dissenting:
I do not agree with the majority’s conclusion that the statutory provisions challenged here are constitutional. Accordingly, I dissent from today’s decision.
At issue in the present case are certain portions of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, pars. 801—1 through 807—1) applicable to minors requiring authoritative intervention (the MRAI provisions). Under section 3—3 of the Act, the MRAI designation includes “any minor under 18 years of age (1) who is (a) absent from home without consent of parent, guardian or custodian, or (b) beyond the control of his or her parent, guardian or custodian, in circumstances which constitute a substantial or immediate danger to the minor’s physical safety ***.” (Ill. Rev. Stat. 1987, ch. 37, par. 803—3.) Those aspects of the MRAI provisions challenged here authorize the police to take into limited custody a minor requiring authoritative intervention and to place the minor with a social service agency pending an adjudication under the statute. If the minor has not been taken into limited custody on any other occasion during the preceding year, no adjudication may be made for a period of 21 days; shorter periods of time are provided in other cases. (Ill. Rev. Stat. 1987, ch. 37, par. 803—3.) The minor may not be returned against his wishes to his parent, guardian, or custodian before that time. The respondent minors in the instant proceedings absented themselves from home without parental consent and were taken into limited custody pursuant to statute. The circuit court of Du Page County invalidated on constitutional grounds the challenged portions of the statutory scheme.
A stronger argument for the constitutionality of the MRAI provisions involving absentee minors would be presented if the Juvenile Court Act were interpreted to require that such a minor be in circumstances constituting “a substantial or immediate danger to his physical safety.” That was the construction of the statute adopted by the appellate court in In re J.M. (1988), 170 Ill. App. 3d 552, which upheld the provisions against constitutional challenge. I agree with the majority, however, that the “substantial or immediate danger” clause has no application to absentee minors and pertains only to minors who are beyond parental control.
That conclusion is readily apparent from an examination of the earliest version of the MRAI statute. As originally enacted, the MRAI definition included “any minor under 18 years of age (1) who is (a) a chronic or habitual truant as defined in section 26 — 2a of the School Code, or (b) absent from home without consent of parent, guardian or custodian, or (c) beyond the control of his or her parent, guardian or custodian, in circumstances which constitute a substantial or immediate danger to the minor’s physical safety.” (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702—3.) Under that provision, the “substantial or immediate danger” clause either applied to only the last group specified in the statutory definition, minors beyond parental control, or it applied to all three groups, truants, absentee minors, and minors beyond parental control. Application of the clause to truants would not have seemed appropriate, however, and therefore its scope must have been limited to the third group specified, minors beyond parental control. The legislature later amended the provision, removing the category of truants from the MRAI definition. The syntactical structure of the MRAI provision has remained unchanged, however, and I would therefore conclude that the same construction appropriate to the original version of the statute should apply to the current version as well.
I do not believe that the MRAI provisions at issue here satisfy the demands of due process. The statutory scheme requires the authorities to maintain in temporary custody, for up to 21 days, a minor who has absented himself from home and who refuses to return home. No other criteria limit the operation of those provisions. There is no requirement that the child be in danger or that he be without food, shelter, or money. Indeed, no consideration may be given to the child’s circumstances. Moreover, as long as the minor refuses to rejoin the family home during the 21-day period, any request by the parent for the child’s return must be denied. The provisions at issue thus empower a minor to choose to remain outside the home, in the custody of the State, for three weeks, and grant to the minor a veto over any request by the parent for his return, regardless of the circumstances presented and whether or not the best interests of the minor would be served by his return home.
The State’s substantial interest in the welfare of minors cannot be doubted. (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 27, 68 L. Ed. 2d 640, 650, 101 S. Ct. 2153, 2160.) Equally clear, however, is the fundamental right of a parent in the custody and control of a minor child. (Santosky v. Kramer (1982), 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95; Stanley v. Illinois (1972), 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558-59, 92 S. Ct. 1208, 1212-13; Meyer v. Nebraska (1923), 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626.) Consistent with that fundamental family right is the recognition of parental authority over minors. (See Bellotti v. Baird (1979), 443 U.S. 622, 637-39, 61 L. Ed. 2d 797, 809-11, 99 S. Ct. 3035, 3045-46.) Indeed, it is normally assumed that a parent acts in the best interests of a minor child. See Parham v. J.R. (1979), 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504.
As the majority correctly recognizes, the statutory provisions at issue here cannot survive challenge on substantive due process grounds unless they are narrowly drawn and serve a compelling State interest. I do not believe that the statutory scheme can be said to satisfy that rigorous standard. By placing absent children beyond parental control for as long as 21 days and granting to a child the right to refuse to return home during that period, the MRAI provisions significantly disrupt the fundamental right of parents in the care and custody of their minor children and subordinate the parent’s interest to the dictates of the minor. Application of the statute is triggered simply by a minor’s absence from home without the consent of his parent, guardian, or custodian and his refusal to return home. No further criteria govern — there is no requirement that the minor be in danger or otherwise in need of care and, indeed, no consideration may be given to any other aspect of the minor’s condition. The broad scope of the statutory scheme fails to serve the State’s compelling interest in the safety and well-being of minors. In declining to find a violation of substantive due process, the majority simply assumes that every minor’s actions in absenting himself from home without consent establish the need for intervention by the State in the manner mandated by the MRAI provisions. Such an assumption is unwarranted. The State could not detain an absentee minor for 21 days against the wishes of both the parent and the child, in the absence of any evidence that the minor was in danger or otherwise in need of care; I do not believe that the minor’s mere refusal to return home, without more, can validate the present statutory scheme.
I would also hold that the 21-day period in which a minor subject to the statute is allowed, at his option, to remain outside the family home violates the procedural due process rights of parents. Due process is a flexible concept, and there is no single formula having universal application. (Mathews v. Eldridge (1976), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902.) A prompt adjudicatory hearing should be afforded, and I do not believe that the lengthy delay allowed by the statute can be said to provide parents with “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32, 96 S. Ct. at 902.
Runaway children often are at risk of serious physical and emotional harm, and efforts to make community resources available to meet the needs of such youths are to be commended. The present legislation, however, does not adequately recognize the legitimate interests of parents in the custody and control of their minor children. In sum, I would hold that the MRAI provisions at issue here are violative of the due process guarantees of the Federal and State Constitutions, and therefore I dissent from the majority’s decision to the contrary.