In re D.L.
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0399
Case Date: 09/30/1998
NO. 4-97-0399
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of D.L., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Vermilion County
v. ) No. 94J343
D.L., a Minor, )
Respondent-Appellant. ) Honorable
) Claudia Smith Anderson,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Respondent, D.L., appeals from orders adjudicating him
delinquent, placing him on probation, and revoking his probation.
D.L. contends his father was not given proper notice of the
proceedings, so that the court's orders are void for lack of
jurisdiction. We affirm.
On October 24, 1994, the Vermilion County State's
Attorney filed a petition for adjudication of wardship alleging
D.L., who was born March 14, 1981, was a delinquent minor because
he committed aggravated battery on August 31, 1994. The petition
alleged D.L. and his mother lived at 102 Illinois Street in
Danville, Illinois, but both the name and address of D.L.'s
father were "unknown." On December 5, 1994, an affidavit for
service by publication was filed, alleging D.L.'s father's name
and address were unknown. On December 19, 1994, a certificate of
publication was filed, giving "unknown father" notice of an
adjudicatory hearing on the petition on December 20, 1994. On
December 20, 1994, two summons were filed along with returns ofservice indicating D.L. and his mother were each served notice of
the December 20, 1994, hearing on December 19, 1994, at 102
Illinois Street in Danville. On December 20, 1994, a written
plea agreement was presented to the court, but the court reset
the cause for January 24, 1995. D.L. and his mother were given
notice of that hearing. On January 24, 1995, the court accepted
the plea agreement, adjudicated D.L. a delinquent minor, and
placed him on probation for 18 months.
On November 6, 1995, a petition to revoke D.L.'s
probation was filed alleging D.L. committed theft, and on Novem-
ber 17, 1995, a supplemental petition to revoke probation was
filed alleging D.L. violated his probation by not attending
school and by associating with his corespondents. On December 4,
1995, a supplemental petition for adjudication of wardship was
filed alleging the same count of theft as contained in the
petition to revoke probation. On the supplemental petition,
D.L.'s father was still listed as "unknown." D.L. and his mother
were given notice of these petitions. On January 9, 1996, D.L.
admitted the allegations contained in each petition. On February
8, 1996, pursuant to the court's request, the probation depart-
ment filed a social history report. The report named D.L.'s
father and identified his address as 102 Illinois Street in
Danville, the address where D.L. and his mother resided. D.L.'s
mother advised the probation officer that she and D.L.'s father
had resided together since D.L.'s birth in 1981, and that D.L.,
his mother, and father, had resided together at 102 Illinois
Street in Danville since 1991.
On February 21, 1996, the court ordered D.L. committed
to the Juvenile Division of the Department of Corrections (JDDOC)
for a 60-day evaluation. After an April 17, 1996, dispositional
hearing, the court placed D.L. on probation for two years.
On December 30, 1996, a petition to revoke D.L.'s
probation was filed. On February 14, 1997, two summons for the
March 31, 1997, hearing on the petition to revoke probation were
filed, each showing service on January 29, 1997, to D.L. and his
mother. The summons were issued to D.L. and his mother at 102
Illinois Street in Danville.
The court found the petition to revoke proved and on
March 31, 1997, revoked D.L.'s probation. The court also ordered
an updated social report, which was filed on April 17, 1997. The
report indicated that D.L. and both parents continued to reside
at 102 Illinois Street in Danville. After the April 30, 1997,
dispositional hearing on the petition to revoke the court ordered
D.L. committed to JDDOC for 120 days.
The record shows D.L. was present with his mother and
represented throughout the delinquency and revocation proceed-
ings. There is no showing, however, of an appearance by D.L.'s
father at any of the court appearances at any point during the
case. In fact, the only mention of D.L.'s father during the
proceedings was at the March 31, 1997, adjudicatory hearing on
the petition to revoke, describing his occasional participation
in family counseling from 1995-96. Apart from the notice by
publication to D.L.'s father on December 19, 1994, D.L.'s father
was not given notice of any of the other hearings.
