In the Matter of Giovanni S. (anonymous).Admin. For Children's Serv.

Decision Date01 November 2011
PartiesIn the Matter of GIOVANNI S. (Anonymous).Administration for Children's Services, respondent;Jasmin A. (Anonymous), appellant.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Austin I. Idehen, Jamaica, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Rachel Ambats, and Ellen Ravitch of counsel), for respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorney for the child.REINALDO E. RIVERA, J.P., PETER B. SKELOS, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.SKELOS, J.

In the present appeal by the mother from a fact-finding order in a child protective proceeding which, inter alia, found that she had neglected the subject child, the mother's counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which he moves for leave to withdraw as counsel for the appellant. We take this opportunity to review the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.

The fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the “risk of loss of liberty or grievous forfeiture” ( Matter of Smiley, 36 N.Y.2d 433, 437, 369 N.Y.S.2d 87, 330 N.E.2d 53), are granted “equal rights to appeal through the representation and advocacy of assigned counsel ( People v. Stokes, 95 N.Y.2d 633, 635–636, 722 N.Y.S.2d 217, 744 N.E.2d 1153; see Smith v. Robbins, 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d 756; Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811). Likewise, [a] parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer” ( Matter of Ella B., 30 N.Y.2d 352, 356–357, 334 N.Y.S.2d 133, 285 N.E.2d 288 [citations omitted]; see Matter of Jung [ State Commn. on Jud. Conduct ], 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925). Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel ( see Family Ct. Act § 262[a] [i]; Matter of Jung [ State Commn. on Jud. Conduct ], 11 N.Y.3d at 373, 870 N.Y.S.2d 819, 899 N.E.2d 925; Matter of Ella B., 30 N.Y.2d at 356–357, 334 N.Y.S.2d 133, 285 N.E.2d 288; Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343), including on appeal ( see Family Ct. Act § 1120[a]; see also Family Ct. Act § 1121[4], [5] ). The importance of the right to counsel, both at the trial level and on appeal, cannot be overstated, for “it is through counsel that all other rights” are protected ( Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300).

Nonetheless, there is one limitation placed upon the right to counsel on appeal, to wit: it ‘does not include the right to counsel for bringing a frivolous appeal’ ( People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153; Smith v. Robbins, 528 U.S. at 278, 120 S.Ct. 746; see Anders v. California, 386 U.S. at 741–742, 87 S.Ct. 1396). The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights ( see Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; People v. Stokes, 95 N.Y.2d at 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153; see also Smith v. Robbins, 528 U.S. at 271, 120 S.Ct. 746).

According to that procedure, if, “after a conscientious examination of the record,” assigned counsel finds a case to be “wholly frivolous,” counsel should “so advise the court and request permission to withdraw” ( People v. Saunders, 52 A.D.2d 833, 833, 384 N.Y.S.2d 161; see Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396). In fulfilling assigned counsel's role as an “active advocate” ( Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396), such requests to withdraw must “be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal” ( People v. Saunders, 52 A.D.2d at 833, 384 N.Y.S.2d 161; see Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; People v. Stokes, 95 N.Y.2d at 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153). “A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous” ( Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; see People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153). If the court “finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal” ( Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; see People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153; People v. Brown, 140 A.D.2d 363, 527 N.Y.S.2d 850). If, however, ‘the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed,’ and the appeal decided ( Anders v. California, 386 U.S. at 741–742, 87 S.Ct. 1396, quoting Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060; see People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153; see e.g. People v. Powell, 85 A.D.3d 1061, 925 N.Y.S.2d 875).

As this latter principle of law suggests, there are essentially two steps to this Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court “must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal” ( Penson v. Ohio, 488 U.S. at 83, 109 S.Ct. 346 [internal quotation marks omitted] [emphasis added]; see McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440; see generally People v. Stokes, 95 N.Y.2d at 635, 639, 722 N.Y.S.2d 217, 744 N.E.2d 1153; People v. Gonzalez, 47 N.Y.2d 606, 610, 419 N.Y.S.2d 913, 393 N.E.2d 987). Significantly, [a]lthough an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments” ( Smith v. Robbins, 528 U.S. at 278 n. 10, 120 S.Ct. 746; see McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. at 438, 108 S.Ct. 1895). As the Court of Appeals has observed, even when faced with a potentially frivolous appeal, assigned appellate counsel is “constitutionally required to act as an ‘active advocate’ on behalf of his or her client, not merely an adviser to the court on the merits of the appeal” ( People v. Stokes, 95 N.Y.2d at 636, 722 N.Y.S.2d 217, 744 N.E.2d 1153, quoting Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; see People v. Gonzalez, 47 N.Y.2d at 610, 419 N.Y.S.2d 913, 393 N.E.2d 987).

“Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court ( McCoy v. Court of Appeals of Wis. Dist. 1, 486 U.S. at 438, 108 S.Ct. 1895). In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel ( see People v. Stokes, 95 N.Y.2d at 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153, citing People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653; People v. Gonzalez, 47 N.Y.2d at 610–611, 419 N.Y.S.2d 913, 393 N.E.2d 987). Further, assigned counsel “must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal” ( McCoy v. Court of Appeals of Wis. Dist. 1, 486 U.S. at 438, 108 S.Ct. 1895). “In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client” ( id. at 444, 108 S.Ct. 1895). Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as previously noted, counsel must file a brief “reciting the underlying facts and highlighting anything in the record that might arguably support the appeal” ( People v. Saunders, 52 A.D.2d at 833, 384 N.Y.S.2d 161; see Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; People v. Stokes, 95 N.Y.2d at 637, 722 N.Y.S.2d 217, 744 N.E.2d 1153).

The filing of a sufficient Anders brief is essential to ensuring that an indigent party's rights are protected. Requiring counsel to submit a brief referring to anything in the record that might support the appeal ensures that assigned counsel acted as an advocate, rather than as a mere advisor to the court on the merits of the appeal ( see Anders v. California, 386 U.S. at 745, 87 S.Ct. 1396). [I]n marginal cases, it also provides an independent inducement to counsel to perform a diligent review” ( Penson v. Ohio, 488 U.S. at 82 n. 4, 109 S.Ct. 346

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