L.C. v. State, s. 971511-C

• Decision Date: 23 July 1998
• Docket Number: 971500-CA,Nos. 971511-C,s. 971511-C
• Citation: 348 Utah Adv. Rep. 26,963 P.2d 761
• Parties: 348 Utah Adv. Rep. 26 State of Utah, In the Interest of D.C. and L.C., persons under eighteen years of age. L.C., Appellant, v. STATE of Utah, Appellee. State of Utah, In the Interest of M.P., C.P., and H.P., persons under eighteen years of age. J.P., Appellant, v. STATE of Utah, Appellee.
• Court: Utah Court of Appeals

Page 761

963 P.2d 761

348 Utah Adv. Rep. 26

State of Utah, In the Interest of D.C. and L.C., persons

under eighteen years of age.

L.C., Appellant, v. STATE of Utah, Appellee.

State of Utah, In the Interest of M.P., C.P., and H.P.,

persons under eighteen years of age.

J.P., Appellant, v. STATE of Utah, Appellee.

Nos. 971511-CA, 971500-CA.

Court of Appeals of Utah.

July 23, 1998.

John E. Laherty, Salt Lake City, for Appellant.

Jan Graham, Annina M. Mitchell, and Todd A. Utzinger, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem, for No. 971511-CA.

Sam N. Pappas, Salt Lake City, for Appellant.

Jan Graham, Annina M. Mitchell, and Todd A. Utzinger, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before WILKINS, Associate P.J., and BENCH and GREENWOOD, JJ.

OPINION

WILKINS, Associate Presiding Judge:

In each of these parental rights termination cases, the appellant's counsel has filed a brief similar to an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although we generally handle these types of matters by minute orders, we have chosen to publish this opinion to guide members of the Bar in representing indigent appellants in parental rights termination cases. See State v. Clayton, 639 P.2d 168, 169 (Utah 1981).

In the past, Anders briefs have been limited to criminal cases. Therefore, we first examine whether an Anders-type brief may be filed in a civil appeal from an order terminating the appellant's parental rights.

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, see Anders, 386 U.S. at 744-45, 87 S.Ct. at 1400, the Court set forth a procedure appointed counsel must follow in such cases, see id. at 744, 87 S.Ct. at 1400.

In Clayton, the Utah Supreme Court recognized that Anders binds Utah courts and bar members "as an expression of the governing federal constitutional law," and adopted Anders "as an expression of the requirements of due process of law under Article I, § 7 of our Constitution." Clayton, 639 P.2d at 170. The Utah Supreme Court then added to and clarified the required procedure outlined in Anders. See id.

The cases before us differ from Anders cases because appeals from orders terminating parental rights are civil rather than criminal. Despite this difference, the cases before us and Anders cases have many similarities. Like indigent criminal appellants, indigent appellants challenging an order terminating their parental rights enjoy a right to counsel on appeal. See, e.g., Utah Code Ann. § 78-3a-513(1)(a) (1996) ¹ (providing that "the parents, guardian, custodian, and the minor," have right to counsel at "every stage of the proceedings," and, if indigent, shall be appointed counsel (emphasis added)).

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 the client is exactly the same in a civil appeal from an order terminating parental rights as in an appeal from a criminal conviction. See, e.g., Utah R. Prof. Conduct 1.1 (requiring competent representation); id. 1.3 (requiring diligent and prompt representation). Moreover, in both criminal and termination of parental rights cases, counsel may conclude, after thoroughly and conscientiously examining the case, that a case lacks any nonfrivolous issues for appeal. Despite the civil or criminal nature of the appeal, counsel in such a situation faces the same dilemma of having to diligently represent the indigent client who wants to appeal while still complying with counsel's other ethical duties as a member of the Bar. See, e.g., id. 3.1 (prohibiting frivolous claims); id. 3.3 (requiring candor toward tribunal). For these reasons, we hold that when appointed counsel represents an indigent client in a termination of parental rights appeal and concludes no nonfrivolous issues exist for appeal, counsel may file an Anders-type brief. We next examine the requirements counsel must follow in such a situation.

