The opinion of the court was delivered by: Justice Thomas
Appeal from the Circuit Court Kendall County. Honorable Thomas E. Hogan, Judge, Presiding. Appeal from the Circuit Court of Kendall County. Honorable Thomas E. Hogan, Judge, Presiding.
On April 6, 1999, the petitioners, R.R.E. and T.M.D., filed petitions in the circuit court of Kendall County to adopt K.L.P., who was born on October 31, 1989, and K.M.P., who was born on March 19, 1991. R.R.E. is the biological father of the children, and T.M.D. is R.R.E.'s wife. In their petitions, they alleged that the respondent, R.P., who is the biological mother of the children, was an unfit parent under sections 1(D)(b), (D)(d), (D)(e), (D)(f), (D)(g) and (D)(m) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(d), (D)(e), (D)(f), (D)(g), (D)(m) (West 1998)), and they requested that the trial court terminate the respondent's parental rights. Prior to trial, the respondent informed the court that she could not afford to hire an attorney and requested that the court appoint the public defender to represent her. The trial court denied the request and set the cause for a hearing on the petitions. Following separate hearings on parental unfitness and the best interests of the children, the trial court found the respondent to be an unfit parent and terminated her parental rights. The respondent appeals, contending that her rights to due process and equal protection under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) were violated when she was not afforded the right to counsel during the proceedings to terminate her parental rights.
A court reporter was not present for any of the proceedings in this adoption case, and therefore the record does not contain any report of proceedings. However, the record does contain a certified bystander's report of the proceedings pursuant to Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)). That bystander's report reveals that on June 22, 1999, the respondent appeared pro se before the trial court and informed the court that she could not afford to hire an attorney and requested time to hire counsel, which the trial court allowed. On July 20, 1999, the respondent again told the court that she could not afford to hire an attorney. She stated that she went to several attorneys, including Prairie State Legal Services. She noted that she could not afford to hire any of the attorneys she spoke with and that Prairie State Legal Services had sent her a letter rejecting her as a client. The respondent then asked the court to appoint the public defender to represent her. The trial court refused her request for appointment of counsel and set the case for a trial on the issue of parental unfitness.
The record further reveals that on April 20, 1995, several years prior to the petitions for adoption, the Department of Children and Family Services (the DCFS) took protective custody of K.M.P and then filed petitions for adjudication of wardship, alleging that she was an abused and neglected minor (case Nos. 95--J--29 and 95--J--121). On February 5, 1996, the DCFS took protective custody of K.L.P. and filed a petition for adjudication of wardship alleging that she was a neglected minor (case No. 96--J--4). Prior to the hearings on those petitions, which were brought pursuant to section 2--3 of the Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/2--3 (West 1998)), the respondent was notified of her right to court-appointed counsel at all stages of the proceeding in the event that she was financially unable to employ counsel (see 705 ILCS 405/1--5(1) (West 1998)). The trial court appointed the public defender to represent the respondent in the proceedings under the Juvenile Court Act. The trial court subsequently entered orders adjudicating K.M.P. an abused and neglected minor and adjudicating K.L.P. a neglected minor. The State was granted leave to file a petition to terminate parental rights. However, no such petition was ever filed by the State. The court placed custody of the children with the petitioner father. The trial court thereafter dismissed the cases pending under the Juvenile Court Act.
On April 6, 1999, the petitioners filed their petitions for adoption, alleging that the respondent was an unfit mother and requesting that her parental rights be terminated. On September 28, 1999, the hearing began on the unfitness portion of the case. At that hearing, the petitioners presented the testimony of various social workers, counselors, and DCFS investigators and caseworkers, showing that the respondent had abused the children and had failed to make reasonable progress toward the DCFS client service plan goals and the return home of the children.
