J.K. v. Lee County Dept. of Human Resources

• Decision Date: 28 July 1995
• Citation: 668 So.2d 813
• Parties: J.K., Sr. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES. 2940170.
• Court: Alabama Court of Civil Appeals

Page 813

668 So.2d 813

J.K., Sr. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.

2940170.

Court of Civil Appeals of Alabama.

July 28, 1995.

Appeal from Lee Juvenile Court, Nos. JU-94-107.01, -108.01 and -114.01; Michael A. Nix, Judge.

D. John Harrison, Auburn, for Appellant.

William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., State of Alabama Department of Human Resources, for Appellee.

MONROE, Judge.

This case involves the issue whether appointed counsel in a civil case in which an indigent client has a court-appointed attorney as authorized by statute can withdraw after reviewing the record and determining that there are no reversible issues, and, therefore, that any appeal taken from the case would be meritless.

This action, which involves a custody dispute, arose when the Lee County Department of Human Resources filed dependency petitions alleging that J.K.'s minor children were in immediate or threatened physical or emotional harm. After hearings on the petitions, the juvenile court found that J.K. had physically abused his two sons and sexually abused his daughter. The whereabouts of the children's mother are unknown. The juvenile court adjudged J.K.'s children to be dependent and ordered that they be placed temporarily in DHR's custody.

A few months later, J.K. filed a petition seeking custody of his three children. After a DHR investigation and further hearings, the juvenile court adjudged the children to be dependent and ordered DHR to begin permanent planning for the children and to consider long-term placements for them. The court also ordered that the children could have no contact with J.K. or other family members unless the court approved the contact. J.K. appealed.

J.K. has court-appointed appellate counsel. In his brief to this court, counsel said that he met with J.K. twice to see what tactics and strategies were used at trial. Then he reviewed the record for error but could find "no issue that might reasonably result in the reversal of the juvenile court's judgment."

As a result, counsel asks this court to extend Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to civil cases in which the appellant is entitled by law to appointed counsel but in which counsel, after a thorough review of the record, counsel concludes there are no reversible issues and that the appeal is without merit.

We believe that court-appointed appellate counsel in a civil case should have some means by which to effectively represent his client and yet be allowed to withdraw without having to file a frivolous appeal if counsel thinks an appeal would be without merit. In Anders, the United States Supreme Court held that if, after a conscientious examination of a case, counsel finds that an appeal would be wholly frivolous, counsel should advise the court and request permission to withdraw. Id. 386 U.S. at 744, 87 S.Ct. at 1400. The Court set out certain requirements that counsel must meet before being allowed to withdraw. First, a brief referring to anything in the record that might arguably support an appeal must accompany counsel's request to withdraw. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. A copy of that brief should be given to the indigent client, who then must be allowed to raise any points and issues the client chooses. Id. Then the appellate court must examine the record to determine whether the case is wholly frivolous. Id.

There is a split in the few jurisdictions that have addressed the question whether to make Anders applicable in civil cases. See, generally, Bains, Termination of the Attorney-Client Relationship: How Far Must Anders Compliance Go?, 16 J.Legal Prof. 229 (1991). The Appellate Court of Illinois has extended Anders to apply to appeals from judgments terminating parental rights in which court-appointed appellant counsel moved to withdraw on the ground that there was no merit to the appeal. In re Keller, 138 Ill.App.3d 746, 93 Ill.Dec. 190, 191, 486 N.E.2d 291, 292 (1985). The Illinois court reasoned that "the appointment of counsel in a civil case, as in a criminal case, 'has put the indigent appellants on the same footing as those able to afford private counsel and accomplishes the constitutional or statutory purpose for their appointment.' " In re McQueen, 145 Ill.App.3d 148, 99 Ill.Dec. 63, 64, 495 N.E.2d 128, 129 (1986) (quoting In re Keller, supra ).

The Washington Supreme Court declined to apply Anders in a "child deprivation proceeding," i.e., a proceeding to terminate the parental relationship, saying it "deem[ed] it inadvisable," and holding that "appointed counsel may never withdraw from such an appeal, absent client consent." In re Welfare of Hall, 99 Wash.2d 842, 664 P.2d 1245, 1247 (1983). The Washington court reasoned that because a criminal defendant must be competent to stand trial, that defendant will have "at least some modicum of ability to present his or her own argument to the appellate court. In contrast, the respondent in a child deprivation proceeding may be entirely incompetent and entirely unable to raise potentially meritorious issues. In such circumstances, withdrawal of counsel should not be permitted." Id. at 1248.

The Illinois cases seem to be the better reasoned cases. In cases in which Anders is applicable, regardless of whether the indigent client is competent, counsel has a duty to effectively represent the client, and the court has a duty to ensure effective representation. There is no practical difference between making counsel continue with the appeal, thus requiring counsel to raise frivolous issues that the appellate court has to review, and allowing counsel to file an Anders brief raising possible issues, but notifying the court that counsel believes an appeal would be frivolous. As the Supreme Court pointed out, allowing counsel to file an Anders brief "would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel." Anders v. California, 386 U.S. at 745, 87 S.Ct. at 1400.

In addition, J.K.'s counsel counters the argument put forth by the Washington Supreme Court by saying that Anders briefs are used in criminal cases in which the defendant's liberty or even life is at stake. Therefore, he argues, use of an Anders brief would be suitable in dependency hearings,...