Nos. 3-01-0126, 3-01-0127, 3-01-0316, 3-0-01-0386

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

In re					  )	Appeal from the Circuit Court

						  )	of the 10th Judicial Circuit

	O.H., L.M., B.M., B.L.,	  )	Peoria County, Illinois

						  )	

	Minors				  )

						  )

(The People of the State of	  )	Nos. 00-JD-518, 99-JD-446,

 Illinois, 				  )		99-JD-455, 00-JD-141,

				     	  )		99-JD-64, 99-JD-425

	Petitioner-Appellee,	  )		

						  )		

	v.					  )

			     		  )	Honorable Chris Fredericksen

The Department of Children and, )	Judge, Presiding

Family Services,			  )	

						  )

	Respondent-Appellant.	  )

_________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

	In these consolidated cases, the trial court found O.H.,

L.M., B.M. and B.L., all of whom are minors, delinquent and made

them wards of the court.  Following separate sentencing hearings,

the trial court sentenced each to a term of probation and ordered

each to complete his or her placement at a residential facility

to be designated by the Department of Children and Family

Services (DCFS).  DCFS now appeals those orders, claiming the

court was without jurisdiction to require such placements.  We

affirm.

FACTS

	In separate delinquency proceedings, O.H. was convicted of retail theft and residential burglary; L.M. was adjudicated

delinquent for the offense of resisting a peace officer;  B.M.

was convicted of burglary; and B.L. was found delinquent for

violating his probation terms by testing positive for cannabis.

In each case, the court appointed DCFS as guardian, sentenced the

minor to a term of probation, and directed DCFS to place each in

a residential facility.  

	Following the entry of the circuit court's orders, DCFS

filed a motion in each case to vacate the court's probation order

asserting that the court lacked subject matter jurisdiction.  All

of the motions were denied.

	DCFS appeals the circuit court's orders in all four of the aforementioned cases.  The appeals have been consolidated for the

purposes of deciding whether a trial court has subject matter

jurisdiction to direct a delinquent ward's placement after it has

appointed DCFS as the ward's guardian.  We find that it does.

ANALYSIS

Appellate Jurisdiction

	The State begins by asserting that this matter must be dismissed for want of appellate jurisdiction.  DCFS' appeal was

filed pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301),

which provides for appeals from final judgments in civil matters. 

The State maintains that this appeal is a criminal matter falling

within the ambit of Rule 604 (188 Ill. 2d R. 604), and interprets that rule to mean that only defendants and the State possess

standing to appeal.  Because DCFS was neither, the State submits

that DCFS lacked the requisite standing to raise its claim.  

	We review questions concerning rule construction de novo.  In re Estate of Rennick, 181 Ill. 2d 395, 692 N.E.2d 1150 (1998). 

	We agree with the State that this appeal is a criminal

matter.  Rule 660(a) states that, unless otherwise specifically

provided, appeals from final judgments in delinquent minor

proceedings will be governed by the rules applicable to criminal

cases.  134 Ill. 2d R. 660(a).  Here, all the minors involved

were adjudicated delinquent by the trial court, and the

sentencing orders from which these appeals were taken are final.  

	However, our jurisdiction to hear this matter does not

derive solely from a party's invocation of the correct supreme

court rule.  Pursuant to Rule 603, our appellate jurisdiction has

arisen because an appeal has been taken in a criminal matter. 

Rule 603 specifically directs all appeals in criminal cases,

other than where a statute has been held invalid or where a death

sentence has been imposed, be taken to the appellate court.  134

Ill. 2d R. 603; In re J.R., 307 Ill. App. 3d 175, 717 N.E.2d 468 (1999).  Because those exceptions do not apply in these cases and

because the State has not been prejudiced by DCFS’s selection of

Rule 301 rather than Rule 604, we hold that appellate

jurisdiction has been properly invoked.  

	Contrary to the State's contention, Rule 604 does not limit

standing to defendants and the State.  Although that rule deals with criminal appeals, it is not a comprehensive rule designed to

govern the entirety of all criminal appeals.  The rule is

entitled "Appeals from Certain Judgments and Orders," and its

purpose is to set out appeal rules that defendants and the State

must follow in designated situations.  188 Ill. 2d R. 604.  It

does not address appeals filed by nonparties. 

