Opinion
No. 3-03-0762
January 19, 2005. Opinion Withdrawn January 24, 2005.
Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois, No. 03-JA-4, Honorable Patricia A. Walton and Honorable Steven R. Bordner, Judges, Presiding.
This is an appeal from the trial court's termination of Stacey's paternal rights under the Adoption Act ( 750 ILCS 50/1 et seq. (West 2000)) and the court's denial of indigent Stacey's request for a court-appointed attorney.
BACKGROUND
Twila and Stacey had a daughter named Alyssa Jo on November 16, 1994. At the time the baby was born, Twila was 15 years old and Stacey was 21 years old. Twila and Stacey were never married. On November 2, 1998, Stacey was convicted of first degree murder of Cameron G., Stacey's stepfather. Stacey was sentenced to 20 years in prison. Twila later married Jeffrey.
On December 3, 2002, Twila and her husband Jeffrey filed an adoption petition alleging that Stacey was an unfit parent under the Adoption Act and that his parental rights should be terminated. Stacey filed a reply to the petition, a motion for appointment of counsel and leave to proceed as a poor person. The court held a hearing in Stacey's presence on Stacey's motions and entered an order denying Stacey's request for appointment of counsel. Stacey proceeded pro se and the court conducted evidentiary hearings with Stacey present on the question of unfitness. On June 17, 2003, an order was entered by the court finding Stacey depraved and unfit as a result of the statutory presumption arising from the first degree murder conviction and his failure to rebut the presumption. On July 14, 2003, Stacey filed a motion to reconsider the decision and made a renewed request for appointment of counsel. On July 16, 2003, the trial court filed and entered a judgment of adoption. On August 4, 2003, Twila and Jeffrey filed a reply to Stacey's motion to reconsider, and on August 8, 2003, Stacey filed a notice of appeal, which was later struck by this court on its own motion. Stacey also filed a notice of hearing on his motion to reconsider. On August 22, 2003, a certificate of adoption was issued by the circuit clerk. On September 11, 2003, the court conducted a hearing on Stacey's motion to reconsider and denied it, finding sufficient evidence to support the court's termination of parental rights.
There are two issues raised in this appeal. The first is whether the court's denial of Stacey's request for a court-appointed attorney was erroneous because it violated his due process and equal protection rights. The second issue is whether the court's decision to terminate Stacey's parental rights is erroneous.
STANDARD OF REVIEW
The standard of review on the issue of whether the court's denial of Stacey's request for court-appointed counsel violates his due process and equal protection rights is de novo. In re M.H., 196 Ill. 2d 356, 751 N.E.2d 1134 (2001). The court reviews a trial court's determination of unfitness and the decision to terminate parental rights under a manifest weight of the evidence standard. In re Brown, 86 Ill. 2d 147, 427 N.E.2d 84 (1981).
ANALYSIS I. Denial of Request for Court-Appointed Attorney
Stacey argues that the court's denial of his request for a court-appointed attorney violated both his due process and equal protection rights under the fourteenth amendment of the United States Constitution. U.S. Const., amend. XIV.
Under the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 2000)), indigent parties who are alleged to be unfit as parents and whose parental rights are being sought to be terminated have a right to court-appointed counsel. 705 ILCS 405/1-5(1) (West 2000). There is no such provision under the Adoption Act ( 750 ILCS 50/1 (West 2000)), except when the indigent parent is alleged to be unfit because of a mental impairment. 750 ILCS 50/13(B)(c) (West 2000). The Adoption Act provides that "[t]his Act shall be construed in concert with the Juvenile Court Act." 750 ILCS 50/2.1 (West 2000). Stacey argues that the State's failure to include a provision providing a right to counsel for indigent parents facing termination of their parental rights in the Adoption Act violates both due process and equal protection guarantees under the fourteenth amendment of the United States Constitution. U.S. Const., amend. XIV.
A. Due Process
The due process clause only protects individuals against state action. Shelly v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 2d 1161, 1180, 68 S. Ct. 836, 842 (1948). Even where the State seeks to terminate parental rights of indigent parents, there is no automatic constitutional right to appointed counsel. Lassiter v. Department of Social Services, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981). Twila and Jeffrey argue that there is no state action here and therefore no due process violation. Stacey, on the other hand, argues that there is state action because the State set up the statutory scheme for the adoption procedures and there would be no adoption without the court or laws.
