Petition — Illinois v. Polovchak

ORIGINAL

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1983

No.

WALTER POLOVCHAEFK and THE

PEOPLE OF THE STATE OF

LLINOIS

Petitioners,

-against-

ANNA POLOVCHAK AND

MITCHELL POLOVCHAK,

Respondents.

STATES

——SE——

RECEivep

DEC 20 1983

OFFICE OF THE CLERK

SUPREME COURT, Ys

83-5901

MOTION FOR LEAVE TO PROCEED

IN PORMA "AUPERIS

Based on the annexed affidavit of Walter Polovchak,

Petitioner respectfully moves this Court for leave to

proceed in forma pauperis and be relieved from the

payment of fees.

Dated: December 20, 1983.

Henry Mark Holzer, Esq.

2329 West Chicago Avenue

Chicago, Illinois 60622 &

(312). 486-6645

WALTER POLOVCHAK AND

STATE

PEOPLE OF THE

ILLINOIS

aut

UPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No.

THE

OF

re

IN

PROCEED

SUPPORT OF

IN

APFIDAVIT

MOTION TC

NNA POLOVCHAK AND FORMA PAUPERIS

MICHAEL POLOVCHAK,

Respondents.

ILLINOIS

that I am

motion

costs or give security therefor, I state

I am sixteen years old,

my

or

to redress.

and I

the Petitioner herein;

to proceed without being required

poverty I am unable to pay the costs of

to give security therefor;

ss.:

Polovchak, being duly sworn, depose and say

that in support of my

to prepay fees,

that because of

said proceeding

believe I am entitled

that I

my parents are in the U.S.S.R.

reside with my sister and cousin.

ia

ubsecrib

efore -

ay of f

4A ye

Notary P

lave

; proceed in ¢£

ed ar sworn ¢

2 tris $t

ecember, i395

* >

weer Mhe 5

— ——_ i . m Se iy

JOA LC

possessions

pauperis was

not

ORG NA‘

IN THE

SUPREME COURT OF THE UNITED STATES

bP~,_

OCTOBER TERM, 1983 RECEivEeD

DEC 20 1983

CLERK

SUPREME Couer US

WALTER POLOVCHAK anc THE

PEOPLE OF THE STATE OF

ILLINOIS _

83-5951

Petitioners, J YY a

-against-

ANNA FP HA® ANI

MICHAEL POLOVCHA

Respondents.

PETIT N POF WRIT OF CERTIORARI TO THE SUPREME COURT OF

THE STATE OF ILLINOIS

Julian EB. Kulas

Henry Mark Holzer

2329 West Chicago Avenue

Chicago, Illinois 60622

(312) 486-6645

#<¢se

- >

a *

QUESTION PRESENTED

The Juvenile Court of Cook County, Illinois, found

after a lengthy hearing that Petitioner Walter Polovchak

wes a “Minor In Need of Supervision” (a “°MINS*

mn appeal by Petitioner's parents, the Appellate

cc > * Tilin : .

. Urt of 4i4i1 M018:

@ Used the MINS law as newly interpreted

, - > —s

to evaluate the sufficiency of proof in the already

existing uvenile Court record;

@® Concluded that there had been a failure of

@ Simply dismissed the MINS petition.

In view of the Appellate Court's failure to remand

and to afford Petitioner an opportunity to produce

proof to satisfy the MINS law as newly “interpreted,”*

was he denied due process of law within the principle

of Saunders v. Shaw, 244 U.S. 217 (1917))?

Lal

There was

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reme rt Iili is is

S54 N.E 2a 258 1983

7 so #he tatec "+ nai a

: € 1%: :

ered mn May 27, 198

t denying Petitioner's petition

> ’ 198

September 30, 1983.

involved in this appeal

on is invoked under 8 U

CONSTITUTIONAL PROVISION INVOLVED

onstitutional provision

ess clause of the FPourteenth Amendment.

STATEMENT OF THE CASE

Under the then Illinois law, one category of

a MINS was a child “beyond the control of his parents.”

o 7 . s 7 2-3

After a lengthy hearing, the Juvenile Court judge

found that Petitioner was beyond his parents control and

that he was thus a MINS.

The Respondents appealed to the Appellate Court of

Illinois, making a variety of arguments. Although they

Claimed that the statutcry terms “beyond the control”

were unconstitutionally vague, neither they nor any

other party to the intermediate court appeal asked that

the terms be construed or that any specific meaning be

give thes

However, in its decision the Appellate Court, sua sponte, held

that two brand new provisos were to be attached to “beyond

the contro] -- the minor's conduct had to be “seriously

harmful” and point to “grave danger. Under the Appellate

Court's decision,akeyterm of the Illinois MINS statute

was not only thereafter to be subject to two entirely new

provisos, but the previously made record in the Juvenile

Court was retroactively to be examined by the Appellate

Court to ascertain if the proof submitted under the

pre-provisos meaning of “beyond the control” was sufficient

to satisfy the post-proviso meaning.

The Appellate Court's examination of the Juvenile

Court record failed the test, so the MINS petition was

simply dismissed by the Appellate Court.

