No. 2--03--0669
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
)
In re
WILLIE W., a Minor ) Appeal from the Circuit Court
) of Winnebago County.
) No. 03--JD--147
(The People of the State of Illinois,
) Honorable
Petitioner-Appellee, v. Willie W.,
) Steven M. Nash,
Respondent-Appellant).
) Judge, Presiding.
______________________________________________________________________________
JUSTICE BYRNE delivered
the
opinion of
the
court:
Following an adjudicatory hearing,
the
minor, Willie W., was adjudicated a delinquent minor, after pleading guilty to aggravated criminal sexual assault (720 ILCS 5/12--14(b)(I) (West 2002)). Thereafter, he was sentenced to an indeterminate term in
the
Department of Corrections, Juvenile Division, and was required to register as a sex offender. On appeal,
Willie
contends that
the
State failed to exercise due diligence in locating his father and notifying him of
the
delinquency proceeding
.
We agree and, therefore, we reverse
the
judgment of
the
circuit court and remand
the
cause for further proceedings consistent with this opinion
.
FACTS
The record reveals
the
following facts. On March 18, 2003,
the
State filed a petition for an adjudication of delinquency pursuant to section 5--520 of
the
Juvenile Court Act (Act) (705 ILCS 405/5--520 (West 2002)). The petition alleged that
Willie
was a delinquent minor because between 2000 and August 2002, he committed
the
offense of aggravated criminal sexual assault. The petition requested that an arraignment be held on March 18, 2003, and listed
the
names of
Willie
's parents, along with his mother's address.
Willie
's father's address was listed as "unknown." The record does not include a summons to either parent.
Willie
's mother was present
at
the
arraignment and detention hearing, which were held on
the
same day
the
petition was filed. The court asked
the
mother if she knew
the
father's present address. She said that she knew
the
father's telephone number "by heart," that
the
number was a Wisconsin number
, and that she believed that he could be reached at that number. After
hearing testimony,
the
court ordered that
Willie
be detained and set
the
matter for hearing on April 4, 2003.
The court felt that, based on
the
allegations,
various evaluations ought to be performed
. The court also ordered a social history report to be conducted by
the
probation department.
Willie
's mother was given a copy of
the
petition at
the
detention hearing.
The record includes a "Winnebago County Juvenile Probation Department Social History File Face Sheet," filed April 3, 2003, listing
the
father's address in Horicon, Wisconsin. Attached to
the
face sheet is a social history report prepared by
the
probation department, which indicates that
the
father provides $390 per month in court-ordered child support.
The record does not indicate any form of service upon
either parent, and there is no indication that Willie's father ever appeared in any court proceeding.
An adjudicatory hearing was held on April 4, 2003.
The public defender told
the
court that he had discussed
the
matter with
Willie
and also with
the
mother and grandmother, who were present, and that
Willie
would enter a plea of guilty to
the
charge of aggravated criminal sexual assault. After appropriate admonishments,
Willie
admitted to
the
charge
.
The court proceeded immediately to disposition. The State incorporated into its recommendations
the
social history report, which
the
probation department had filed
the
previous day and which contained
the
father's Wisconsin address and information regarding his child support payments.
The court accepted
the
recommendation of
the
probation department and ordered that
Willie
be committed to
the
Department of Corrections, Juvenile Division, for an indeterminate term, and register as a sex offender.
On April 10, 2003, Willie
filed a motion to reconsider and did not raise any argument
regarding
the
State's diligence in attempting to locate and serve his father
.
Willie
's attorney also filed a Supreme Court Rule 604(d) (188
Ill. 2d
R. 604(d))
certificate. After a hearing,
the
court denied
the
motion.
This timely appeal followed.
ANALYSIS
On appeal,
Willie
's only contention is that
the
trial court lacked
jurisdiction
to adjudicate him delinquent and enter a dispositional order against him. Willie argues that
the
State failed to exercise due diligence in locating his noncustodial father and notifying him of
the
delinquency proceeding, because
the
State learned
the
father's phone number at
the
arraignment and could have found
the
father's address
in
the
record before
the
adjudicatory hearing was held
.
The State counters that
Willie
waived the issue of due diligence
in locating and notifying
the father by failing to raise
it
prior to
the
adjudicatory hearing.
We first note that
the
doctrine of waiver is an admonition upon
the
parties, not a restriction upon
the
jurisdiction
of a reviewing court.
In re C.R.H.
, 163
Ill. 2d
263, 274 (1994). A reviewing court may override considerations of waiver in furtherance of its responsibility to provide a just result.
C.R.H.
, 163
Ill. 2d
at 274. As
the
court noted in
In re L.C.C.
, 167
Ill. App. 3d
670, 673 (1988), "[a]n increasing number of cases suggest
the
State is inattentive to
the
notice requirements of
the
Act." See also
In re C.H.
