No. 3--04--0736

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE HOLDRIDGE delivered the Opinion of the court:

The respondent, John M., is K.M.'s father. He is divorcedfrom the petitioner mother, Jenifer M. Jenifer is now married tothe other petitioner, James M. Jenifer and James petitioned thetrial court under the Adoption Act (750 ILCS 50/1 et seq. (West2002)) to terminate John's parental rights to K.M. and to allowJames to adopt K.M. The trial court found John unfit to care forK.M. because of (1) failure to maintain a reasonable degree ofinterest, concern, or responsibility for K.M.'s welfare (750 ILCS50/1(D)(b) (West 2002)); and (2) evidence of John's intent toforgo his parental rights because of a lack of frequent contactwith K.M. (750 ILCS 50/1(D)(n) (West 2002)). The court alsoterminated John's parental rights regarding K.M.

On appeal, John argues that the trial court erred by (1)finding him unfit; and (2) terminating his parental rights toK.M. We do not reach the issues raised by the respondent. Instead, we hold that under the Illinois Supreme Court's recentcase of In re Adoption of L.T.M., Nos. 95746, 97947 (January 21,2005), the cause must be remanded for the respondent to receive awritten notice of his rights, which includes the right toappointed counsel if he is indigent. We therefore reverse andremand with directions.

BACKGROUND

The record indicates that the respondent did not requestappointment of counsel in the trial court and that he proceededpro se. Because of the state of the law at the time (see ourdiscussion below), the trial court did not provide the respondentwith a written notice of his rights, including the right torequest appointed counsel, before trial.

At trial, the court found the respondent unfit andterminated his parental rights. The respondent then submitted aposttrial motion requesting, inter alia, appointment of counselon appeal. In denying his request for appointed counsel, thetrial court stated that a party could request appointment ofcounsel if the petition was brought under the Juvenile Court Actof 1987 (Juvenile Act) (705 ILCS 405/1--1 et seq. (West 2002)),but could not make such a request if the petition was broughtunder the Adoption Act. The respondent appealed.

We vacated the trial court's denial of the respondent'srequest for appointed counsel. We then ordered the trial courtto appoint counsel for the respondent on appeal.

ANALYSIS

During the pendency of this appeal, the Illinois SupremeCourt issued its ruling in L.T.M. In L.T.M., the court notedthat under the explicit provisions of the acts, a parent who isthreatened with the loss of his parental rights under theAdoption Act is not afforded the same right to request appointedcounsel as a similarly situated parent under the Juvenile Act.

The Juvenile Act provides that, with the exception of anintervening foster parent, "[a]t the request of any partyfinancially unable to employ counsel, *** the court shall appointthe Public Defender or such other counsel as the case mayrequire." 705 ILCS 405/1--5(1) (West 2002). The Adoption Actonly allows the right to request counsel for those parents foundunfit because of mental disability under section 1(D)(p) of theAdoption Act (750 ILCS 50/1(D)(p) (West 2002)). 750 ILCS50/13(B)(c) (West 2002). The L.T.M. court said that it is aviolation of equal protection rights for a parent threatened withthe loss of his parental rights under the Adoption Act not to begiven the same right to request counsel as a similarly situatedparent under the Juvenile Act. Consequently, the court ruledthat where the petition against a respondent was brought underthe Adoption Act, the respondent was entitled to requestappointed counsel both at trial and on appeal.

The Juvenile Act also states that, "[c]ounsel appointed for*** any indigent party shall appear at all stages of the trialcourt proceeding," and that "[e]ach adult respondent shall befurnished a written 'Notice of Rights' at or before the firsthearing at which he or she appears." 705 ILCS 405/1--5(1) (West2002). Presumably, one of the rights explained in the written"Notice of Rights" is the right to request appointed counsel ifthe respondent is indigent.

In the present case, the trial court apparently did notfurnish the respondent with a written "Notice of Rights," asrequired by section 1--5(1) of the Juvenile Act, because theproceeding was brought under the Adoption Act. Under L.T.M., therespondent is entitled to the same right to appointed counselunder the Adoption Act as a respondent under the Juvenile Act. Logically, it follows that the respondent is also entitled to thesame written notice of the right to counsel under the AdoptionAct as a respondent under the Juvenile Act. Furthermore, it isclear from the record that even if the respondent in this casehad requested counsel at trial, the court would have denied sucha request similarly to its denial of his posttrial request.

We hold, therefore, that the trial court violated therespondent's equal protection rights by failing to provide himwith a written "Notice of Rights," including notice that he hadthe right to request appointed counsel at trial. Therefore, wereverse and remand the cause with directions. We direct thetrial court to supply the respondent with a written "Notice ofRights," including the right to request appointed counselaccording to the provisions of section 1--5(1) of the JuvenileAct (705 ILCS 405/1--5(1) (West 2002)). As a result of thisruling, we need not consider the respondent's arguments.

CONCLUSION

For the foregoing reasons, we reverse the judgment of theRock Island County circuit court and remand the cause withdirections.

Reversed and remanded with directions.

MCDADE and O'BRIEN, JJ., concur.