{ "id": 3307162, "name": "In re SARAH WEINSTEIN et al., Minors.-(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ROLENE WEINSTEIN, Respondent-Appellant.)", "name_abbreviation": "People v. Weinstein", "decision_date": "1979-02-06", "docket_number": "No. 77-170", "first_page": "883", "last_page": "888", "citations": [ { "type": "official", "cite": "68 Ill. App. 3d 883" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "381 N.Y.S.2d 656", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "86 Misc. 2d 16", "category": "reporters:state", "reporter": "Misc. 2d", "opinion_index": 0 }, { "cite": "203 F.2d 607", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3757312, 1271755 ], "opinion_index": 0, "case_paths": [ "/f2d/203/0607-01" ] }, { "cite": "78 S. 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Ed.", "opinion_index": 0 }, { "cite": "355 U.S. 896", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6298728, 6299213, 6298165, 6298969, 6299452, 6298463 ], "opinion_index": 0, "case_paths": [ "/us/355/0896-03", "/us/355/0896-05", "/us/355/0896-01", "/us/355/0896-04", "/us/355/0896-06", "/us/355/0896-02" ] }, { "cite": "245 F.2d 522", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 404232 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f2d/245/0522-01" ] }, { "cite": "284 U.S. 151", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5717426 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/284/0151-01" ] }, { "cite": "403 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027325 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/403/0528-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "342 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 783", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305973 ], "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0783-01" ] }, { "cite": "323 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2705544 ], "weight": 2, "pin_cites": [ { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0136-01" ] }, { "cite": "263 N.E.2d 863", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 506", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899119 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0506-01" ] }, { "cite": "313 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406821 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0482-01" ] }, { "cite": "187 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "255 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "44 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2887874 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/44/0305-01" ] }, { "cite": "230 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 109", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2550342 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0109-01" ] }, { "cite": "61 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "390 Ill. 273", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2508284 ], "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill/390/0273-01" ] }, { "cite": "273 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5312966 ], "year": 1945, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0337-01" ] }, { "cite": "357 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435415 ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0193-01" ] } ], "analysis": { "cardinality": 634, "char_count": 12264, "ocr_confidence": 0.893, "pagerank": { "raw": 7.522207072880123e-08, "percentile": 0.447205416223108 }, "sha256": "ba53a4c9d84a8a7dc2e61a57bf0ef801cb764dc2bfddac6113120ef167362c0f", "simhash": "1:dbf02ce602b3b0ca", "word_count": 2103 }, "last_updated": "2023-07-14T14:49:10.381789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re SARAH WEINSTEIN et al., Minors.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ROLENE WEINSTEIN, Respondent-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nOn December 10, 1976, the juvenile division of the circuit court of Cook County found Joseph Weinstein and respondent, Rolene Weinstein, unfit parents because they \u201cfailed to maintain a reasonable degree of interest, concern, or responsibility as to the children\u2019s welfare.\u201d The court entered an order terminating their parental rights and appointed the Department of Children and Family Services guardian of four of the Weinstein children with the power to consent to their adoption. Neither parent raises an issue concerning the sufficiency of the pleadings or the sufficiency of the evidence to support the court\u2019s finding. However, respondent contends that she was denied her right to a jury trial on the question of her fitness as a parent.\nThe issues presented for review are (1) whether the right to a jury trial exists in proceedings under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 1 etseq.) and the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 \u2014 1 et seq.) where the Acts do not specifically provide for or preclude trial by jury, and (2) whether an adult has a constitutional right to a jury trial in a proceeding to terminate \u201cparental rights.\u201d\nWe affirm.\nOn April 8, 1968, dependency petitions were filed by the State for four minor children of Rolene and Joseph Weinstein. The petitions alleged that the children were dependent because the father refused to take responsibility for them, and the mother had been arrested for contributing to the dependency and neglect of a child. (Ill. Rev. Stat. 1965, ch. 23, pars. 2360 and 2361.) On April 10, 1968, the children were placed in the temporary custody of the Department of Children and Family Services. At a hearing on April 22, 1968, the Weinstein children were found \u201cneglected\u201d and were placed in foster homes. Since April 1968 the children have not lived with either natural parent.