After the petitioners rested their case, the mother presented her case but did not call any witnesses. She did testify on her own behalf at the unfitness hearing that she had had a rough start as a mother and had made "mistakes." On cross-examination, she acknowledged that the "mistakes" she had referred to in her testimony were those testified to by the petitioners' witnesses. She also admitted that a third child of hers had been removed from her care by DCFS and had been placed with the respondent's mother.
At the conclusion of the hearing, the trial court found that the respondent was an unfit parent. The cause then proceeded to a best-interest hearing to determine whether the respondent's parental rights should be terminated. Gertrude Kleckner, a licensed clinical social worker, gave testimony on behalf of the petitioners consistent with a letter that she wrote to the court on September 30, 1999. In that letter, Kleckner stated that she had worked with the petitioners and the children for the past year. She noted that the children expressed sadness, anger, fear, hatred, and anxiety when discussing the respondent. She further noted that they did not have a bond with the respondent and did not wish to see or talk to her again. She also noted that the petitioners provided an excellent healing environment for the children and that the children had made much progress since coming to live with the petitioners. She stated, however, that this progress was fragile and could be jeopardized by any forced contact with the respondent. She concluded that it would be in the children's best interest to be adopted by the petitioners.
The petitioners both testified about the significant progress that the children had made since they came to live with the petitioners. Their testimony indicated that, when the children first came to live with them, the children exhibited signs of anxiety, including nightmares, baby talk, and self-injury. They noted the children's regression when the possibility of having to go to court and face the respondent was mentioned. Petitioner T.M.D. described her close relationship with the children and her love for them.
The respondent did not call any witnesses to testify on her behalf at the best interest hearing. Moreover, the respondent herself did not testify at the best-interest hearing.
After hearing all of the evidence, the trial court stated that "the facts were severe enough" to terminate the respondent's parental rights and that termination was "necessary and just." In its written order, the court found that the allegations of the petitions concerning "physical cruelty" and "lack of interest" were proved and that it was in the best interests of the children that the prayers of the petitioners for adoption be granted.
On appeal, the respondent argues that she was denied due process and equal protection under the fourteenth amendment to the United States Constitution when she was not afforded counsel during the proceedings to involuntarily terminate her parental rights. She maintains that due process principles as set forth in Lassiter v. Department of Social Services, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981), required the trial court to appoint her counsel under the facts of the present case. She also contends that her right to equal protection was violated because she was not statutorily entitled to court-appointed counsel in this proceeding filed under the Adoption Act (750 ILCS 50/0.01 et seq. (West 1998)), while the appointment of counsel is statutorily mandated for similarly situated respondents who are facing the termination of parental rights pursuant to the Juvenile Court Act (705 ILCS 405/1--5(1) (West 1998)). We will first address the respondent's due process claim.
In Lassiter, the United States Supreme Court considered whether the due process clause of the fourteenth amendment routinely requires the appointment of counsel for indigent parents in every parental-rights termination proceeding. Lassiter, 452 U.S. at 31, 68 L. Ed. 2d at 652, 101 S. Ct. at 2161-62. The Court noted that an indigent litigant has an automatic right to appointed counsel only when he may be deprived of his physical liberty because it is the defendant's interest in personal freedom that triggers the right to appointed counsel. Lassiter, 452 U.S. at 25, 68 L. Ed. 2d at 648, 101 S. Ct. at 2158. However, the Court continued its analysis, recognizing that "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.'[Citation.]" Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 649-50, 101 S. Ct. at 2159-60. The Court analyzed and weighed the three factors from Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), namely, the private interest at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions, against the presumption that there is no right to appointed counsel when there is no risk of lost liberty. Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 649, 101 S. Ct. at 2159.
The Lassiter Court concluded that a weighing of the Eldridge factors would not always rebut the presumption that the appointment of counsel for indigent parents facing the termination of parental rights was not constitutionally required. The court explained:
"If, in a given case, the parent's interests were at their strongest, the State's interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel. But since the Eldridge factors will not always be so distributed, and since 'due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed,' [citation], neither can we say that the ...