A.L.L. v. People
| Citation | 226 P.3d 1054 |
| Decision Date | 01 March 2010 |
| Docket Number | No. 09SC621.,09SC621. |
| Parties | A.L.L. and D.Z., Petitioners v. The PEOPLE of the State of Colorado, Respondent. C.Z., In the Interest of Minor Child. |
| Court | Supreme Court of Colorado |
J. Barry Meinster, Conifer, Colorado, Attorney for Petitioner, A.L.L.
Deborah Gans, Denver, Colorado, Attorney for Petitioner, D.Z.
Joseph Fattor, County Attorney, Alison D. Casias, Special Assistant County Attorney, Dillon, Colorado, Attorneys for Respondent, The People of the State of Colorado.
Robert G. Tweedell, Delta, Colorado, Paula Constantakis Young, Denver, Colorado, Guardians Ad Litem for C.Z.
William Louis, County Attorney, Laura C. Rhyne, Deputy County Attorney, Colorado Springs, Colorado, Attorneys for Amicus Curiae, The El Paso County Department of Human Services.
Sarah Ehrlich, Sheri Danz, Denver, Colorado, Attorneys for Amicus Curiae, The Colorado Office of the Child's Representative.
N. Lawrence Hoyt, County Attorney, Toni Jo Gray, Assistant County Attorney, Boulder, Colorado, Attorneys for Amicus Curiae, The Boulder County Department of Housing and Human Services.
This case arises from a dependency and neglect (D & N) proceeding after which the trial court ordered the parental rights of A.L.L. and D.Z. terminated. The parents directed their court-appointed attorneys to appeal the trial court's order. After reviewing the decision and the record, the attorneys for both parents determined that there were no meritorious arguments to pursue on appeal. At the request of the court of appeals, counsel submitted briefs arguing that Colorado should adopt a procedure under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), for D & N appeals. We accepted prejudgment certiorari under C.A.R. 50 to clarify the duties of court-appointed counsel when their client exercises an appeal by right and yet cannot identify a meritorious legal argument to support their claim for relief.1 We conclude that, where a court-appointed attorney represents a litigant with a right to an appeal, she has an obligation to advocate on her client's behalf. We determine that a parent's rights are better protected by full appellate review than by an Anders briefing procedure, and so we remand this case for further consistent proceedings.
Prior to certifying the case to this court, the court of appeals struck the petitions on appeal that outlined substantive issues concerning the termination order that is being challenged here. As the merits of this appeal have neither been briefed nor argued, we cannot finally resolve this matter. The only issue before us is whether and in what ways the United States Supreme Court's decision regarding criminal appeals in Anders v. California should be applied to D & N proceedings in Colorado. After resolving that issue, we remand the case to the court of appeals for further proceedings consistent with this opinion.
After all appropriate D & N proceedings, the trial court ordered the parental rights of A.L.L. and D.Z. terminated with respect to their child, C.Z. Electing to exercise their statutory rights to counsel and appeal, A.L.L. and D.Z. directed their court-appointed attorneys to appeal the termination of their parental rights. See §§ 19-1-105, 19-3-202(1), C.R.S. (2009) (right to counsel); § 19-1-109(2)(b), C.R.S. (2009) ().
Counsel for both A.L.L. and D.Z. during the termination hearing subsequently submitted petitions on appeal to the court of appeals. The petitions were crafted to comply with those procedures outlined by the Supreme Court in Anders to protect a client's rights while simultaneously respecting an attorney's ethical bar against bringing frivolous claims before a court. See 386 U.S. at 744, 87 S.Ct. 1396. The petitions identified potential legal issues arising from the termination hearing that might be challenged on appeal. The parents' trial counsel then described why, with each identified legal issue, they felt the trial court had properly considered applicable law and relevant facts. Counsel concluded that there were no viable issues on appeal and requested that they be allowed to withdraw from their respective roles representing the parents.
The court of appeals granted the trial attorneys' motions to withdraw and appointed new appellate counsel for each parent. The original petitions on appeal filed by trial counsel were ordered stricken. Appellate counsel were given time to file amended petitions on appeal. However, the court of appeals ordered that if new counsel also concluded that there were no viable issues for appeal, appellate counsel should instead submit supplemental petitions "explaining whether Colorado should adopt a procedure under [Anders] for dependency and neglect appeals." See 386 U.S. at 744, 87 S.Ct. 1396 ().
