In re M.W. , 2013 IL App (1st) 103334 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re M.W., 2013 IL App (1st) 103334
Appellate Court In re M.W., a Minor (The People of the State of Illinois Petitioner-
Caption Appellee, v. M.W., a Minor, Respondent-Appellant).
District & No. First District, Sixth Division
Docket Nos. 1-10-3334, 1-10-3541 cons.
Filed March 1, 2013
Rehearing denied April 4, 2013
Held On appeal from a finding that respondent minor was guilty of multiple
(Note: This syllabus offenses arising from a vehicular hijacking, the appellate court rejected
constitutes no part of arguments that respondent did not knowingly waive his Miranda rights,
the opinion of the court that his mother was improperly excluded from the courtroom, that his
but has been prepared counsel served as both defense counsel and guardian ad litem, thereby
by the Reporter of creating a conflict of interest, and that respondent’s mother was entitled
Decisions for the to separate counsel.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-JD-4128; the
Review Hon. Colleen F. Sheehan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Emily E. Filpi, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant M.W.
Timothy F. Moran, of Chicago, for appellant C.W.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Kalia M. Coleman, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 This consolidated matter comes before this court following an adjudicatory hearing in
the juvenile justice division of the circuit court of Cook County. The trial judge found the
minor defendant, M.W., guilty of attempted first degree murder (720 ILCS 5/9-1(a)(1) (West
2006)), vehicular hijacking (720 ILCS 5/18-3 (West 2006)), aggravated vehicular hijacking
(720 ILCS 5/18-4(a)(3) (West 2006)), possession of a stolen motor vehicle (625 ILCS 5/4-
103(a)(1) (West 2006)), and two counts of aggravated battery (720 ILCS 5/12-4(a), (b) (West
2006)). After hearing factors in aggravation and mitigation, the trial judge sentenced M.W.
to the Juvenile Department of Corrections until his twenty-first birthday. Both M.W. and his
mother, C.W., filed separate appeals, which have now been consolidated.
¶2 On appeal, M.W. argues: (1) he did not make a knowing and intelligent waiver of his
Miranda rights; (2) the exclusion of his mother from the courtroom violated his right to a fair
trial; and (3) he was deprived of his right to counsel when his attorney acted as guardian ad
litem in the delinquency proceedings against him. Additionally, his mother, C.W., contends:
(1) she was denied her right to separate appointed counsel; (2) she was denied due process
and equal protection when she was excluded from the courtroom; (3) she was denied due
process when the trial court failed to meaningfully consider M.W.’s motion to dismiss; and
(4) the trial court erred in finding M.W. guilty.
¶3 For the reasons that follow, we find that: (1) the evidence sufficiently supports the trial
court’s finding that M.W. knowingly and intelligently waived his Miranda rights; (2) the
exclusion of his mother from the courtroom as a potential witness was not an abuse of
discretion; (3) defense counsel did not act as guardian ad litem; (4) C.W. did not have the
right to a separate attorney; and (5) C.W. lacks standing to challenge M.W.’s motion to
dismiss and adjudication of delinquency.
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¶4 BACKGROUND
¶5 The evening of June 13, 2006, M.W., age 16, and another assailant approached the driver
of a vehicle located in the parking lot of a Chipotle restaurant at 95th Street and Oakley
Avenue in Chicago. M.W. and the other assailant flung open the driver’s door, punching the
driver as they pulled him from the automobile. During the attack, one of the assailants
violently struck the driver in the head with a brick, leaving him with severe brain injuries.
M.W. and the other assailant then entered the vehicle and attempted to speed away before
ultimately driving the automobile into a tree. The two immediately fled the scene.
