention was not authorized by any provision of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 1994)) and because he was denied due process.

Before reaching the merits of D.T.'s argument, we must first determine whether this appeal has been rendered moot by the fact D.T. was the subject of an adjudicatory hearing and is no longer in custody. *fn1 As a general rule, a court of review will dismiss an appeal when it has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952). See In re E.G., 133 Ill. 2d 98, 549 N.E.2d 322, 139 Ill. Dec. 810 (1989) (a case is moot where no present controversy exists); Sharma v. Zollar, 265 Ill. App. 3d 1022, 638 N.E.2d 736, 202 Ill. Dec. 868 (1994) (an issue is moot where events occur which make it impossible for the court to grant effectual relief). Under a well-recognized exception to that rule, a case which has become moot will not be dismissed upon appeal where a substantial public interest exists. In determining whether such an interest exists, the courts consider, inter alia, three criteria: whether the question is public in nature; whether it is desirable to make an authoritative determination of a question for the guidance of public officials; and whether the question is likely to recur. In re E.G., 133 Ill. 2d 98, 549 N.E.2d 322, 139 Ill. Dec. 810; Labrenz, 411 Ill. at 623, 104 N.E.2d at 772; In re A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480, 176 Ill. Dec. 826 (1991). See People v. Bailey, 116 Ill. App. 3d 259, 452 N.E.2d 28, 72 Ill. Dec. 96 (1983) (public issue exception met where inherent ambiguity in statutory sentencing scheme likely to recur).

Here, as D.T. is no longer in custody, his habeas corpus petition has become moot. In re A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480, 176 Ill. Dec. 826. We find, though, that this case presents an issue of substantial public interest, the juvenile court judge's authority to initiate a temporary detention hearing for a minor who was released after being taken into custody and who was awaiting an adjudicatory hearing. See People v. Clayborn, 90 Ill. App. 3d 1047, 1052, 414 N.E.2d 157, 161, 46 Ill. Dec. 435 (1980) ("the detention of a juvenile is a matter of public concern and an authoritative determination of the issue will guide public officials and juvenile court judges who are likely to face the problem in the future"). That issue is likely to recur with respect to other minors; and, due to the time constraints of the Juvenile Court Act, generally will become moot before review can be obtained. See In re E.G., 133 Ill. 2d 98, 549 N.E.2d 322, 139 Ill. Dec. 810; In re A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480, 176 Ill. Dec. 826; Bailey, 116 Ill. App. 3d 259, 452 N.E.2d 28, 72 Ill. Dec. 96. Under these circumstances, the requisite degree of public interest exists; and we will not dismiss this appeal on the basis of mootness.

The facts concerning D.T.'s temporary detention are as follows. On April 5, 1996, D.T. was taken into custody by a law enforcement officer for possession of a controlled substance. A delinquency petition was filed and D.T. was given a court date of April 25, 1996 and released. *fn2 On June 21, 1996, D.T.'s third court date, D.T.; his aunt, who was his guardian; and a probation officer, Yolanda Dixon, appeared before Judge Haberkorn. Dixon, who previously had been ordered by the judge to prepare a "pretrial social," reported that D.T. had been abandoned by his mother; was living with his aunt; and was a ward of the Department of Children and Family Services. She next stated that D.T. had not attended school the previous year and that during the current year he refused to stay in his classroom; often walked the school halls; was uncooperative; and was disrespectful to his teacher. Dixon stated that D.T. took $40 of his aunt's rent money. (D.T. admitted that he took the $40 to buy a bicycle.) She stated that D.T. returns home "any time he pleases"; that he once attended a gang leader's birthday party that began at 2:00 or 3:00 a.m.; that D.T.'s aunt had to search for him on the morning of the hearing and eventually found him in an "after-hours club"; and that D.T. admits to being a gang member.

After hearing from the probation officer, Judge Haberkorn was advised by the Assistant State's Attorney that the police officer who had taken D.T. into custody had been present in court and that she had released him when D.T.'s counsel indicated that he would be requesting a continuance. Although the judge granted D.T.'s request for a continuance, she stated that D.T.'s conduct was "outrageous" and that he would be held. After defense counsel objected, the judge ordered that the case be held over so that the police officer and case worker could be contacted and ordered to appear.

When the case was recalled that afternoon, the judge indicated that the police officer who apprehended D.T. would be testifying by speaker phone. Based upon that officer's testimony, Judge Haberkorn made a finding of probable cause. Defense counsel objected to the proceeding and to the telephonic questioning of the officer. Thereafter, the State argued that D.T. should be detained based upon the report of D.T.'s probation officer which showed that D.T. was out of control. Defense counsel again objected to the proceeding. Finding that D.T.'s detention was a matter of urgent and immediate necessity, the judge ordered that D.T. be detained and set his adjudicatory hearing for July 3, 1996.

D.T.'s counsel thereupon filed a petition for writ of habeas corpus seeking D.T.'s immediate release. The petition argued that the court was without authority to take D.T. into custody on June 21, 1996. On June 25, 1996, Judge Hibler denied the petition finding that Judge Haberkorn had authority to protect D.T. and the public after being presented with evidence showing that D.T. was beyond the control of his aunt. He also held that the finding of probable cause was not improper despite the fact that the police officer's testimony was given by telephone since defense counsel was afforded an opportunity to and did cross-examine him.

The purpose of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 1994)) is to provide care and guidance to minors, preferably in their own homes, as will serve their moral, emotional, mental and physical welfare and the best interests of the community. 705 ILCS 405/1-2 (West 1994); People v. Clayborn, 90 Ill. App. 3d 1047, 414 N.E.2d 157, 46 Ill. Dec. 435 (1980). The Juvenile Court Act is a comprehensive statutory scheme that creates and defines the powers of the juvenile court. As stated in In re M.M., 156 Ill. 2d 53, 65-66, 619 N.E.2d 702, 710, 189 Ill. Dec. 1 (1993):

"When a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction [citation] and court's exercising jurisdiction over such matters must proceed ...


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