Petition — Illinois v. Polovchak

es = 8 45 [orcs y gms - US.

0.

NOV 30 1983

STEVAS

PLEXANDER !

3n the se

Supreme Court of the Anited States

Octoser Term, 1983

In Re WALTER POLOVCHAK

(STATE OF ILLINOIS,

Petitioner,

vs.

MICHAEL POLOVCHAK and ANNA POLOVCHAK,

Respondents.)

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

New F. Hartigan,

Attorney General,

State of Illinois,

188 West Randolph Street, Suite 2200,

Chicago, Illinois 60601,

Attorney for Petitioner.

Ricwarp M. Datey,

State’s Attorney,

County of Cook,

Room 500 Richard J. Daley Center,

Chicago, Illinois 60602,

Micwaet E. SHanat,*

Kevin Sweeney,

Assistant State’s Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

The Scheffer Press, Inc.—(312) 263-6850

i

QUESTIONS PRESENTED

L.

Whether a child may be placed under state control,

possibly until he becomes an adult, without any finding

that such control is necessary for his welfare or protec-

tion?

2.

Whether a sixteen year old boy who is lawfully in the

United States and wishes to remain in this country should

be forcibly returned to the Soviet Union?

ii

TABLE OF CONTENTS

PAGE

I SEMIN - dos ssapennsepitoensnesioeenipacbiocaeiiapsinipaoande i

I ITI. 5 accep ised ipeivedaincearetinieniaieabaaiaaas lh 1

ig RIAN SEEE ESRC Atay ogee ae Reis B77. 2

Constitutional Provision at Essue ..........cecccsssssesseeseeeees 2

UIE, UNE 2 UNE OINOI coco sicssnenintnemesnenintmionsiaedaolieiabaeai 2

Reasons for Granting the Wit: ..........ccssssssssssesenssesees 6

IT IS A VIOLATION OF WALTER POLOV-

CHAK’S RIGHT TO DUE PROCESS AND

FAMILIAL PRIVACY TO PLACE HIM IN

THE CONTROL AND CUSTODY OF THE

JUVENILE COURT, POSSIBLY UNTIL HE

BECOMES AN ADULT, WITHOUT ANY

FINDING THAT SUCH CUSTODY IS NECES-

SARY FOR HIS WELFARE OR PROTEC-

BTID. selitaninadinisinsentearissicorenscnnnesinnisimnanitabnnedupbalain 6

THIS COURT SHOULD GRANT CERTIO-

RARI IN ORDER TO PREVENT THE FORC-

IBLE AND ILLEGAL REMOVAL OF WAL-

TER POLOVCHAK FROM THE UNITED

SIE. «2c. .ic i cooeenatecenamns uagasemdaeaeanaaaad 15

a shi Sect ceoellaaiadieha iene 17

Appendices:

A — Opinion of the Illinois Supreme Court in In re

Polovchak, 97 Ill. 2d 212, 454 N.E.2d 258 (1983)

B— Order of the illinois Supreme Court denying

the Petition for Rehearing filed by the State

of Illinois

Sa

iil

TABLE OF AUTHORITIES

CASES

PAGE

Agrins vy. City of Tiburon, 447 U.S. 255 (1980) ........ 6

Ginsberg v. New York, 390 U.S. 629 (1968) ............ i)

Griswold vy. Connecticut, 381 U.S. 479 (1965) wu... 11

Bee FG Gerald, SBT OB. 1 (1967) cecvcsecsicccscavscsocesscscsosoveceacs 9

In re Jennings, 68 Ill. 2d 125, 368 N.F.2d 864 (1977) .. 14

In re Winship, 397 U.S. 358 (1970) .........scsccsscscscsrseceees 9

Jackson v. Indiana, 406 U.S. 715 (1972) eee 9

Kent v. United States, 383 U.S. 541 (1966)... 14

McNeil v. Director, Paturent Institution, 407 U.S. 245

SEA EPPS TEN EAI aR eregeeeeBAN bettcon an om Simoes Pr OE Star 9

Moore v. City of East Cleveland, 431 U.S. 494 (1977) 12

O’Connor v. Donaldson, 422 U.S. 563 (1975) «0.0... 9,10

Planned Parenthood v. Central Missouri vy. Danforth,

WEG, Me NOTRE cinicscctceantacocccngsecendaaonncaielnapeceioads 9,12

People v. Schoos, 15 Ill. App. 3d 964, 305 N.E.2d 560

I IE IID da iivsinsckpn csciec nbebronnteon senibliedaiesgitdadeicedAarnaas 14

Pistor v. Doe, 467 0.8. 202 (19BZ). ..2.ccecceserracesscerecnsctesee 13, 16

Polovchak v. Landon, No. 80-C-5595 (U.S. Dist. Ct.,

MR a sci enenesaiaton 16

Roe v. Wade, 410 U.S. 113 (1973) crsesvsssssssssssssesceseeeee ll

Santosky v. Kramer, 455 U.S. 745 (1982)... 11

Stanley v. Illinois, 405 U.S. 645 (1972) ceccccccceseeeseees 11

Youngblood v. Romeo, 457 U.S. 307 (1982) 0... 10

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...cccsccsscsesenees 11

iv

STATUTES

PAGE

Til. Rev. Stat. 1981, Ch. 37, see. FOL-21 ........cccccccccecscsee 14

Ill. Rev. Stat. 1979, Ch. 37, sec. 702-3 (repealed) .... 6,9

Ill. Rev. Sat. 1983, Ch. 37, sec. 702-3. ..cccccocssccsssssscessceeee 13

Ill. Rev. Stat. 1983, Ch. 37, sec. 703-1.1(¢) .....scccsssseeee 13

Ill. Rev. Stat. 1983, Ch. 37, sec. 703-1.1(d) .......ccssss00 13

Ix Tue

SUPREME COURT OF THE UNITED STATES

Octroser Term, 1983

No.

In Re WALTER POLOVCHAK

(STATE OF ILLINOIS,

Petitioner,

US.

MICHAEL POLOVCHAK and ANNA POLOVCHAK,

Respondents.)

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

oes

Petitioner, the State of Illinois, respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the Illinois Supreme Court which was entered

on May °7, 1983.

OPINION BELOW

The opinion of the Illinois Supreme Court is reported

as In re Polovchak, 97 Ill. 2d 212, 454 N.E.2d 258 (1983).