\nOn January 6,1975, the State filed petitions for \u201csupplemental relief\u201d for each child alleging that \u201cthe parents are unfit because they have failed to maintain a reasonable degree of interest, concern, and responsibility as to the child\u2019s welfare,\u201d in violation of the Juvenile Court Act. (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 9.) The petition requested that a guardian be appointed for the children with power to consent to their adoption. On November 25, 1975, the State filed an additional petition for \u201csupplemental relief\u201d alleging: (1) that the parents had not made reasonable efforts to correct the problems that were the basis for the removal of the children from the parents\u2019 custody, and (2) Rolene Weinstein was habitually drunk for the period of one year prior to the filing of the November 25 petition.\nRolene Weinstein filed a motion for a jury trial on April 29,1976. On July 20,1976, the court denied her motion for a jury, finding that \u201cthere is no right to a jury trial under a supplemental petition seeking a finding of unfitness and the termination of parental rights.\u201d The court also found it did not have discretion to order a jury trial, but \u201ceven if this court were vested with discretion to order a jury trial, it would not do so for it would not be in the best interests of the minor respondents or the community at large.\u201d On December 10, 1976, the court adjudicated both parents unfit and terminated the Weinsteins\u2019 parental rights. The court also determined that it was in the best interests of the children that a guardian be appointed with the right to consent to the adoption of the children.\nI.\nRespondent contends that the court erred in refusing to impanel a jury to hear the evidence in a proceeding to terminate parental rights. Both parties agree that a finding of unfitness and termination of parental rights must be made in compliance with provisions of both the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 9) and the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 \u2014 1 et seq.). Neither Act specifically provides for or precludes trial by jury.\nPrior to 1966, section 2 of the Family Court Act (Ill. Rev. Stat. 1965, ch. 23, par. 2002) provided that a jury trial was available upon demand. However, on January 1,1966, the present Juvenile Court Act was enacted and provided that the prior Family Court Act is repealed. The State contends that the legislature\u2019s exclusion of a provision allowing a jury trial under the new Juvenile Court Act demonstrates a clear intent by the Illinois legislature to eliminate all jury trials in proceedings under the Act. Respondent contends that the legislature\u2019s failure to provide for a jury trial does not preclude the right to a jury without an expressed repudiation of the right incorporated in the statute.\nIt appears that in not including a provision providing for a jury trial, the legislature intended not to allow a jury trial in juvenile court proceedings. This is manifested in the language of numerous sections of the Juvenile Court Act which provide: \u201cThe court shall hear evidence\u201d and \u201cthe court shall make a finding\u201d (emphasis added) (Ill. Rev. Stat. 1975, ch. 37, pars. 704 \u2014 6, 704 \u2014 7, 704-8,705 \u2014 1,705-3,705-7(1), etc.) and in section 1 of the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1\u2014 ID) which provides:\n\u201c \u2018Unfit person\u2019 means any person whom the court shall find to be unfit to have a child sought to be adopted, * \u00b0 (Emphasis added.)\nThe use of \u201cthe court\u201d by the legislature suggests that the court is to be the trier of fact in juvenile proceedings. In People ex rel. Carey v. White (1976), 65 Ill. 2d 193,357 N.E.2d 512, the supreme court held that a circuit court judge has no discretionary power to impanel a jury in juvenile proceedings where the legislature has manifested its intent that the court alone make factual findings in proceedings under the Juvenile Court Act. \u201cIt is 6 \u201d \u201d a cardinal rule of statutory construction that the expression of a mode of action in a statute excludes other methods though not expressly prohibited; and that the enumeration of certain things in the statute implies the exclusion of all other things.\u201d Weeks v. Hoffman (2d Dist. 1971), 1 Ill. App. 3d 337, 340,273 N.E.2d 157, citing In re Estate of Tilliski (1945), 390 Ill. 273, 283, 61 N.E.2d 24.\nThe fact that a jury trial was permitted under the old Family Court Act does not establish that the right exists under the new Juvenile Court Act. In repealing the Family Court Act in 1966, the legislature nullified the provision allowing for a jury trial in juvenile proceedings. The effect of the repeal of a legislative act is to obliterate the act as if it never existed. Show of Shows, Inc. v. Illinois Liquor Control Com. (1st Dist. 1967), 86 Ill. App. 2d 109, 230 N.E.2d 268.