The Anders requirements, as adopted in Clayton and subsequent Utah cases, strike a balance between the need to protect a criminal defendant's right to counsel on appeal and the need to insulate defense counsel from possible ethical violations arising from the pursuit of a frivolous appeal. These requirements are numerous and demanding, and we now adopt them as the requirements that counsel must follow when submitting an Anders-type brief in a termination of parental rights case. To be absolutely clear, we now summarize those requirements, while referring to Anders, Clayton, and other significant Utah criminal cases, in terms of counsel's duties in a termination of parental rights appeal.

The parents, guardian, custodian, and the minor have a right to counsel in termination of parental rights cases. See, e.g. Utah Code Ann. § 78-3a-513(1)(a). ² Counsel's role as advocate requires that counsel support his or her client's appeal to the best of counsel's ability. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; State ex rel. E.H. v. A.H., 880 P.2d 11, 13 (Utah Ct.App.1994) (holding that statutory right to counsel in termination of parental rights cases grants appellant right to effective assistance of counsel). However, if, after a conscientious examination, counsel determines that the appeal is wholly frivolous, counsel should so advise the court and request permission to withdraw. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

Counsel's request to withdraw must be accompanied by a brief that both refers to anything in the record that might arguably support the appeal, see id., and that objectively demonstrates that the issues are wholly frivolous, see State v. Flores, 855 P.2d 258, 260 (Utah Ct.App.1993). ³ "It is not enough to list issues and case citations; the argument must be sufficiently articulated to justify the conclusion that counsel has truly sought to present meritorious issues but cannot." Dunn v. Cook, 791 P.2d 873, 877 (Utah 1990) (plurality opinion). An Anders-type brief filed in a termination of parental rights case

is in one sense an abbreviated form of a regular brief, but it is different from a regular brief in that it must demonstrate that the potentially meritorious issues are frivolous. At the same time, counsel must retain an adversarial stance by showing that the record has been searched and the law researched with the good faith intent of advancing the [appellant's] interest. That is not to say, however, that counsel may exceed the boundaries of ethical representation.

Counsel must continue to identify with the [appellant's] position, until it is truly clear that the issues are frivolous.

Dunn, 791 P.2d at 877. ⁴

Counsel's brief must analyze the issues and give appropriate record and legal citations. See id. at 878. "A complete brief on the merits is usually unnecessary." Id. "[H]owever, this court must be assured that an issue is not just meritless, but that counsel has engaged in sufficient analysis of the record and case law to be secure in the belief that the issues are frivolous." ⁵ See id. (emphasis added).

Finally,

counsel's brief must contain a statement of the facts, a description of the proceedings, and the citation of pertinent authorities sufficient to permit the [reviewing court] to [fully examine all the proceedings to decide whether the case is wholly frivolous]. For that same reason, unless a transcript of proceedings has been certified as part of the record, the brief must be accompanied by a stipulation describing the trial proceedings pertinent to each alleged error or by other reliable representation thereof.

Clayton, 639 P.2d at 170.

Before filing an Anders-type brief with this court, counsel must give the client both a copy of the brief and enough time to allow the client to raise any points that the client chooses. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Counsel must certify in the brief that he or she has met this requirement. See Clayton, 639 P.2d at 170. Counsel's brief must then incorporate, "in as full detail as appropriate, any points the [client] has raised with counsel," id., and any issues the client has raised in a pro se brief, see Dunn, 791 P.2d at 878. Counsel must certify in the brief that he or she has met this requirement. See id.

Counsel must strictly meet these demanding requirements in filing an Anders-type brief in a termination of parental rights case. If counsel's brief does not comply with these requirements, we will strike it and order counsel to file a new brief before we thoroughly examine the record to evaluate the merits of counsel's arguments. See Flores, 855 P.2d at 260. Because of the special nature of this type of brief, the attorney general would not be expected to file a responsive brief, although he or she may choose to do so. See Clayton, 639 P.2d at 170.

After the brief is filed, the court--not counsel--first fully examines the record of all the proceedings and then decides whether the case is wholly frivolous. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. If the court is unanimous in deciding that the case is frivolous, it will affirm the trial court's order terminating the parental rights and grant counsel's request to withdraw. See Clayton, 639 P.2d at 170; cf. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. "Otherwise, the appeal must be pursued on the merits. To that end, the [c]ourt will either direct the moving counsel to submit a brief on the merits, or grant counsel leave to withdraw and appoint other counsel to pursue the appeal,"...