That opinion is reproduced as Appendix A of this Peti-

tion. The order of the Illinois Supreme Court denying

a petition for rehearing is reproduced as Appendix B of

this Petition.

dies

JURISDICTION

The opinion and judgment of the Illinois Supreme

Court was entered on May 27, 1983. The State of Illinois

filed a tunely Petition for a Rehearing, which was denied

on September 30, 1983. This Petition for a Writ of Cer-

tiorari is filed within 90 days of that date. THs Court’s

jurisdiction is invoked under 28 U.S.C. §1257(3).

CONSTITUTION PROVISION AT ISSUE

FOURTEENTH AMENDMENT, (Due Process and

Equal Protection Clauses) :

. nor shall any State deprive any person of life,

liberty or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the law.

STATEMENT OF THE CASE

Walter Polovehak is a sixteen year old boy who wants

to remain in the United States. His parents want him

to be forcibly deported to the Soviet Union. The State

of Illinois has been cooperating with Walter and his at-

torneys in the Illinois courts in an effort to keep him

from being forcibly deported.

The Illinois Supreme Court has held that under the

applicable statute Walter was not subject to Juvenile

Court jurisdiction. That interpretation of a state statute

is not challenged in this Petition. However the Illinois

Supreme Court remanded the matter to the Juvenile

Court with directions to retain control over Walter, pos-

sihly until he becomes an adult. Since there was no find-

ing that such control is necessary for Walter’s protection

or welfare, the remand is challenged in this Petition as

a denial of due process.

pa

Walter Polovchak was born in the Ukrainian Soviet So-

cialist Republic on October 3, 1967. In January, 1980,

Walter and his family emigrated to Chicago. (Tr. 185)

Walter’s family included his father Michael Polovchak,

his mother Anna Polovechak, his sister Natalie (then age

17) and his brother Michael (then age 5). The family

lived with relatives in Chicago, eventually moving in

with Walter Polovezak (cousin Walter), the 24 year old

son of Mr. Polovchak’s sister.

Mr. Michael Polovchak, however, changed his mind

about living in the United States and decided to return

to the Soviet Union. In the spring of 1980 he applied

for permission to return to the Ukraine. (Tr. 186-187) The

decision caused an intense conflict within the Polovchak

family which lasted for several months.

Walter and Natalie decided that they wanted to re-

main in the United States. The parents violently object-

ed to Walter’s decision. It is undisputed that Mr. Po-

lovchak threatened to kill cousin Walter and Natalie if

they interfered with Walter. (Tr. 137, 148) There was

testimony that Mr. Polovchak said that if anyone tried

to interfere with Walter “blood will run.” Walter testi-

fied that his father told him that the police in America

could be bribed, and that he would pay off the police to

tie Walter up and put him on a plane to the Soviet Union.

(Tr. 173, 209)

Meanwhile, cousin Walter, after arguments with Mr.

Polovchak, had moved,into another apartment. (Tr. 188)

Natalie decided that she could not stand it any more,

and that she was going to move out. (Tr. 151) Walter

told her that he wanted to move out too, but Natalie told

him that he could not go with her. (Tr. 154) But Walter

a ee

told Natalie that unless he could go with her he would

run away by himself. (Tr. 151, 154)

On July 13, 1980, Walter and Natalie left home to go

to church, but did not return. (Tr. 110-112) Instead they

went to live with their cousin Walter, where they stayed

until their parents sent the police to find them.

At first, the parents had no idea where Walter was stay-

ing. Walter did return home once with some friends to

get his belongings, but he refused to tell his mother

where he was going to live. (Tr. 112-117, 164) But on

July 18, Mr. Polovchak obtained a possible phone num-

ber for Walter, and took it to Sergeant Leo Rojek of the

Chicago Police Department. (Tr. 216) Sergeant Rojek

traced the number and found Walter. (Tr. 216-218)

Walter refused to return to the home of his parents,

so Sergeant Rojek filed a petition alleging that Walter

was a minor in need of supervision. (MINS). The MINS

provisions of the Illinois Juvenile Court Act, which have

since been repealed, stated that the court could intervene

when a minor was beyond the control of his parents. Il.

Rev. Stat. 1979, Ch. 37, see. 702-3 (repealed).

After a hearing in Juvenile Court, Walter was placed

in the temporary custody of the Department of Children

and Family Services. (Tr. 52) Later Walter entered an

admission to the allegation that he was a minor in need

of supervision, and a hearing was held to determine if

there was a factual basis for that plea. (Tr. 81-85) At

that hearing Walter testified that he would have left home

whether there had been a place for him to stay or not,

and that he would refuse to return home if the case was

dismissed. (Tr. 169-176) Later the judge was informed

by Walter’s social worker that Walter had repeatedly

caleba

threatened to kill himself if forced to return home. (Tr.

335-336)

The judge found Walter to be a minor in need of super-

vision, and set the matter for a dispositional hearing.

(Tr. 235) At the dispositional hearing it would be de-

cided whether Walter would be returned to his parents

or not. But the parents prevented a dispositional hearing

from being held by taking an interlocutory appeal from

the order finding Walter to be a minor in need of super-

vision. (Sup. Tr. 2-16) While that appeal was pending

the parents returned to the Soviet Union without Walter.

In the meantime Walter had been granted political asylum

by the federal government.

The Appellate Court of Illinois reversed the finding

of the Juvenile Court without any remand. Jn the Interest

of Polovchak, 104 Ill. App. 3d 203, 482 N.E.2d 873 (1st

Dist. 1981). The Illinois Supreme Court granted leave

to appeal, and ruled that the Juvenile Court had erred

in taking jurisdiction over Walter. (Appendix A) How-

ever, the Illinois Supreme Court remanded the matter to

the Juvenile Court with directions to retain jurisdiction

over Walter until one of his parents returned to the

United States. If neither of the parents were to return,

the Juvenile Court is to retain control over Walter for an

indefinite period of time. (Appendix A, p. 13a)

esttint

REASONS FOR GRANTING THE WRIT

L

IT IS A VIOLATION OF WALTER POLOVCHAE’S

RIGHT TO DUE PROCESS AND FAMILIAL PRI-

VACY TO PLACE HIM IN THE CONTROL AND

OUSTODY OF THE JUVENILE COURT, POSSIBLY

UNTIL HE BECOMES AN ADULT, WITHOUT ANY

FINDING THAT SUCH CUSTODY IS NECESSARY

FOR HIS WELFARE OR PROTECTION.

The Illinois Supreme Court ruled that Walter Polov-

chak was not a minor in need of supervision and there-

fore was not subject to Juvenile Court jurisdiction. This

interpretation of a state statute by the highest court of

Illinois is not challenged in this Petition. Ill. Rev. Stat.

