The termination of a person’s parental rights is a drastic measure that severs one of the most important relationships recognized in law and by our society. Often, the natural parents involved in termination proceedings are indigent and unable to afford counsel. This article examines court decisions and Illinois statutory provisions concerning the right of indigent parents to appointed counsel in proceedings to terminate parental rights. This includes a recent Second District decision examining whether an indigent parent has a constitutional right to appointed counsel when a third party seeks to adopt the indigent parent’s child under the Illinois Adoption Act.1
In Lassiter v. Department of Social Services,2 the United States Supreme Court rejected the argument that an indigent parent has an automatic right to court-appointed counsel under the due process clause of the Fourteenth Amendment in termination proceedings prosecuted by the State. The Court stated that the due process clause provides an automatic right to appointed counsel only for persons who face the loss of their physical liberty.3 But, although it is not required in every case, the due process clause requires appointed counsel in certain instances where the risk of erroneous deprivation of parental rights is great.4 Trial courts must, therefore determine on a case-by-case basis whether appointed counsel is necessary.5 In resolving this question, trial courts should consider factors such as: 1) whether the parent faces abuse or neglect allegations that could lead to the filing of criminal charges; 2) whether the case presents difficult legal questions; and 3) whether there is expert testimony.6
Although it is not required under Lassiter, indigent natural parents in Illinois have a statutory right to appointed counsel when the State seeks to terminate their parental rights under the Illinois Juvenile Court Act of 1987.7 Under section 1-5(1) of the Juvenile Court Act, if any party to a proceeding under the Act cannot afford counsel, the trial court must appoint the public defender or other counsel to represent the party.8
Private parties cannot prosecute petitions brought under the Juvenile Court Act because the Act states that such petitions must be filed "through the State’s Attorney."9 But, under certain circumstances, private parties may seek to terminate the parental rights of natural parents and adopt their children under the Illinois Adoption Act.10 The circuit court has authority under the Adoption Act to terminate a party’s parental rights and to enter an order allowing adoption by another party or parties.11
The right to appointed counsel is far more circumscribed under the Adoption Act than under the Juvenile Court Act. The Adoption Act provides for appointed counsel only when an indigent parent is alleged to be unfit on the basis of an inability to discharge parental responsibilities because of mental impairment, mental illness, or mental retardation.12 The Second District Appellate Court recently decided In re Adoption of K.L.P., Nos. 2-99-1260 & 2-99-1261 (2nd Dist. Sept. 8, 2000), in which the court considered whether recognizing a broader right to counsel under the Juvenile Court Act than under the Adoption Act violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.
In K.L.P., the natural father of two children and his wife had custody of the children after the circuit court found that they were neglected minors and they were removed from the custody of their natural mother. The father and his wife filed a petition to adopt the children and terminate the mother’s parental rights, and they alleged numerous grounds of unfitness in the petition.13
The mother told the trial court at a hearing that she had spoken to several attorneys, but was unable to find an attorney she could afford. She asked the court to appoint the public defender to represent her, but the court refused to do so. At a later date, the court held a hearing on the adoption petition and granted the petition, finding that the mother was an unfit parent and that it would be in the best interests of the children to terminate the mother’s parental rights and allow the children to be adopted.14
On appeal, the mother argued that she was entitled to appointed counsel under the due process and equal protection clauses of the Fourteenth Amendment. The Second District Appellate Court initially considered the petitioners’ argument that these constitutional guarantees were not implicated because the adoption petition had been filed by private parties, and thus there was no state action. The Appellate Court for the First District had held in Rosewell v. Hanrahan that due process guarantees were not implicated in a situation where private parties filed an adoption petition that requested the termination of parental rights.15
