Docket No. 90407–Agenda 39–May 2001.

In re ADOPTION OF K.L.P., a Minor (R.R.E. et al., Appellees,  								v. R.P., Appellee; The County of Kendall, Appellant).

Opinion filed January 25, 2002.

	JUSTICE GARMAN delivered the opinion of the court:

	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).

I. BACKGROUND

	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.

II. ANALYSIS

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 judicial branch, is

constitutionally empowered to order its treasurer to make such

payments.

	None of the cases cited by the county in support of its

separation of powers argument involve a court ordering an agency

of the executive branch to expend funds for a particular purpose

not required by statute. Our own research reveals the case of In re Peak, 59 Ill. App. 3d 548, 552 (1978), in which the appellate court held that, in the absence of statutory authority, the juvenile court

could not order that a minor be treated at a private psychiatric

hospital or that the Department of Mental Health and

Developmental Disabilities pay for such care. “The circuit court

may not exceed its statutory authority no matter how desirable or

beneficial the attempted innovation might be.” Peak, 59 Ill. App. 3d at 551-52.

	However, the judicial branch may, indeed must, intervene in

matters generally reserved to the other branches of state

government when an action of the executive or legislative branches

offends the Illinois or United States Constitutions. Thus, in People v. Stinger, 22 Ill. App. 3d 371, 374 (1974), a case cited by the county, the appellate court held that the circuit court did not have

the authority to order the State’s Attorney to have a court reporter

transcribe testimony before a grand jury at county expense. As

Stinger noted, there was no requirement, “constitutional or otherwise,” that the testimony of witnesses before a grand jury be

recorded. Stinger, 22 Ill. App. 3d at 372. By implication, if recording such testimony were mandated by the constitution or by

statute, the trial court’s order would not have unduly encroached

upon the powers of the executive branch. The cases cited by the

county in support of its separation of powers argument do not

address the circumstance in which an action is constitutionally

mandated. Yet, this is precisely the claim advanced by Wilhelmi on

behalf of her client and, by extension, to justify her fees.

	Constitutionally based judicial decisions often impose a

financial burden on other branches or agencies of government. For

example, in Little v. Streater, 452 U.S. 1, 68 L. Ed. 2d 627, 101 S. Ct. 2202 (1981), the Supreme Court considered the

constitutionality of a Connecticut statute governing paternity

actions that required the party requesting paternity tests to bear the

costs of such tests. The Court held, on due process grounds, that

given the interests at stake the indigent putative father was entitled

to a paternity test at state expense. Little, 452 U.S. at 9-12, 68 L. Ed. 2d at 634-36, 101 S. Ct. at 2207-09. The Court noted that “ ‘a

cost requirement, valid on its face, may offend due process because

it operates to foreclose a particular party’s opportunity to be

heard.’ ” Little, 452 U.S. at 16, 68 L. Ed. 2d at 639, 101 S. Ct. at 2211, quoting Boddie v. Connecticut, 401 U.S. 371, 380, 28 L. Ed. 2d 113, 120, 91 S. Ct. 780, 787 (1971) (holding that due

process prohibits a state from denying indigent parties access to its

divorce court based on their inability to pay filing fees and costs).

Key in Little and Boddie were the “ ‘fundamental’ character” and constitutional significance of the private interests at stake and the

fact that the parties had “no choice of an alternative forum” to

resolve their dispute. Little, 452 U.S. at 16 n.12, 68 L. Ed. 2d at 638 n.12, 101 S. Ct. at 2210 n.12.

	Because, as in Little and Boddie, the result that we reach below is constitutionally mandated, the incidental effect it may have

on the fisc of Kendall County does not violate the separation of

powers clause of the Illinois Constitution.