\nFurthermore, the fact that a right existed under a prior Act does not mean it becomes a constitutional guarantee. Proceedings under both the Juvenile Court Act and the Adoption Act are created by statute and were unknown at common law. (In re Fucini (1970), 44 Ill. 2d 305, 255 N.E.2d 380; Houston v. Brackett (2d Dist. 1963), 38 Dl. App. 2d 463,187 N.E.2d 545.) The constitutional guarantee of a jury trial does not apply to special or statutory proceedings which were unknown to common law. City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161.\nII.\nRespondent contends that parents have a fundamental right to raise their children which cannot be circumvented without due process. She argues that the constitutional right to trial by jury is implicit in the concept of due process. It is well settled that there is no right to trial by jury in proceedings under the Juvenile Court Act. (In re Jones (1970), 46 Ill. 2d 506, 263 N.E.2d 863; In re Fucini, at 310.) Respondent argues that prior cases holding that there is no right to a jury in juvenile proceedings applies only to juvenile delinquency actions, and that a proceeding to terminate parental rights is an action against an adult which requires the right to a jury trial.\nAlthough courts recognize the inherent right which all parents have to the society and custody of their own children (In re Gonzales (1st Dist. 1974), 25 Ill. App. 3d 136,143, 323 N.E.2d 42), it is clear that the parents\u2019 right to custody of their children will not prevail when the court determines it is contrary to the best interests of the child. Ill. Rev. Stat. 1975, ch. 37, par. 701 \u2014 2(3)(c); In re Ice (3d Dist. 1976), 35 Ill. App. 3d 783, 785, 342 N.E.2d 460.\nRespondent contends that the decision in Duncan v. Louisiana (1968), 391 U.S. 145,20 L. Ed. 2d 491,88 S. Ct. 1444, which recognizes the right to a jury trial in serious criminal matters, is applicable in the case at bar because termination of parental rights is a serious deprivation of liberty.\nIn McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976, the United States Supreme Court held that \u201cfundamental fairness\u201d is the due process requirement in juvenile proceedings. The court noted that the decision in Duncan v. Louisiana recognized that a jury is not even a necessary part of every criminal process, provided it is fair and equitable. The court emphasized that notice, counsel, confrontation, cross-examination and a standard of proof are required in juvenile proceedings under the concept of due process, but that a jury trial is not required. Although the decision in McKeiver involved a juvenile delinquency proceeding, implicit in the rationale of the holding is that a jury trial is not a fundamental concept of due process. This is further evidenced by the fact that the concept of due process does not compel a jury trial in State court civil proceedings. A State can modify or completely abolish jury trials in civil actions. Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co. (1931), 284 U.S. 151, 76 L. Ed. 214, 52 S. Ct. 69; Olesen v. Trust Co. (7th Cir. 1957), 245 F.2d 522, cert, denied (1957), 355 U.S. 896, 2 L. Ed. 193, 78 S. Ct. 270.\nWe have found no Illinois case which directly decides the question whether the right to a jury trial exists in proceedings to terminate parental rights. Thus we look to other jurisdictions where the question has arisen. In In re Lambert (D.C. Cir. 1953), 203 F.2d 607, in a juvenile court proceeding to have two children declared to be without adequate parental care and committed to the custody of the Board of Public Welfare, the mother of the children claimed a right to a jury trial. The court held that the mother was not entitled to a jury trial under the statute which did not specifically provide for a jury.\nIn In re Sean B. W. (1976), 86 Misc. 2d 16,381 N.Y.S.2d 656, there was an alleged abandonment by the putative father. The court held that there is no constitutional right to a jury trial in an adoption proceeding even though the effect of an adoption is the termination of the parent\u2019s rights.\nSince the concept of due process does not require a jury trial, nor is it specifically provided for by Juvenile Court Act, we believe the court did not err in finding it had no discretion to permit a jury trial.\nThe court recognizes the significance of parental rights and the seriousness of their deprivation. It would be preferable if the legislature removed all uncertainty in this area by way of a clear declaration of its intention either to provide for or to proscribe a jury in such cases.\nFor the foregoing reasons we affirm the ruling of the juvenile division of the circuit court.\nAffirmed.\nDOWNING and HARTMAN, JJ., concur.\nIt appears there is a fifth child who is not involved in this proceeding.\n\u201cParental rights\u201d have been defined as parents\u2019 \u201c \u2018inherent right to the society and custody of their own children.\u2019 \u201d In re Gonzales (1st Dist. 1974), 25 Ill. App. 3d 136,143,323 N.E.2d 42.", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "Ralph Ruebner, Daniel Cummings, and Randy K. Johnson, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "In re SARAH WEINSTEIN et al., Minors.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ROLENE WEINSTEIN, Respondent-Appellant.)\nFirst District (2nd Division)\nNo. 77-170\nOpinion filed February 6, 1979.\nRalph Ruebner, Daniel Cummings, and Randy K. Johnson, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Joan S. Cherry, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0883-01", "first_page_order": 905, "last_page_order": 910 }