1979, Ch. 37, see. 702-3 (repealed); Agins v. City of Tri-

buron, 447 U.S. 255, 259 fn. 6 (1980). However the IIli-

nois Supreme Court then contradicted itself and remand-

ed the case to the Juvenile Court with directions to main-

tain control and custody over Walter for an indefinite

period of time. The remand with directions violated

Walter’s rights under the United States Constitution in

at least two ways:

1. It violates Walter’s right to due process of law

in that it permits him to be placed in state custody

for an indefinite period of time without any finding

that such custody is necessary to Walter’s welfare

or protection.

2. It violates Walter’s right to familial privacy in

that it permits state intervention in the affairs of

Walter’s family without any finding that there is any

state interest justifying such intervention.

poe Ba

These issues, particularly that involving familial privacy,

present novel and important questions which should be

decided by this Court. As yet this Court had not fully

defined the extent of a minor’s right to due process in

custody proceedings or the extent of a minor’s right to

familial privacy.

Due Process

The remand of the Illinois Supreme Court could re-

sult in Walter being placed in state custody until he be-

comes an adult. The specific terms of the remand are

as follows:

. we believe the appropriate disposition of this

case is to remand it to the cireuit court of Cook

County with directions that it retain jurisdiction of

Walter and this cause pending the return of Walter’s

parents, or either of them, to this country, in which

event Walter’s custody shall be given to the return-

ing parent. In the event that neither Michael nor

Anna Polovehak shall return, the cireuit court shall

proceed in the manner it deems best suited to Wal-

ter’s needs. (Appendix A, p. 13a)

There is no statute, rule or precedent giving an Illinois

Juvenile Court the right to exercise control over a minor

in a situation like this, where the finding of the Juvenile

Court had been reversed because of insufficient evidence.

Therefore the short paragraph just quoted provides the

only guidance to the Cook County Juvenile Court concern-

ing what it should do with Walter.

Therefore Walter could be placed in the custody of any

agency or person for an indefinite period of time. For

example, Walter could be kept in the custody of the IIli-

nois Department of Children and Family Services, which

would have discretion to place him in any institution or

pe SS

foster home. There is no finding that such custody is

necessary for Walter’s welfare or protection. There is

no time limitation, except that Juvenile Court control

over Walter is to last until one of his parents returns to

this country or until he becomes an adult. There is no

limit on the discretion of the Juvenile Court, except that

it “. . . shall proceed in the manner it deems best suited

to Walter’s needs.’’ (Appendix A, p. 13a) There is not

even any requirement that the Juvenile Court conduct

a hearing. There is no indication that Walter or his at-

torneys will have any say about what happens to him.

There could hardly be a more clear violation of due

process than to place a person in custody without a

hearing, according to no legal standard, and without

any finding that such custody is necessary for any pur-

pose. This Court should accept jurisdiction so that

Walter and other minors will not be arbitrarily placed

in foster homes or institutions by a state.

It is true that the Juvenile Court of Cook County

originally found, under a provision which has since been

repealed, that Walter was a minor in need of super-

vision. (Tr. 235) Ill. Rev. Stat. 1979, Ch. 37, see. 702-3

(repealed). It is also true that the Juvenile Court

found that it was a matter of immediate and urgent

necessity that Walter be placed in the custody of the

Department of Children and Family Services. (Tr. 11,

52) But the Illinois Supreme Court reversed both find-

ings, ruling that they were not supported by the evi-

dence. (Appendix A, pp. 9a-12a) Thus as of now the

only judicial findings ever made concerning Walter have

been vacated on appeal. Since the Illinois Supreme Court

vacated the findings of the Juvenile Court, and made

a va

no new findings of its own, there is nothing to justify

holding Walter in custody.

Nor can the fact that Walter is sixteen years old,

and that his parents have returned to the Soviet Union

without him, justify subjecting Walter to the control

of the Juvenile Court. It is well established that con-

stitutional rights are not reserved exclusively for adults,

but apply to minors as well. Planned Parenthood of Cen-

tral Missouri v. Danforth, 428 U.S. 52 (1976); In re Win-

ship, 397 U.S. 358 (1970); Ginsherg v. New York, 390

U.S. 629 (1968); Jn re Gawlt, 387 U.S. 1 (1967). There-

fore the absence of Walter's parents could not justify

placing him under the control of the Juvenile Court

unless there was a finding that Walter could not take

care of himself and that there was no relative or friend

who could take care of him. No such finding exists. In

fact the record indicates that Walter has a cousin in

Chicago, an aunt and uncle in Chicago, and an aunt

in Santa Barbara who are willing and anxious to pro-

vide him with a home. (Tr. 111-112, 211-212, 339-340)

Since there is no finding that state custody over Water

is necessary for his welfare or protection, the remand

subjecting him to the control of the Juvenile Court is

unconstitutional.

There are, of course, numerous precedents indicating

that a person may not be placed under state custody

or contro] without a finding that such custody or con-

trol is necessary for the protection of that person or

of others. O’Connor v. Donaldson, 422 U.S. 563 (1975);

McNeil v. Director, Patuxent Institution, 407 U.S. 245

(1972); Jackson v. Indiana, 406 U.S. 715 (1972). In

Walter’s case there had been no hearing and no finding

==

that Juvenile Court control over Walter is necessary

for his protection. As this Court said in O’Connor:

In short, a State cannot constitutionally confine

without more a nondangerous individual who is

eapable of surviving safely in freedom by himself

or with the help of willing and responsible family

members or friends. 422 U.S. at 576.

The record here indicates that Walter is fully capable

of taking care of himself with the help of his relatives.

But the terms of the Illinois Supreme Court’s remand

dismiss such considerations as irrelevant. The re-

mand gives no weight to the desires of Walter and

his attorneys. Therefore the order that the Juvenile

Court take control over Walter for an indefinite period

violates due process of law.

In addition, a person who has committed no crime

may be placed in state custody only if there is a valid

state interest outweighing the person’s liberty interests.

Youngblood v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 2461

(1982). There has been no finding here (except those

reversed on appeal) that there is any state interest in

Juvenile Court control over Walter.

Thus the Illinois Supreme Court has ordered that the

Juvenile Court assume control and custody over Walter

even though there has been no finding that such con-

trol is necessary for Walter’s protection or for any

other purpose. This Court should accept jurisdiction

in ord to correct this clear violation of due process

of law.