C. A Parent’s Right to Counsel

	Any discussion of the right of a parent facing termination of

parental rights to the assistance of counsel must begin with the

United States Supreme Court decision in Lassiter v. Department of Social Services, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981), which was announced the same day as the decision in

Little. After seeking and obtaining an adjudication of neglect of Abby Lassiter’s minor child, the North Carolina Department of

Social Services petitioned to terminate her parental rights. In the

year that had elapsed between the adjudication of neglect and the

filing of the petition, Lassiter was convicted of second degree murder and sentenced to a term of 25 to 40 years’ imprisonment. Lassiter, 452 U.S. at 20, 68 L. Ed. 2d at 645, 101 S. Ct. at 2156. She was served with summons, but took no action in the

termination case, although she discussed it with the attorney who

was handling her criminal appeal. She requested that counsel be

appointed to represent her in the termination proceeding, but her

request was denied by the trial court. Lassiter, 452 U.S. at 21-22, 68 L. Ed. 2d at 646, 101 S. Ct. at 2157.

	Reasoning that it is a “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), the Court

explained that, in civil cases, where the concern was a matter of

fourteenth amendment due process, rather than sixth amendment

right to counsel, “as a litigant’s interest in personal liberty

diminishes, so does his right to appointed counsel.” Lassiter, 452 U.S. at 26, 68 L. Ed. 2d at 649, 101 S. Ct. at 2159. The Court then

applied the three elements from Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), that must be weighed

against the presumption that there is no right to appointed counsel

unless there is a risk of loss of liberty: “the private interests at

stake, the government’s interest, and the risk that the procedures

used will lead to erroneous decisions.” Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 649, 101 S. Ct. at 2159.

	The Court concluded that, despite the importance of parental

rights, consideration of these three factors would not always rebut

the presumption that the Constitution mandates court-appointed

counsel only for indigent criminal defendants facing a jail sentence. Lassiter, 452 U.S. at 31, 68 L. Ed. 2d at 652, 101 S. Ct. at 2161. Indeed, the Court concluded that on the facts of this case, Abby

Lassiter was not entitled to court-appointed counsel. Lassiter, 452 U.S. at 33, 68 L. Ed. 2d at 653, 101 S. Ct. at 2163.

	Thus, under Lassiter and the due process clause of the fourteenth amendment, an indigent parent does not necessarily

have a right to court-appointed counsel in a termination proceeding

brought by the State; rather, “the decision whether due process

calls for the appointment of counsel for indigent parents in

termination proceedings [is] to be answered in the first instance by the trial court, subject, of course, to appellate review.” Lassiter, 452 U.S. at 32, 68 L. Ed. 2d at 652, 101 S. Ct. at 2162.

	When the Illinois legislature enacted the Juvenile Court Act of

1987, it provided that the parent of a minor who is the subject of

proceedings under the Act will be provided with the assistance of

court-appointed counsel if the parent is financially unable to

employ counsel. 705 ILCS 405/1–5 (West 1998). Thus, 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 Constitutions

mandates it, but because the legislature has chosen to guarantee the

assistance of counsel to indigent parents rather than requiring

courts to engage in the case-by-case determination permitted under

Lassiter.

	The Supreme Court subsequently decided a case that is

factually and procedurally more similar to the present case. In

M.L.B. v. S.L.J., 519 U.S. 102, 136 L. Ed. 2d 473, 117 S. Ct. 555 (1996), the father and stepmother filed their adoption petition in

the chancery court of the State of Mississippi, seeking to terminate

the parental rights of the natural mother. After the adoption was

granted, the mother filed a timely notice of appeal, but was unable

to proceed with her appeal because a state statute conditioned the

right to appeal in civil cases on prepayment of costs, including the

cost of preparation of a trial transcript. The state supreme court

denied her application to proceed in forma pauperis and dismissed her appeal. M.L.B., 519 U.S. at 107-09, 136 L. Ed. 2d at 482-83, 117 S. Ct. at 559-60.

	After tracing the history of its decisions regarding access to

judicial process, the Court summarized:

			“In States providing criminal appeals, *** an indigent’s

access to appeal, through a transcript of relevant trial

proceedings, is secure under our precedent. [Citation.]

That equal access right holds for petty offenses as well as

for felonies. But counsel at state expense, we have held, is

a constitutional requirement, even in the first instance,

only when the defendant faces time in confinement.