There was no remand. Petitioner never received

an opportunity to offer proof to satisfy the MINS'‘s

law's new meaning and establish that he was beyond the

control of his parents.

On Petitioner's appeal to the Supreme Court of

Illinois, he raised the issue of the Appellate Court's

failure to remand:

The Appellate Court's application

of the two “seriously harmful” and

“grave danger” provisos to the facts

already in the Juvenile Court record

and the court's de facto dismissal of

the MINS petition,without remanding

and affording the State and Walter

Polovchak notice and an opportunity

to offer proof to satisfy those provisos,

violated his Illinois and/or federal

procedural due process rights.

The Supreme Court of Illinois wholly ignored the point,

and nowhere in its 11 page opinion can any reference be

found to Petitioner's remand-due process point.

Petitioner's petition for rehearing in the Supreme

Court of Illinois stated that:

..-this court's decision has

embraced the action of the Appellate

Court -- which necessarily includes that

court’s failure to remand. Yet, in this

court's opinion, there is an utter failure

to discuss -- let alone to lay to rest --

the profound constitutional implications

of changing the law in mid-stream but

disallowing any opportunity to meet the

new standard with previously unoffered

evicence. * * * With al) respect, this

court's passing observation at page 10

of its opinion -- that Walter and the

State had an opportunity to put in

evidence, and that “ae full adjudicatory

hearing was held” -- misses the point.

Evidence was put in, a hearing was held --

but on the old standard, not the new.

Thus, this court's decision should have dealt

with the remand issue.

Petitioner had no better luck with his petition than

he had with his appeal. The rehearing was denied, and the

Supreme Court of Illinois never did address the remand issue.

EASONS FOR GRANTING THE WRIT

The instant petition should be granted because

the highest court of a major state has ignored the clear

mandate of the Fourteenth Amendment as propounded in

, , ,

a venerable, still vital decision of the Supreme

it was a violation of due process of

law for a State spreme Court to reverse

a ase and render udgment absoiute,

aga st a defendant who succeeded in the

trial court, upon a proposition of fact

that was ruled ¢t be immaterial at the

trial and concerningwhich the defendant

had therefore no occasion and no proper

opportunity to introduce rebuttal evidence.

(Hamling v. U.S., 418 U.S. 67,149-150 (1974),

lissent of Justices Brennan, Stewart and Marshall).

Ths reason why remand was necessary in Saunders was

explained in that case by Justice Holmes, who stated that since

...we do not see in the record an absolute

warrant for the assumption [that remand

“would be an empty form"]...[we] therefore

cannot be sure that the defendant's rights

are protected without giving him a chance

-8-

to put his evidence in. (Saunders v. Shaw,

ev )

’

a

‘ . bien = =

upra, at 639) see aiso Keliey v. Southern

Pacific Company, 419 U.S. 318, 332 (1974),

Pullman-Standard v. Swint, 102 S. Ct. 1781,

1791-2 (1982), Brinkerhoff-Paris Trust and

Savings Co. miii, 263 U.S. 673 6479-68

193 and Mathews Eldridge, 424 S

> (1976

The principle of Saunders, applied by this Court ir

Kelley and Pullman-Standard, seems t¢t be clear: wher

appellate action changes the manner in which evidence

would have ee rece ed the tria -ourt, a remand is

necessary Here, althoug the Appellate Court irtually

rewrote the “beyond the contr " port f the Illinois

MINS statute, there was no remanca.

And that is the nub of the matte:z, giving rise to the

centra’‘ reason for why the petition should be granted:

important iederal procedural due process rights have

been violated by the Illinois Appellate Court and by that

State's Supreme Court, at least arguably. In our judgment,

despite all the demands on its finite resources, this Court

cannot allow to go unnoticed the manifest disregard of

2

procedural due process requirements in the remand context.

Be Uniess, of course, in Justice Holmes’ words, remand

"would be an empty form." That certainly would not have been

the case in the Juvenile Court, where Petitioner's counsel,

had they known that “beyond the control” required a showing of

"seriously harmful” and “grave danger,” could and would have pre-

sented evidence which would have more than satisfied those criteria.

ae Petitioner has reviewed the State's petition herein,

and supports it fully.

-9-

aithoa

Julian E. Kulas

jenry Mark Holz

ttorneys for

APPENDIX A

TRIAD DIVISION

CECEMSER 30. 198)

60-2857

IN THE IWTEREST OF WALTER POLOVCHAL.

@ Minor.

PEOPLE OF THE STATE CH ILLINWOIS. ;

Pet itioner-Appellee. ;

¥. ; JOSEP C. MOONEY.

ANMA POLOVCHAS and MICHAEL POLOVCHAL, ;

Respondents-Appelilants.

JUSTICE MCGILLICUDOY delivered the opinion of the court:

On August 4, 198C, pursuant to the procedures set forth in the

Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701-1 et seg.),

Walter Polovchak (Walter) was declared « minor in need of supervision

ané was adjudged « ward of the court. A dispositional hearing was

scheguled for Nowember $5, 1980. However, on November 5, 1980,

in accoréance with Supreme Court Rule 662 (Ill. Rev. Stat. 1979,

ch. LlOA, per. 662), Walter's perents, Micheel and Anna Polovchak

(the Polovchaks), appesled from the order of August 4, 1980.