The Second District reached a different conclusion, noting that courts from two other states had applied Lassiter in deciding whether indigent natural parents were entitled to appointed counsel when they faced termination of their parental rights in private adoption proceedings even though Lassiter involved a termination proceeding initiated by the state.16 The North Dakota Supreme Court held in one of those cases that the state’s involvement is sufficient to trigger constitutional protections because the termination of parental rights is achieved through a state mechanism in which state agencies are involved.17 The Second District expressed agreement with this reasoning, and it held, in K.L.P., that the requisite state action existed because the private parties sought termination of the mother’s parental rights through a state statutory scheme and a state judicial process.18
The court then considered the mother’s argument that the denial of appointed counsel violated her due process rights. This required an evaluation of the factors mentioned in Lassiter to determine if this was a case in which the denial of counsel was likely to lead to an erroneous termination of parental rights. The court noted that the mother was not likely to face criminal charges because of the allegations against her, no expert witnesses testified, and the case did not involve any difficult legal questions. Furthermore, the evidence was not closely balanced, and the presence of counsel probably would not have made a determinative difference. Under these circumstances, denying appointed counsel did not violate the mother’s due process rights under Lassiter.19
The mother also argued, however, that the limited right of indigent parents to appointed counsel under the Adoption Act violated her equal protection rights because indigent parents are always entitled to appointed counsel in termination proceedings under the Juvenile Court Act. Resolution of an equal protection argument usually turns on the level of scrutiny found to be applicable to the challenged statutory classification. Strict scrutiny applies to classifications based on race or national origin and to classifications that impair fundamental rights. An intermediate level of scrutiny applies to classifications based upon sex or illegitimacy. The least exacting standard, rational-basis review, applies in all other cases.20
Because the challenged classification did not involve race, sex, national origin or illegitimacy, the appropriate level of scrutiny depended upon whether the classification interfered with a fundamental right. For equal protection purposes, a fundamental right is a right that lies at the heart of the relationship between the individual and a republican form of government.21
The Second District stated that a parent’s interest in maintaining a parent-child relationship "is a fundamental liberty interest protected by the fourteenth amendment."22 And, the court concluded that not having counsel impairs the exercise of that right when a natural parent is involved in proceedings that could lead to a termination of his or her parental rights.23 Therefore a strict scrutiny analysis was appropriate for the statutory classification at issue.
A law will be upheld under the strict scrutiny standard only if it serves a compelling state interest and it is narrowly tailored to serve that interest.24 The Second District found that denying appointed counsel in most instances to parents facing termination of their parental rights in Adoption Act proceedings while affording counsel to parents facing termination in Juvenile Court Act proceedings did not serve a compelling state interest.25 Although the state has a pecuniary interest in limiting the number of situations in which appointed counsel must be provided, this interest does not overcome a parent’s important interest in the accuracy of the decision concerning the termination of his or her parental rights.26
The Second District stated that, when a statute is defective on equal protection grounds because of an underinclusive classification, the court may extend the scope of the statute to include those who are aggrieved by the exclusion.27 Furthermore, the court noted that section 2.1 of the Adoption Act states that the Adoption Act and the Juvenile Court Act should be construed in concert with each other.28 Therefore, to avoid a constitutional defect, the court construed the Adoption Act as providing the same right to appointed counsel for indigent parents as the Juvenile Court Act.29 Because the mother did not have counsel, the court reversed the judgment order terminating her parental rights, and remanded the cause for a new hearing at which she will have appointed counsel if she establishes her indigency.30 The Court granted this relief even though it had stated earlier in the opinion that "the evidence in this case was not closely balanced and we are unable to say that the presence of counsel would have made a determinative difference."31
There is an excellent chance that the Illinois Supreme Court will grant the petition for leave to appeal that has been filed in K.L.P. because of the important constitutional issue raised by the case. It would appear, in fact, that leave to appeal should be granted as a matter of right under Illinois Supreme Court Rule 317 because the Second District effectively held that the statutory scheme for termination of parental rights violates the equal protection clause by failing to provide appointed counsel for indigent parents in most cases brought under the Adoption Act.