[Citation.] When deprivation of parental status is at stake,

however, counsel is sometimes part of the process that is due. [Citation.] It would be anomalous to recognize a

right to a transcript needed to appeal a misdemeanor

conviction–though trial counsel may be flatly denied–but

hold, at the same time, that a transcript need not be

prepared for M.L.B.–though were her defense sufficiently

complex, state-paid counsel, as Lassiter instructs, would be designated for her.” M.L.B., 519 U.S. at 123, 136 L. Ed. 2d at 492, 117 S. Ct. at 567.

The Court based its reasoning, in part, on Lassiter, but also clearly distinguished between an indigent parent’s right to access to the

appellate process from her right to counsel at state expense.

M.L.B., 519 U.S. at 112-13, 136 L. Ed. 2d at 485, 117 S. Ct. at 562. Thus, although an indigent appellant parent cannot be denied

a transcript with which to pursue an appeal as of right, she is not

necessarily entitled to court-appointed counsel to assist her. The

former is governed by the equal protection decision of M.L.B.; the latter by the due process decision in Lassiter.

	On this issue, the county relies on Rosewell v. Hanrahan, 168 Ill. App. 3d 329 (1988), a decision of the appellate court that post-

dates Lassiter but predates M.L.B. The minor child had resided with his maternal grandparents for over five years when the

grandparents filed a petition under the Adoption Act. The trial

court appointed private counsel to represent the respondent

mother, who initially appeared pro se. During the trial, the parties reached an agreement and the petition was withdrawn in favor of

entry of an agreed order. Rosewell, 168 Ill. App. 3d at 330. Counsel subsequently filed a petition for fees, which was granted

by the trial court. The Cook County treasurer then filed a motion

to vacate the payment order. The trial court denied the motion,

finding that due process required the appointment of counsel.

Rosewell, 168 Ill. App. 3d at 331.

	The appellate court noted that the single provision of the

Adoption Act that allows for the appointment of counsel for the

respondent parent applies only if the alleged parental unfitness is

due to physical or mental illness (see 750 ILCS 50/13(B)(c) (West

1998)). Rosewell, 168 Ill. App. 3d at 331. The appellate court further found that it was not required to engage in the three-factor analysis set out in Lassiter, because a case brought by a private party under the Adoption Act does not involve state action:

		“There is no indication that the State or any of its agencies

participated in the proceedings or sought to encourage the

filing of the petition or subsequent order of permanent

custody. The mere fact that there is a statute which allows

for individuals to bring private adoption proceedings does

not of itself turn this action into ‘State’ action.” Rosewell, 168 Ill. App. 3d at 332.

Based on this reasoning, the county asserts R.P. was not entitled

to the assistance of court-appointed counsel, even if she had

demonstrated indigence, because the petition was brought by

private parties under the Adoption Act.

	The county distinguishes an earlier case, In re Adoption of Sotelo, 130 Ill. App. 3d 398 (1985), which held that although the Adoption Act contains no statutory requirement of representation

by counsel, the respondent mother was entitled to court-appointed

counsel. The county correctly notes that Sotelo was neither an equal protection nor a due process decision and can, therefore, be

limited to its unusual factual situation–proceedings were brought

concurrently under both the Juvenile Court Act and the Adoption

Act and the appellate court found it impossible to determine which

statute the trial court was applying and what grounds the court

used to determine unfitness. Sotelo, 130 Ill. App. 3d at 401.

	The county urges this court to adopt a bright-line

rule–proceedings under the Adoption Act do not involve state

action and, therefore, no right to counsel exists, with the exception

of that provided in a single, narrow, statutory provision that is not

applicable in the present case. See 750 ILCS 50/13(B)(c) (West

1998).

	Wilhelmi, on the other hand, would have this court read

Lassiter and M.L.B., together, as creating an equal protection right to counsel for indigent parents, whether their parental rights are at

stake in a proceeding under the Juvenile Court Act or under the

Adoption Act. She asserts that the use of the judicial system to

terminate parental rights is, by definition, state action no matter

who initiated the petition or which statute governs. The only authority she cites for this sweeping proposition is the fundamental

nature of the rights of parents and the “final, irrevocable, and

gravely permanent” effect of their termination.