On appeal, the Polovwchaks raise the following issues: (1)

whether the edjudication of wardship wes an unconstitutional inter-

ference by the State into the sanctity and privacy of the family:

(2) whether the Illincis minor in need of supervision (MINS)

statute (Ill. Rew. Stat. 1979, ch. 37, par. 702-3) was unconstitu-

tionally vague: (3) whether the sdjudication of wardship proceed-

ings violeted their constitutional and statutory rights to « trial;

and (4) whether the evidence adduced at the hearing was sufficient

1/

to edjudicate Walter a ward of the court.

l/ The State argues that the Polovchaks should be estopped

from bringing this interlocutory sppeal pursuant to Supreme

Court Rule 662 (I11. Rew. Stat. 1979, ch. LIGA, par. 662)

because the Polowcheks egreed to the delay in the dispositional

hearing. The rule ides in t

*(a) Aajedication of wardship. An appesel may be

taken to the Appellate Court from an sedjudication of

wardship in the event thet an order of ition

has not been entered within 90 days of the adjudication

of wardship.*

The State reised this sase issue in its motion to dismiss

this appeal. As the motion was denied this court, we

will not seédress that issue in this opin °

60-285"

Micheel end Anne Polowchet end their three children arrived in

the United States from the Soviet Ukraine in Jenuery of 1980. On

July 14, 1900, Welter, ther ege 12. left his perents’ home with his

sister, Matelie, ege 17. Om July 18, 1980, Michael Polovchar

enlisted the help of the Chicego police to find his son. Youth

officers found Walter and Matalie at the epertment of their cousin,

Walter Polovctak (the cousin). Petitions for eéjudication of

waréship in which Walter and Matalie were alleged to be beyond the

control of their perents and thus minors in need of supervision

were filed; and an aétudicatory hearing was held to determine whether

the allegations in the petitions were supported by the evidence.

The adjudicatory hearing began with the entry of sdmissicns

by Walter and Setet ie” that they were minors in need of supervi-

sion. After the trial judge determined that the sdmissions were

freely and voluntarily given, edditional evidence was presented

by the Stete and the Polovecheks.

Anna Polowchak testified that on July 14, 1980, at about

4 p.m., she returned home from work and sew Natalie and Walter

removing their belongings from the family apertment. They were being

helped by their cousin Walter and by two other men. Her son

refused to tell her where he was going.

Walter Polovcaak, the cousin, testified that he resided with

the Polovchaks until July 12, 1980 when he moved into his own

apartment. On Sunday. July 13, he drove Natalie end Walter to church

ané they spent the night at his apartment. The following day he

returned to the Polovchak residence with his cousins and two

friends to remove his belongings. At that time, Natalie and Walter

proceeded tc remove their belongings also. When Anna Polovchak

2/ This eppeal is not concerned with the finding adjudicating

Matalie a ward of the court. She is no longer a minor under

the Juvenile Court Act.

so-285°

erriveé. he told her thet her son wes not being forced to Go any-

thing end thet Welter wes going with Betelie. Salter end Betalic

stayed with their cousin until Pridsy. July 18. the dey the police

errived. The cousin edmitted thet he newer informed his eunt and

uncle where Hatalie and Walter were living. Se 4i¢ sot heave the

perents’ permission to take their children to his epertment. tHe

denied that he influenced Walter and stated that Walter wanted to

stay with Matelie.

Batalie Polovchak testified that on Seturdsay, July 12, her

father argued with her cousin and eccused him of taking Walter

away. The next day Batalie and Walter went to church with their

cousin and she asked to be taken home so that she could get her

belongings. Walter 6i¢ not go with her. When she left her perents’

apartment, her father followed her to the bus stop and said “ugly

words.” Watalie returned to her cousin's spertment anéd questioned

her brother sbout his intentions. Welter tolé her thet he 4i¢ not

want to return to his perents ané that he wanted to stay with her.

Natalie further testified on cross-examination that her

parents tolé her of their intention to return to the Ukraine. She

4id not want to eccompeny them so they 4i¢ not apply for resedmis-

sion for her. On several occasions her perents told her not to

take Walter with her.

Walter Polovwchak, the minor, testified that on July 13, 1980

he had gone to church with his cousin end Batalie. After church

his cousin Grove Batalie home to get some clothes. He stayed

with his sister and cousin, st the cousin's spertment, on Sunday

might and went with them to his perents’ epertment on Monday.

Walter testified that after he pecked his belongings, his mother

arrived. When she questioned his, he told her that she should not

be concerned.

On cross-examination Walter stated that his cousin offered

to help him if he 4id not want to return to the Ukraine. He

3.

80-2857

testified thet he left his perents because he 4id not want to return

to the Ukraine and because his parents 4i4 not talk to his.

Walter stated that if he hed not gone to live with his cousin he

would have gone elsewhere. Walter testified that he would not

return home if the petition for sedjedication of waréship wes

Gismissec.

