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In re Adoption of K.L.P.

January 25, 2002


The opinion of the court was delivered by: Justice Garman


R.R.E. and his wife, T.M.D., filed a petition in the circuit court of Kendall County seeking to adopt his two daughters from an earlier relationship with R.P. On October 4, 1999, the circuit court of Kendall County terminated the parental rights of R.P., pursuant to section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 1998)). R.P., whose request for court-appointed counsel had been denied by the circuit court, promptly filed notice of appeal. The appellate court, on its own motion, appointed attorney Anna Wilhelmi to represent R.P. on appeal. When Wilhelmi sought payment of interim fees for her services, the appellate court entered an order directing the treasurer of Kendall County to pay her $3,847.55 in reasonable attorney fees although the county had not been a party to the adoption proceeding. The appellate court subsequently granted the county's request to file a special and limited appearance, but denied its motion to vacate the payment order. Following Wilhelmi's filing of a petition for a rule to show cause against the county treasurer for failure to pay the ordered amount, the appellate court, on September 8, 2000, granted a stay so that the county could seek further review of the payment order by this court.

On that same date, the appellate court filed its opinion in the underlying case, in which it held on equal protection grounds that an indigent parent facing involuntary termination of parental rights in a proceeding under the Adoption Act (750 ILCS 50/1 et seq. (West 1998)) is entitled to the same procedural safeguards, including representation by court-appointed counsel, as a similarly situated parent in a proceeding under the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 1998)). 316 Ill. App. 3d 110, 121-22. The appellate court explained its holding by stating:

"Where a statute is defective on equal protection grounds because of a constitutionally underinclusive scheme, a court may extend the coverage of the statute to include those who are aggrieved by the exclusion. [Citation.] We also note that section 2.1 of the Adoption Act provides that the Adoption Act and the Juvenile Court Act should be construed in concert with one another. 750 ILCS 50/2.1 (West 1998). Accordingly, to avoid a constitutional defect, we will construe the Adoption Act as requiring the same procedural safeguards required by the Juvenile Court Act in cases where indigent parents are facing the involuntary termination of their parental rights." 316 Ill. App. 3d at 122.

The appellate court reversed and remanded the matter to the circuit court for a new hearing, at which R.P. would be entitled to court-appointed counsel if she established her indigence. R.R.E. and T.M.D. did not seek leave to appeal that decision to this court.

We granted the county's petition for leave to appeal. 134 Ill. 2d R. 317. The issue presented is whether the appellate court's order that a county treasurer pay the fees of appellate counsel in a case brought by private parties under the Adoption Act violates the constitutional mandate of separation of powers. However, as will be explained below, that question cannot be answered without first addressing the merits of the equal protection analysis engaged in by the appellate court.

The county's separation of powers argument presents a question of law, which we will review de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). The appellate court's conclusion that the Adoption Act must be construed to provide court-appointed counsel to indigent parents "to avoid a constitutional defect" (316 Ill. App. 3d at 122) is also subject to de novo review. We review de novo any decision finding a statute unconstitutional. In re R.C., 195 Ill. 2d 291, 296 (2001). All statutes are presumed to be constitutional and, thus, the party challenging the constitutionality of the statute bears the burden of rebutting this presumption. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351 (1999). We will construe legislative acts so as to affirm their constitutionality if we can reasonably do so. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 163 (1998).


R.P. is the mother of three children. R.R.E. is the father of her two daughters, K.L.P. and K.M.P. Several years prior to the proceedings at issue here, the State removed R.P.'s three children from her custody and placed the girls with their father and his wife, T.M.D. The girls' half-brother was placed in the care of R.P.'s mother.

During these earlier proceedings, the circuit court, pursuant to section 1-5(1) of the Juvenile Court Act (705 ILCS 405/1-5(1) (West 1998)), appointed the public defender to represent R.P., who was unable to employ counsel because she lacked the financial means to do so. On two separate occasions, the court entered orders authorizing the state to file a petition to terminate R.P.'s parental rights. The Kendall County State's Attorney subsequently filed a petition to terminate R.P.'s parental rights to her son. However, no petition was filed regarding the girls. After holding a hearing on the custody, visitation, and guardianship of the two girls, the court entered an order on September 9, 1998, awarding custody and guardianship to their father and step-mother, and referring any motions or requests for visitation to the family court. Further, the court ordered these two cases dismissed and the files terminated.