	There is, however, some precedent for viewing the utilization

of the judicial process by a private party to affect the constitutional

rights of another as “state action.” In Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948), the Court held that use of

the state’s judicial process to enforce a racially restrictive covenant

was state action violating the equal protection clause of the

fourteenth amendment: “It is clear that but for the active

intervention of the state courts, supported by the full panoply of

state power, petitioners would have been free to occupy the

properties in question without restraint.” Shelley, 334 U.S. at 19, 92 L. Ed. at 1183, 68 S. Ct. at 845.

	Almost two decades after deciding Shelley, the Court used the same reasoning to hold that a state constitutional amendment

guaranteeing property owners the absolute discretion to decline to

sell or rent their property violated the equal protection clause.

Reitman v. Mulkey, 387 U.S. 369, 381, 18 L. Ed. 2d 830, 838, 87 S. Ct. 1627, 1634 (1967). Using the power of the court to

encourage or enforce racial discrimination, under this view, is state

action that violates equal protection.

	In the adoption context, the claim of state action when the

court system is utilized to terminate parental rights is, perhaps,

even stronger than in Shelley. Adoption exists only as a creature of statute. In re M.M., 156 Ill. 2d 53, 62 (1993). Prospective adoptive parents cannot achieve their goal of parenthood by contract or

other private means; they must involve the court.

	In other contexts, however, this court has repeatedly

expressed reluctance to base a finding of state action on the mere

fact that a state court is the forum for the dispute. See People v. Brown, 169 Ill. 2d 94, 107 (1995); People v. DiGuida, 152 Ill. 2d 104, 125 (1992); see also L. Tribe, American Constitutional Law

1698 (1988) (“To contemporary commentators, however, Shelley and Reitman appear as highly controversial decisions. In neither case, a commonly voiced view has it, is the Court’s finding of state

action supported by any reasoning which would suggest that ‘state action’ is a meaningful requirement rather than a nearly empty or

at least extraordinarily malleable formality”).

	We need not resolve the question whether every case brought

under the Adoption Act implicates “state action,” for Shelley and its progeny need not be invoked to find the state action in this case.

The state filed the initial petition under the Juvenile Court Act,

seeking adjudication of the minor children as neglected. R.P.’s

right to counsel in that matter was guaranteed by statute. 705 ILCS

405/1–5(1) (West 1998). The girls were placed in the custody of

their father and stepmother as a direct result of this state action.

The adoption petition, although filed by private parties, essentially

took the place of the petition to terminate parental rights that the

State was authorized but declined to file. Thus, this case is clearly

distinguishable from Rosewell, which involved a purely private adoption. As the appellate court noted:

		“Under these circumstances, the specter could be raised

that the state intentionally chose to forego prosecution of

a termination of parental rights petition, knowing that the

accomplishment of its goal could be reached with greater

ease and less expense without its involvement in a

proceeding to terminate parental rights if the respondent

could be denied the benefit of court-appointed counsel.”

316 Ill. App. 3d at 119.

	Because of this procedural history, the equal protection

question posed by this case is not whether an indigent respondent

parent may be treated differently depending on whether termination

of parental rights is sought by the State or by prospective adoptive

parents. The equal protection question posed by this case is

whether an indigent respondent parent may be treated differently

depending on whether termination of her rights is sought by the

State or by the person who obtained custody or guardianship of the

child as a result of state action. Having precisely defined the

categories to which equal protection analysis must be applied, we

now turn to the constitutional question.

	Equal protection analysis is identical under the United States

and Illinois Constitutions. Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 322 (1996). The essential test of equal protection

is whether government deals with similarly situated individuals in a similar manner. Jacobson, 171 Ill. 2d at 322. 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. A parent’s interest in maintaining a parental relationship with her 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); R.C., 195 Ill. 2d at 301-02. We, therefore, will apply a strict scrutiny analysis to determine whether

providing counsel to indigent respondent parents in cases carried

to conclusion under the Juvenile Court Act but denying counsel to

indigent respondent parents in cases dismissed after guardianship

or custody has been awarded to prospective adoptive parents, who

thereafter file their own adoption petitions, violates constitutional

guarantees of equal protection. Such a classification will survive

strict scrutiny only if necessary to promote a compelling state

interest and narrowly tailored to serve that interest. People v. Shephard, 152 Ill. 2d 489, 500 (1992).