Familial Privacy

The remand of the Illinois Supreme Court permits

the Juvenile Court to place Walter in the custody of

= fj —

any agency or person for an indefinite period of time.

The consent of Walter or his parents is not required.

Therefore the terms of the remand violate Walter’s

right to familial privacy.

Over the last two decades this Court had handed

down a line of cases limiting intervention in family

affairs. In many areas this right to familial privacy

has not been clearly defined. But the basic principle

seems to be that any intervention in family matters

must be justified by some compelling state interest.

Since there has been no finding that any state interest

will be served by subjecting Walter to the control and

custody of the Juvenile Court, the terms of the remand

violate Walter’s right to familial privacy.

The right to familial privacy was first stated in cases

dealing with birth control and abortion. Griswold v.

Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410

U.S. 113 (1973). This Court held that various consti-

tutional guarantees create a zone of privacy surround-

ing marital and family matters. This zone of privacy,

this Court stated, may be overcome only by a compelling

state interest.

The right to familial privacy was extended to mat-

ters relating to child custody and care. Santosky v.

Kramer, 455 U.S. 745 (1982); Wisconsin v. Yoder, 406

U.S. 205 (1972); Stanley v. Illinois, 405 U.S. 645 (1972).

Santosky, Yoder and Stanley each involved a different

factual situation, but the reasoning used by this Court

in each case was similar. In each case it was held that

any intervention in family affairs must be subjected to a

balancing test in which the state interest in the care

and protection of children must be weighed against the

ne ie

right of familial privacy. In the absence of an overriding

state interest, governmental intervention in family af-

fairs is forbidden.

In the cases just cited the right to familial privacy

was asserted by parents or potential parents. However,

this Court had held that the right to familial privacy

may be asserted by a minor as well as an adult. Planned

Parenthood of Certral Missouri vy. Danforth, 428 U.S.

52 (1976). In fact, in Planned Parenthood v. Danforth,

this Court held that in some circumstances the right to

familial privacy may operate in favor of a child and

against parents. In that case it was held that a parent

could not be given an absolute veto over the right of

a minor girl to seek an abortion. This Court said:

Constitutional rights do not mature and come

into being magically when one attains the state-

defined age of majority. Minors, as well as sdalts,

are protected by the Constitution and possess con-

stitutional rights. 428 at 74.

Therefore a minor may assert the right to familial pri-

vacy even against a parent.

This is in accord with the statement of this Court

in Moore v. City of East Cleveland, 431 U.S. 494 (1977).

In Moore, it was stated that familial privacy extended

not only to the nuclear family, but also to other family

relationships, such as those involving uncles, aunts, cous-

ins and grandparents. Therefore family members other

than parents can assert a right to familial privacy. In

addition, familial privacy applies to any decision by

Walter to live with his cousin, unele or aunts.

The remand of the Illinois Supreme Court allows

the Juvenile Court to place Walter in the custody of

=

any agency or person. There is no finding that there

is any compelling state interest that would override

Walter’s constitutional right to familial privacy. Also,

there is no finding or indication that Walter is unable

to care for himself with the help of his relatives. There-

fore this Court should accept jurisdiction in order to

reverse the invasion of Walter’s right to familial pri-

vacy.

Equal Protection

The terms of the Illinois Supreme Court’s remand

in this case also raise serious problems of equal pro-

tection. Currently in Illinois there is no legal require-

ment that a minor remain in the home of his parents.

The police are specifically forbidden from returning a

runaway minor to his home unless the minor consents.

Ill. Rev. Stat. 1983, Ch. 37, sees. 703-1.1(c), 708-1.1(d).

The Juvenile Court may not act when a minor leaves

home unless three weeks have passed and the family

has first been referred to a crisis intervention center.

Ill. Rev. Stat. 1983, Ch. 37, sac. 702-3.

The Illinois Supreme Court has ordered that Walter

be placed under the control of the Juvenile Court until

one of his parents returns to the United States, and

that then Walter must be placed in the custody of that

parent, (Appendix A, p. 13a) Thus Walter is being

treated differently from every other child in Illinois

who has run away from home or who wants to live

apart from his parents. Equal protection requires that

persons similarly situcted be treated in a similar fash-

ion. Plyler vy. Doe, 457 U.S. 202 (1982). Therefore the

terms of the remand in this case violate Walter’s right

to equal protection of law.

— 14 —

Standing

The State of Illinois has filed this Petition because

it has been a party to this case from the start and

has a duty under both statute and case law to try to

protect Walter’s rights. Under the Illinois Juvenile Court

Act the State is a party to all Juvenile Court proceed-

ings. Il]. Rev. Stat. 1981, Ch. 37, see. 701-21. Accord-

ingly, the State played a leading part in every hear-

ing in the Cook County Juvenile Court, filed a brief

as a party in the Appellate Court of Illinois, and filed a

petition for leave to appeal, a brief, and a_ petition

for rehearing in the Lilinois Supreme Court. The statute

making the State a party to all juvenile proceedings

merely restates the traditional duty of a government

to assert the rights of minors when the parents are

unwilling or unable to do so. Kent vy. United States,

383 U.S. 541, 554-555 (1966); Jn re Jennings, 68 Il.

2d 125, 368 N.E.2d 864 (1977); People v. Shoos, 15 II.

App. 3d 964, 305 N.F.2d 560 (1st Dist. 1973).

In addition, the State of Illinois has a specific interest

in the outcome of this matter. At present the Illinois

Department of Children and Family Services is the

custodian of Walter. (Tr. 11, 52) The State has a strong

interest in assuring that its custody of Walter is either

continued or vacated in accordance with the provisions

of the United States Constitution. As custodian of Walter

for the last three years, the State of Illinois has an in-

terest in the outcome of this case and standing to

request that Walter’s constitutional rights be observed.

In any event, Walter will file his own petition re-

questing a grant of certiorari. Walter’s standing is un-

deniable.

ame $6 om

Conclusion

The Illinois Supreme Court had ordered that Walter

be placed w.der the control and custody of the Juvenile

Court for an indefinite period although there had been

no finding that such contro] and custody are necessary

for Walter’s protection or for any other purpose. Thus

the remand with directions clearly violates Walter’s right

to due process of law.

Nevertheless there are novel and important consti-

tutional issues presented by this case. This Court has

not yet clearly defined the due process rights of minors

in custody hearings, the extent of a minor’s right to

familial privacy, or the degree to which minors can

assert constitutional rights against their parents. This

Court should grant certiorari in order to correct the

violation of Walter’s due process rights and in order

to deal with these important issues of constitutional law.

