# Petition — Illinois v. Polovchak > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1725%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1065 ## Text 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 . * - o Sir 9 we, a* s : Nper ¥ AD} ; on. . . o ted a * > we — Apoe > . , o . . ° The rcer enearing . - Juriscict on 4 sne soie e 2Ue2 pro Patria “~* 7 Ou ys 4 n of the a 7 , . s sre _* “ ‘ +he 7 ; aaa 4G ‘ *he ~ Lewec ” ‘ >> > O. a ne a } - > > 2) Ame >> to A > ae ra : e — cour endered by the Juvenile ois. ~ « 7 > | r e sate iret Js A4iinois . ‘ ‘ s a7 : 3G ld P ie '..2.24¢C & ; ,3ci - - a 7 7 7 ‘ 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. rf 4 i z ¥ Stites —S 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 if : i i r tel (ds x G R 4 a : E : f fi é : f 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 -]1- B-11 (THIS PAGE INTENTIONALLY LEFT BLANK) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1725%3A1. Public record. Not legal advice.