In re Tyronne W.

Case Date: 01/14/2002
Court: 2nd District Appellate
Docket No: 2-01-0304 Rel

No. 2--01--0304
January 14, 2001

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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In re  TYRONE W., a Minor



(The People of the State of 
Illinois, Petitioner-Appellee,
v.  Tyronne W., Respondent-
Appellant).

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Appeal from the Circuit Court
of Winnebago County

No.  99--JD--101

Honorable
Steven M. Nash
Judge, Presiding



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JUSTICE McLAREN delivered the opinion of the court:

Respondent, Tyrone W., a minor, was adjudicated a delinquentminor and was placed on probation. Thereafter, the minor'sprobation was revoked and he was committed to the Department ofCorrections. We affirm.

On March 18, 1999, Tyrone W., a minor, was charged in adelinquency petition with the offenses of misdemeanor theft (720ILCS 5/16--1(a)(1)(A) (West 1998)) and burglary (720 ILCS 5/19--1(a) (West 1998)). The petition listed Christopher W. as theminor's father, with an address in Tulsa, Oklahoma, and Wilma W. asthe minor's mother, with a Rockford address. On March 18, 1999, asummons was issued to the father at the Tulsa address. It wasreturned not served on April 16, 1999.

On May 25, 1999, an amended delinquency petition was filedcharging Tyrone W. with the offenses of theft (720 ILCS 5/16--1(a)(1)(A) (West 1998)), burglary (720 ILCS 5/19--1(a) (West1998)), and residential burglary (720 ILCS 5/19--3 (West 1998)). The amended petition again lists Christopher W., with a Tulsa,Oklahoma, address, as the father and Wilma W., with a Rockfordaddress, as the mother. The record does not reflect that anyattempt was made to serve the father with the amended petition.

At a hearing on May 26, 1999, the State represented that anagreement had been reached whereby the minor would admit to thethree counts contained in the amended petition and would besentenced to 5 years' probation, 20 days in a juvenile detentionfacility, 40 hours of public service work, and the payment of restitution. Noting that a summons was sent to the address listedfor the father in Oklahoma and came back unclaimed, the courtfurther stated, "Unless somebody knows of a different address forhim I don't know what else we can do, so I believe all reasonableattempts to give [the father] notice -- he's a noncustodial parentwho lives in a distant state." There were no comments made by theminor or his mother at this hearing concerning the whereabouts ofthe father, nor was any objection raised to the father's lack ofnotice.

The trial court explained to Tyrone W. the charges and theterms of the agreement reached. Tyrone W. admitted to the charges,and the trial court found the admission to be knowing andvoluntary. An order was entered finding Tyrone W. to be adelinquent minor. A sentencing order was entered reflecting thenature of the agreement.

Thereafter, the State filed a petition to revoke probation forviolating the terms of the probation order. The petition to revokewas amended by the State on two occasions. A second petition torevoke was also filed, which was amended on one occasion by theState. A third petition to revoke was filed and was amended by theState on two occasions. The State also filed a supplementaldelinquency petition. None of the petitions to revoke or theamended petitions list the name or address of the father. Likewise, the supplemental delinquency petition does not containthe name or address of the father. The record does not reflectthat the State made any attempt to serve the father with any of thepetitions to revoke probation, the amended petitions to revoke, orthe supplemental delinquency petition.

The matter proceeded to a hearing. The trial court found thatthe State had proved the charges in the revocation petitions. Adispositional hearing was held on February 16, 2001. Although therecord does not reflect that the State served notice of the hearingon the minor's father, he was present. Arguments by the counselsfor the State and for the minor were presented. No comment wasmade concerning the State's failure to serve notice of either thedelinquency petitions or the petitions for revocation of probationon the minor's father. The minor was committed to the Departmentof Corrections.

On appeal, the minor contends that the trial court lackedjurisdiction to adjudicate him delinquent or revoke his probationbecause his father was never served with the delinquency petitionsor the petitions to revoke probation. In juvenile proceedings, dueprocess requires adequate notice of the proceedings to a minor andhis parents, including written notification of the specific chargeor factual allegations to be considered at an adjudicatory hearing. In re B.L., 315 Ill. App. 3d 602, 605 (2000).

