Summary
holding that Anders procedures apply to appeals from orders terminating parental rights
Summary of this case from In re Interest J.A.R.Opinion
No. 04-03-00096-CV.
Delivered and Filed: May 21, 2003.
Appeal From the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 01-0887-CV, Honorable Dwight E. Peschel, Judge Presiding.
Motion to Withdraw held in Abeyance.
Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
The trial court terminated the parent-child relationship between Alicia Warren and each of her four children. On appeal, her appointed counsel has asked that we apply the procedure set forth in Anders v. California, 386 U.S. 738 (1967), to appeals from judgments terminating parental rights. We agree with the other Texas Courts of Appeals that have addressed this issue and hold the Anders procedure is appropriate in the termination context.
Factual and Procedural Background
The Texas Department of Protective and Regulatory Services filed a petition to terminate Alicia Warren's parental rights to her four children. After a jury trial, the trial court rendered judgment terminating Warren's parental rights. Warren filed a notice of appeal that includes a statement that she intends to appeal the sufficiency of the evidence to support the jury's findings and "any points of error a new court appointed attorney on appeal may find in the record." See Tex. Fam. Code Ann. § 263.405(b) (Vernon 2002). Warren also filed an affidavit of indigency stating she could only pay $300 towards the costs of appeal. After a hearing pursuant to section 263.405 of the Texas Family Code, the trial court found the intended appeal is not frivolous and, although Warren is indigent, she is able to pay part of the costs of the appeal. The court thus ordered Warren to pay $300 to the court reporter "prior to preparation of the [r]eporter's record." The court also appointed appellate counsel. See id. § 263.405(e). Upon receiving notice that Warren had not paid the $300.00, this court granted her an extension of time in which to pay and advised her that, if she failed to do so, the court would only consider those issues that do not require a reporter's record for a decision. See Tex.R.App.P. 37.3(c). Warren failed to pay the $300; therefore, no reporter's record has been filed.
Warren's appointed appellate counsel has now filed a motion to withdraw and a brief in which he concludes the record on appeal does not present any arguable, nonfrivolous grounds for appeal. Counsel's brief reflects a professional evaluation of the record and an explanation of why counsel believes there are no meritorious grounds for appeal. Counsel has also filed a motion to withdraw and provided this court with evidence that he has served a copy of the brief and the motion on Warren and advised her of her right to review the record and file a pro se brief. Counsel asks the court to apply the procedure set forth in Anders v. California, 386 U.S. 738 (1967), to appeals from the termination of parental rights.
Anders v. California
In Anders v. California the United States Supreme Court reviewed the practice of appointed counsel in criminal cases filing "no merit" letters, in which counsel summarily concluded the appeal had "no merit" and moved to withdraw. 386 U.S. at 741-43. The court held the practice denied indigent criminal defendants their constitutional right to counsel, denied them "substantial equality and fair process," and furnished no assistance to the court in determining the appeal. Id. at 744-45. However, the court also recognized that if the appeal is in fact wholly frivolous, appointed counsel should be allowed to withdraw. Id. at 744; see also McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988) (holding that the right to appellate counsel does not include a right to present frivolous arguments and recognizing that an attorney is "under an ethical obligation to refuse to prosecute a frivolous appeal"). The court then outlined a procedure that seeks to balance the indigent criminal defendant's constitutional rights with counsel's ethical duties.
Under the procedure set out in Anders, appointed counsel must make a conscientious review of the record to decide if it presents any nonfrivolous grounds for appeal. Anders, 386 U.S. at 744. If this review convinces counsel the appeal is wholly frivolous, he must ask the appellate court for permission to withdraw. Id. But he must also file "a brief referring to anything in the record that might arguably support the appeal" and provide the appellant with a copy of this brief. Id. If appointed counsel files a motion to withdraw and a sufficient brief, the appellate court must provide the appellant with time to file a pro se brief "to raise any points he chooses." Id. After the appellant has been given an opportunity to file a pro se brief, the appellate court must conduct a "full examination of all of the proceedings, to decide whether the case is wholly frivolous." Id. To make this decision, the court reviews the Anders brief filed by appointed counsel, the record on appeal, and any pro se brief filed by the appellant. If the review establishes the appeal is wholly frivolous, counsel's motion to withdraw will be granted and the judgment affirmed. However if the appellate court finds "legal points arguable on their merits, and therefore not wholly frivolous," it must either deny the motion to withdraw or appoint new counsel to assist the appellant in arguing the appeal. Id.
Although the procedure outlined in Anders is not constitutionally mandated, States must provide some procedure that ensures an indigent defendant receives adequate appellate counsel and a fair opportunity for appellate review of the merits of his appeal. Smith v. Robbins, 528 U.S. 270, 276-77 (2000). Texas courts have long applied a procedure substantially similar to that outlined in Anders in indigent criminal appeals. See Stafford v. State, 813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991); Nichols v. State, 954 S.W.2d 83, 85 (Tex.App.-San Antonio 1997, no pet.). Until recently, however, the procedure has not been applied in civil appeals.