¶6 After uncovering M.W.’s fingerprints from the stolen vehicle, the police brought M.W.
to the station for questioning by Detective Stan Kolicki and Detective William Sotak on
August 17, 2006. M.W.’s mother, C.W., accompanied him to the station and sat next to
M.W. in the conference room. The detectives left the door to the conference room open
throughout the entire interrogation. Prior to questioning M.W., Detective Kolicki advised
him of his rights. Detective Kolicki slowly read each aspect of the Miranda warning one at
a time. Before advising M.W. of the next warning, Detective Kolicki inquired if M.W.
understood the previously read portion of the warning. Each time, M.W. informed Detective
Kolicki that he understood what the warning meant. C.W. also stated to Detective Kolicki
she understood the warnings as well. According to Detectives Kolicki and Sotak, M.W.
appeared composed throughout questioning and did not appear nervous, distraught, or
confused. During the approximately six- to seven-minute interrogation, M.W. confessed his
involvement in the attack and robbery. After C.W. attempted to end the interrogation by
leaving, the detectives placed M.W. in police custody.
¶7 On October 4, 2006, defense counsel filed a “Motion to Suppress Statements.” In the
motion, M.W. argued he was “unable to appreciate and understand the meaning of his
Miranda rights” and thus “any relinquishment of these rights *** was not made voluntarily,
knowingly, and intelligently.” To support this argument, defense counsel requested that
M.W. be psychologically evaluated to determine whether he was competent enough to waive
his Miranda rights. The trial court granted this request and Dr. Ascher Levy, a clinical
psychologist, conducted two examinations of M.W.
¶8 The first examination took place on October 30, 2007, over a year after the police
interrogation. During the first examination, Dr. Levy asked M.W. if he could explain the
meaning of the Miranda warnings. M.W. related to Dr. Levy he had the “right to be quiet”
and could have “a lawyer or public defender when they are asking you questions.” M.W. also
explained that a lawyer could be helpful because “[w]hatever the cops ask you, they, the
attorney, tell you, ‘[d]on’t say it.’ ” Finally, M.W. revealed that an appointed attorney meant
“[i]f you ain’t got no money, they’ll give you a lawyer–they’ll give me a lawyer.”
¶9 Dr. Levy ultimately concluded M.W. was capable of knowingly and intelligently waiving
his Miranda rights at the time of the interrogation and testified accordingly. At the
suppression hearing, Dr. Levy testified M.W.’s learning disability “did not appear to
significantly affect his functional communication skills.” Dr. Levy further acknowledged
M.W. had familiarity with the “process of a police interview” and possessed “street smart[s]”
and “common sense.” Substantially relying on this testimony, the trial judge found the
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evidence overwhelmingly demonstrated that M.W. knowingly and intelligently waived his
Miranda rights and denied M.W.’s “Motion to Suppress Statements.”
¶ 10 On June 3, 2010, M.W.’s adjudicatory hearing commenced. Prior to the parties’ opening
statements, the trial judge granted defense counsel’s motion to exclude all witnesses from
the courtroom. As the State began its opening statement, the trial judge noticed C.W. sitting
in the gallery and asked the parties whether she was going to be called as a witness. Defense
counsel replied, “I can’t really say now, Judge. But I would ask that the witness–all possible
witnesses be excluded.” The trial judge informed defense counsel, “Either she can stay in the
court or she can testify. So if you’re planning on having her testify, she has to leave.”
Pursuant to the motion to exclude, C.W. was then required to leave the courtroom. The
hearing proceeded and the trial judge found M.W. guilty of all charges, relying on M.W.’s
incriminating statements and the corroborating testimony from trial witnesses.
¶ 11 ANALYSIS
¶ 12 I. MIRANDA WAIVER
¶ 13 M.W. argues he did not knowingly and intelligently waive his Miranda rights before
speaking with Detective Kolicki and Detective Sotak on August 17, 2006. The State has the
burden of proving, by a preponderance of the evidence, that the defendant made a knowing
and intelligent waiver of his or her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 475
(1966); People v. Reid, 136 Ill. 2d 27, 51 (1990). Once the State has established a prima facie
case, the burden then shifts to the defendant to prove the waiver was not knowing and
intelligent. Id. If the court finds under the totality of the circumstances the waiver was not
knowing and intelligent, no evidence obtained as a result of the interrogation may be used
against the defendant. Miranda, 384 U.S. at 479. On appeal, we afford great deference to the
trial court’s factual findings and reverse those findings only if they are against the manifest
weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). “A judgment is
against the manifest weight of the evidence only when an opposite conclusion is apparent or
when findings appear to be unreasonable, arbitrary, or not based on evidence.” Bazydlo v.