Court-appointed appellate counsel for both A.L.L. and D.Z. agreed with the trial attorneys' determinations that there were no viable issues on appeal, and so submitted briefs arguing that Colorado should adopt procedures under Anders for dependency and neglect appeals. Thereafter, the court of appeals referred the case to this court pursuant to section 13-4-109(a), (b), and (c), C.R.S. (2009). We accepted prejudgment certiorari under C.A.R. 50 to clarify the duties of court-appointed counsel when their client exercises an appeal-by-right and yet cannot identify a meritorious legal argument to support their claim for relief.
The parties here argue that a procedure such as the one set forth by the Supreme Court in Anders for criminal appeals is necessary to address those situations where court-appointed attorneys are asked by their clients to pursue an appeal they feel is wholly without merit. We disagree.
We begin with a discussion of the Supreme Court's decision in Anders, then discuss how the issues in that opinion have been addressed in Colorado, and finally turn to the D & N context. We conclude that a lack of merit neither renders an appeal of a termination order frivolous nor constitutes sufficient grounds to allow an attorney's withdrawal. As such, we remand this case to the court of appeals for further consistent proceedings.
In Anders v. California, the Supreme Court held that a criminal defendant's right to counsel must be protected even where his court-appointed attorney determines that an appeal is without merit. 386 U.S. at 744, 87 S.Ct. 1396. There, the defendant was convicted of marijuana possession and sought an appeal. After reviewing the record, his court-appointed attorney filed a letter with the District Court of Appeal in California stating he was of the opinion that there was "no merit in the appeal." Id. at 742, 87 S.Ct. 1396. Anders' request for new counsel was denied, and he continued pro se. His conviction was affirmed, and all subsequent challenges were summarily dismissed by reviewing courts. Id. at 740-41, 87 S.Ct. 1396. The Supreme Court reversed and remanded the case after concluding California's "no-merit letter" procedure "did not furnish [Anders] with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity." Id. at 743, 87 S.Ct. 1396.
To address the failings of California's procedure, the Court went on to outline another procedure that would be an "adequate substitute for the right to full appellate review" and that protected a criminal defendant's right to counsel in the event that court-appointed counsel determined there were no viable issues for appeal and moved to withdraw from the case. See id. at 742, 744, 87 S.Ct. 1396. Specifically, where a court-appointed attorney determines his client's appeal to be "wholly frivolous," he may inform the court of that determination and request to withdraw from the case. Id. at 744, 87 S.Ct. 1396. However, the request to withdraw must be "accompanied by a brief referring to anything in the record that might arguably support the appeal," and the litigant must be given an opportunity to raise any further points not presented by her attorney. Id. The reviewing court then proceeds to determine whether the appeal is "wholly frivolous." Id. If the court identifies legal points arguable on the merits, the litigant must be afforded new counsel to argue the appeal. See id.
The Supreme Court's opinion in Anders is best viewed as comprising two distinct components: the first addresses a problem; the second outlines a procedure. The first component of Anders considers the threat to a criminal defendant's constitutional rights where his court-appointed attorney concludes his appeal is without merit. The Court answers this threat simply: "The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate [on] behalf of his client." Id. at 744, 87 S.Ct. 1396. The Court recognized that court-appointed counsel must act as an advocate for his client and not "merely review the case and cast aside the points urged by [his client] as being without merit." McClendon v. People, 174 Colo. 7, 12, 481 P.2d 715, 717-18 (1971) (discussing Anders). A court-appointed attorney cannot abandon her duties to her clients in favor of her duties to the court; where a defendant has rights to counsel and an appeal, his court-appointed lawyer must protect those rights in accordance with due process and equal protection in spite of any misgivings she may have about the merits of the appeal. See Anders, 386 U.S. at 741, 87 S.Ct. 1396.
As the second component of its opinion in Anders, the Supreme Court outlined a procedure to protect the defendant's rights where his lawyer feels the appeal is "wholly frivolous" and moves to withdraw. Of course, within the boundaries of due process and equal protection, the details of attorney regulations are...
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