	By statute, the respondent parent’s right to counsel attaches

when the State files an action under the Juvenile Court Act. 705

ILCS 405/1–5 (West 1998). The people of the State of Illinois are

the real party in interest in such a proceeding (In re J.J., 142 Ill. 2d 1, 6 (1991), citing People v. Piccolo, 275 Ill. 453, 455 (1916)), and are represented by the State’s Attorney (705 ILCS 405/1–6

(West 1998)). Section 2–28 of the Juvenile Court Act requires the

circuit court to conduct a permanency hearing within 12 months of

the entry of a temporary custody order and at least every six

months thereafter. 705 ILCS 405/2–28(2) (West 1998). At the

permanency hearing, the circuit court determines the status of the

child by selecting a permanency goal from among those listed in the

statute. 705 ILCS 405/2–28(2) (West 1998). The circuit court then

enters an order setting forth the “future status of the minor,

including the permanency goal, and any order necessary to conform

the minor’s legal custody and status to such determination.” 705

ILCS 405/2–28(3)(a) (West 1998).

	All of these provisions were followed in this case and after

many months and numerous hearings, the circuit court authorized  the State to file a petition to terminate R.P.’s parental rights

“within 30 days.” Two and one-half months later, when no petition

had been filed, the circuit court granted the State leave to file a

petition to terminate “instanter.” The State did file a petition with

regard to R.P.’s son, but did not file petitions to terminate her

rights to her daughters. Instead, the State scheduled the matter for

a hearing on custody and guardianship. Once these issues were

resolved in favor of the father and step-mother, the matter was

dismissed. The record does not reveal whether the State sought the

dismissal (there is no written motion for dismissal), but clearly the

State did not seek to keep these files active. Neither did R.R.E. and

T.M.P., who did not file a petition to terminate R.P.’s parental

rights under the Juvenile Court Act, although the statute would

have permitte4d them to do so. 705 ILCS 405/2–13(1) (West 1998)

(providing that “"any adult person”" may initiate a petition). Of

course, had they done so, R.P. would have been entitled to the

assistance of court-appointed counsel. Instead, as a result of the

custody order and the dismissal, R.P. was left to attempt to obtain

visitation in family court, without the assistance of counsel; R.R.E.

and T.M.P. were free to seek termination of her parental rights by

means of an adoptioinadoption petition, with the knowledge that R.P. would

not have the assistance of the public defender; and the county was

spared the additional expense of providing counsel for R.P. and of

prosecuting the case.

	Thus, dismissing a case initially brought under the Juvenile

Court Act so that the prospective adoptive parents may file a

petition under the Adoption Act saves the State the cost of

providing counsel for the indigent parent and the services of the

State’s Attorney to prosecute the case. This cannot be deemed a

compelling state interest. Indeed, these expenses are anticipated by

the county at the time the original juvenilel court action is brought.

As the appellate court so aptly noted:

		“The state undoubtedly has a legitimate pecuniary interest

in providing counsel in as limited a number of cases as

possible. However, it cannot be said that the state’s

interest is significant enough to overcome a parent’s

‘commanding’ interest in the ‘accuracy and justice of the

decision to terminate his or her parental status.’ ” 316 Ill. App. 3d at 122, quoting Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 650, 101 S. Ct. at 2160.

	We, therefore, hold that where, as here, significant state action

has resulted in the custody or guardianship of the minor child being

placed with a person other than the parent, equal protection

requires that the parent be provided with the assistance of counsel,

if she is indigent, in a subsequent action to terminate her parental

rights, whether that action is brought pursuant to the Juvenile

Court Act or by the child’s guardian or custodian pursuant to the

Adoption Act.

	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.