Micheel Polowchak stated that Malter hed not presented any

problems until he told Walter of his intention to return to the

Ukraine. Michael testified that he wanted Walter to return to

the Ukraine so that the family could be together, “for the love

of ea chilé,* and beceuse he was responsible for Walter.

Chicago Police Sergeant Leo Rojek, ecting commander of Ares

$ Youth, testified that on July 18, 1980 Michael Polovchak came to

the police station with an interpreter and informed the police thst

his som was gone. Walter was found st his cousin's spartment

and was brought to the police station. Walter said he hed run

away because he ¢i¢ not want te return to the Ukraine with his

family. The police then telephoned the United States Immigration

and Naturalization Service and Depertment of State and were in-

structed not to return Walter to his parents. Thereafter, Walter

was processeé as # minor in need of supervision.

The Polovchaks recalled Walter to the stand and questioned

him regarding his life in the Ukraine. Walter testified that

while he lived in the Ukraine his parents provided him with food

ané clothing and meade sure he went to school. Se did not like the

Ukraine because “there aren't many things to be bought there.*

Walter reiterated that he left his perents to avoid returning to

the Ukraine.

Doctor Mer Littner, « child peychiatrist, testified for the

Polovchaks. Alter having been qualified as an expert witness, Dr.

Littner wes asked the following hypothetical question:

“Dr. Littner, based upon your experience as a child

peychietrist, and based upon your experience

@0-2857

involving parent-child relationships, and based upon

the following fects: that Walter's decision to leave

home was besed upon the fact that his perents had

Gecided to go beck to the Ukraine; that his cousin

Walter was willing to sallow him to live with him;

that his cousin Walter and his sister Batalie assisted

Walter in leaving his perents' home: since leaving

Walter has resided with his 24 year old cousin and

his 1? year old sister; thet Walter's parents love

him; thet Walter's parents have never physically or

emotionally harmed him; that Walter's perents’ decision

to return to the Ukraine is baseé on their desire to

Go whet is best for the Polovchak family: tha: cousin

Walter who lived with the Polovchaks told Walter that

if Walter 4i¢ not return, iter could live with his.

How, based upon those facts, Go you heave an

Opinion based upon «a reasonable degree of sedical

certainty as to whether Walter's parents can control

him Gespite Walter's desire to remain in the United

States?"

Doctor Littner responded to this questicn by stating that, in his

opinion, Walter's perents could control him since Walter's sections

were indicative of defiance and rebellion rather than independent

judgment. Se stated thet, if Walter's cousin and gister were not

present, Walter may heave locked himself in a room to manifest his

rebellion against his parents. Doctor Littner testified that,

besed on the hypothetical, Walter wes not a runaway because he made

certain that his parents knew where he was. He stated that no

twelve year old has the intellectual or emotional capacity to

Gecide whether he should live with his perents and concluded that

Walter's continued seperation from his perents would be harmful.

On cross-examination Doctor Littmer discussed the importance

of mothering and fz2thering and said that « child should not be

80-2857

removed from his puremta absent physical or sexual abuse. He

stated that a twelve yeer old could compare living standards bet

Goes not have the maturity to determine where he should live.

Doctor Littner testified that he had not talked to Walter or the

Polovchaks and 4ié not know tae beckgrounéd of their family rele-

tionships.

In rebuttal the State called Doctor Bobert Bussell,. Director

of Clinical Services for the Juvenile Court. In response to «

hypothetical question similar to the one posed to Doctor Littner,

Doctor Bussell concluded that Walter would not be irreperably or

emotionally harmed if he remained away from his perents. He testified

that twelve year olds can make fairly good decisions concerning

their welfare, what they want to eat and how they want to é¢ress,

and weually have some ideas about the direction of their lives.

Doctor Bussell saic thet « twelwe year cold who has lived in the

Ukraine and in the Onited States would be sable to determine differences

in quality of life and would be able to form « preference for one

piece over the cther.

Doctor Bussell further testified that Walter's parents could

control him despite Walter's desire to remain in the United States

because of their physical differences bet expressed some concern

about their ability to rear Walter in the Ukraine. He had no

Opinion on the long-term effects on Walter if he was removed

from his parents because he 4id not know Walter.

Pollowing arguments, the trial judge entered a finding that

Walter anéd Matalie were minors in need of supervision and adjudged

them to be wards of the court.

Section 2-3ia) of the Juvenile Court Act (the Act) defines

® minor otherwise in need of supervision es, inter alia, “any

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

perents, guardian or other custodian.” (Ill. Rev. Stat. 1979, ch.

37, per. 702-3i(a).) Allegations thet a minor is otherwise in

need of supervision must be prowen et an sdjudicatory hearing by *&

80-2857

preponderance of the evidence. (Ill. Rew. Stat. 1979, ch. 37,

pers. 701-4, 704-6.) If the court finds that the minor is «6 person

in need of supervision and that it is in the best interest of the

minor and the public that he be made s ward of the court, the

court shall edjuége the minor « ward and proceed to « dispositions!

hearing. Ill. Rew. Stat. 1979, ch. 37, par. 704-812).

