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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 circuitcourt of Kendall County seeking to adopt his two daughters froman earlier relationship with R.P. On October 4, 1999, the circuitcourt 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 hadbeen denied by the circuit court, promptly filed notice of appeal.The appellate court, on its own motion, appointed attorney AnnaWilhelmi to represent R.P. on appeal. When Wilhelmi soughtpayment of interim fees for her services, the appellate courtentered an order directing the treasurer of Kendall County to payher $3,847.55 in reasonable attorney fees although the county hadnot been a party to the adoption proceeding. The appellate courtsubsequently granted the county's request to file a special andlimited appearance, but denied its motion to vacate the paymentorder. Following Wilhelmi's filing of a petition for a rule to showcause against the county treasurer for failure to pay the orderedamount, the appellate court, on September 8, 2000, granted a stayso that the county could seek further review of the payment orderby this court.

On that same date, the appellate court filed its opinion in theunderlying case, in which it held on equal protection grounds thatan indigent parent facing involuntary termination of parental rightsin 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 similarlysituated parent in a proceeding under the Juvenile Court Act of1987 (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 protectiongrounds because of a constitutionally underinclusivescheme, a court may extend the coverage of the statute toinclude those who are aggrieved by the exclusion.[Citation.] We also note that section 2.1 of the AdoptionAct provides that the Adoption Act and the Juvenile CourtAct should be construed in concert with one another. 750ILCS 50/2.1 (West 1998). Accordingly, to avoid aconstitutional defect, we will construe the Adoption Actas requiring the same procedural safeguards required bythe Juvenile Court Act in cases where indigent parents arefacing the involuntary termination of their parentalrights." 316 Ill. App. 3d at 122.

The appellate court reversed and remanded the matter to the circuitcourt for a new hearing, at which R.P. would be entitled to court-appointed counsel if she established her indigence. R.R.E. andT.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'sorder that a county treasurer pay the fees of appellate counsel in acase brought by private parties under the Adoption Act violates theconstitutional mandate of separation of powers. However, as willbe explained below, that question cannot be answered without firstaddressing the merits of the equal protection analysis engaged inby the appellate court.

The county's separation of powers argument presents aquestion of law, which we will review de novo. City of Belviderev. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205(1998). The appellate court's conclusion that the Adoption Actmust be construed to provide court-appointed counsel to indigentparents "to avoid a constitutional defect" (316 Ill. App. 3d at 122)is also subject to de novo review. We review de novo any decisionfinding a statute unconstitutional. In re R.C., 195 Ill. 2d 291, 296(2001). All statutes are presumed to be constitutional and, thus, theparty challenging the constitutionality of the statute bears theburden of rebutting this presumption. Arangold Corp. v. Zehnder,187 Ill. 2d 341, 351 (1999). We will construe legislative acts so asto 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 hertwo daughters, K.L.P. and K.M.P. Several years prior to theproceedings at issue here, the State removed R.P.'s three childrenfrom her custody and placed the girls with their father and hiswife, T.M.D. The girls' half-brother was placed in the care ofR.P.'s mother.

During these earlier proceedings, the circuit court, pursuant tosection 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 thefinancial means to do so. On two separate occasions, the courtentered orders authorizing the state to file a petition to terminateR.P.'s parental rights. The Kendall County State's Attorneysubsequently filed a petition to terminate R.P.'s parental rights toher son. However, no petition was filed regarding the girls. Afterholding a hearing on the custody, visitation, and guardianship ofthe 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 familycourt. Further, the court ordered these two cases dismissed and thefiles terminated.

On April 6, 1999, R.R.E. and T.M.D. filed adoption petitionsin the circuit court of Kendall County, pursuant to the AdoptionAct (750 ILCS 50/5(C) (West 1998) (petition to adopt a relatedchild)). The petitions alleged that R.P. was an unfit parent underseveral of the definitions of unfitness contained in the Act (750ILCS 50/1(D)(b), (D)(d), (D)(e), (D)(f), (D)(g), (D)(m) (West1998)) and sought termination of her parental rights so that thegirls could be adopted by their stepmother.

R.P., who had received the assistance of counsel in the earlierjuvenile court proceedings, again requested that the court appointcounsel for her. The court denied her request but gave heradditional time to employ counsel. At the next court date, sheinformed the court that she could not afford to hire an attorney andthat she had been rejected as a client by the local legal servicesagency. The trial court again refused her request to appoint counseland set the matter for hearing.

R.P. appeared pro se at the fitness hearing. She testified onher own behalf, but did not call any witnesses. The court found herunfit. At the best interests hearing, R.P. neither testified nor calledany witnesses. At the conclusion of the hearing and later in itswritten order, the court stated that the allegations of unfitness hadbeen proved and that it was in the best interests of the children thatthe petition for adoption be granted.

Following R.P.'s filing of a timely notice of appeal, theappellate court, on its own motion, appointed attorney Anna M.Wilhelmi to represent her. The appellate court denied R.R.E. andT.M.D.'s motion to reconsider this decision.

On the merits, R.P. argued on appeal that the circuit court'srefusal to appoint an attorney for her in the adoption proceedingviolated the constitutional guarantees of due process and equalprotection because she would have been entitled to court-appointed counsel had the proceedings continued under theJuvenile Court Act. The appellate court agreed, holding that toavoid a constitutional defect, the Adoption Act must be construedto require the same procedural safeguards, including the right tocounsel, 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 ofthis case. The named parties are the natural mother, on one side,and the natural father and his wife, on the other. The real partiesin interest, at least with regard to the issue on appeal, areWilhelmi, who wishes to be paid for her successful representationof her client, and the county, which disputes its obligation to pay.These two parties, in their briefs and at oral argument, have arguedentirely different issues to this court. The county argues that itcannot be compelled to pay Wilhelmi's fees because the paymentorder violates the doctrine of separation of powers. Wilhelmiargues that equal protection requires all indigent respondentparents be provided with assistance of court-appointed counsel inproceedings to terminate parental rights, whether the petition isfiled 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 appellatecourt are sufficient for our determination of the issues.

B. Separation of Powers

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

Article II, section 1, of the Illinois Constitution states: "Thelegislative, executive and judicial branches are separate. Nobranch shall exercise powers properly belonging to another." Ill.Const. 1970, art. II,