People v. R.D.

499 N.E.2d 478, 148 Ill. App. 3d 381, 101 Ill. Dec. 890, 1986 Ill. App. LEXIS 2922
CourtAppellate Court of Illinois
DecidedJune 25, 1986
DocketNo. 84—519
StatusPublished
Cited by14 cases

This text of 499 N.E.2d 478 (People v. R.D.) 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. R.D., 499 N.E.2d 478, 148 Ill. App. 3d 381, 101 Ill. Dec. 890, 1986 Ill. App. LEXIS 2922 (Ill. Ct. App. 1986).

Opinion

JUSTICE WHITE

delivered the opinion of the court:

Two delinquency petitions were filed in the juvenile division of the circuit court of Cook County in reference to R.D., one containing two counts of battery, and the instant petition which alleges the offense of armed robbery. R.D. appeals from orders entered in the robbery case. That petition originally included the name of R.D.’s mother, who was his custodial parent, and the name of his stepfather who divorced R.D.’s mother 12 years prior to the proceedings in this case. The whereabouts of the natural father are unknown. He has no contact with the minor, and there is some doubt as to whether the mother knows his identity.

The record shows that on June 9, 1983, R.D. was present but no parent or guardian appeared. The court ordered the issuance of summons and continued the case to June 27, 1983, for arraignment and plea. On June 27, 1983, again no parent or guardian was present and the following colloquy took place between the judge and the juvenile:

“THE SHERIFF: [R.D.] AKA Hall.

THE COURT: Mother’s name is Joan [D]?

[R.D.]: Yes.

THE COURT: Lives on St. Louis?

[R.D.]: No. 3316 Sunnyside.

THE COURT: That is West Sunnyside?

THE COURT: Your father is Henry [D]?

[R.D.]: Stepfather.

THE COURT: What’s your natural father’s name? Nobody with the gentleman. Public Defender appointed attorney and guardian ad litem.

MS. GLADE [Public Defender]: Accept appointment, enter denial, stipulate to juvenile jurisdiction, enter written motion for discovery.

THE COURT: Your mother work?

[R.D.]: No.

THE COURT: Who do you live with?

[R.D.]: Mother.

THE COURT: You haven’t seen your father in more than a year, your natural father?

THE COURT: All right. Motion State to amend petition sustained.”

The public defender was appointed to act both as R.D.’s lawyer and guardian ad litem. A denial to the charges was entered. The court struck the name and address of the stepfather from the petition, and changed the address of R.D.’s mother to that of her current residence. Summons for mother was ordered and the case was continued to July 12, 1983. The record shows that on July 12, 1983, R.D., his mother, his sister, and his lawyer, the public defender, were all present.

After being thoroughly advised by the trial judge of his constitutional rights and the possible consequences of his actions, R.D. withdrew his denial and told the court in his own words how the robbery occurred. An admission to the charges was entered, there was a finding of delinquency, a social investigation and a clinical examination were ordered and the case was continued for disposition.

At the dispositional hearing, the trial court received recommendations from a probation officer and a representative of the Uniform Delinquency Intervention Service (UDIS). Both recommended that R.D. be placed on probation. The court committed the minor to the Department of Corrections.

Minor-respondent now alleges that: (1) the trial court lacked jurisdiction because the natural father and stepfather were not given notice of the proceedings; (2) the public defender should not have served as guardian ad litem-, (3) the judge should have withheld adjudication of wardship until the dispositional hearing; and (4) the judge abused his discretion by committing the minor to the Department of Corrections.

Minor-respondent first argues that the circuit court lacked jurisdiction because the State failed to serve notice of the wardship proceedings on the minor’s natural father and the stepfather.

The Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701—1 et seq.) outlines the proper procedure for notifying individuals who have an interest in the proceedings for wardship of a minor: the State must name every parent, legal guardian and custodian, or nearest relative when necessary, as a respondent. (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 1.) If possible, the State must serve each of these individuals with personal service; otherwise, service must be made by publication. (Ill. Rev. Stat. 1981, ch. 37, pars. 704 — 3, 704 — 4.) However,

“[njotice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment against any person who cannot be served with process other than by publication unless notice by publication is given or unless that person appears.” HI. Rev. Stat. 1981, ch. 37, par. 704 — 4(2).

The Illinois Supreme Court has applied 704 — 4(2) in cases where minors have raised as error the failure of the trial court to notify a parent with whom they have no contact. It has held that where one parent has actual, sole custody of the minor and received actual notice of the proceedings, if the noncustodial parent could not have been served by personal or abode service or by certified mail, service by publication is excused by section 704—4(2). (In re J.P.J. (1985), 109 Ill. 2d 129, 137, 485 N.E.2d 852; see also In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) In the case now before us, service was made on the custodial parent, and service could not have been made other than by publication on the noncustodial father. The language of the statute therefore relieved the State of its obligation to publish notice to the noncustodial father.

We believe that the facts of the instant case are well aligned with those of In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501. J.W. was an illegitimate minor. The whereabouts and identity of his father were unknown. No effort was made to publish notice to the unknown father. Although the mother, who had custody of the minor, was not personally served, she had actual notice and attended the proceedings. Our supreme court held that failure to join the father deprived the court of personal jurisdiction over the father. However, the vital interests of the minor were well protected in his absence, and the absent father was not an indispensable party. Failure to publish did not result in any lack of jurisdiction over the subject matter, or lead to any loss of jurisdiction over the persons of the minor and his mother.

“The unknown father is a stranger to the minor. If alive, he knows nothing of the minor or of the facts to be adjudicated. The minor could not reasonably repose in him any special trust or confidence. The minor has not suggested how the father’s presence could have aided his defense, and the father’s absence was not, therefore, unfair to the minor. The minor had the assistance of his mother, who was his only known parent and his sole custodian, as well as of legal counsel; the minor, the mother, and counsel all had adequate notice of the charges and an opportunity to defend against them.

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Cite This Page — Counsel Stack

Bluebook (online)
499 N.E.2d 478, 148 Ill. App. 3d 381, 101 Ill. Dec. 890, 1986 Ill. App. LEXIS 2922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rd-illappct-1986.