At proceedings under the Act, the minor and his parents have

the right to be present, to be heard, to present evidence sseterial

to the proceedings, to cross-examine witnesses, to examine pertinent

court files and recorés, end to be represented by counsel. (111.

Rev. Stat. 1979, ch. 37, par. 701-20.) Yhe Polovehaks ergue that

they were denied their right to s trial to contest the issue of

whether Walter wes beyond their contro]. They contend that the

triel judge, in reliance on Walter's eGmission that he was beyond

his perents* control, conducted « summary proceeding limited to the

issue of whether there wes « fectusal besis for the edmission. The

Polowchaks argue that the trial court 414 not weigh the evidence

unger the preponderance of evidence standard required by sections

1-4 and 4-6 of the Act (Ill. Rew. Stat. 1979, ch. 37, pars. 701-4,

704-6) and that, had the trial court epplied the sppropriste

standard, it would sot have concluded that Walter was beyond their

control.

A review of the recoré shows that the trial judge did state

thet he was going to conduct « hearing to Getermine whether 4

factual besis for the ples existed. The record further shows,

however, that the judge preceded this remark with « statement

thet the hearing wes an adjudicatory hearing. Under the Act, the

tere “adjudicatory hearing”™ implies “a hearing to determine (4)

whether the sllegetions of « petition *** that « minor is otherwise

in need of supervision, *** are supported by « preponderance of the

evidence***.* (Ill. Rev. Stat. 1979, ch. 37, par. 701-4.) After

Walter's eGmission was entered, the State did in fact proceed with

the presentation of evidence and recognized that its burden of

?.

60-7857

proof was to be measured by the preponderance of the evidence

standard.

We believe that the judicial coments highlighted by the

Polovchaks should sot be taken out of context. The record, viewed

in its entirety, shows thet # full and complete evidentiary hearing

was conducted. All of the parties testified and were allowed to

present witnesses and conduct thorough cross-emarinations. The

record does not reflect, nor Go the Polowchaks contend, that they

were prevented from presenting any evidence.

Clearly, no materiel facts were in Gispute. The sinor

ebdesented himself from the family residence, without his parents’

consent and without informing them of his whereabouts. The besis

for this absence was the minor's disagreement with his parents’

Gecision to return to the Ukraine. At the conclusion of the

hearing. the trial judge found thet Walter was s minor in need of

supervision because he wes beyond the control of his perents.

He adjudged Walter to be « ward of the court “based upon all of

the evidence that I have heard.” We believe that the trial judge

weighed #11 of the evidence presented according to the required

legal standards and conclode that the Polovchaks received «a full,

fair and proper hearing.

The Polovchaks slso contend that the sdjudication of wardship

was improper under any standaré of proof. They argue that Walter's

Single and¢ isolated absence from the home was harmless misbehavior,

insufficient to support @e finding that he was beyond their control

ané insufficient to warrant state intervention into their family

affairs.

It is well settled in this cuwntry that parents have the

primary role of providing for the care ané nurture of their child-

ren. (8. L. v. Matheson (1981), 450 0.5. 398, 101 S.Ct. 1164, 67 L.Ed.2¢

388; Wisconsin v. Yoder (1972), 406 0.8. 205, 92 &.Ct. 1526, 32 L.Ed.2¢

15; In re Martin (1975), 31 Ill. App. 34 288, 333 W.B.24 711.)

Bowever, the State as perens patriae may restrict the parents’

control and freedom in this regard where the welfare of the child is

80-2857

at issve. (Prince v. Massachusetts (1944), 321 0.8. 158, 64 &.ct.

438, 88 L.24. 645.) Acting within this legitimate interest, to

provide for the care and guidance of minors subject to the Act, the

State of Illinois enacted its Juvenile Court Act. (Stanley v. Illinois

(1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.B4.26 $51.) A primary

goal of the Act is to preserve and strengthen the minor's family

ties whenever possible. Ill. Rev. Stat. 1979, ch. 37, par. 701-2.

In the case at bar the State contends that Malter was @ minor

subject to the Act because he was beyond his parents’ control and

because his welfare was in sericus jeopardy. The State argues

thet Walter was a runaway and needed to be protected by the Strate

from the considerable Gangers existent to ell runewsys.

The term “beyond the control* is not defined in the lllinocis

Juvenile Court Act and has not been construed by the courts of this

state. In California, @ single ect can establish that 4 minor

is beyond the control of his perents or guardian (In re §. (1970),

12 Cal. App.34 1124, $1 Cal. Rptr. 261) prowided the minor's conduct

is seriously hareful and not merely an exaggerated manifestation

of intre-family perent-chilé conflict. (In re G. (1972), 28 Cal.

App. 34 276, 104 Cal.R®ptr. 585.) The applicable statute in

California provides for the edjudication of wardship of «a minor

“who persistently or habitually refuses to obey the reasonable and

proper orders or directions of his parents, *** or who is beyond

the control of such person ***.* (Emphasis added.) (Cal. Welf. &

Inst. Code § 601 (West 1972).) Finding that the language of the

statute was in the disjunctive, the court in In re S. held that

repeated acts of disobedience were required under the first clause

of the statute while « single act could be sufficient under the

second ome”

2/ Cf. &.Y¥. Pamily Court Act § 712(b) (McKinney 1975)

Ta person in need of supervision is, inter elie: @ minor

who is “habitually disobedient and

control of parent ...” (emphasis )). As the Bew

York statutory ge is conjunctive, habitual mis-

conduct is requir in that state to sustain a petition

alleging @ person to be in need of supervision. See

mre R. (1973), 73 Misc.24 390, 341 B.¥.5.24 998.