A petition alleging a minor's delinquency must provide thenames and residences of the minor's parents. 705 ILCS 405/5--520(2)(c) (West 1998). If any of these facts are unknown, thepetition must allege that they are unknown. In re D.L., 299 Ill.App. 3d 269, 271 (1998). Notice of proceedings must be given tothe minor's parents who are named as respondents in the petition. 705 ILCS 405/5--525(1)(a) (West 1998). Noncustodial parents shouldbe served personally or by mail whenever possible. B.L., 315 Ill.App. 3d at 605; see also 705 ILCS 405/5--525(1), (2) (West 1998). However, it is notice to the custodial parent that is crucial. B.L., 315 Ill. App. 3d at 605. A pleading in a juvenile proceedingthat fails to name and notify the necessary respondents fails toinvoke the jurisdiction of the court and thereby renders its ordersvoid. B.L., 315 Ill. App. 3d at 605.

Here, the record fails to indicate that Tyrone W.'s father wasserved with a summons and the petition of delinquency or that hewas otherwise notified by the State of the adjudicatory hearing onthe initial delinquency petition or the petitions to revokeprobation. Although the supplemental record filed on appealindicates that the minor's custodial parent stated in a separateproceeding involving the minor's brother that she was able toprovide the State with the address of the father, there is noindication that the State made an attempt in this proceeding tolocate Tyrone W.'s father after the initial summons was returnedunserved.

Nevertheless, the lack of notice to a party can be waived. B.L., 315 Ill. App. 3d at 605; see also 705 ILCS 405/5--525(4)(West 1998). A respondent minor waives the issue of the lack ofnotice to a noncustodial parent unless the minor brings before thetrial court the State's failure to identify or locate anoncustodial parent whose identity or address is not known to theState at the outset of the proceedings. A minor also may waive anyquestion regarding the State's diligence in attempting to locateand serve a noncustodial parent. In re J.P.J., 109 Ill. 2d 129,137 (1985); In re D.L., 299 Ill. App. 3d 269 (1998).

The record reflects that the adjudicatory hearing on theinitial delinquency petition and the petitions to revoke probationproceeded without any issue being raised concerning the State'sefforts to locate the noncustodial father. Although the Statecould have been more diligent in its attempt to locate and notifythe noncustodial father of the proceedings, the minor's failure toraise this issue in the trial court, particularly when he wasrepresented by counsel, renders his jurisdictional argument waivedon appeal.

Next, the minor contends that the State failed to prove, by apreponderance of the evidence, that he committed the offense of mobaction (720 ILCS 5/25--1(a)(1) (West 2000)) as alleged in thesecond amended third petition to revoke probation.

The offense of mob action involves the use of force orviolence disturbing the public peace by two or more persons actingtogether and without authority of law. 720 ILCS 5/25--1(a)(1)(West 2000). The complainant testified that he was accosted by agroup of approximately 15 minors, some of whom punched him andreached into his pockets. The minor contends that the State failedto prove that he committed the offense of mob action because thecomplainant was not able to identify him in court. He asserts thatthe testimony of two arresting officers that he was identified bythe complainant in an out-of-court show-up identification isinsufficient evidence that he was involved in the offense.

The record reflects that the testimony of Officer Eric Harrisconcerning the complainant's positive identification of the minoras being involved in the offense in an out-of-court show-upidentification was proffered by the State without a hearsay or anyother objection being raised by the minor. Therefore, the minorhas waived any objection concerning the State's use of thetestimony of the arresting officers concerning the minor's presenceat the scene and the positive out-of-court identification by thecomplainant.

In our view, the evidence presented at the hearing wassufficient to satisfy the State's burden of proving, by apreponderance of the evidence (705 ILCS 405/5--720(3) (West 2000),that the minor committed the offense of mob action.

The judgment of the circuit court of Winnebago County isaffirmed.

Affirmed.

GROMETER and CALLUM, JJ., concur.