	There is common law support for the fact that nonparties in

criminal matters also have standing, so long as they hold a

direct, immediate and substantial interest in the subject matter

that would be prejudiced by the judgment or benefitted by its

reversal.  People v. Pine, 129 Ill. 2d 88, 542 N.E.2d 711 (1989) (the Secretary of State, a nonparty, possessed standing to appeal

the trial court's order directing it to issue a judicial driving

permit for defendant because pursuant to section 6-206.1 of the

Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1⁄2, par. 6--

206.1), it held a direct, immediate and substantial interest in

the order's requirements); see People v. White, 165 Ill. App. 3d 249, 518 N.E.2d 1262 (1988) (the nonparty Illinois Department of

Mental Health and Developmental Disabilities possessed standing

to appeal because it had a direct, immediate and substantial

interest in the terms of defendant's conditional release order;

the Department could be held in contempt by the circuit court if

the Department failed to comply with the portions of the court's

order that were directed to it). 

	Here, we find that DCFS has standing to appeal the portions of the court's orders pertaining to it because it had a sufficient direct, immediate and substantial interest in the

order's terms.  The order required DCFS to assume the

responsibility of placing the minors in an appropriate

residential facility, and its compliance could be enforced by the

trial court's contempt power.  

	We find that DCFS has standing to appeal from the orders at

issue and that this court has jurisdiction to decide that appeal.

	Subject Matter Jurisdiction in Juvenile Court 

Act Delinquency Proceedings.

	DCFS contends that the trial court did not have subject matter jurisdiction to designate placements for the wards. 

Subject matter jurisdiction refers to the power of the court to

address and resolve the general question involved, including the

power to grant the particular relief requested.  In re M.M., 156 Ill. 2d 53, 619 N.E.2d 702 (1993).  DCFS maintains that there are

no provisions within the Juvenile Court Act of 1987 (Juvenile

Court Act) (705 ILCS 405/1--1 et seq. (West 2000)) that empower a trial court to direct a court-appointed guardian to make specific

placements or provide specific services.  Rather, DCFS asserts

that in delinquency proceedings, the power to determine the

appropriate placements and services for a ward is restricted to

the court-appointed guardian.

	The standard of review for the construction of a statute is

de novo.  Department of Public Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540, 702 N.E.2d 563 (1998).

	Where the legislature enacts a comprehensive statutory scheme, creating rights and duties that have no counterpart in

common law or equity, the legislature has created a "justiciable

matter."  "Once the right is created, it is by reason of our

constitution that our circuit courts acquire power to adjudge

concerning that right.  However, it is by reason of the statute

that the justiciable matter exists."  M.M., 156 Ill. 2d at 65, 619 N.E.2d at 709.

	The legislature may define the justiciable matter in such a

way as to preclude or limit the authority of the circuit court. 

When a court's power to act is controlled by statute, the court

is governed by the rules of limited jurisdiction, and courts

exercising jurisdiction over such matters must proceed within the

strictures of the statute.  M.M., 156 Ill. 2d 53, 619 N.E.2d 702.

	Juvenile court proceedings qualify as special statutory

proceedings.  The scope and application of the Juvenile Court Act

itself are defined solely by the legislature.  M.M., 156 Ill. 2d 53, 619 N.E.2d 702.

	Here, contrary to the contentions of DCFS, the delinquency

section of the Juvenile Court Act specifically grants a circuit

court the power to order specific placements for a ward of the

State as a condition of probation even though a guardian or legal

custodian has been appointed.  

	Section 5--620 (705 ILCS 405/5--620 (West 2000)) gives the

court the power to determine whether the minor is guilty and, if

so, whether he or she should be made a ward of the court.  That

section also provides for a sentencing hearing.  

	The court’s sentencing options "in respect to wards of the

court" are set out in section 5--710 and they include, in

relevant part: 

							"(a) ***

				(i) put on probation or conditional

discharge and released to his or

her parents, guardian or legal

custodian***[or] 

		* * *

				(iv) placed in the

guardianship of the Department

of Children and Family

Services."  705 ILCS 405/5--

710 (West 2000). 

The clear import of this section is that DCFS is an eligible

guardian and that the guilty minor can be put on probation and

released to DCFS as guardian. 

	Finally, section 5--715(2) lists the rights of the court

when placing a minor on probation.  In enumerating the conditions

of probation that the court may impose, the statute expressly

provides: 

		"§5--715.  Probation. 