80-2857

The Illinois MINS statute requirement that the ginor be beyond

the control of his perents is similarly worded to the California

dectute. Therefore, @ single isclated sect by @ minor in Illinois

can be sufficient to establish that the minor is beyond the contro)

of his parents provided the minor's conduct is seriously harmful

and points to grave danger. Sowever, in the instant case Walter's

ection was not sufficiently serious to warrant « finding that he was

beyond his parents’ control.

Ic is undisputed that Walter committed a single act of mis-

behavior by absenting himself from the family residence for five

Gays because he did not want to return to the Ukréine. Walter

remained with his older sister and cousin et the cousin's epart-

ment. Both expert witnesses segreed that, based on « hypothetical

reflecting the facts in the case at bar, Walter was not beyond

his perents’ control. Doctor Littner testified that Walter's

actions were acts of immature rebellion. In his opinion, Waltez

would not have manifested this rebelliousness by running away from

home but for the fact that his cousin and sister provided him with

alternative shelter. Doctor Bussell, while expressing some doubt

as to the ability of the Polovchaks to rear Walter in a country

that he Gid not wish to return to, concluded, however, that the

Polovchaks could physically control Walter.

We believe that Walter's health, safety and welfare were not

jeopardized when he absented himself from the family residence.

Walter was in no physical or mental danger as his needs were being

met by his sister and cousin. Viewed in its simplest terms, the

situation presented in the instant case is one of family discord

caused by a child's disagreement with his parents’ decision to

return to their homeland. We have serious doubt as to whether

the State would have intervened in this realm of family life and

privacy had the parents’ decision to relocate involved « move to

4/ In Tllinois, as in California, “beyond? che control” is

not preceded by phrases such as “pervistently* or “habitually.”

1e.

80-2857

another city or state. The fect that the perents hed decided to move

to # country which is rule¢ under principles of government which are

slien to those of the United States of America should not compel

a different result.

Whether the minor may be entitled to political asylum in this

country is en issue that should be decided by another forum. The

Illinois MINS statute should not be utilized as « subterfuge to

achieve such « result.

We hold thet, under the facts presented, the trial court's

Getermination that Malter was beyond the control of his parents was

against the manifest weight of the evidence. Walter's single act

of leaving the family residence after learning of his parents’

Gecision to return to their homeland was an exaggersted manifestation

of perent-chilé conflict (In re G.) and was not sufficient to bring

him within the jurisdiction of the court. We further find that

Walter, having gone to live with his sister ané cousin, was not

pieced in @ situation of grave Ganger such that he required care

ané guidance from the Stete.

As @ result of these conclusions, we find it unnecessary to

address the second evidentiary issue of whether the sdjudication

of werdship was in the best interest of Walter or the public.

Since we holé that Walter was not subject to the jurisdiction

of the court, we need not consider the constitutional issues raised

by the sppellent. Illinois courts will consider constitutional

issues only where necessary to « disposition of the case.

Anunéson v. City of Chicago (1970), 44 Ill. 26 491, 256 W.E.26 1;

City of Chicago v. Abéullah (1979), 76 Ill. App. 36 325, 395 M.E.2¢ 50.

Por the foregoing reasons, we conclude that Walter Polovchak

was not « minor in need of supervision pursuant to section 2-3/(a)

of the Juvenile Court Act. Therefore, the judgment of the circuit

court of Cook County is reversed.

Reversed.

WHITE, J., concurs.

MCHAMARA, J., dissents.

60-2857

MCHAMARA, J., Gissents.

I respectfully dissent from the conclusion reached by

the majority. In my view, the evidence eéduced at the ac-

judicatory desring was sufficient to establish that Walter

was beyond the control of his parents, that he was in need

of supervision and that he was properly meade « ward of the

court. A brief recitation of undisputed facts is sufficient

to demonstrate the correctness of the juvenile court's de-

cision.

After two attorneys, one appointed and one retained,

entered edmissions to the AINS petition, the juvenile court

heard testimony that Walter, slong with his sister who was

also « juvenile, left home without his perents’ permissicn.

With his mother watching, Walter pecked his belongings, in-

Cluding his bec, end soved out He refused to disclose his

destination end ¢id not contect his perents after his de-

parture. His perents knew tnat Walter was living in @ cousin's

epertment, but they 4id not know where the cousin live¢. Four

Gays after his deperture, without heaving any contact with the

boy in the interia, the parents asked the police to locate

Walter. When the police found the boy, he refused to return

home. At the hearing, Walter testified that he left home

because no one talked to his and because he did not wish to

return to the CGkraine. Walter also told the judge that he

would continue to run away if he were returned home. After

making its decision that Walter was in need of supervision,

the trial court expressed its concern that some harm would

befall Walter if he continued to run eway.