Volant, 164 Ill. 2d 207, 215 (1995). We review de novo, however, the ultimate question of
whether the waiver was knowing and intelligent. Id.
¶ 14 M.W. argues the totality of the circumstances–M.W.’s age, attention deficit disorder,
learning disability, lack of interrogation experience, and the overall circumstances of the
interrogation–reveal that M.W. did not knowingly and intelligently waive his Miranda rights.
We do not find this argument persuasive. While defense counsel has presented evidence of
M.W.’s youth, attention deficit disorder, learning disability, and lack of interrogation
experience, defense counsel has not presented evidence to establish that these factors affected
his capacity to intelligently and knowingly waive his Miranda rights. The evidence, in fact,
is to the contrary.
¶ 15 Dr. Levy, a witness for the defense, twice examined M.W. and reported his findings. Dr.
Levy concluded M.W.’s learning disability “[did] not appear to significantly affect his
functional communication skills and was thus insufficient to affect his ability to knowingly
and intelligently waive his Miranda rights.” Dr. Levy found that M.W.’s age and functional
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communication skills at the time of interrogation were sufficiently advanced to infer that
M.W. could intelligently waive his Miranda rights. Dr. Levy further opined that M.W. had
“street smart[s]” and “common sense” and was well acquainted with a lawyer’s role in the
proceedings and still waived his right to counsel.
¶ 16 Dr. Levy’s testimony regarding his examinations thoroughly supports his conclusions.
During the first examination, Dr. Levy asked M.W. what each of the Miranda warnings
meant. In response, M.W. explained he had the “right to be quiet,” the right to have a “lawyer
or public defender when they are asking you questions,” and further added, “[i]f you ain’t got
no money, they’ll give you a lawyer–they’ll give me a lawyer.” When asked how an attorney
might be helpful, M.W. responded, “[w]hatever the cops ask you, they, the attorney, tell you,
‘[d]on’t say it.’ ” These responses demonstrate M.W. not only understood the rights the
Miranda warnings encompassed, but also understood the consequences in not invoking them.
¶ 17 Moreover, the circumstances of the interrogation presented no additional factors to
otherwise diminish M.W.’s capacity for waiver. The interrogation lasted only several
minutes. There is no evidence the detectives acted rudely, forcefully, or coercively. M.W.’s
mother accompanied him for the entirety of the questioning. The door to the conference room
remained open. M.W. never appeared nervous, pressured, or scared. Detective Kolicki slowly
read each part of the Miranda warnings separately, asking M.W. each time whether he
understood that right. M.W. had ample opportunity to reflect on every aspect of the warning
and told Detective Kolicki he understood them.
¶ 18 M.W. argues, however, the one year and two months that had lapsed between the
interrogation and the examination undermined Dr. Levy and the trial court’s conclusions.
According to M.W., because he acquired experience and intelligence in the subsequent year,
we should afford little significance to an examination occurring after that period. While we
acknowledge the likelihood M.W. developed intellectually after the interrogation, the lapse
in time does not seriously discredit Dr. Levy’s overall findings. Dr. Levy ultimately
concluded that M.W. could knowingly and intelligently waive his Miranda rights at the time
of the interrogation. Dr. Levy was a credible witness who based his opinion on findings from
two separate examinations of M.W. Dr. Levy could “not identify any factors present during
[M.W.’s] interview with the police” that would sufficiently hinder M.W.’s ability to waive
his Miranda rights. Further, during defense counsel’s redirect examination, Dr. Levy testified
that it did not necessarily follow that just because the interrogation occurred one year earlier,
M.W. was less capable of waiving his Miranda rights at the time of the interrogation. Most
importantly, there is no evidence that M.W. was incapable of waiving his Miranda warnings.
Presented with Dr. Levy’s expert opinion and the circumstances of the interrogation, we will
not speculate that simply because M.W. was one year younger at the time of the
interrogation, he must have been incapable of waiver.