		* * *

			(2) The court may as a condition of

probation or of conditional

discharge require that the minor: 

	* * *

			(e) attend or reside in a facility

established for the instruction or

residence of persons on probation." 

705 ILCS 405/5-715(2)(e) (West

2000).  

It thus appears to this court that the delinquency portion of the

Juvenile Court Act expressly authorizes the court to declare a minor a ward of the court, place him or her on probation,

establish specific conditions of probation, and release him or

her to a parent, guardian, or legal custodian.  There is nothing

in the language of the statute that arrests the imposition or

prohibits the enforcement of the conditions of probation just

because the minor has been released to the applicable custodian. 

Indeed, when one looks at the various conditions (such as:  not

violate any criminal statute or work or pursue a course of study

or undergo medical or psychiatric treatment or serve a term of

home confinement), it would make no sense to hold them

inapplicable just because a guardian has been appointed.  

	Thus, we find that the trial court had jurisdiction to enter

its orders.  The statute expressly empowers a circuit court to

order a specific type of placement for minors who are adjudged

delinquents and made wards of the court, regardless of whether a

legal custodian has been appointed.

	Moreover, the legislature, in selecting the form of the

delinquency provisions, has revealed in another way its intent that the court be able to direct specific placement for

delinquent wards.  The inclusion of one is the exclusion of another, a generally accepted canon of construction, construes the express inclusion of a provision in one part of a statute and

its omission in a parallel section as an intentional exclusion

from the latter.  Schanowitz v. State Farm Mutual Automobile Insurance Co., 299 Ill. App. 3d 843, 702 N.E.2d 629 (1998).  The statutory language that concerns abused, neglected or dependent minors expressly prohibits the trial court from ordering a specific placement.  705 ILCS 405/2--23(3) (West 2000).  However,

the parallel provision discussing the disposition of delinquent minors does not contain this limiting language or any other

language that prohibits the court from ordering a specific

placement.  See 705 ILCS 405/5--23 (West 2000).  See also In re D.D., 312 Ill. App. 3d 806, 728 N.E.2d 119 (2000) (as a matter of law, trial courts possess the authority to determine the proper

disposition of a delinquent, and nothing in the Juvenile Court

Act specifically restrains it from making specific placements).

	Furthermore, even if the Juvenile Court Act did not create

the power to regulate the placements of its wards, a trial court

still would not be stripped of such power.  The circuit court,

through the doctrine of parens patriae, has an inherent plenary power, independent of any authority given to it by the

legislature, to act solely in the best interests of the child and

for his own protection.  In re A Minor, 205 Ill. App. 3d 480, 563 N.E.2d 1069 (1990).  It is not a justiciable matter because the authority does not derive from statute.  The court's power to

interfere with and control the persons and custody of all minors

within its jurisdiction existed in the common law, prior to and

independent of the Juvenile Court Act, by inheritance from the

English courts of chancery.  M.M., 156 Ill. 2d 53, 619 N.E.2d 702. 

	DCFS cites In re Chiara C., 279 Ill. App. 3d 761, 665 N.E.2d 404 (1996), and In re T.L.C., 285 Ill. App. 3d 922, 675 N.E.2d 228 (1996), in support of its argument that the Juvenile Court

Act does not give trial courts the jurisdiction to place minors

where the court has already appointed a guardian.  Both cases

cite to section 2--28(2), which states that the court, unless

specifically authorized by law, is not empowered to order

specific services or service providers.  705 ILCS 405/2--28(2)

(West 2000).

	Neither case is relevant in the matter at hand because they

both deal with minors who have been adjudged abused, neglected or

dependent.  However, as we have previously noted, this case

involves a different section of the Juvenile Court Act dealing

with  minors who have been adjudicated delinquent.  As we have

previously discussed, in delinquency proceedings, the Juvenile

Court Act specifically provides that the court has the authority

to direct placements for its wards.

	Thus, we find that the trial court has subject matter

jurisdiction to direct the kind of placement for delinquent

wards, regardless of whether a guardian has already been appointed.  Accordingly, we affirm the trial court's orders in

each of the consolidated cases.

CONCLUSION

	In light of the foregoing analysis, we affirm all of the trial court's orders. 

	Affirmed.

	McDADE, J. with LYTTON, P.J., and HOLDRIDGE, J., concurring.