D. Right to Counsel on Appeal

	Having concluded that R.P., assuming she is indigent, should

have been provided with the services of court-appointed counsel

before the circuit court, we must next address the issue posed by

this appeal, whether the county must pay the fees of the attorney

appointed by the appellate court to represent her on appeal. The

answer to that question depends on whether an indigent respondent

parent has the right to counsel on appeal when her parental rights

have been terminated in an action brought by the State under the

Juvenile Court Act.

	That question was answered in the affirmative by In re Harrison, 120 Ill. App. 3d 108 (1983). The Harrison children were adjudicated neglected in a proceeding brought by the State under

the Juvenile Court Act. The mother was represented by court-

appointed counsel throughout the proceedings and the State’s

petitions to terminate her parental rights were denied. The State

then appealed. The attorney who had represented the mother

sought to be appointed her counsel on appeal. His motion was denied by the trial court, so he filed a motion with the appellate

court. The appellate court took the motion with the case and, in the

end, allowed the motion and affirmed the order of the trial court. Harrison, 120 Ill. App. 3d at 109.

	On the issue of the right to appellate counsel, the appellate

court rejected the respondent mother’s constitutional equal

protection and due process arguments. Finding Lassiter inapposite, because it did not mandate counsel in all cases, the appellate court

declined to engage in the three-part Mathews v. Eldridge analysis, but did find a statutory basis for the appointment of appellate

counsel. Harrison, 120 Ill. App. 3d at 110.

	Reading the section of the Juvenile Court Act that provides for

the appointment of counsel at the trial court level (Ill. Rev. Stat.

1981, ch. 37, par. 701–20(1), subsequently amended and codified

at 705 ILCS 405/1–5(1) (West 1998)), together with the section

guaranteeing the right to appeal (Ill. Rev. Stat. 1981, ch. 37, par.

701–20(3), now codified at 705 ILCS 405/1–5(3) (West 1998)),

the appellate court held: “It is totally inconsistent with the purpose

and policy of the Juvenile Court Act *** to deny the natural

parents who are indigent the right to counsel on appeal.” Harrison, 120 Ill. App. 3d at 113.

	The court found support for this conclusion in the decisions of

other states. For example, the Supreme Court of Iowa had held

that the right-to-appeal provision in its juvenile court act “ ‘was not

intended to be limited to those cases in which the minor child or his

parents were financially able to afford such appeal.’ ” Harrison, 120 Ill. App. 3d at 112-13, quoting In re Chambers, 261 Iowa 31, 35, 152 N.W.2d 818, 821 (1967). We agree with the holding in

Harrison, which has been the unquestioned rule in Illinois for many years.

	In summary, R.P., as an indigent respondent parent, should

have been given assistance of court-appointed counsel in the

underlying case because the initial state action requires that the

subsequent adoption proceeding be conducted with the same

procedural safeguards that would have been provided if the petition

to terminate her parental rights had been brought under the

Juvenile Court Act. If that had been the case, she would also have

been entitled to court-appointed appellate counsel.

	Indeed, the county does not dispute that, had the termination

proceeding continued under the Juvenile Court Act, R.P. would

have been entitled to the services of an attorney from the Kendall

County public defender’s office and, had her rights been terminated

in that proceeding, to the services of court-appointed appellate

counsel. It is the unusual procedural posture of this case that the

county finds unsatisfying. The county has been ordered to pay an

expense it did not elect to incur and did not anticipate. The

county’s concern for fiscal responsibility is both understandable

and commendable. However, the result in this case is mandated by

the Illinois and United States Constitutions and by long-standing

judicial interpretation of the Juvenile Court Act.

III. CONCLUSION

	For the foregoing reasons, the order of the appellate court that

the county treasurer of Kendall County pay Anna Wilhelmi

$3,847.55 in reasonable attorney fees is hereby affirmed.

Affirmed.

	JUSTICE THOMAS took no part in the consideration or

decision of this case.

	JUSTICE FREEMAN, specially concurring:

	I agree with the majority in all respects save the reasoning

employed to arrive at the conclusion that the adoption action was

“state action.” 

