People v. Mikel

563 N.E.2d 999, 205 Ill. App. 3d 497, 150 Ill. Dec. 872, 1990 Ill. App. LEXIS 1726
CourtAppellate Court of Illinois
DecidedNovember 8, 1990
DocketNos. 4-90-0052 through 4-90-0054, 4-90-0139 cons.
StatusPublished
Cited by1 cases

This text of 563 N.E.2d 999 (People v. Mikel) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mikel, 563 N.E.2d 999, 205 Ill. App. 3d 497, 150 Ill. Dec. 872, 1990 Ill. App. LEXIS 1726 (Ill. Ct. App. 1990).

Opinion

JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by Serena Mikel and Larry Mikel II, respondent parents of L.M., D.M., and C.L.P., respondent minors, currently ages seven, eight, and nine, respectively, from the order of the circuit court of Vermilion County terminating parental rights. On appeal, several issues are raised. These issues include whether the trial court erred by (1) denying a motion to strike the petition to terminate parental rights on the ground the petition was not properly verified; (2) failing to order the State to furnish a bill of particulars; (3) denying a motion in limine to exclude approximately 250 pages of discovery furnished to respondent parents by the State three or four days prior to trial, which information was available to the State for some months previous thereto; and (4) allowing, over objections of respondent parents, Alan Jacobs, a clinical psychologist, to testify to his opinion of the parenting skills of respondent parents. Two additional issues raised by respondent parents are whether, as a matter of law, the trial court rendered deficient findings of unfitness regarding (1) the failure of respondent parents to make reasonable efforts to correct the conditions which were the basis for removing the children from their custody, and (2) the inability of the respondent parents to discharge parental responsibilities, which inability will extend beyond a reasonable time period; and whether the trial court’s findings of unfitness were contrary to the manifest weight of the evidence. The facts relevant to a review of these issues will be considered as each issue is discussed.

Initially, we will consider whether the trial court erred by denying a motion to strike the petition to terminate parental rights on the ground the petition was not properly verified. This issue is raised only by respondent mother (No. 4 — 90—0139), who contends her motion to strike the petition to terminate parental rights should have been granted because section 2 — 13 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(2)) requires that all such petitions shall be verified, although the statements therein may be made on information and belief. In this case, the petition to terminate parental rights set forth the allegations against respondent parents and was signed by the assistant State’s Attorney, whose signature was notarized using the proper form for notarizing a verified petition. See Ill. Rev. Stat. 1989, ch. 102, par. 206 — 105(c).

The petition in this case was adequately verified. The allegations in a verified pleading are sworn to under oath by the person signing the petition. (See In re Dragoo (1981), 96 Ill. App. 3d 1104, 1107, 422 N.E.2d 263, 265 (wherein the “supplemental petition began by stating: ‘Rebecca Jones, on oath state [sic] on information and belief ***’ ” and the signature of Jones was notarized similar to the jurat in the case at bar).) Under the circumstances of this case, the signator may verify the allegations on information and belief, which merely means the person has no personal knowledge of the facts alleged. This petition does not expressly state it is made under oath and does not recite that the allegations are made on information and belief. Nevertheless, the State contends the petition is properly verified. In People v. Audi (1979), 73 Ill. App. 3d 568, 392 N.E.2d 248, the form required for verification of a criminal information was discussed. In Audi, after noting that (1) the purpose of the oath requirement is to hold accountable to charges of perjury those who falsely swear, (2) there is no prescribed form for the verification, and (3) liability may arise regardless of the wording of the oath, the court upheld as proper the filing of an information signed by an assistant State’s Attorney underneath whose signature was a jurat signed by a notary simply reading, “Subscribed and sworn to before me this 19th day of December, 1977.” (Audi, 73 Ill. App. 3d at 569, 392 N.E.2d at 249.) Based on Audi, the verification here is sufficient. Audi, 73 Ill. App. 3d at 569, 392 N.E.2d at 249.

Furthermore, since the requirement of verification is a procedural formality designed as a deterrent to frivolous allegations, the failure to verify a petition does not divest the trial court of subject matter jurisdiction. See People v. Bradford (1975), 62 Ill. 2d 21, 338 N.E.2d 182; People v. Billow (1941), 377 Ill. 236, 36 N.E.2d 339; In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289; In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289. See also Dragoo, 96 Ill. App. 3d 1104, 422 N.E.2d 263.

The next issue to consider is whether the trial court erred by failing to order the State to furnish a bill of particulars. Respondents complain the petition for termination of parental rights merely alleges improprieties on the part of respondent parents by reciting subsections of the pertinent statute. (See Ill. Rev. Stat. 1989, ch. 40, par. 1501.) According to respondents, these allegations are not sufficiently precise as to afford respondent parents the opportunity to prepare a proper defense. The State contends respondent parents have waived this argument on appeal by failing to object to the trial court’s ruling, failing to object to the State’s disclosures pursuant to that ruling, and proceeding to trial. In her reply brief, respondent mother suggests that, after the trial court’s ruling, any future objections would have been futile. It is important to note that in their original briefs, respondent parents do not contend the petition failed to state a cause of action. Had this been the issue, it could not have been waived. (In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43.) Respondent father does attempt to make this argument in his reply brief, however. Nevertheless, arguments raised for the first time in a reply brief are waived (see 107 Ill. 2d R. 341(g)) and need not be considered by this court. Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 331 N.E.2d 365.

In any event, any error which may have occurred is harmless. Respondent parents proceeded to trial and nowhere do they demonstrate how they were surprised or prejudiced by the evidence presented by the State.

Except as otherwise provided by statute, the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101 et seq.) applies to all proceedings in the circuit courts. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 108.) In In re Harpman (1985), 134 Ill. App. 3d 393, 480 N.E.2d 873, this court stated that proceedings pursuant to a petition for adjudication of wardship are civil in nature. While the State does not assert there is no requirement that the petition in this case conform to rules of civil pleading practice, the State argues respondent parents’ request was not really a request for a bill of particulars, but was instead a request for discovery to which respondent parents were not entitled. Certainly this is true in criminal cases cited by the State, including People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999. However, this court need not decide whether such discovery is available in termination of parental rights cases.

Section 2 — 607 of the Code (Ill. Rev. Stat. 1989, ch. 110, par.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re LM
563 N.E.2d 999 (Appellate Court of Illinois, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
563 N.E.2d 999, 205 Ill. App. 3d 497, 150 Ill. Dec. 872, 1990 Ill. App. LEXIS 1726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mikel-illappct-1990.