¶ 19 We recognize M.W.’s youth and infirmities at the time of the interrogation. Nevertheless,
these infirmities do not automatically render one’s Miranda waiver invalid. See, e.g., In re
W.C., 167 Ill. 2d 307 (1995) (12-year-old child knowingly and voluntarily waived Miranda
rights despite IQ of 47, mild mental retardation, and comprehension skills of a second
grader). The detectives took great care in advising M.W. of his rights and all of the evidence
supports the finding that M.W. had the intellectual capacity to understand and waive those
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rights at the time of the interrogation. Accordingly, we do not find M.W.’s argument that his
statements should have never been introduced at trial persuasive.
¶ 20 II. EXCLUSION OF THE MOTHER FROM THE COURTROOM
¶ 21 M.W. and C.W. separately challenge her exclusion from the courtroom as a potential
witness. We address each of these challenges separately.
¶ 22 A. M.W.’s Right to Fair Trial
¶ 23 M.W. argues the exclusion of his mother, C.W., from the courtroom violated his right
to a fair trial. The exclusion of witnesses from the courtroom is a matter resting within the
sound judgment of the trial court. People v. Chennault, 24 Ill. 2d 185, 187 (1962). By
removing potential witnesses from the courtroom, the court seeks to preclude witnesses from
shaping their testimony to conform to that of witnesses who have already testified. People
v. Dresher, 364 Ill. App. 3d 847, 862 (2006). We review decisions to exclude witnesses
under the abuse of discretion standard. Chennault, 24 Ill. 2d at 187. “An abuse of discretion
will be found only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where
no reasonable person would take the view adopted by the trial court.” People v. Hall, 195 Ill.
2d 1, 20 (2000).
¶ 24 As M.W. explains, the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West
2006)) makes C.W. a party-respondent under the statute, conferring on her a “right to be
present.” See 705 ILCS 405/1-5(1) (West 2006); In re A.K., 250 Ill. App. 3d 981, 987 (1993).
M.W. argues the trial judge may not exclude C.W. as a party to the proceedings. M.W. relies
on the proposition that “[a]lthough the trial court has the power to exclude witnesses from
the courtroom, a party to the action who is also a witness is not included under this rule.”
North Shore Marine, Inc. v. Engel, 81 Ill. App. 3d 530, 534 (1980). This court has already
rejected this argument. See In re J.E., 285 Ill. App. 3d 965 (1996) (not an abuse of discretion
or deprivation of due process to exclude juvenile’s parents from courtroom); In re Yates, 35
Ill. App. 3d 829 (1976) (not an abuse of discretion to exclude legal guardian from
courtroom); In re Akers, 17 Ill. App. 3d 624 (1974) (not an abuse of discretion to exclude
juvenile’s mother from courtroom until after she testified).
¶ 25 In light of this precedent, M.W. relies on cases from other jurisdictions, asking us to
overrule In re J.E., In re Yates, and In re Akers. According to M.W., In re J.E., In re Yates,
and In re Akers fail to address the unique party-respondent status afforded to the legal
guardian under the Act and, instead, incorrectly treat them as ordinary witnesses. None of
these cases directly refer to the parents or legal guardians as a “party-respondent.”
Nevertheless, these cases do directly interpret the rights afforded the legal guardian as a
party-respondent under the Act and specifically define the scope of a parent’s or legal
guardian’s right to be present at an adjudicatory hearing. In defining such rights, this court
found that a parent’s or legal guardian’s right to be present is not absolute and “does not
undermine the court’s power to exclude a legal guardian as a witness from an adjudicatory
hearing for the purpose of securing uninfluenced testimony.” In re J.E., 285 Ill. App. 3d at
980.
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¶ 26 Additionally, we note that M.W.’s claim he was denied a fair trial is undermined by the
fact that C.W. was excluded pursuant to M.W.’s own motion. M.W.’s defense counsel
initially brought the motion to exclude prior to the commencement of the hearing. During
opening statements, defense counsel agreed with the trial judge that C.W. should be
excluded; defense counsel stated, “I would ask that the witness–all possible witnesses be
excluded.” In Illinois, “[i]t is a well-settled principle of law that an accused may not ask the
court to proceed in a given manner and then assign as error in a court of review the ruling or
action which he procured.” People v. Heard, 396 Ill. 215, 219-20 (1947). Accordingly, we
cannot find the trial judge abused her discretion in excluding C.W. from the courtroom.