In order to determine whether there has been state action, the court must decide whether the State is significantly involved in action which induced the complaint. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). Although there is some precedent for viewing the utilization of the judicial process by a private party to affect the constitutional rights of another as "state action" (see Shelly v. Kraemer, 334 U.S. 1, 92 L. Ed 2d 1161, 68 S. Ct. 836 (1948); Reitman v. Mulkey, 387 U.S. 369, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967)), the Illinois Supreme Court has been reluctant to find state action on that basis. See, e.g., People v. Brown, 169 Ill. 2d 94, 660 N.E.2d 64 (1995); People v. DiGuida, 152 Ill. 2d 104, 604 N.E.2d 336 (1992).
In Rosewell v. Hanrahan, 168 Ill. App. 3d 329, 523 N.E.2d 10 (1988), the appellate court found that a case brought by a private party under the Adoption Act does not involve state action. Rosewell v. Hanrahan, 168 Ill. App. 3d at 332, 523 N.E.2d at 10. We agree.
In In re Adoption of K.L.P., 198 Ill. 2d 448, 763 N.E.2d 741 (2002), the Illinois Supreme Court found that an indigent mother whose parental rights were terminated in an adoption case which the State initiated under the Juvenile Court Act had a constitutionally mandated right to court-appointed counsel on appeal. The court found that because the State filed the initial petition under the Juvenile Court Act seeking adjudication of the minor children as neglected, there was significant state action. In re Adoption of K.L.P., 198 Ill. 2d at 463-66, 763 N.E.2d at 750-51. While refusing to decide whether every case brought under the Adoption Act implicates state action, the supreme court noted that the facts in K.L.P. were clearly distinguishable from Rosewell. In re Adoption of K.L.P., 198 Ill. 2d at 465-66, 763 N.E.2d at 751.
As in Rosewell, the present case involves a purely private adoption, not one initiated under the Juvenile Court Act. We find that this proceeding, initiated by private parties pursuant to the Adoption Act, does not involve state action. Accordingly, denial of court-appointed counsel did not implicate due process rights.
In light of our holding, we think it worth noting that an indigent parent in a termination proceeding brought under the Juvenile Court Act is entitled to court-appointed counsel, not because the due process clause of the Illinois or United States Constitution mandates it, but because the legislature has chosen to guarantee the assistance of counsel to indigent parents rather than requiring courts to engage in a case-by-case determination. In re Adoption of K.L.P., 198 Ill. 2d at 461, 763 N.E.2d at 749.
B. Equal Protection
Equal protection analysis is identical under the United States and Illinois Constitutions. Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 322, 664 N.E.2d 1024, 1028 (1996). The essential test of equal protection is whether government deals with similarly situated individuals in a similar manner. Jacobson v. Department of Public Aid, 171 Ill. 2d at 322, 664 N.E.2d at 1024. In reviewing a claim that the guarantee of equal protection has been violated, the court applies strict scrutiny to classifications of individuals that affect fundamental rights. Jacobson, 171 Ill. 2d at 323, 664 N.E.2d at 1024. A parent's interest in maintaining a parental relationship with his child is clearly a fundamental liberty interest protected by the equal protection provisions of both the state and federal constitutions. Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982); In re Adoption of K.L.P., 198 Ill. 2d 448, 466-67, 763 N.E.2d 741, 752 (2002); In re R.C., 195 Ill. 2d 291, 303-04, 745 N.E.2d 1233, 1240 (2001).
Stacey claims that there is no compelling government interest to treat the parents facing termination under the Juvenile Court Act differently from parents facing termination of their rights under the Adoption Act. Twila and Jeffrey argue, inter alia, that parents facing termination of parental rights under the Adoption Act are not similarly situated with those facing termination under the Juvenile Court Act because, unlike those resisting a private adoption, parents facing termination under the Juvenile Court Act are up against the State and all its resources.