Application of Anders In Juvenile Appeals
In In re D.A.S., 973 S.W.2d 296 (Tex. 1998), the Texas Supreme Court was asked to decide whether the Anders procedure applies in appeals from civil juvenile delinquency adjudications. The court held that it does, identifying the following four factors as the basis for its decision: (1) although juvenile proceedings are classified as civil cases, they are quasi-criminal in nature in that the defendant faces a potential loss of liberty, id. at 298; (2) as in criminal cases, a juvenile defendant has a constitutional right to counsel during the delinquency determination, id.; (3) the Texas Legislature has mandated that indigent juveniles be appointed counsel on appeal, see Tex. Fam. Code Ann. § 56.01(d) (Vernon 2002), and extending Anders to juvenile cases will "effectuate this legislative mandate and protect juveniles' statutory right to counsel on appeal" by requiring both the attorney and the court of appeals to conduct a meaningful review of the record to determine whether there are any arguable issues on appeal, D.A.S. 973 S.W.2d at 298-299; and (4) as in criminal appeals, appellate counsel in a juvenile proceeding is ethically bound not to file frivolous appeals. Id. at 298 (citing McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988); Tex.R.App.P. 45; Tex. Disciplinary R. Prof. Conduct 3.01 (1990), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 1998)). The court concluded that applying the Anders procedure in juvenile appeals "properly balance[s] juveniles' statutory right to counsel against appointed counsels' obligation not to prosecute frivolous appeals." D.A.S., 973 S.W.2d at 299.
The court noted that neither it nor the United States Supreme Court has determined whether a juvenile's constitutional right to counsel extends to a first appeal. D.A.S., 973 S.W.2d at 298.
Application to Termination Appeals
The D.A.S. Court expressly noted that, because the issue was not before it, the "opinion is not intended to extend Anders to all cases in which the Legislature provides the right to counsel on appeal." Id. at 298. Thus, to determine whether the Anders procedure is appropriate or required in appeals from the termination of parental rights, we believe it appropriate to evaluate the question in light of the factors the court deemed relevant in the juvenile context.
Nature of Proceeding
Admittedly, termination cases do not involve a loss of liberty in the same sense that "liberty" is involved in criminal and juvenile cases. Nonetheless, "liberty" in the constitutional sense is involved. Indeed, "the liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court," Troxel v. Granville, 530 U.S. 57, 65 (2002) (plurality opinion); and "when a State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it." Santosky v. Kramer, 455 U.S. 755, 759 (1982).
Constitutional and Statutory Right to Counsel
Because of the significance of the liberty interest involved, the Fourteenth Amendment requires the states to "provide the parents with fundamentally fair procedures." Id. at 754. However, "fundamentally fair procedures" do not necessarily entail appointed counsel. Lassiter v. Dep't of Social Servs., 452 U.S. 18, 32 (1981). Whether due process requires appointment of counsel in a particular termination proceeding turns on a balancing of the three factors specified in Matthews v. Eldridge, 424 U.S. 319, 335 (1976): the private interests involved, the State's countervailing interests, and the risk of an erroneous decision. Lassiter, 452 U.S. at 27-31. The decision of whether appointment of counsel to an indigent parent is constitutionally required in a termination case is one for the trial court to make, subject to appellate review. Id. at 32.
The federal constitution guarantees a right to court-appointed counsel only when an indigent litigant may be deprived of his physical liberty if he loses. Lassiter, 452 U.S. at 26-27. The Texas Supreme Court has not addressed whether the Texas Constitution provides indigent parents a broader right to counsel in termination proceedings.
In Texas, however, the trial courts are not required to make this case-by-case determination. The Texas Legislature has mandated that counsel be appointed for indigent parents in termination cases in the trial court and, in certain circumstances, on appeal. Tex. Fam. Code Ann. §§ 107.013 (a)(1), 263.405(e) (Vernon 2002). Because the legislature has required the appointment of counsel, the determination of whether an indigent parent has a constitutional right to appointed counsel in a particular termination proceeding is not made.
Appointed Counsel's Ethical Considerations
An attorney appointed to represent an indigent parent whose parental rights have been terminated and who believes the appeal is frivolous faces the same dilemma as counsel appointed in a criminal case. He is ethically bound both to competently and zealously represent his client and to not to file a frivolous pleading. Moreover, he may not withdraw from representation without leave of court.
Conclusion
Because of these similarities between juvenile and termination proceedings, we conclude that a procedure akin to Anders is necessary to best protect the statutory right to counsel on appeal, to provide a procedural mechanism for counsel to fulfill her ethical obligations, to assist the court in deciding appeals, and to provide consistent procedures for all indigent litigants in termination appeals. We therefore join the other Texas Courts of Appeals that have addressed this issue and hold that when court-appointed counsel concludes an appeal in a termination case is frivolous, counsel should file a brief and a motion to withdraw in accordance with the procedures specified in Nichols v. State, 954 S.W.2d 83 (Tex.App.-San Antonio 1997, no pet.). See Porter v. Texas Dep't of Protective and Regulatory Servs., No. 13-02-00014-CV, 2003 WL 751163, at *1-2 (Tex.App.-Corpus Christi Mar. 6, 2003, no pet. h.); In re K.M., 98 S.W.3d 774 (Tex.App.-Fort Worth 2003, order); Prewitt v. Texas Dep't of Prot. Reg. Servs., No. 03-01-00648-CV, 2002 WL 31426200 (Tex.App.-Austin Oct. 31, 2002, no pet.) (not designated for publication); In re E.L.Y., 69 S.W.3d 838 (Tex.App.-Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632 (Tex.App.-Tyler 2001, no pet.); Interest of A.W.T., 61 S.W.3d 87, 88-89 (Tex.App.-Amarillo 2001, no pet.).
Because counsel's brief and motion in this case comply with the Nichols requirements, we will issue an order allowing appellant to file a pro se brief and hold the motion to withdraw in abeyance until appellant has been given an opportunity to file a pro se brief and this court has conducted an examination of all of the proceedings to decide whether the case is wholly frivolous. If our review establishes the appeal is wholly frivolous, we will grant the motion to withdraw and affirm the judgment. But if our review reveals an arguable ground for appeal, another attorney will be appointed to assist the appellant in arguing the appeal.