II.

THIS COURT SHOULD GRANT CERTIORARI IN

ORDER TO PREVENT THE FORCIBLE AND ILLEGAL

REMOVAL OF WALTER POLOVCHAK FROM THE

UNITED STATES.

The remand with directions of the Ilinois Supreme

Court could make it possible for Walter to be forcibly

and illegally removed from the United States. If that

were to happen neither this Court nor any other Ameri-

can court would have any power to protect his rights.

The Illincis Supreme Court has ordered that if either

of Walter’s parents return to this country, then Walter

is to be placed in their custody. But if the parents

were to regain custody, it is almost certain that they

eo en

would try to remove Walter from this country and

take him to the Soviet Union. The Illinois Supreme

Court has not provided any safeguards to prevent this.

The executive branch of the federal government has

granted political asylum to Walter, and has issued a

departure control order to prevent his removal from

the United States. The validity of those orders is pres-

ently being litigated in the United States District Court

for the Northern District of Illinois. Polovchak vy. Landon,

No. 80 C 5595. However, this Court need hardly be

reminded that the United States does not have perfect

control over its boarders. See Plyler v. Doe, 457 U.S.

202 (1982). If the parents had custody of Walter and

the assistance of the Soviet government they might

well be able to remove Walter from the United States.

Whatever may have been the case in 1980, it cer-

tainly would not be in Walter’s interests now to be

forcibly removed to the Soviet Union. If that were

to happen it would be a permanent blot on the record

of this country’s judicial system. When this litigations

began, Walter was living with his cousin and not with

his parents. It was the parents who began state inter-

vention by sending the police after Walter. This Court

should grant certiorari in order to assure that Walter’s

future will be determined by law and not by force.

a os

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Illinois Su-

preme Court.

Respectfully submitted,

New F. Hartigan,

Attorney General,

State of Illinois,

188 West Randolph Street, Suite 2200,

Chicago, Illinois 60601,

Attorney for Petitioner.

Ricuarp M. Datey,

State’s Attorney,

County of Cook,

Room 500 Richard J. Daley Center,

Chicago, Illinois 60602,

Micuaet FE. SxHapat,*

Kevin SWEENEY,

Assistant State’s Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

in

APPENDIX A

May 27, 1983

Docket Nos. 56552, 56572

In re WALTER POLOVCHAK, Appellee and Appellant

(The People of the State of Illinois, Appellant and

Appellee).

JUSTICE UNDERWOOD delivered the opinion of the

court:

On July 19, 1980, pursuant to a petition for adjudica-

tion of wardship, the circuit court of Cook County ap-

pointed a guardian ad litem for 12-year-old Walter Po-

lovchak, and, over the objection of Walter’s parents,

Michael and Anna Polovchak (the Polovchaks) placed

the boy in the temporary custody of the T!linois Depart-

ment of Children and Family Services (DCFS). Wal-

ter was subsequently found to be a minor in need of

supervision and adjudged a ward of the court under the

Juvenile Court Act (Til. Rev. Stat. 1979, ch. 37, pars.

702—3(a), 704—8). Temporary custody remained in

DCFS with supervised visits arranged between Walter

and his parents. Prior to the dispositional hearing,

Michael and Anna Polovchak filed an interlocutory ap-

peal pursuant to Rule 662 (73 Ill. 2d R. 662). A divided

appellate court reversed (104 Ill, App. 3d 203), and we

allowed the petitions of both the State and Walter for

leave to appeal.

Michael and Anna Polovchak, and their three children,

Natalie, age 17, Walter, and Michael, age 5, arrived in

the United States from their homeland, the Ukrainian

Soviet Socialist Republic, in January 1980. The family

spent the first few weeks in Chicago with Mr. Polovchak’s

sister and her husband before moving to an apartment

on the northwest side of Chicago with Mr. Polovchak’s

24-year-old nephew, Walter Polovchak (cousin Walter).

gE

Although both parents apparently began working in Chi-

cago, they decided, after a few months, to return to the

Ukraine. Natalie decided that she did not want to return

with her parents, and Walter, although initially un-

decided, determined that he, too, wanted to remain in

this country. Mr. Polovchak did not challenge his daugh-

ter’s decision; however, he was adamantly opposed to

allowing Walter to remain in this country. Apparently

there was considerable tension between cousin Walter

and the Polovchaks, who believed that the cousin was

encouraging their son to remain in this country.

Cousin Walter secured another apartment and began

moving, apparently on July 12. He and Natalie had had

a conversation prior to the move, and it was decided that

Natalie would move with her cousin. Walter also told

his cousin that he would be joining in the move. The

parents were apparently aware of some of these arrange-

ments because on Saturday night, July 12, there was a

heated family argument during which Mr. Polovehak,

who was quite upset, demanded to know why Natalie

was taking his son away.

The next morning, pursuant to a prearrangement, cous-

in Walter met Natalie and Walter a block or two from

the parents’ apartment and the three went to church.

After lunch, they returned to a point near the parents’

apartment, and, while the two Walters waited there,

Natalie went alone to the apartment to get some of her

belongings. She and her father argued about Walter,

and the father followed her to the bus stop. Walter

and his cousin apparently saw the father approaching

and left. Later that day, Natalie joined her brother and

cousin at the latter’s apartment, where the three spent

the night.

The following day, July 14, Natalie, her brother and

cousin, and two adult friends of cousin Walter’s went to

the parents’ apartment with two vehicles. The parents

were at work, but as Natalie and Walter began gathering

their belongings, their mother arrived. She attempted to

ae

learn where they were taking her son but was rebuffed.

Her son, speaking to her in Ukrainian, said something to

the effect that she should not be concerned. Natalie and

Walter spent the next four days at their cousin’s apart-

ment, and while no one informed the parents of their

whereabouts, it is clear from the record that the Polov-

chaks knew that their children were together and with

cousin Walter but did not know where his apartment was

located. Cousin Walter contacted his attorney (who later

became counsel] for Natalie and Walter) on July 14 or

15.

On July 18, Mr. Polovchak went to a Chicago police

station with an interpreter to attempt to find his son.

According to a report filed hy Sergeant Leo Rojek, Mr.

Polovehak stated that Natalie had enticed Walter to run

away from home rather than return to the Ukraine, and

she was hiding him in cousin Walter’s apartment. After

apparently receiving a telephone number for cousin Wal-

ter’s place of employment, the police ascertained his

home address; they suhsequently went to the apartment,

located Walter, and took him back to the station.