We agree. Parents facing termination under the Juvenile Court Act are facing the weight and unlimited resources of the State. These resources include: trained and experienced attorneys in juvenile law; social workers who observe, investigate and report on the activities of the parents; the assistance of local and state police officers to investigate any potential witnesses and to gather evidence; resources to retain expert witnesses including medical doctors and psychiatrists to testify at trial; and the ability to file criminal charges against a parent arising out of any investigation of the neglect or abuse allegations. A private party seeking to terminate parental rights under the Adoption Act presumably does not have the unlimited resources of the State.
Because we find that parents facing termination of their parental rights under the Adoption Act are not similarly situated to those facing termination of their parental rights under the Juvenile Court Act, we find no equal protection violation here.
Having found no constitutional requirement for the State to require appointment of counsel to indigent parents, we do not believe that it is our role to create a right to counsel for indigent parents facing termination under the Adoption Act. The issue of whether an indigent parent facing termination under the Adoption Act has a right to counsel should be left to the legislature. See In re Adoption of K.L.P., 198 Ill. 2d 448, 469, 763 N.E.2d 741, 753 (2002).
II. Unfitness
Stacey claims that the trial court's finding of unfitness is against the manifest weight of the evidence. Under the Adoption Act, depravity is a ground for the court to find a parent unfit to have a child. 750 ILCS 50/1(D)(i) (West 2000). Depravity is defined as an inherent deficiency of moral sense and rectitude. In re Abdullah, 85 Ill. 2d 300, 305, 423 N.E.2d 915, 917 (1981). The Adoption Act creates a rebuttable presumption that a parent who has been convicted of first degree murder within 10 years of the filing of a petition to terminate parental rights is depraved for purposes of an unfitness determination. 750 ILCS 50/1(D)(i) (West 2000). This presumption may only be overcome by clear and convincing evidence. 750 ILCS 50/1(D)(i) (West 2000).
In our view, there is ample evidence in the record to support the trial court's finding that Stacey is unfit as defined in the Adoption Act. Although Twila testified that immediately after the baby was born, Stacey was a good father and would care for the baby while Twila attended school, she stated that by the time the child was 2½, Stacey spent most of his time drinking and "junking." Stacey stayed out late and came home intoxicated. In 1997, he was arrested for driving under the influence. Twila testified that she had to borrow money from her family to buy baby food while Stacey spent his money on beer. It is true that witnesses and Stacey testified that he genuinely cared for and was loving to his child. There is also evidence that during his incarceration, Stacey has taken classes, achieved a good work record, has no disciplinary complaints or problems, has a good housekeeping record, has maintained regular contact with his family and has been respectful to the correctional staff. There is also evidence that Stacey tried to increase the contact with his daughter while he was in custody and that he had ongoing contact and visitation with her until Twila and Jeffrey intervened and terminated these contacts. There is evidence that Stacey had offered to financially contribute to the care of his daughter while he was in custody but it was denied by Jeffery.
Nonetheless, Stacey was convicted of the first degree murder of his stepfather, a person he routinely called "Dad." As part of a premeditated plan, Stacey lured his stepfather away from his home by telling him that he had vehicle problems. The stepfather came out to help Stacey and was then shot to death by Stacey's accomplices. The trial court's finding that Stacey failed to rebut the presumption of depravity, arising from his participation in the premeditated murder of his stepfather, was not against the manifest weight of the evidence.
III. Termination of Parental Rights
Stacey claims that the trial court's decision to terminate his parental rights is against the manifest weight of the evidence because the trial court failed to consider the best interests of the child when it made its decision to terminate Stacey's parental rights. Stacey relies on this court's decision in In re B.C., 247 Ill. App. 3d 803, 617 N.E.2d 1207 (1993), reversing the trial court's decision to terminate a mother's parental rights after she was found to be depraved and unfit because there was no showing by clear and convincing evidence that the termination was in the child's best interests. Stacey claims that there is nothing in the record indicating that the trial court considered the best interests of the child, nor was there any finding that it was in the best interests of the child to terminate Stacey's parental rights. We disagree. In paragraph 10, page 2, of the judgment for adoption, which was entered on July 16, 2003, the court specifically found "that it is in the best interests of the minor child that she be adopted." In the order that was entered by the trial court on September 11, 2003, the court also makes a specific finding in paragraph 3, "that the court further finds that there is sufficient evidence presented to this court to support the termination of parental rights and that such evidence establishes a connection between the respondent's conduct and the best interests of the minor child." Thus, in our opinion, the trial court did make specific findings regarding the best interests of the minor child. However, our analysis does not stop here.