¶ 27 B. C.W.’s Due Process and Equal Protection Rights
¶ 28 C.W. separately argues her exclusion violated her due process and equal protection rights
under the fourteenth amendment of the United States Constitution. For her due process
claim, C.W. relies on language from In re Gault, which states, “[due process] does not allow
a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at
stake without giving them timely notice, in advance of the hearing, of the specific issues that
they must meet.” In re Gault, 387 U.S. 1, 33-34 (1967). According to C.W., this language
necessarily implies parents have a due process right to stay in the courtroom “[i]n order to
meet the issues.” The language relied on by C.W., however, interprets the fourteenth
amendment’s due process clause as providing parents with the constitutional right to timely
and specific notice in a juvenile delinquency case. C.W. fails to show how this due process
requirement of notice carries with it a separate and specific due process right to remain in the
courtroom despite one’s status as a potential witness. We accordingly reject C.W.’s argument
that her due process rights had been violated.
¶ 29 C.W. additionally argues her equal protection rights were violated. According to C.W.,
she belongs to a class, parents in delinquency proceedings, similarly situated to all other civil
litigants who, as parties to the proceedings, cannot be forced to leave the courtroom despite
potentially appearing as a witness. By having treated C.W. differently than other civil
litigants, C.W. argues, the trial court violated her right to equal protection. C.W.’s
comparison to all other civil litigants is not persuasive. In particular, the Illinois legislature
specially conferred C.W.’s status as a party-respondent in a juvenile delinquency proceeding
via the Act. The right to be present granted to a party-respondent under the Act is “not
absolute” and does not include the right to stay in the courtroom despite one’s status as a
potential witness. In re J.E., 285 Ill. App. 3d at 980. Accordingly, C.W. has not been denied
equal protection.
¶ 30 III. CONFLICT OF INTEREST
¶ 31 M.W. argues his attorney, Thomas O’Connell, acted as guardian ad litem and defense
counsel simultaneously, depriving him of his right to conflict-free representation. Under
Illinois law, an attorney performing both the functions of defense counsel and guardian ad
litem constitutes a per se conflict of interest. People v. Austin M., 2012 IL 111194, ¶ 78.
M.W. relies on an ambiguous order entered August 22, 2006 as evidence of O’Connell’s role
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as guardian ad litem. The order states, “THOMAS O’CONNELL is appointed (attorney of
record/guardian ad litem/both) for [M.W.] (minor).” No role was circled or underlined on the
order. M.W. points to no other section of the record where O’Connell is referred to as
guardian ad litem and offers no evidence as to O’Connell functioning in this capacity.
¶ 32 Moreover, the record on appeal is seemingly incomplete, as it fails to include reports of
all of the proceedings held on August 22, 2006. The burden of presenting a sufficiently
complete record rests with the appellant. Midstate Siding & Window Co. v. Rogers, 204 Ill.
2d 314, 319 (2003). Any doubts arising from an incomplete record will therefore be resolved
against the appellant. Id. The record as presented by the parties indicates the public defender,
Jared Gable, sought to withdraw from representing M.W. at a status hearing on August 22,
2006. According to the record, the private attorney who was to replace Gable was running
late. The judge then told Gable at the hearing if Gable found bar counsel that day, they could
take care of his withdrawal from the case immediately. Missing from the record are
transcripts of any subsequent hearings on August 22, 2006. The record does include,
however, two orders entered later that same day: the ambiguous order appointing Thomas
O’Connell and another granting Gable’s motion to withdraw. O’Connell subsequently filed
an appearance on August 28, 2006.
¶ 33 The court is not required to appoint a guardian ad litem and the record does not reveal
the court ever discussed making such an appointment. Regardless, even if the court never
formally appointed O’Connell as guardian ad litem, O’Connell’s representation could still
constitute a per se conflict of interest if he nonetheless “functioned” as guardian ad litem.