After arriving at the station, Walter was asked why he

ran away from home. He responded that his father in-

tended to return to the Ukraine, but that he wanted to

stay in this country. The police then contacted the United

States Immigration and Naturalization Service and the

Department of State and were instructed by officials from

the Department of State that Walter was not to be

returned to his parents. The police also contacted a

Cook County judge wh» recommended that Walter be

detained overnight as a runaway and brought to juvenile

court the following morning. At some point during the

processing, Natalie and cousin Walter’s attorney, whom

the consin had apparently retained to represent Walter

and Natalie, arrived at the police station. Walter was

processed as a minor in need of supervision and placed

with his sister and their attorney at the latter’s residence.

Mr. Polovchak was told of the court date the following

a

morning and advised that he and his wife would be

transported to the hearing by the police.

A petition for adjudication of wardship was subse-

quently filed by a police officer, alleging that Walter

Polovchak, age 12, was ‘‘beyond the control of parents

in that he did on/or about July 14, 1980 at 9:00 A.M.

at Cook County, Illinois, absent himself from his home

without the expressed consent of his parents, in violation

of Chapter 37, Section 702—3a, Illinois Revised Statutes,

1979,’’ and that it was in the best interests of the minor

and the public that Walter be adjudged a ward of the

court.

On July 19, Walter appeared in court with the retained

attorney. Also present were an assistant State’s Attor-

ney, counsel for the subsequently appointed guardian

aa litem, a representative of DCFS, a representative of

the Immigration and Naturalization Service of the United

States, several police officers, and the Polovchaks. The

trial judge asked whether Walter was prepared to plead

to the charge, and, after an off-the-record conference

between the assistant State’s Attorney and counsel for

the guardian ad litem, the latter entered a denial on

behalf of Walter. She also informed the court that she

and the assistant State’s Attorney had agreed to the

appointment of a temporary custodian. The assistant

State’s Attorney advised the court that it was her

understanding that the parents were not in agreement

with the temporary custody arrangement.

The Polovchaks neither spoke nor understood English,

they did not have an attorney, nor were they provided

with counsel or a courfappointed interpreter. Walter’s

private attorney, who speaks Ukrainian, advised the

court that there were Ukrainian-speaking people in the

courtroom, and a woman, whose status is not disclosed

by the record, volunteered to interpret for the parents.

Through the interpreter, the trial judge ascertained that

Walter had been away from home since July 14, and that

the parents wanted to take him home with them. The

in ii

court informed the Polovchaks that Walter would be

placed in the temporary custody of DCFS pending a

social investigation by a probation officer and a full

hearing to determine whether Walter was a minor in

need of supervision and whether he would be removed

or returned to the custody of his parents. The parents

were also advised that they had the right to be re-

presented by counsel and that they should return to court

with their attorney on July 30. No evidence was taken

at this hearing; despite the parents’ opposition, an or-

der said to be “‘by agreement” was entered appointing

the Guardianship Administrator of DCFS temporary

custodian. In addition, the following findings of fact were

entered on a preprinted form: that probable cause existed

to believe that Walter was a minor otherwise in need

of supervision, and that Walter should be placed in cus-

tody, in a suitable place, pending a further hearing be-

cause it was a matter of immediate and urgent necessity

for his protection, he had been away from home for five

days, he had in open court stated that he would not re-

main with his parents if released, and on his own mo-

tion he requested the court to order protective detention.

A petition was subsequently filed seeking to have Nata-

lie Polovchak adjudged a ward of the court. The allega-

tions of this petition were virtually identical to those

contained in the previous petition on behalf of her

brother. The hearing that followed on both petitions

extended over a two-day period. All parties were re-

presented by counsel, and several interpreters were

present.

At the outset of the July 30 adjudicatory hearing, the

trial court denied a motion by counsel for the Polovechaks

to vacate the temporary custody order of July 19 on the

grounds that it was not in compliance with the Juvenile

Court Act. Over the objection of opposing counsel, the

attorneys for Natalie and Walter then entered admis-

sions on behalf of their clients ‘‘to the charges that they

{were] minors in need of supervision.’’ All four mem-

—- 6a —

bers of the Polovchak family, including Walter, subse-

quently testified through an interpreter. The court also

heard testimony from cousin Walter, Sergeant Rojek,

and two psychiatrists. The evidence indicated that Wal-

ter left his parents’ home without their consent and

stayed with his sister and cousin for the next few days

in the cousin’s apartment and that he was motivated

in doing so by his desire to stay iW this country rather

than return to the Ukraine. While both Natalie and

cousin Walter denied that either influenced Walter’s deci-

sion, it is clear that Walter’s cousin had told Walter

that he would help him if Walter decided not to go back

to the Ukraine with his parents; it is also undisputed

that Natalie, cousin Walter and his two adult friends

assisted him in removing his belongings from his parents’

home. Walter testified that had his sister and cousin not

assisted him or allowed him to stay with them, he would

have still left his parents’ apartment and gone some-

where else.

Both the State and the Polovehaks presented psychiat-

ric testimony. The two psychiatrists, Dr. Ner Littner and

Dr. Robert Bussell, neither of whom examined Walter, tes-

tified in response to hypothetical questions which essen-

tially incorporated the salient facts of this case. Neither ex-

pert believed that Walter was beyond the control of his

parents. In addition, Dr. Littner, the Polovchaks’ witness,

stated his opinion that Walter’s behavior was an immature

act of defiance and rebellion rather than an independent

judgment, and that the assistance of Walter’s sister and

cousin provided his actions with an aura of respectability

or gave Walter a rationalization for rebelling against his

parents. Further he stated that Walter was not a runaway

nor did he engage in the type of behavior common to a

runaway, who would ordinarily be certain not to let his par-

ents know where he was going. Dr. Littner believed that,

had Walter not been assisted by his cousin and sister, he

may have manifested his disagreement with his parents by

locking himself into a room and refusing to come out. The

psychiatrists disagreed on whether a 12-year-old boy had

—

the ability to make an independent judgment as to which

country he preferred to live in; their opinions also differed

on the extent of emotional harm that would result to Wal-

ter from a continued separation from his parents.

At the conclusion of the hearing on August 4, 1980, the

trial court found both Natalie and Walter to be minors in

need of supervision and also adjudicated them wards of the

court. Thereafter, during a discussion of possible tempo-

rary dispositions, including Walter’s return to his parents,

the judge was told by the DCFS worker that Walter had

threatened suicide if returned “home.” The worker indi-

cated she would have so testified under oath, but the trial

court denied a request that she be sworn. While the State

attempts to rely on the alleged suicidal threats, we believe

the references thereto are too nebulous for that purpose.