The trial court erred when it failed to conduct a separate best interests hearing during the proceeding. The Illinois Supreme Court has clearly stated that when a court is ruling on parental unfitness, it should not consider the child's best interests. In re Adoption of Syck, 138 Ill. 2d 255, 276, 562 N.E.2d 174, 183 (1990). Only after a parent is found to be unfit does a circuit court proceed to consider the child's best interests. In re Adoption of Syck, 138 Ill. 2d at 277, 562 N.E.2d at 184. A separate hearing on and determination of the child's best interests is mandatory. In re D.M., 336 Ill. App. 3d 766, 772, 784 N.E.2d 304, 309 (2002); In re D.R., 307 Ill. App. 3d 478, 484, 718 N.E.2d 664, 668 (1999); In re A.P., 277 Ill. App. 3d 592, 600, 660 N.E.2d 1006, 1012 (1996). Although proof by clear and convincing evidence of one statutory factor of unfitness is sufficient to warrant a parental rights' termination hearing, the circuit court cannot rely solely on fitness findings to terminate parental rights. In re D.M., 336 Ill. App. 3d at 772, 784 N.E.2d at 309; In re B.C., 247 Ill. App. 3d at 807, 617 N.E.2d at 1210. The court is required to consider factually based statutory factors, separate from those considered in parental fitness hearings which focus upon the best interests of the child. 705 ILCS 405/1-3(4.05) (West 2000).
The record reflects that the two hearings that were held were both titled "hearing on parental fitness." During each hearing, the trial court and attorneys made clear that the hearings were set for the narrow purpose of dealing with the presumption of depravity and the rebuttal of that presumption. The only issue discussed during these hearings was depravity and unfitness. There was no separate hearing held on the best interests of the child. Therefore, we reverse and remand this cause for a best interest hearing.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Knox County is affirmed in part and reversed in part and this cause is remanded.
Affirmed in part and reversed in part; cause remanded.
SLATER, P.J., concurs.
McDADE, J., concurs in part and dissents in part.
The majority has determined that respondent Stacey L.B. was not entitled to court-appointed counsel by constitutional considerations of either due process or equal protection, and has also found that the finding of unfitness was warranted by the manifest weight of the evidence presented at hearing. The decision reverses the termination of the father's parental rights and remands the matter for a proper best interest hearing. Because I would find that respondent has a constitutionally-based right to counsel for all of these proceedings, I would reverse the circuit court's decision to the contrary and would not reach the issues of fitness and best interests because they were arrived at after respondent was refused court-appointed counsel.
Accordingly, I dissent from every finding in the majority opinion save reversal of the termination of rights and the remand for an additional hearing. A proper hearing in this case is, in my opinion, one in which respondent will be represented by court-appointed counsel and which fully addresses both fitness and best interest.
STATE ACTION
The concept of state action states a prerequisite to our analysis of respondent's constitutional challenge whether we focus on due process or equal protection. The constitution serves as a check not on the actions of individuals, but on the activities of the federal government and, by application of the fourteenth amendment, of the states. The due process clause only shields individuals aggrieved by state action. Similarly, equal protection is a requirement imposed on governmental entities, not on private persons.
Distilled to its essence, state action is something that is actually done by the state or that can be fairly attributed to it because (1) the state and the private party or entity maintain an essentially symbiotic relationship, e.g. Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); (2) the state requires, encourages, or is otherwise significantly involved in conduct that would otherwise be private, e.g. Lombard v. Louisiana, 373 U.S. 267, 10 L. Ed. 2d 338, 83 S. Ct. 1122 (1963); and/or (3) the private person is performing a function traditionally reserved to the state. Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946). In addition, there must be a nexus or link between the challenged conduct and the state. Thus, where a statute gives a private person a choice of ways in which to act, not all of which are linked to the state, the conduct of that person does not automatically become the action of the state. See, e.g. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1961).