	The majority adequately sets out the pertinent facts. The State

did prosecute an action under the Juvenile Court Act of 1987 (705

ILCS 405/1–1 et seq. (West 1994)) to remove the children from their mother’s custody. That action preceded the instant adoption

action. The majority relies heavily on this fact, framing the issue as

			“not whether an indigent respondent parent may be

treated differently depending on whether termination of

parental rights is sought by the State or by prospective

adoptive parents[; rather, the issue is] whether an indigent respondent parent may be treated differently depending on

whether termination of her rights is sought by the State or

by the person who obtained custody or guardianship of the

child as a result of state action.” Slip op. at 13.

The majority does not explain its reliance on this distinction,

however, and I do not believe that it forms a proper basis for the

majority’s conclusion that there was “state action” in the adoption

action. It would overstate matters to say that the custody

proceeding and the adoption action were entirely unrelated, but

they are not the same action, nor is the adoption action properly

characterized as a continuation of the juvenile court action. The

juvenile court action was not a necessary precursor to the adoption

action. A person need not have custody or guardianship in order to

file an adoption action in which parental rights are sought to be

terminated. See 750 ILCS 50/1(F)(b) (West 1994) (among persons

“available for adoption” are children “to whose adoption no

consent is required pursuant to Section 8 of [the Adoption] Act”

(referring to 750 ILCS 50/8, which notes that consents or

surrenders are not required of parents found to be an unfit

person)); 750 ILCS 50/2 (West 1994) (no requirement that a party

have custody or guardianship in order to file adoption action). Nor

am I aware of any legal effect which the court hearing the adoption

action must accord to any previous order of custody or

guardianship. The fact that children may have been removed from

a parent’s custody is legally irrelevant to the question of whether

his or her parental rights should be terminated in a subsequent

adoption action.

	The only basis offered by the majority for its linkage of the

juvenile court action and the adoption action is its speculation that

the State and the father colluded to deprive the mother of counsel

in order to save the State money. Slip op. at 13, 15. I find this quite

unsettling. First, it is merely speculation. There could be any

number of reasons for the State not instituting a proceeding to

terminate parental rights, and there are also a number of non-

nefarious reasons why prospective adoptive parents might wish to

proceed with an adoption action themselves, with counsel of their

choosing, rather than hanging their hopes on the State’s

prosecution of a termination action under the Juvenile Court Act. I believe it is improper to ascribe such callow motives to the office

of the State’s Attorney and the children’s father. Moreover, I do

not see how this speculation can form the basis for linking the

juvenile court action and the adoption action. Indeed, the Supreme

Court has stated that the motives of the State are beside the point:

“[m]ere approval of or acquiescence in the initiatives of a private

party is not sufficient to justify holding the State responsible for

those initiatives under the terms of the Fourteenth Amendment.”

Blum v. Yaretsky, 457 U.S. 991, 1004-05, 73 L. Ed. 2d 534, 547, 102 S. Ct. 2777, 2786 (1982).

	In the final analysis, I agree with the majority that the adoption

action, involving termination of parental rights, does constitute

state action. However, we may reach this conclusion without

blurring the lines between a custody action and an adoption action

or imputing base motives to the State and the children’s father.

Regardless of motivations, state action may be found where “the

private entity has exercised powers that are ‘traditionally the

exclusive prerogative of the State.’ ” Blum, 457 U.S. at 1005, 73 L. Ed. 2d at 547, 102 S. Ct. at 2786, quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 42 L. Ed. 2d 477, 485, 95 S. Ct. 449, 455 (1974). I would submit that the instant

case falls squarely within this category. Clearly, individuals

traditionally had no power to terminate other persons’ parental

rights. Rather, this power was traditionally reserved to the Sstate. I

would find that the adoption action constituted state action for this

reason, rather than because of the “ ‘specter’ ” (slip op. at 13,

quoting 316 Ill. App. 3d at 119) that the Ooffice of the State’s

Attorney knowingly conspired with the children’s father to deprive

the mother of counsel in an action to terminate her parental rights,

in order to save the State money.