In the Interest of K.S.M.

• Decision Date: 19 September 2001
• Docket Number: No. 12-00-00231-CV,12-00-00231-CV
• Citation: 61 S.W.3d 632
• Parties: (Tex.App.-Tyler 2001) IN THE INTEREST OF K.S.M., A CHILD
• Court: Texas Court of Appeals

Page 632

61 S.W.3d 632 (Tex.App.-Tyler 2001)

IN THE INTEREST OF K.S.M., A CHILD

No. 12-00-00231-CV

Court of Appeals of Texas, Tyler

September 19, 2001.

APPEAL FROM THE COUNTY COURT AT LAW #3 SMITH COUNTY, TEXAS

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

JIM WORTHEN, Justice

Appellant Kirkland Warren's parental rights were terminated as to his daughter, K.S.M. Appellant's counsel had filed an Anders brief, although there is no Texas authority to do so. We affirm.

Appellant's counsel, in compliance with Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969), states that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), Appellant's brief presents a chronological summation of the procedural history of the case, and a discussion of the termination hearing, and further states that Appellant's counsel is unable to present any arguable points of error.¹

In the past, Anders briefs have been limited to criminal cases, as in Gainous. But in 1998, the Texas Supreme Court extended Anders to the civil realm, allowing attorneys to file Anders briefs in juvenile delinquency proceedings. See In Re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998). However, the issue of whether the Anders procedure applies to parental termination cases is one of first impression in this court. Of the nine states that have considered the issue, six currently apply Anders to parental termination appeals. See In Re V.G., D.K. and P.K., 751 A.2d 1174 (Penn. Ct. App. 2000); In Re Keishon M., 2000 WL 143145 (Ohio Ct. App. 2000); In Re S.M., 732 N.E.2d 140 (Ill. Ct. App. 2000); In Re D.C. and L.C., 963 P.2d 761 (Utah Ct. App. 1998); In Re L.M., R.I., A.I. and T.I., 477 N.W.2d 364 (Wisc. Ct. App. 1991)(not designated for publication); In Re Jamie C, 1990 Conn. Super. LEXIS 1869 (Conn. Ct. App. 1990)(not designated for publication); but see In Re Sade C., 920 P.2d 716 (Calif. 1996); In Re Adrian T. Hall, 664 P.2d 1245 (Wash. 1983); Denise H. v. Ariz. Dept. of Econ. Security, et al., 972 P.2d 241 (Ariz. Ct. App. 1998).

In Anders, the United States Supreme Court addressed the responsibilities of appointed counsel who has concluded that an indigent client's criminal appeal is frivolous. Recognizing the need to safeguard both a criminal defendant's constitutional right to counsel and the appointed counsel's obligation not to bring frivolous claims before a court, the Court set forth a procedure appointed counsel must follow in such cases. Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400.

The case before us differs from an Anders case because appeals from orders terminating parental rights are civil rather than criminal. The minority jurisdictions, which we cited above, argue that the right of concern in Anders is the federal constitutional right to counsel in criminal cases. In contrast, the right involved in a parental termination case is based solely in state law. See In Re Adrian T. Hall, 664 P.2d at 1248. We find this argument unpersuasive. Like indigent criminal appellants, indigent appellants challenging an order terminating their parental rights enjoy a right to counsel on appeal. See Tex. Fam. Code Ann. § 107.013(a) (Vernon Supp. 2001)(providing that "[i]n a suit in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of: (1) an indigent parent of the child who responds in opposition to the termination . . . "); In Re T.V., 8 S.W.3d 448, 449 (Tex. App. Waco 1999, no pet.)(rights of indigent parents whose parental rights are in jeopardy of being terminated are not adequately protected if such parents are required to pursue an appeal without an attorney, even though the statute regarding appointment of counsel for indigent parents does not expressly provide for representation on appeal).

In addition, the difference in the nature of the case, i.e., civil rather than criminal, makes no difference in the duties court-appointed counsel owes his or her client. From counsel's perspective, counsel's duty to competently and diligently represent...