In the present case, respondent Stacey L.B. asked for leave to proceed in forma pauperis and to have appointed counsel to represent him in resisting the termination of his parental rights necessary to complete the adoption of his daughter, Alyssa Jo, by her mother and the mother's new husband. The court denied the motion for appointment of counsel and respondent participated pro se in the evidentiary hearings on the question of his fitness. He was found to be unfit and filed a timely motion for reconsideration and renewed his request for appointed counsel. Two days later, the court entered a judgment of adoption. Respondent filed a notice of appeal that was stricken by this court as untimely. His notice of hearing on the motion for reconsideration was filed in the trial court, but before hearing argument on the motion, the court issued a certificate of adoption. Thereafter, the court held a hearing on the motion to reconsider and denied it. Respondent filed a new notice of appeal and this court, cognizant of the significance of the issue it raised, appointed counsel to represent him.
Respondent argues on appeal that the denial of appointed counsel violated the due process and equal protection rights guaranteed him by the fourteenth amendment to the United States Constitution. He contends that indigent respondents whose parental rights are sought to be terminated under the Juvenile Court Act (705 ILCS 405/1 et seq. (West 2000)) have a statutory right to appointed counsel, but some indigent respondents subject to the same deprivation under the Adoption Act ( 750 ILCS 50/1 (West 2000)) have no similar right to legal representation.
I believe that the statutorily-required termination of the parental rights of the biological parent in order to proceed with a private adoption does constitute state action, and is, therefore, subject to analysis for constitutional compliance. Moreover, the state action can be found without reliance on the simple fact that the private parties are using the judicial process to effect the termination of respondent's fundamental right, as was done in Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 2d 1161, 68 S. Ct. 36 (1948).
This is not the first time that the Illinois appellate court has considered the question of whether the termination of parental rights in an action brought by private parties pursuant to the Adoption Act is state action. In 1988, the First Fistrict decided, in Rosewell v. Hanrahan, 168 Ill. App. 3d 329, 523 N.E.2d 10 (1988), that such a case did not involve state action. In 2000, the Second District held that such a case did involve state action, finding that the process was attributable to the state "[g]iven the nature of adoption and the fact that resort to the statutory scheme and the judicial process is necessary for its accomplishment." In re Adoption of K.L.P., 316 Ill. App. 3d 110, 119, 735 N.E.2d 1071, 1078 (2000).
The decision in K.L.P. was appealed to the Illinois Supreme Court, which held that, because there was significant state action in the Juvenile Court Act proceeding that divested the natural parent of custody or guardianship, equal protection required that the indigent parent be provided assistance of counsel in a subsequent action to terminate her parental rights regardless of whether the latter action is state-initiated pursuant to the Juvenile Court Act or a private proceeding under the Adoption Act. In re Adoption of K.L.P., 198 Ill. 2d 448, 469, 763 N.E.2d 741, 753 (2002). Having so decided, the court found it unnecessary to reach the issue that had been addressed by the appellate court and is presented in the case we are currently considering, saying:
"We need not decide the equal protection issue in the case that arises between private individuals and is litigated entirely under the Adoption Act. That question is best left to the legislature or to be fully briefed and argued by the parties when and if such a case arises. The appellate court's conclusion that the Adoption Act creates a constitutionally underinclusive scheme and must be construed to require the assistance of counsel in all cases is, if not in error, at least premature." K.L.P., 198 Ill. 2d at 469, 763 N.E.2d at 753.
Significantly, the court did not repudiate the appellate court's reasoning — it merely found a different way to analyze the issue as presented. We have the case the supreme court did not have.
In my opinion, the appellate court's conclusion in K.L.P. that there was state action under the Adoption Act was correct. Not only did the state set up the statutory scheme for completing private adoptions, it required actual termination of the parental rights of the non-custodial parent as a prerequisite to the completion of the adoption. Termination of parental rights is a function which has otherwise been reserved to the State. (And, indeed, under the Adoption Act, the State, in the person of the judge, actually orders the termination.) The state also created a presumption of unfitness that had, in this case, to be rebutted by the respondent to have any chance of retaining his parental rights. Even without any consideration of the fact that the proceedings must be overseen and ultimately decided by a state court, the State of Illinois has significant involvement and influence in the development, regulation, and litigation of the private adoption process. Sufficient, I believe, to find state action.