Austin M., 2012 IL 111194, ¶ 87. The Illinois Supreme Court discussed this form of “hybrid
representation” in People v. Austin M.
¶ 34 In Austin M., the parents of the minor defendant hired defense counsel to represent their
son. Id. ¶ 6. While the trial judge never appointed him to act as guardian ad litem, the
supreme court found the “comments and conduct” of defense counsel presented “strong
evidence” of him functioning as guardian ad litem. Id. ¶ 101. Specifically, the supreme court
noted: (1) the trial judge outlined defense counsel’s functions as those of a guardian ad litem;
(2) defense counsel reiterated on multiple occasions he would be taking a “best interests” and
“truth-seeking” approach; (3) defense counsel stated he shared with the court and the State
“the common goal of getting to ‘the truth’ ”; (4) defense counsel admitted if his client was
in fact guilty, the court must intervene to stop such acts; and (5) defense counsel never
attempted to suppress the most crucial piece of evidence (the incriminating statements of the
minor defendant). Id. ¶¶ 89-99. Considered in totality, these facts established defense counsel
acted “in the best interests of his client and of society” and, thus, did not act as a “traditional
defense attorney.”1 (Internal quotation marks omitted.) Id. ¶ 101.
¶ 35 In this case, however, no facts in the record even remotely support the argument
O’Connell served as guardian ad litem. Instead, the record reveals O’Connell replaced Gable
as defense counsel and acted in the role of a traditional defense attorney. Accordingly, we
1
The court in Austin M. defined a “traditional defense attorney” as “an attorney whose
singular loyalty is to the defense of the juvenile.” Austin M., 2012 IL 111194, ¶ 77.
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cannot find that O’Connell functioned as guardian ad litem based solely on any ambiguity
raised by the August 22, 2006 order. Because we do not find O’Connell served as guardian
ad litem, we do not find there existed a per se conflict of interest in his representation.
¶ 36 IV. THE MOTHER’S RIGHT TO SEPARATE COUNSEL
¶ 37 C.W. argues she was entitled to her own counsel in M.W.’s delinquency proceeding and,
by failing to advise her of this right,2 the court committed reversible error. This right derives
from section 1-5(1) of the Act which states:
“Except as provided in this Section and paragraph (2) of Sections 2-22, 3-23, 4-20, 5-610
or 5-705, the minor who is the subject of the proceeding and his parents, guardian, legal
custodian or responsible relative who are parties respondent have *** the right to be
represented by counsel. At the request of any party financially unable to employ counsel,
with the exception of a foster parent permitted to intervene under this Section, the court
shall appoint the Public Defender or such other counsel as the case may require.”
(Emphasis added.) 705 ILCS 405/1-5(1) (West 2006).
The Act requires that the court admonish the parents of these rights. 705 ILCS 405/1-5(3)
(West 2006). Thus, according to C.W., the trial court committed structural error by failing
to advise C.W. of her right to separate counsel and we must reverse M.W.’s finding of
delinquency. We do not find this argument persuasive.
¶ 38 C.W.’s argument relies entirely on reading sections 1-5(1) and 1-5(3) together, without
accounting for other specific provisions of the Act. Sections 1-5(1) and 1-5(3) appear under
article I of the Act (entitled “General Provisions”). Another relevant provision, section 5-
610(4), appears under article V (entitled “Delinquency of Minors”). Specifically, section 5-
610(4) limits the rights provided under section 1-5(1). Section 5-610(4) reads:
“If, during the court proceedings, the parents, guardian, or legal custodian prove that he
or she has an actual conflict of interest with the minor in that delinquency proceeding and
that the parents, guardian, or legal custodian are indigent, the court shall appoint a
separate attorney for that parent, guardian, or legal custodian.” 705 ILCS 405/5-610(4)
(West 2006).
¶ 39 It is a fundamental rule of statutory construction that a specific provision controls and
should be applied where it conflicts with a general provision regarding the same subject.
