More on the Civil Right to Counsel
In People v. Bernice T. (In re K.S.), 2015 Ill. App. Unpub. LEXIS 1861 (Ill. App. Ct. 1st Dist. 2015), the Illinois Court of Appeals reviewed several claims related to a mother’s counsel in a termination of parental rights case. First, the State rejected the State’s argument that the mother was only entitled to a “reasonable level of assistance”, as opposed to “effective assistance”, and stated:
This court has consistently held that parents are entitled to the effective assistance of counsel during such proceedings and that the standard of Strickland v. Washington, 466 U.S. 668 (1984), should guide our analysis of whether a parent has received effective assistance … The State’s only reason for applying the reasonable-assistance standard is that courts apply that standard when assessing the performance of counsel in postconviction proceedings, and termination proceedings, like postconviction proceedings, provide for a statutory, rather than constitutional right to counsel. But postconviction proceedings are not analogous to termination-of-parental-rights hearings. The statutes providing for a right to counsel in postconviction proceedings only require counsel to provide limited duties. See 725 ILCS 5/122-4 (West 2014); Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); People v. Owens, 139 Ill. 2d 351, 358-59 (1990) (postconviction counsel must consult with petitioner by mail or in person, examine record of trial proceedings, and amend petition to adequately present petitioner’s constitutional claims). There are no limited duties spelled in section 1-5’s guarantee of counsel, evincing no similar intent to impose a lesser standard on counsel at a termination hearing. See 705 ILCS 5/1-5(1) (West 2014) (providing parent with “right to be represented by counsel”). Moreover, postconviction petitioners seeking to collaterally attack their convictions have already had the benefit of counsel during their trials and direct appeals, as well as the guarantee of the effective assistance of counsel at those stages. Thus, there is less need to provide the same guarantees for counsel’s performance during postconviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600, 616 (1974). In termination cases, however, parents do not get the benefit of a previous trial and direct appeal with a constitutionally guaranteed right to the effective assistance of counsel. Thus, we see no reason to supplant our settled standard with the “reasonable” assistance of counsel standard from postconviction proceedings.
The court next considered the mother’s claim that the trial court’s decision to hold a portion of the best-interests hearing while her attorney was absent violated due process. After noting that the U.S. Supreme Court decision in Lassiter did not require appointed counsel in all termination proceedings, the court pointed to prior Illinois decisions saying that “proceedings under the Juvenile Court Act are ‘not intended to be adversary in character’; rather, the child’s best interests are the primary concern.” The court said that the mother had an opportunity to be heard even if her attorney was not present, and that her attorney was there for most of the hearing, which distinguished the situation from a prior termination case in another jurisdiction where the attorney failed to appear at all. The court then held she failed to demonstrate prejudice and rejected application of the “per se prejudice” rule from criminal cases, saying that “Because due process does not even demand that counsel be appointed in every termination-of-parental-rights case, … Bernice cannot claim that a rule of per se reversibility is required under the due process clause whenever a portion of a best-interest hearing is conducted without counsel being present for a small portion of it.” Of note here is that the court did not apply the Lassiter case-by-case test to determine if this mother was actually entitled to counsel as a matter of due process; had it done so, its analysis of prejudice per se might have come out differently.
Many thanks to John Pollock who originally reported this information.
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