Because termination of parental rights is a function reserved to the state, the state is significantly involved and influential in the development and maintenance of adoption proceedings, and there is a clear nexus between the development of the adoption scheme and respondent's denial of appointed counsel; there is state action. It is, therefore, appropriate to consider respondent's due process and equal protection claims. For the reasons that follow, I would find that court-appointed counsel should be provided for respondent under both clauses of the fourteenth amendment.
Due Process
The constitutional requirements of due process are notice and an opportunity to be heard. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed.2d 62, 85 S. Ct. 1187 (1965). The nature and extent of the requisite "hearing" will vary depending on the nature of the interest that is at stake. Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72, 95 L. Ed 817, 71 S. Ct. 624 (1951) (Frankfurter, J., concurring). The sufficiency of procedural safeguards accompanying deprivations caused by the state is tested by three factors developed by the United States Supreme Court in Mathews. Those factors are: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure and the probable value of additional or substitute procedural safeguards; and (3) the countervailing governmental interest supporting use of the challenged procedure.
Where the specific due process violation alleged is the deprivation of legal counsel, it is clear that a party whose personal liberty is put at risk or in jeopardy as a result of the proceeding is entitled to counsel and, if he/she cannot afford an attorney, one must be appointed by the court. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). However, where, as here, a right is implicated that is fundamental but does not involve the party's life or personal liberty, an indigent party does not have an automatic constitutional right to court-appointed counsel. Lassiter v. Department of Social Services, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981). For purposes of determining whether there has been a due process violation in this case, we look to the analysis undertaken by the United States Supreme Court in and suggested for use on a case-by-case basis by Lassiter. Lassiter considered whether the due process clause of the fourteenth amendment requires that counsel be appointed for indigent parents in all parental-rights termination proceedings. The Supreme Court said appointment of counsel is not necessary in all cases but it is required in some instances depending on the specific facts. The facts are to be tested against the factors set forth in Mathews. These factors were used by our supreme court in K.L.P., 198 Ill. 2d at 469, 763 N.E.2d at 753, and our court has held that these factors are to be used to determine whether there has been a due process violation. In re C.J., 272 Ill. App. 3d 461, 650 N.E.2d 290 (1995).
Looking at the first factor, the private interest of respondent in this case is not just important; parental rights are recognized as fundamental. "A parent's desire for and right to `the companionship, care, custody, and management of his or her children' is an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.'" Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 649-50, 101 S. Ct. At 2159-60, quoting Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). If the judgment of the trial court is affirmed, he will have lost all rights to maintain and nurture a meaningful relationship with his child. Because of the extreme importance of the right itself, it is entitled to a significant degree of protection.
We next consider the risk of error, which I would describe as the risk that respondent will not be able to effectively represent his fundamental interest and achieve fair representation of his side of the case. Appellate counsel has pointed to the record to show that respondent was "lost" in the proceedings, that he was "legally disabled," had suffered for 10 years with Attention Deficit Disorder, was on social security disability, was described by witnesses as "slow," and was unsophisticated and unprepared to protect and defend his right to parent Alyssa. There was also in this case a significant legal wrinkle in the form of a legal, but rebuttable, presumption, created by the State, that respondent was depraved and, therefore, unfit to pursue a relationship with his daughter. Although the court does not appear to have made specific inquiry as to his basic ability to represent himself, it is eminently reasonable to conclude that a person who is "slow" and "legally disabled" would be unable to understand and effectively challenge the correctness of that presumption. Here the respondent appeared at the hearing and made a creditable effort to avoid termination of his rights; I do not believe we can be reasonably confident that representation by a trained advocate could not have yielded a different result.
Finally, the governmental interest in opposing the appointment of counsel (which is relevant because the State's enactment of and involvement in the adoption scheme constitutes state action) is financial and of considerably less importance that respondent's fundamental parental right. There is already a system in place for appointed counsel in Juvenile Court Act terminations and in terminations under the Adoption Act where the indigent respondent is alleged to be unfit because of a mental impairment. There is an existing body of legal counsel trained and prepared who could easily provide counsel to other indigent respondents challenging termination of their rights in the face of adoption proceedings.