On April 6, 1999, R.R.E. and T.M.D. filed adoption petitions in the circuit court of Kendall County, pursuant to the Adoption Act (750 ILCS 50/5(C) (West 1998) (petition to adopt a related child)). The petitions alleged that R.P. was an unfit parent under several of the definitions of unfitness contained in the Act (750 ILCS 50/1(D)(b), (D)(d), (D)(e), (D)(f), (D)(g), (D)(m) (West 1998)) and sought termination of her parental rights so that the girls could be adopted by their stepmother.

R.P., who had received the assistance of counsel in the earlier juvenile court proceedings, again requested that the court appoint counsel for her. The court denied her request but gave her additional time to employ counsel. At the next court date, she informed the court that she could not afford to hire an attorney and that she had been rejected as a client by the local legal services agency. The trial court again refused her request to appoint counsel and set the matter for hearing.

R.P. appeared pro se at the fitness hearing. She testified on her own behalf, but did not call any witnesses. The court found her unfit. At the best interests hearing, R.P. neither testified nor called any witnesses. At the conclusion of the hearing and later in its written order, the court stated that the allegations of unfitness had been proved and that it was in the best interests of the children that the petition for adoption be granted.

Following R.P.'s filing of a timely notice of appeal, the appellate court, on its own motion, appointed attorney Anna M. Wilhelmi to represent her. The appellate court denied R.R.E. and T.M.D.'s motion to reconsider this decision.

On the merits, R.P. argued on appeal that the circuit court's refusal to appoint an attorney for her in the adoption proceeding violated the constitutional guarantees of due process and equal protection because she would have been entitled to court-appointed counsel had the proceedings continued under the Juvenile Court Act. The appellate court agreed, holding that to avoid a constitutional defect, the Adoption Act must be construed to require the same procedural safeguards, including the right to counsel, as the Juvenile Court Act. 316 Ill. App. 3d at 122.


A. Procedural Setting

Our task is complicated by the unusual procedural posture of this case. The named parties are the natural mother, on one side, and the natural father and his wife, on the other. The real parties in interest, at least with regard to the issue on appeal, are Wilhelmi, who wishes to be paid for her successful representation of her client, and the county, which disputes its obligation to pay. These two parties, in their briefs and at oral argument, have argued entirely different issues to this court. The county argues that it cannot be compelled to pay Wilhelmi's fees because the payment order violates the doctrine of separation of powers. Wilhelmi argues that equal protection requires all indigent respondent parents be provided with assistance of court-appointed counsel in proceedings to terminate parental rights, whether the petition is filed under the Adoption Act or the Juvenile Court Act. In the end, the parties have not directly engaged each other's arguments. Nevertheless, the record and the thorough opinion of the appellate court are sufficient for our determination of the issues.

B. Separation of Powers

The county, as appellant, has framed the issue in this appeal as one of separation of powers. The county describes itself as a "stranger" to the adoption proceedings and questions "whether county monies may properly be disbursed to counsel for one of the parties in what essentially is a private civil action." In addition, the county is concerned about the holding in the underlying case, which "would suggest that the county now has the obligation to provide legal representation to all indigent litigants in all termination cases, regardless of how they commence." Thus, the county characterizes the order of the appellate court as "ultra vires" and as a violation of the separation of powers provision of the Illinois Constitution.

Article II, section 1, of the Illinois Constitution states: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." Ill. Const. 1970, art. II, §1. "The purpose of this doctrine is to insure that each of the three branches of government retains its own sphere of authority, free from undue encroachment by the other branches." People v. Izzo, 195 Ill. 2d 109, 116 (2001). Although some slight overlap among the three functions is inevitable, such overlap does not necessarily create encroachment of constitutional dimension. See Best v. Taylor Machine Works, 179 Ill. 2d 367, 411 (1997).

Thus, when a circuit clerk, an officer of the judicial branch, challenged state statutes and county ordinances that required her to obtain approval from the executive branch of county government prior to making expenditures for computers and software for the circuit clerk's office, this court held that separation of powers was not violated. Pucinski v. County of Cook, 192 Ill. 2d 540, 547-48 (2000). We concluded that "[a]s long as spending decisions by the counties do not imperil the operation of the courts, separation of powers principles do not warrant intervention by the court." Pucinski, 192 Ill. 2d at 548.

The present case involves a factually opposite situation. Here, an order of the appellate court requires a county treasurer to disburse county funds where the expenditure was neither anticipated or budgeted by the executive branch nor authorized by the legislative branch of county government. The county argues that only the state legislature, not the ...

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