, 277
Ill. App. 3d
32, 34 (1995). Accordingly, notwithstanding any questions of waiver, we choose to address
the
merits of
the
instant case.
The Act provides that
the
parents of a minor who is
the
subject of proceedings under
the
Act have
the
right to be present at
the
proceedings. 705 ILCS 405/1--5(1) (West 2002). The delinquency petition must provide
the
names and addresses of
the
minor's parents. 705 ILCS 405/5--520(2)(c) (West 2002). If any of these facts are unknown,
the
petition must indicate that they are unknown.
705 ILCS 405/5--520(2)(e) (West 2002);
In re D.L.
, 299
Ill. App. 3d
269, 271 (1998).
In addition to
the
requirements of
the
Act, due process of law requires that
the
notice given in a juvenile proceeding be equivalent to
the
constitutionally mandated notice in a criminal or civil action.
In re Application of Gault
, 387 U.S. 1, 33, 18 L. Ed. 2d 527, 549, 87 S. Ct. 1428
, 1446-47 (1967). The State must use diligence in notifying
the
minor's parents, especially when
the
location of a parent is unknown.
L.C.C.
, 167
Ill. App. 3d
at 673. When
the
State fails to provide proper notice to
the
minor and his parents, it fails to invoke
the
jurisdiction
of
the
court and any subsequent orders are void.
C.R.H.
, 163
Ill. 2d
at 271.
Here, it is clear that
the
State failed to act with even a modicum of diligence in notifying
the
minor's father of
the
delinquency petition. The father's name was included in
the
petition. The mother supplied his telephone number, which she knew "by heart," and mentioned that he lived in Wisconsin. He also was paying child support. If the State had exercised even a small degree of diligence, it could have discovered
the
father's address. Even
the
probation department appeared to have located
the
father's address, which was included in the social history report, filed in
the
record, and presumably reviewed by
the
State
before
the
adjudicatory hearing began
. However,
the
State did nothing. Such a failure is inconsistent with
the
parent's right to be present and with
the
minor's right to due process of law. See
In re Miracle C.
, 344
Ill. App. 3d
1046, 1054-55 (2003) (trial court erred in finding that
father
was properly served by publication, and
the
exception applicable when
the
custodial parent receives notice did not apply because
father's whereabouts were not unknown to
the
State, based on a caseworker's report reviewed by
the
State indicating that he was in a correctional facility).
Accordingly, we hold that
the
judgment of
the
trial court committing
Willie
to
the
Department of Corrections is void because
the
State failed to properly serve notice upon
his
father. Other cases in which courts have held that
the
lack of notice to
the
noncustodial parent was not fatal to
the
juvenile proceedings are distinguishable. In those cases,
the
courts cited facts that indicated that
the
noncustodial parent had not paid child support and that it would have been difficult to locate
the
noncustodial parent. Those courts found that
the
difficulty of locating
the
noncustodial parent and
the
lack of a significant relationship between
the
noncustodial parent and
the
child excused
the
State's failure to provide notice to
the
noncustodial parent. See,
e.g.
,
In re J.P.J.
, 109
Ill. 2d
129 (1985);
In re J.W.
, 87
Ill. 2d
56 (1981);
L.C.C.
, 167
Ill. App. 3d
670 (1988).
We find this case similar to
C.H.
, wherein
the
petition for delinquency stated
the
name of
the minor's father but alleged that his address was unknown. The minor and his mother were personally served. The trial
court directed Juvenile Court Services to prepare a dispositional social history relating to
the
minor. The dispositional report stated that
the
minor's father paid child support and that he had been employed by
the
Hanna City Correctional Center for approximately 18 years. Following consideration of
the
report and other relevant matters,
the
court committed
the
minor
to
the
Department of Corrections.
On appeal,
the
minor argued that his right to due process of law was violated when
the
State failed to use diligence in locating his father and notifying him of
the
delinquency proceeding, and
the
State argued that
the
minor waived the argument by failing to raise
the
issue before
the
trial court. The appellate court rejected
the
State's waiver argument. The court held that
the
State failed to exercise diligence in locating and notifying
the
minor's father, because, if
the
State had exercised "even a small degree of diligence," it could have discovered
his
address, since
the
father had been paying child support and had been working at
the
same job for 18 years.
C.H.
, 277
Ill. App. 3d
at 35.
Here, like in
C.H.
,
Willie
's father had been paying child support. This fact, combined with
the
fact that
the
State was supplied with his telephone number, should have made
him easy to find. Moreover, while the lack of a significant relationship may excuse
the
failure to notify a parent whose address is unknown and not readily obtainable, it does not absolve
the
State of its responsibility to act diligently in serving notice upon a noncustodial parent whose address may be easily discovered.
C.H.
, 277
Ill. App. 3d
at 36. Consequently, we hold that
Willie
's due process rights were violated.
Based on the foregoing, the judgment of the circuit court of Winnebago County is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
O'MALLEY, P.J., and CALLUM, J., concur.