In my opinion, the refusal to appoint counsel in this case violated respondent's right to due process under the fourteenth amendment to the federal constitution. The order terminating his parental rights should be reversed and the matter remanded for a hearing in which respondent is represented by counsel.
Equal Protection
Appointment of counsel for the indigent respondent in this case was also required by the equal protection clause of the fourteenth amendment. I would respectfully suggest that the majority has, at the invitation of petitioners, misdirected its focus in assessing whether persons facing termination of parental rights under the Adoption Act are similarly situated with those facing the same deprivation under the Juvenile Court Act. I believe the proper inquiry is whether respondents in both proceedings are facing the same state-mandated loss of a fundamental right with the same results and ramifications and I believe the answer to the question is clearly "yes."
Under the Juvenile Court Act, the rights of the parent are subject to termination if the child has been abused or neglected and the court determines that it is in the best interest of the child that parental rights be terminated. The child is then available for placement in a safe home. Under the Adoption Act, the rights of the parent are subject to termination if he or she has abused or neglected the child and the court determines that it is in the best interest of the child that parental rights be terminated. In the first instance, the proceeding is initiated by the State; in the second, by private parties who want to adopt the child.
In both situations, the State has required that there be a judicial termination of parental rights on the same showing of deficiency before a child can be placed in a new home. The State has established the procedures to be followed and the nature of the proof that must be presented to justify the termination. Of further significance in this case, the State has created a presumption of depravity which respondent must successfully rebut in order to repel the challenge to his fitness. Despite this looming presence of the State in the courtroom, the petitioners urge, and the majority agrees, that the weight and unlimited resources of the State are not marshaled against the respondent in the Adoption Act proceeding and, therefore, he is not similarly situated to a respondent in the State-initiated process.
One cannot deny that the State has "trained and experienced attorneys in juvenile law; social workers who observe, investigate and report on the activities of the parents; the assistance of local and state police officers to investigate any potential witnesses and to gather evidence; resources to retain expert witnesses including medical doctors and psychiatrists to testify at trial; and the ability to file criminal charges against a parent arising out of any investigation of the neglect or abuse allegations," as the majority has observed. Private parties seeking to adopt may have, not the same but certainly similar resources: trained and experienced attorneys in juvenile law; professional counselors who can be hired to observe, investigate and report on the activities of the parents; trained detectives who can be employed to investigate any potential witnesses and to gather evidence; resources to retain expert witnesses including medical doctors and psychiatrists to testify at trial; and the ability to make criminal complaints leading to charges against a parent arising out of any investigation of the neglect or abuse allegations. An indigent respondent facing termination of his rights without legal assistance stands just as naked before the court whether his adversary is the state with its resources or private parties with theirs.
There is another equal protection consideration that the majority does not address. Even in adoption proceedings, an indigent respondent is entitled to court-appointed counsel if it has been alleged that he or she suffers from a mental impairment. In the present case, respondent has been shown to be unsophisticated and unprepared. Of perhaps more significance, he was described as "slow" and "legally disabled." He also asserts that he suffers from Attention Deficit Disorder and receives benefits for a social security disability. It appears that respondent is every bit as ill-equipped to protect and vindicate his fundamental parental rights as the person who is entitled to counsel under the Act. I believe there was an equal protection violation and that the order of the court must be reversed on that basis.
Finally, Lassiter seems to require that, where fundamental constitutional rights are at risk, the court undertake some assessment of whether the respondent needs counsel to protect those rights. It does not appear that basic questions about his education and ability were asked or that such an analysis was done. I believe remand is also required for this reason.
In conclusion, I believe that both due process and equal protection mandated the court's appointment of counsel for the indigent respondent in this case and that the matter must be remanded for a proper hearing with respondent appropriately represented. I dissent from the majority's decision to the contrary. I concur with the remand for an additional hearing (but I would not limit the hearing to a consideration of best interests) and I also concur with the vacation of the order and certificate of adoption pending the outcome of that hearing.