Right to counsel for certain parents

The Illinois Adoption Act requires that, “[i]n all cases except standby adoptions and re-adoptions”, and where “the petition alleges a person to be unfit pursuant to the provisions of subparagraph (p) of paragraph D of Section 1 of this Act, such person shall be represented by counsel.” 750 Ill. Comp. Stat. Ann. 50/13(B)(c).  The court shall appoint counsel for them “[i]f such person is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing[.]” Id.

Paragraph D of Section 1 of the Act provides various definitions of what constitutes an “Unfit person”, with subparagraph (p) providing the following specific grounds based upon a mental health-related disability:

Inability to discharge parental responsibilities supported by competent evidence from a psychiatrist, licensed clinical social worker, or clinical psychologist of mental impairment, mental illness or an intellectual disability as defined in Section 1-116 of the Mental Health and Developmental Disabilities Code, or developmental disability as defined in Section 1-106 of that Code, and there is sufficient justification to believe that the inability to discharge parental responsibilities shall extend beyond a reasonable time period. However, this subdivision (p) shall not be construed so as to permit a licensed clinical social worker to conduct any medical diagnosis to determine mental illness or mental impairment.

750 Ill. Comp. Stat. Ann. 50/1(D)(p) [internal footnotes omitted].  Though this statutory right to counsel is limited to parents against whom adoption is sought based upon the parent’s alleged inability to care for their child due to a mental health-related disability, the Illinois Supreme Court held in In re Adoption of L.T.M. v. John M., that parents in adoption cases have the right to counsel under the equal protection clause of the U.S. Constitution. 824 N.E.2d 221 (Ill. 2005); see also Litigation, Termination of Parental Rights (Private) – Birth Parents.