Right to counsel

The Illinois Supreme Court found a right to counsel in adoption cases under the equal protection clause of the U.S. Constitution. In re Adoption of L.T.M. v. John M., 824 N.E.2d 221 (Ill. 2005).

The initial issue before the L.T.M. court was whether the trial court’s order, which required the county to pay for father’s attorney’s reasonable fees and costs, violated the separation of powers principles of state constitution. The L.T.M. court reasoned that imposing such a financial obligation on the county would not be a violation of the separation of powers doctrine if appointment of counsel for the father was “constitutionally mandated.”

Accordingly, the court considered whether the father was entitled to appointed counsel on appeal under both the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. Id. at 229.  First, the court observed that it had previously held in In re Adoption of K.L.P. v. R.P., 763 N.E.2d 741 (Ill. 2002) that “If a parent has the right to appointed counsel at all, he has it in his appeal as of right.” L.T.M., 824 N.E.2d at 229.  The court therefore determined that it had to decide whether the father had a right to counsel “at all”, i.e., at trial.  It then held that a parent whose parental rights are terminated under an Adoption Act proceeding is similarly situated to parents whose rights are terminated under Juvenile Court Act proceedings. Id. at 231 (“a parent who stands to lose his rights under the Adoption Act if he is found unfit is in a very similar situation to a parent who stands to lose the very same constitutional right, based on the very same finding, in proceedings under the Juvenile Court Act.”).  The court concluded that the state did not have a compelling interest in allowing for appointed counsel under one act but not the other, given that both acts implicated the fundamental right of a parent’s right to his child. Id.

L.T.M. also addressed whether there is sufficient “state action” in an adoption to trigger constitutional protection, given that the state is not a direct party to the action.  The L.T.M. decision noted that while claims under the Adoption Act are brought by private litigants, “John’s equal protection claim challenges the way the Juvenile Court Act and the Adoption Act distribute the benefit of appointed counsel.  John alleges the statutes denied him equal protection of the laws, not that Jo Ellen and Randall did so.  The question whether Jo Ellen and Randall are state actors therefore does not arise.” Id. at 230.  In other words, the equal protection challenge in particular was to the legislature, and “[e]nactment of a statute is obviously state action, regardless of whether the state is responsible for a particular private litigant who relies on a statute.” Id.

The court also held that the father in question was entitled to appointed counsel for his discretionary appeal to the Supreme Court of Illinois based on the unusual procedural development of the case.  The court observed that the father was denied counsel during his by-right appeal, and after his appeal to the Supreme Court of Illinois was granted, he asked for appointed counsel again.  The court stated, “In view of these unusual circumstances, we hold that if John had a constitutional right to appointed counsel in the appellate court then after he obtained discretionary review in this court due process required that the right denied in the appellate court be honored in this court.” (emphasis in original).