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In Re Harrison

OPINION FILED DECEMBER 15, 1983.

IN RE TY STYK HARRISON, A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

BEVERLY HARRISON, RESPONDENT-APPELLEE). — IN RE A.B. HARRISON, A/K/A BILLY HARRISON, A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

BEVERLY HARRISON, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Ford County; the Hon. William M. Roberts, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents a novel question which has not been entirely answered in this State so far as we know: does a natural parent have the right to counsel on appeal when his parental rights have been adjudicated in a case involving their termination?

Both minors had been adjudicated neglected and dependent, Billy by the circuit court of Iroquois County, and Ty Styk by the circuit court of Ford County. In each case the Guardianship Administrator of the Department of Children and Family Services of the State of Illinois was appointed guardian of the minors with power to place them in foster care. Ultimately Billy's case was transferred to Ford County and the State's Attorney there filed petitions in each case seeking to terminate parental rights and to empower the Guardianship Administrator to consent to adoption. The cases were consolidated for hearing, and the trial court appointed Mr. Paul R. Wilson, Jr., as counsel for the mother, Beverly Harrison. The natural fathers of the minors did not appear at any stage of any of the proceedings and were defaulted.

The trial court held an extensive evidentiary hearing on the petitions and denied the prayers thereof. The State then appealed. Mr. Wilson filed a motion in the trial court seeking to be appointed counsel on appeal. That motion was denied there. He then filed a similar motion in this court.

Because of the gravity and novelty of the question, we took the motion with the case and ordered the parties to brief it, to argue the motion first, and in the event of its allowance, to be prepared to go forward immediately with argument on the merits. This was done; we now allow the motion and appoint Mr. Wilson as counsel for Beverly Harrison on appeal; and we affirm the order of the trial court.

Respondent has argued that she is entitled to counsel on appeal under both the Constitution of the United States and the Constitution of Illinois of 1970 as a matter of due process and equal protection. She also argues statutory grounds.

A Federal case, extensively cited by both parties (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L.Ed.2d 640, 101 S.Ct. 2153), dealt with the question of counsel on the trial level. In that case the minor had been adjudicated neglected and custody was awarded to the Department of Social Services. The mother was afterwards convicted of a homicide and sentenced to a term of 25 to 40 years' imprisonment. The Department then petitioned to terminate parental rights. The mother was served but took no action in connection with the case, although she had retained counsel to overturn her criminal conviction. The trial court refused to appoint counsel for her in the termination proceeding, finding that there was no averment that she was indigent, that she had had ample time to secure a lawyer, and that her failure to do so was without just cause.

The Supreme Court held that due process did not require the appointment of trial counsel in every instance. It noted that the petition to terminate contained no allegation of neglect or abuse upon which criminal charges might be based. No expert witnesses were called to testify, and the case was relatively uncomplicated. The evidence strongly favored the termination and the presence of counsel could not have made a determinative difference. Under these circumstances the court held that it was not error to refuse to appoint counsel.

However, the court did not entirely foreclose the possibility of appointment of counsel on due process grounds, but rather left the matter to be determined by the States on a case-by-case basis.

• 1 Respondent argues, and we agree, that the instant case is factually inapposite to Lassiter. Respondent presented a vigorous defense and prevailed in the trial court. She then further argues that by virtue of the State appeal, she has as much at stake in this court as she did in the trial court, and therefore due process requires the appointment of counsel. The argument is attractive, but since Lassiter was concerned only with trial counsel, we feel it would be presumptuous of us to expand its scope to appeal counsel, especially since such an amorphous concept as due process is involved.

A number of our sister States have considered the matter and have held on due process and equal protection grounds that there is a constitutional right to counsel and a record for appeal in a termination of parental rights case. See, e.g., State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66; Reist v. Bay County Circuit Judge (1976), 396 Mich. 326, 241 N.W.2d 55; In re Brehm (1979), 3 Kan. App. 2d 325, 594 P.2d 269.

The State, in this appeal, relies on two of our supreme court's decisions. However, they too, like Lassiter, deal with the question of counsel at the trial level.

In re Adoption of Hoffman (1975), 61 Ill.2d 569, 338 N.E.2d 862, was concerned with the presence of counsel at the time of execution of adoption consents. The supreme court held that there was no constitutional right to counsel at that stage, especially since the statute required that the consent be executed before a judge.

People v. Lackey (1980), 79 Ill.2d 466, 405 N.E.2d 748, was a per curiam supervisory order dealing with a conflict of counsel at the trial level. In that case the court did say, "Unlike most criminal cases, there is no constitutional right to counsel in this case." (79 Ill.2d 466, 468, 405 N.E.2d 748, 749.) Hoffman was cited as authority for this proposition. However, in the next sentence the Lackey court went on to say, "There is, however, express provision for the appointment of `the Public Defender or such other counsel as the case ...


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