People v. Villarreal, 152 Ill. 2d 368, 379 (1992). By requiring the parent prove an actual
conflict of interest, section 5-610(4) conditions a parent’s appointment of separate counsel
in a juvenile delinquency proceeding on the existence of said conflict. In light of this
requirement, we disagree with C.W.’s contention she was entitled to an attorney where no
2
It is unclear from the record whether the court actually failed to give notice here. The trial
judge took great care in verifying the addresses of the parents in this case so that written notice
would be properly delivered. This notice was not made part of the record; thus, we will not speculate
as to its contents or whether it was ultimately forwarded to M.W.’s parents.
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such conflict of interest was ever alleged to have existed.
¶ 40 To hold that a parent need not show a conflict of interest to be entitled to a separate
attorney would deprive section 5-610(4) of any effect. In other words, if the court must
appoint a separate attorney for C.W. regardless of a conflict of interest, then section 5-610(4)
serves no purpose. Section 5-610(4) was added in 1999 to the Act as part of a major reform
to the State of Illinois’s juvenile justice system that “[made] juvenile delinquency
proceedings more akin to criminal prosecutions.” Austin M., 2012 IL 111194, ¶ 76; see also
People v. Taylor, 221 Ill. 2d 157, 165 (2006) (finding the Illinois legislature “largely rewrote
Article V of the Act to provide more accountability for the criminal acts of juveniles and ***
to make the juvenile delinquency adjudicatory process look more criminal in nature”). We
cannot simply assume this provision lacks any significance; “[t]he best evidence of
legislative intent is the statutory language, given its plain and ordinary meaning.” People ex
rel. Birkett v. Konetski, 233 Ill. 2d 185, 193 (2009). We find the plain and ordinary meaning
of section 5-620(4) requires a parent or legal guardian to prove a conflict of interest with the
minor before a court shall appoint separate counsel.
¶ 41 The justification for such a requirement is apparent. The Act applies to a variety of
proceedings, not just juvenile delinquency proceedings. While a general rule allowing parents
separate counsel is clearly appropriate for cases involving the custody of an abused child, the
same is not necessarily true of delinquency proceedings. See In re Vaught, 103 Ill. App. 3d
802, 804-06 (1981) (distinguishing juvenile delinquency proceedings from child custody or
neglect proceedings in determining whether or not the father was a necessary party); see also
In re A.H., 549 N.W.2d 824, 826-27 (Iowa 1996) (finding that Iowa’s legislature amended
the state’s Juvenile Justice Act to authorize a separate right to counsel for parents in
termination or neglect cases, but not for delinquency proceedings); In re Jesse V., 263 Cal.
Rptr. 369, 373 (Cal. Ct. App. 1989) (finding specifically in delinquency proceedings, a
parent’s right to appointed counsel is up to the discretion of the court). Separate counsel in
a juvenile delinquency proceeding would often be unnecessary. Because legal guardians
generally share the interests of the minor, one attorney can adequately represent the interests
of both the guardian and child in most cases. Only in such instances where the guardian’s and
minor’s interests diverge–for example, where the minor implicates a parent in the crime or
accuses a parent of child abuse–would a separate attorney be particularly useful.
¶ 42 C.W. does not assert that any conflict of interest exists in this case or that a separate
attorney would have been necessary. C.W. does not contend she would have requested an
attorney. C.W. does not argue the outcome would have been any different if she had counsel.
Instead, C.W. argues solely that the failure to advise her of her rights under section 1-5(1)
amounts to a denial of her right to separate counsel. Since C.W. was not a party entitled to
relief under section 5-610(4), C.W. was not denied the right to a separate attorney.
¶ 43 V. MOTION TO DISMISS AND FINDING OF DELINQUENCY
¶ 44 C.W. challenges both the trial court’s denial of M.W.’s “Motion to Dismiss and Other
Relief” and the trial court’s adjudication of delinquency. We need not address the substance
of these challenges because C.W. lacks standing to appeal these orders. Parents can only
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appeal a decision that affects their own rights and lack standing to appeal issues only
concerning the minor. In re J.R., 2011 IL App (3d) 100094, ¶ 13; In re D.M.A., 136 Ill. App.
3d 1027, 1029 (1985). As both M.W.’s motion to dismiss and the adjudication of
delinquency involve issues concerning only the minor, C.W. lacks standing to appeal these
issues.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 47 Affirmed.
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