The foregoing evidence does not reflect an isolated sect

of normal, sedolescent rebellion. Rather it demonstrates «

boy clearly beyond the control of his parents. While his

other stood by, epperently unable to control the situtation,

80-2857

Walter pecked anc left home Several days later, still an-

able to control the situation, the parents were compelled

to seek out the suthorities in order to lecate the boy.

When the police found Walter, he still refused to return

home. and in court, Walter stated that he would leave

egain if forced to return home. Under the circumstances,

the juvenile court's concern for Walter's welfare was justi-

fied ané its finding that he was in need of supervision was

amply supported by the evidence.

The matority opinion erroneously relies ypon the Calif-

ornie case of In re G. to support its holding that there was

insufficient evidence that Walter is beyond his parents’

control. The reviewing court in In re G. did not make the

general finding that the child wes not beyoné his parents’

control Dut rether, held that the triel court's erroneous

restriction of questioning regeréing to whom the lack of

control could be ettributed reised «a question as to the

applicability of one of two provisions in California's

juvenile code. California lew draws a dichotomy between

children beyond parents’ contro] due to the fault of the

child, end children beyond the parents’ control due to the

fault of the parents. The In ro G. case solely involved the

isesve whether the minor fell within the purvie. of the

former section. Evidence had been presented that the minor

struck hié gother and then returned home past curfew. The

trial court stated that questions were reised pertaining

to the ellocation of fault for the lack of control, but held

that the child fell within the meaning of the former

statutory provision. Unlike the law of California, our

Tliimois Juvenile Code creates cne classification for children

who are beyond their parents’ control, and despite the alloce-

tion of fault, such children are deemed minors “otherwise in

we@ of supervision.“ Applying the single standard of the

80-285"

Tllamois statute, the evidence clearly shows that Walter

wes beyond his parents’ comtrol within the meaning of

Section 2-} of the Act.

The suggestion that the juvenile court proceedings were

@ subterfuge to prevent Walter's return to the Ukraine is

unwarranted It ignores the compelling evidence that he

was beyond his perents’ comtrol. It also ignores the

essertions of the conscientious trial judge that he wished

to effect a reconciliation of the family. The majority

Opinion elso hypothecetes that no court intervention would

have occurred if the family merely wished to relocate in

enother srea cf this country The opposite is true I ae

convinced that in @ metter where s boy fled home under

circumstances such as t"ese but because his family was

moving to enocther state, 8 juvenile court's decision

thet supervision over the chilé wes required never would be

Gisturbed by @ reviewing court. I beliewe that the trie)

court's holding in the present case was wise, proper, and

Supported by the evidence

Since I believe that the MINS statute is constitutional,

I would affirm the edéjudication of the juvenile division of

the circuit court of Cook County end remand the cause for a

considered determination of @ proper disposition.

14.

APPENDIX B

Docket Nos. 56552, 56572—Agenda 9— March 1983.

In re WALTER POLOVCHAK, Appellee and Appellant

(The People of the State of Illinois, Appellant and Ap

pellee).

JUSTILE UNDERWOOD delivered the opinion of the

court:

On July 19, 1980, pursuant to a petition for adjudication

of wardship, the circuit court of Cook County appointed a

guardian ad litem for 12-yearold Walter Polovchak, and,

over the objection of Walter's parents, Michael and Anna

Polovehak (the Polovchaks) placed the boy in the tempo-

rary custody of the ILinois Department of Children and

Family Services (DCFS) Walter was subsequently found to

be a minor in need of supervision and adjudged a ward of

the court under the Juvenile Court Act (Tl. 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. Prnor to the dispositional hearing,

Michael and Anna Polovchak filed an interlocutory appeal

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

late court reversed (104 [ll App. 3d 203), and we allowed

the petitions of both the State and Walter for leave to ap-

peal.

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 i980. The family spent the

first few weeks in Chicago with Mr. Polovchak’s sister and

Cousin Walter secured another apartment and began

moving, appare:... .a July 12. He and Natalie had had a

FILED

uAY 2. 1983

CLERK SUPPEWE COURT

4) ere

were apparently aware of some of these arrangements be

away.

The next morning, pursuant to a prearrangement,

cousin Walter met Natalie and Walter a block or two from

the parents’ apartment and the three went to church. Af.

parently 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

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

date the following 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 Polov-

chak, age 12, was “beyond the controi of his parents in

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

County, Illinots, absent himself from his home without the

eapressed consent of his parents, in violation of Chapter

37, Section 702—3a. Illinois Revised Statutes, 1979," and

that it was i: the best interests of the minor and the public

that Walter be adjudged a ward of the court.

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they

to be represented 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

order said to be “by agreement” was entered appointing

the Guardianship Administrator of DCFS temporary custo-

dian. In addition, the following findings of fact were en-

tered on a preprinted form: that probable cause existed to

believe that Walter was a minor otherwise in need of su-

pervision, and that Walter should be placed in custody, in a

suitable place, pending a further hearing because it was a

matter of immediate and urgent necessity for his protec-

tion, he had been away from home for five days, he had in

for the next few days in the cousin's apartment and that

he was motivated in doing so by his desire to stay in this

country rather than return to the Ukraine. While both Na

Wal

him in his belongings from his parents’ home

Walter that had his sister and cousin not assisted

him or him to stay with them, he would have still

left his parents’ apartment and gone somewhere eise.