There had been no reference to such threats in the initial

appearance before the court or during the adjudicatory

hearing. The later reference was neither under oath nor

subject to cross-examination, and Walter neither testified,

nor was he asked, about the matter. It is not entirely clear

whether “home” was understood by Walter as the apart-

ment of his parents or the Ukraine. Finally, the court had

already announced its decision before the worker, who ap-

parently neither spoke nor understood Ukrainian, volun-

teered the information.

On November 5, the date scheduled for the dispositional

hearing, the Polovchaks filed notices of appeal from the

wardship adjudications and the temporary custody orders.

Natalie is no longer a minor under our juvenile act, and

she is not involved in this appeal.

The United States Attorney for the Northern District

of Illinois, at the direction of the Attorney General of the

United States, has filed a “suggestion of interest” in this

court advising us that, on July 19, 1980, the district direc-

tor of the Immigration and Naturalization Service, with the

advice of the Department of State, granted Walter Polov-

chak’s petition for asylum. Walter’s status was subse-

quently changed to permanent resident alien. We are in-

a

formed that the Immigration and Naturalization Service

has also entered a departure control order which prohibits

the departure of Walter from the United States. While ad-

vising us that the United States has no direct interest in

the legal issues presented concerning our State statute, the

United States Attorney suggests that any decision regard-

ing the final custody of Walter respect the supremacy of

the obligations of the United States under the Refugee Act

of 1980 (94 Stat. 109, 8 U.S.C. 1182 (1980)) and the inter-

national obligations of the United States under the United

Nations Protocol Relating to the Status of Refugees. 19

U.S.T. 6224-29 (1968).

Both the State and Walter argue that the parents

should have heen estopped from taking an interlocutory ap-

peal under our Rule 662. The appellate court denied the

State’s motion to dismiss the appeal on that ground, a de-

cision with which we agree. It is unnecessary to lengthen

this opinion by quoting or discussing the portions of the re-

cord which demonstrate that the charges that the appeal

was ‘‘fraudulently’’ based, that the parents ‘‘deceived’’

the trial court or adopted dilatory tactics for the purpose

of taking an appeal are unfounded. Suffice it to say that

the delay between the date of the wardship adjudication

and the dated scheduled for the dispositional hearing re-

sulted from a number of factors, some of which were

directly attributable to the State and the minors. Too, we

do not doubt that the multiple litigation and controversy

surrounding this case have also adversely affected what

should otherwise have been a prompt determination re-

garding Walter’s custody. In fact, on the date scheduled for

the dispositional hearing, he had been removed from the

custody of his parents for 314 months. Under the cireum-

stances of this case, where the parents, but not the minor,

were contesting the adjudication of wardship and the de-

termination that their son was a minor in need of supervi-

sion, and an order of disposition had not been entered

within 90 days of the adjudication of wardship, we hold

that the parents properly invoked our Rule 662 to appeal

(73 Ill. 2d R. 622).

a

The stated purpose of our Juvenile Court Act “is to se-

cure for each minor subject hereto such care and guidance,

preferably in his own home, as will serve the moral, emo-

tional, mental, and physical welfare of the minor and the

best interests of the community; to preserve and strengthen

the minor’s family ties whenever possible, removing him

from the custody of his parents only when his welfare or

safety or the protection of the public cannot be adequately

safeguarded without removal ***.’’ (Emphasis added.) (Ill,

Rey. Stat. 1979, ch. 37, par. 701-2(1); People ex rel. Davis

v. Vasquez (1982), 92 Ill. 2d 132, 142-42.) Just as the Act

severely limits the authority to hold a minor in custody

(People v. Woodruff (1981), 88 Ill. 2d 10, 14), it quite

clearly directs the court before whom the minor is brought

to release the minor to the custody of his parents rather

than prescribe detention or shelter care unless it is found

that it “is a matter of immediate and urgent necessity for

the protection of the minor or of the person or property of

another, that he is likely to flee the jurisdiction of the court

or that the minor was taken into custody under a war-

rant.” Ill. Rey. Stat. 1979, ch. 37, pars. 703-4, 703-6.

While the original order removing Walter from the eus-

tody of his parents includes a finding that the order was a

matter of immediate and urgent necessity for Walter’s pro-

tection, evidence in the record simply does not support

that finding. None of the witnesses present, the minor, the

parents or anyone else able to give relevant testimony was

examined. (Ill, Rey, Stat. 1979, ch. 37, pars. 703-6.) Nor

did Walter state, as the findings would seem to indicate,

that he would not remain with his parents if released. In-

deed, it is clear from the later proceedings that Walter’s

obstinance stemmed not from his opposition to being re-

united with his parents but rather from his desire not to

return to the Ukraine, an unlikely possibility, had the court

released him to his parents, in view of the interest mani-

fested by the Federal agencies. The factual allegation in

the petition was that Walter had been away from home for

five days without the expressed consent of his parents.

Whether the court was aware, at the initial hearing, of the

a ee

circumstances under which Walter left his parents’ home

or that he had heen staying with his cousin and older

sister, rather than at large in the city of Chicago, is also

unclear since no one specifically advised the court; at

least on the record, of these facts. It is, in our opinion,

clear that, given the absence of evidence to support the

finding required by statute, Walter should have been re-

leased to the custody of his parents, who were in the

courtroom requesting permission to take their son home.

The statutory provision under which Walter was later

adjudicated a minor in need of supervision then provided:

“Those otherwise in need of supervision include (a) any

minor under 18 years of age who is beyond the control of

his parents, guardian or other custodian.” (Ill. Rev. Stat.

1979, ch. 37, par. 702-3(a); the statute has since been

amended by Publie Act 82-969 (Minor Requiring Authori-

tative Intervention), approved Sept. 8, 1982, eff. Jan. 1,

1983), The Act requires that an adjudicatory hearing be

held to determine whether the allegations of the petition

are supported by a preponderance of the evidence, (III.

Rev. Stat. 1979, ch. 37, par. 701-4.) The decision of the

trial court at that hearing should not be disturbed on ap-

peal unless it is against the manifest weight of the evi-

dence. See In re Brown (1981), 86 Ill. 2d 147, 152; In re

Stilley (1977), 66 Ill. 2d 515, 520.