On appeal D.L. argues the original order adjudicating
him delinquent is void because his father was not served with
proper notice of the hearings on the original petition for
adjudication of wardship, thereby failing to invoke the jurisdic-
tion of the court. D.L.'s father was given notice by publication
because the State, in the petition, alleged D.L.'s father's name
and address were unknown. D.L. contends notice by publication to
his father on the original petition was improper because the
State should have known of D.L.'s father's existence and where-
abouts since he lived with D.L. and his mother, and so his father
should have been served personally. D.L. also contends the
adjudicatory and dispositional orders on the petition to revoke
probation, committing D.L. to JDDOC for 120 days, are void since
his father, who was known and serviceable, was given no notice of
those hearings.
The Juvenile Court Act of 1987 (Act) provides that the
parents of a minor have a right to be present at proceedings
conducted under the Act. 705 ILCS 405/1-5(1) (West 1994). A
petition alleging a minor's delinquency must provide the names
and residences of the minor's parents. 705 ILCS 405/5-13(2)
(West 1994). If any of these facts are unknown, the petition
must allege that they are unknown. In re C.H., 277 Ill. App. 3d
32, 35, 660 N.E.2d 545, 547 (1995). Notice of proceedings must
be given to the minor's parents who are named as respondents in
the petition. 705 ILCS 405/5-15(1) (West 1994). Service of a
summons and a petition is to be made either by personal service
or by delivering a copy to the person's abode and then mailing
another copy to that address. 705 ILCS 405/5-15(5) (West 1994).
Service may be made by certified mail if personal or abode
service is not made on a respondent within a reasonable time or
if it appears a respondent resides outside Illinois. 705 ILCS
405/5-16(1) (West 1994). Service by publication may be had only
if personal or abode service is not made on a respondent within a
reasonable time, or if a person is made a respondent under the
designation of "All whom it may Concern," or if service cannot be
made because the whereabouts of a respondent are unknown. 705
ILCS 405/5-16(2) (West 1994). In addition to these statutory
requirements, a minor and his parents have a constitutional right
of due process to receive adequate notice of a juvenile proceed-
ing. In re C.R.H., 163 Ill. 2d 263, 270, 644 N.E.2d 1153, 1156
(1994).
A respondent minor waives the issue of lack of notice
to a noncustodial parent unless the minor brings before the trial
court the State's failure to identify or locate a noncustodial
parent whose identity or address is not known to the State at the
outset of the proceedings. A minor also may waive any question
regarding the State's diligence in attempting to locate and serve
a noncustodial parent. In re J.P.J., 109 Ill. 2d 129, 137, 485
N.E.2d 848, 851 (1985).
"[T]he State's diligence in identifying or
locating a parent whose identity or address
was not known to the State at the commence-
ment of the proceedings may not be attacked
on appeal if the question was not also
raised in the circuit court, where a record
on the matter could have been made in the
first instance. To hold otherwise would per-
mit the minor to keep the issue in reserve
and, if an appeal proves necessary, to raise
it then, when the record is barren." J.P.J.,
109 Ill. 2d at 139-40, 485 N.E.2d at 853.
D.L. has waived his notice arguments on appeal.
Throughout the nearly three years of judicial proceedings in this
case, neither D.L., his mother, nor his counsel ever brought to
the attention of the trial court the fact that the State did not
provide his father with notice of the proceedings. Apparently
D.L. and his parents all lived together. During the pendency of
this case D.L. and his mother either knew that his father was not
served and decided not to bring it to the trial court's atten-
tion, or they were not concerned that his father was never served
and never appeared at the hearings. It is also hard to imagine
that his father would not have known about the proceedings.
D.L.'s father did occasionally attend counseling sessions with
D.L. and his mother in 1995 and 1996. Bringing this issue to the
attention of the trial court would have been of little benefit to
D.L. It only benefits him to raise this issue on appeal, his
only issue on appeal, and we will not reward him for reserving it
until he thought it could help him. Even though J.P.J. involved
waiver of the notice requirement as to a noncustodial parent,
that principle is even stronger in this situation, involving a
custodial parent. When all the family members live together,
those persons who were served have an even better opportunity to
bring the issue to the trial court's attention at some point
during the case.
We affirm the orders of the circuit court.
Affirmed.
GREEN and McCULLOUGH, JJ., concur.
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