Both the State and the Polovchaks 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 contro! of his

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

stated his opinion that Water'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 acthons with an aura of respectability

or gave Walter a rationalization for rebelling against hus

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

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

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

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

atternpts to rely on the alleged suicida] threats, we believe

the references thereto are too nebulous for that purpose.

There had been no reference to such threats in the inital

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

wardshup adjudicabons 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 Dlinows, 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

acivice of the Department of State, granted Walter Polov

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

State's motion to dismiss the appeal on that ground, a

cision with which we agree. It is unnecessary to lengthen

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

B-6

custody of his parents for 3% months. Under the circum-

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

mon, 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 I. 2d R. 662)

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-

tonal, 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, remeving 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 ) (II!

Rev. Stat. 1979, ch. 37, par. 701—2(1), People ex rei. Davis

v. Vazquez (1982), 92 Til. 2d 132, 142-43.) 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. Rev. Stat. 1979, ch. 37, pars. 703—4, 703—6.

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. Rev. 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 initia] hearing, of the

arcumstances under which Walter left his parents’ home or

that he had been 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 released to the custody of

bus parents, who were in the courtroom requesting permis-

mon to take their son home

The statutory provision under which Walter was leter

adjudicated a minor in need of supervision then provided

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

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 by a preponderance of the evidence. (Ill.

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

at that hearing should not be disturbed on ap

it is against the manifest weight of the evi-

(1981), 86 Il. 2d 147, 152; Jn re

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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 RR. (1982), 92 Ill. 2d

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

parents’ control), Jn re Baker (1978), 71 Ill. 2d 480 (minor

repeatedly ran away from home}, Jn re Sekeres (1971), 48

Dl. 2d 431, appeal dismissed (1972), 404 U.S. 1008, 30 L

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

self from home), Jn re Presley (1970), 47 Ill. 2d 50 (allega

tons im original petition seeking to adjudicate minor other

wise in need of supervision or neglected were that she had

absented herself from home for long periods of time with-

out parental consent and on a specific date was forced by

her mother and stepfather to leave home), of Jn re GP

(1981), 88 Ml. 2d 36, cert demed (1982), EUS.

72 L. Ed. 2d 487, 102 S. Ct. 2041 (habitually truant

minor), Il. Rev. Stat 1979, ch. 37, par. 702—%b)), Pub

Act 82—9459 (minor requiring authormtative mterventon

eff Jan. 1, 1983; see also Jn re Snyder (1975), 85 Wash. 2d

182, 532 P2d 278 (ewidence that minor was adamant about

refusing to return home, had established a pattern of

refusing to obey her parents, and, on two occasions, in ef

fect, fled her home, was sufficient to support the finding of

loss of parental power and control), Jn re D.J.B. (1971)

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 sufficiently serious; evidence that minor left

home without parental consent was not of such a nature as

to be indicative of the loss of parental control); Jn re

Galvan (La. App. 1980), 384 So. 2d 1000 (evidence that on

two occasions minor left the home of his mother—the cus-

tochal 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 minor

was habitually disobedient and was ungovernable by his

mother or that he was a runaway child in need of supervi-

sion, f In re Price (N.Y. Fam. Ct 1978), 94 Misc. 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

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

left his parents’ hore without their consent and spent the

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

ment. This occurred during a time oj considerable family

tenmon regarding the Polovchaks’ decision to return to

their homeland. Neither psychiatrist, testifying in response

to hypothetical questions based on these and other relevant

facts, believed that Walter was beyond the control of his

parents. We believe the appellate court correctly concluded

that the trial court’s decison was against the manifest

weight of the evidence. Walter's actions, which can hardly

be characterized as those of a runaway, and posed no haz

ard to him or anyone elise, 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 determite whether there was a

factual basis for the earlier admussion entered by Walter

the State argues that Walter was lim t=4 i: presenting evi

dence. Too, the State complain: 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

minatbon 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 Polovchak

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

that Walter cannot immediately be returned to his parents.

even assuming the Federal orders prohibiting h.s departure

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 suppor:

its action is dispositive only of those proceedings. Consider.

ing that, so far as we are presently informed, Federal liti-

gation regarding the asylum and departure orders is stil]

pending in the United States courts, we believe the appro

priate disposition of this case is to remand it to the circuit

court of Cook County with directions that it retain jurisdic-

tion of Walter and this cause pending the return of Wal-

ter’s parents, or either of them, to this country, in which

event Walter's custody shal] be given to the returning par

ents or parent. In the event that neither Michael nor Anna

Polovehak shal] return, the circuit court shall proceed in

the manner it deers 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 circuit court is affirmed, and the cause is re

manded to the arcuit court of Cook County with direction

to proceed in accordance herewith

Affirmed and remanded

wa directior

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