If leave to appeal is allowed, the result will likely turn on the level of scrutiny applied by the Illinois Supreme Court. If that court agrees with the Second District that strict scrutiny applies, the challenged classification cannot stand. But, if the court holds that the exceedingly deferential rational basis standard applies, it will likely uphold the statutory scheme because there is a rational reason to provide for appointed counsel under the Juvenile Court Act, but not, in most instances, under the Adoption Act. That reason is that the resources of the state are brought to bear only against parents who are the subject of termination proceedings under the Juvenile Court Act.
Although the United States Supreme Court has refused to recognize a constitutional right to appointed counsel in all termination of parental cases, indigent parents in Illinois will enjoy such a right if the Illinois Supreme Court upholds the K.L.P. decision or declines to review it. Theoretically, the legislature could undermine K.L.P. by amending the Juvenile Court Act so that appointed counsel is no longer automatically available for indigent parents. This is because K.L.P. only holds that the equal protection clause requires that the same treatment be afforded to parents facing termination of their rights under these two Acts. But, if the legislature did this, courts would be faced with the unenviable and possibly unworkable task of determining on a case-by-case basis whether appointed counsel is necessary in termination cases.32 It is not likely that the legislature will pursue this course. Instead, the Illinois Supreme Court will probably have the last word on the issue.
1 750 ILCS 501/1 et seq. (1998).
2 452 U.S. 18 (1981).
3 Id. at 25.
4 Id. at 31.
5 Id. at 32.
6 Id. at 32-33.
7 705 ILCS 405/1-1 et seq. (1998).
8 705 ILCS 405/1-5(1) (1998).
9 705 ILCS 405/2-13 (1998); In re D.S., 307 Ill. App. 3d 249, 255-56 (2nd Dist. 1999), appeal allowed.
10 750 ILCS 50/1 et seq. (1998).
11 750 ILCS 50/13(B)(d), 14, 17 (1998).
12 750 ILCS 50/13(B)(c) (1998).
13 K.L.P., slip op. at 1, 5.
14 Id. at 1-5.
15 168 Ill. App. 3d 329, 333 (1st Dist. 1988).
16 In re Adoption of K.A.S., 499 N.W.2d 558 (N.D. 1993); In re Adoption of Dale A., 683 A.2d 297 (Pa. 1996).
17 K.A.S., 499 N.W.2d at 566.
18 K.L.P., slip op. at 10-11.
19 K.L.P., slip op. at 14.
20 Id. at 16, citing Jacobson v. Dept. Of Public Aid, 171 Ill. 2d 314, 323 (1996).
21 K.L.P., slip op. at 16, citing Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 33 (1996).
22 K.L.P., slip op. at 16.
23 Id. at 16-17, citing K.A.S., 499 N.W.2d at 565.
24 K.L.P., slip op. at 17, citing People v. Shephard, 152 Ill. 2d 489, 500 (1992).
25 K.L.P., slip op. at 17.
26 Id., citing Lassiter, 452 U.S. at 27-28. It is interesting that the Second District cites Lassiter for this proposition when the Supreme Court held in that case that the natural parent’s interest in assuring accurate decisions does not require the appointment of counsel in every instance for parents in termination proceedings. Lassiter, 452 U.S. at 31-32.
27 K.L.P., slip op. at 17, citing Heckler v. Mathews, 456 U.S. 728, 738 (1984).
28 750 ILCS 50/2.1 (1998).
29 K.L.P., slip op. at 18.
31 Id. at 14.
32 Lassiter, 452 U.S. at 31-32.
John Schmidt is a staff attorney with the Office of the State’s Attorneys Appellate Prosecutor in Elgin. He received his J.D. from DePaul University and his B.A. from Knox College. He has served as a law clerk to the Honorable Marvin Dunn, Illinois Appellate Court, Second District, as a staff attorney for the Illinois Appellate Court, Second District, and as an Assistant Attorney General.