While this court has not previously construed the

phrase “beyond the control” of one’s parents, and the leg-

islature has not further defined or explained that term in

the Act, we agree with the appellate court that it seems

manifest that the legislature could not have intended that

phrase to include an isolated act by a 12-year-old minor

which poses no hazard to him or anyone else. Decisions in

this court, while involving different issues, demonstrate

that the initial determination that the minor was in need of

supervision was predicated on the fact that he was incor-

rigible, a frequent runaway or his acts posed serious haz-

ards to himself or others. (See Jn re R.R. (1982), 92 Til. 2d

423 (minor tried to poison her mother and was beyond her

—lla —

parents’ control) ; Jn re Baker (1978), 71 Ill. 24 480 (minor

repeatedly ran away from home); In re Sekeres (1971),

48 Ill. 2d 431, appeal dismissed (1972), 404 U.S. 1008, 30

L, Ed. 2d 656, 92 S, Ct. 691 (minor frequently absented

herself from home); In re Presley (1970), 47 Ill. 2d 50

(allegations in original petition seeking to adjudicate

minor otherwise in need of supervision or neglected were

that she had absented herself from home for long periods

of time without parental consent and on a specific date

was forced by her mother and stepfather to leave home) ;

cf. In re G.B, (1981), 88 Ill. 2d 36, cert denied (1982.)

sonvesei USS. v.swseenry 72 L. Ed. 2d 487, 102 S. Ct. 2041 (habi-

tually truant minor); Ill, Rev, Stat. 1979, ch. 37, par.

702-3(b)); Pub, Act 82-969 (minor requiring authorita-

tive intervention), eff. Jan. 1, 1983; see also In re Snydér

(1975), 85 Wash. 2d 182, 532 P.2d 278 (evidence that mi-

nor was adamant about refusing to return home, had es-

tablished a pattern of refusing to obey her parents, and,

on two occasions, in effect, fled her home, was sufficient

to support the finding of loss of parental power and con-

trol); Zn re DJ.B. (1971), 18 Cal. App. 3d 782, 96 Cal.

Rptr. 146 (a finding that a minor is beyond the control

of his parents may be predicated on a single act if suf-

ficiently serious; evidence that minor left home without

parental consent was not of such a nature as to be indi-

eative of the loss of parental control); In re Galvan (La.

App. 1980), 384 So. 2d 1000 (evidence tht on two oe-

easions minor left the home of his mother—the eustodial

parent—without consent and stayed with his father

because his mother was planning to move the family to

Texas or because he may have thought he would be sent

to military school was insufficient to establish that the mi-

nor was habitually disobedient and was ungovernable by

his mother or that he was a runaway child in need of

supervision); cf. In re Price (N.Y. Fam. Ct. 1978), 94

Mise. 2d 345, 404 N.Y.S.2d 821.

Although the parties characterize the evidence differ-

ently and disagree as to its legal sufficiency, as the appel-

late court noted, no material facts were in dispute. With

== 198 —

the help of his sister and cousin, Walter, a 12-year-old boy,

left his parents’ home without their consent and spent the

next few days with his older sister at his cousin’s apart-

ment. This occurred during a time of considerable family

tension regarding the Polovchaks’ decision to return to

their homeland. Neither psychiatrist, testifying in re-

sponse to hypothetical questions based on these and other

relevant facts, believed that Walter was beyond the con-

trol of his parents. We believe the appellate court cor-

rectly concluded that the trial court’s decision was against

the manifest weight of the evidence. Walter’s actions,

which can hardly be characterized as those of a runaway,

and posed no hazard to him or anyone else, simply do

not establish that he was beyond parental control.

The State argues, alternatively, that this court should

remand for another hearing because Walter was not given

the opportunity to present evidence that he was in need of

supervision, Because the court indicated that it was going

to conduct a hearing to determine whether there was a

factual basis for the earlier admission entered by Walter,

the State argues that Walter was limited in presenting evi-

dence. Too, the State complains that, believing that there

need only have been evidence to establish a factual basis

for the admission, it may have been misled concerning the

amount of evidence it was required to produce, and should

therefore have another opportunity. We cannot agree. The

record shows that neither the State nor Walter was pre-

vented from presenting any evidence relevant to the deter-

mination of whether Walter was beyond his parents’ con-

trol. A full adjudicatory hearing was held; Michael, Anna,

Natalie and Walter Polovchak, cousin Walter and several

other witnesses testified; each witness was fully examined

by all parties; and, as the appellate court stated, the record

establishes that the State recognized its burden and pro-

ceeded accordingly.

We have been advised that Michael and Anna Polovechak

have returned to the Ukraine. It is apparent, therefore,

that Walter cannot immediately be returned to his parents,

even assuming the Federal orders prohibiting his depar-

ture from this country had not been entered. We, of

course, have considered only the issues before us, and

our holding that the evidence before the circuit court did

not support its action is dispositive only of those pro-

ceedings. Considering that, so far as we are preséntly in-

formed, Federal litigation regarding the asylum and de-

parture orders is still pending in the United States courts,

we believe the appropriate disposition of this case is to

remand it to the circuit court of Cook County with di-

rections that it retin jurisdiction of Walter and this

cause pending the return of Walter’s parents, or either

of them, to this country, in which event Walter’s custody

shall be given to the retvrning parents or parent. In the

event that neither Michael nor Anna Polovchak shall re-

turn, the circuit court shall proceed in the manner it

deems best suited to Walter’s needs.

In view of our disposition here, we need reach neither

the constitutional challenges nor the issue of whether the

adjudication of wardship was in the best interests of Wal-

ter or the public.

For the reasons stated the appellate court’s judgment

reversing the cireuit court is affirmed, and the cause is re-

manded to the circuit court of Cook County with directions

to proceed in accordance herewith.

Affirmed and remanded,

with directions.

= 145, «0

APPENDIX B

ORDER OF THE ILLINOIS SUPREME COURT

DENYING THE PETITION FOR REHEARING

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

September 30, 1983

Hon. Richard M. Daley

Cook County State’s Attorney

Criminal Appeals Section, Rm. 574

Richard J. Daley Center

Chicago, IL 60602

Nos. 56552 — In the Interest of Walter Polovchak, a Minor

56572 (People State of Illinois, et al., appellants,

Cons. vs. Anna Polovchak, et al., appellees).

Appeal, Appellate Court, First District.

The Supreme Court today DENIED the petition for re-

hearing in the above entitled cause.

Very truly yours,

/s/ Juleann Hornyak

Clerk of the Supreme Court