RIGHT OF INDIGENT TO HAVE APPOINTED COUNSEL IN CHILD CUSTODY CASES

RIGHT OF INDIGENT TO HAVE APPOINTED COUNSEL IN CHILD CUSTODY CASES

See:
A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012)

A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012) February 24, 2012
This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.

In 1971, our Supreme Court adopted, albeit indirectly, the Anders principle and began accepting Anders briefs in no-merit appeals in criminal proceedings. Fite v. Commonwealth, 469 S.W.2d 357, 358 (Ky.1971); see also Fraser v. Commonwealth, 59 S.W.3d 448, 454 (Ky.2001) (noting, pursuant to Fite, Kentucky has adopted Anders proceedings in criminal appeals). Since that time, Kentucky appellate courts have consistently permitted appointed counsel to file Anders briefs in direct appeals of criminal matters. See, e.g., Hughes v. Commonwealth, 875 S.W.2d 99, 101 (Ky.1994) (denying counsel’s motion to withdraw, pursuant to Anders, on the ground that the appeal was not wholly frivolous); Caldwell v. Commonwealth, No. 2007–CA–001922–MR, 2009 WL 4882826, at *1 (Ky.App. Dec. 18, 2009); Young v. Commonwealth, No. 2006–CA–001092–MR, 2007 WL 4125899, at *1 (Ky.App. Nov. 21, 2007).

However, we have not yet addressed whether Anders proceedings should be extended to cases outside the criminal context and, particularly, to termination of parental rights matters. See C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 915 (Ky.App.2009)(declining to “address whether Anders may be invoked in a termination of parental rights case”). We do so now.

Initially, we must determine whether indigent parents are entitled to appointed counsel on appeal. But for a constitutional or statutory right to appellate counsel, the attorney can simply terminate his or her relationship with the indigent parent and avoid submitting a frivolous appeal to this Court, thus eliminating the need for Anders-like procedures in termination of parental rights cases.

The United States Supreme Court has found no absolute right to counsel in termination cases under the umbrella of the United States Constitution but instead has held the appointment of counsel need only be made on a case-by-case basis. Lassiter, 452 U.S. at 31–32, 101 S.Ct. at 2162; see also A.P. v. Commonwealth, Cabinet for Health and Family Services, 270 S.W.3d 418, 420 (Ky.App.2008). Kentucky’s General Assembly eliminated the need for a case-by-case determination by enacting KRS 625.080(3), which provides, in pertinent part, that “parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel.” KRS 625.080(3); see also Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App.2008).
While KRS 625.080(3) does not limit appointed representation to trial proceedings, neither does it explicitly allow for appointed counsel during the appellate process. In construing KRS 625.080(3), our purpose “is to give effect to the intent of the General Assembly, and we derive that intent, if at all possible, from the plain meaning of the language the General Assembly chose.” Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 490–91 (Ky.2009). To that end, “the language of the statute is to be given full effect as written.” Mohammad v. Commonwealth, 202 S.W.3d 589, 590 (Ky.2006). We believe a fair reading of KRS 625.080(3) reveals the Kentucky legislature intended to afford indigent parents the benefits of counsel during the entire course of the termination proceedings, including any appeal.

In sum, we are persuaded by the reasoning of the majority of states addressing the issue and agree the “benefits from the Anders protections to the indigent parent’s right to counsel outweigh” any potential harm. Linker–Flores, 194 S.W.3d at 747. Accordingly, we hold the procedures set forth in Anders, as so modified by this opinion, apply to appeals from orders terminating parental rights in which an indigent parent has court-appointed counsel who concludes the appeal lacks any meritorious issues which might support the appeal, and is, therefore, frivolous.

We believe it prudent to include a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. Particularly, we are compelled to emphasize that an Anders brief should not be used as an escape provision for a court-appointed counsel whose payments have exhausted, but should only be filed when appointed counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In the context of termination of parental rights cases, counsel should, at a minimum, review the circuit court’s (1) neglect and/or abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination.

In accordance with Anders, once counsel has reached the conclusion that the appeal is wholly frivolous, counsel “should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400. That means counsel must accomplish all this within the thirty-day window allowed in CR 76.12(2)(a)(i) for filing briefs in such a case. The Anders brief shall both refer to “anything in the record that might arguably support the appeal [,]” Anders, id., and objectively demonstrate the issues identified are wholly frivolous. See In re S.M., 314 Ill.App.3d 682, 247 Ill.Dec. 424, 732 N.E.2d 140, 143 (2002) (requiring appointed counsel to “(a) sketch the argument in support of the issues that could conceivably be raised on appeal, and then (b) explain why he believes the arguments are frivolous”).

Moreover, the Anders brief must conform with CR 76.12 by including, inter alia, statements regarding whether the argument was preserved regardless of its lack of merit, a thorough recitation of the facts, a concise and well-reasoned analysis of the issues, and appropriate citations to the record and law. See CR 76.12(4). Further, appointed counsel must certify in the Anders brief that counsel provided the indigent parent with a copy of the brief and informed the parent that he or she has a right to file a pro se brief raising any issues the parent deems meritorious. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

Upon receiving counsel’s motion to withdraw and accompanying Anders brief, this Court shall enter an order granting the indigent parent thirty days to file a pro se brief and deferring counsel’s motion to withdraw to the merits panel. The order shall also grant the Cabinet thirty days from the due date of the parent’s pro se brief to file its response. After all briefs are filed, this Court will fully examine the record and decide whether the appeal is wholly frivolous pursuant to Anders, 386 U.S. at 744, 87 S.Ct. at 1400. During the course of this review, this Court may, in its discretion, order either or both parties to file a supplemental brief addressing any issues this Court finds may have merit.

A decision to terminate parental rights is fact-intensive and requires strict application of statutory standards. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 592 (Ky.App.2009) (“In order to protect the rights of natural parents, Kentucky courts require strict compliance with statutory provisions governing the involuntary termination of parental rights.”). Furthermore, the evidence to support terminating parental rights must be clear and convincing. KRS 625.090(1). Therefore, we urge restraint in filing Anders briefs. “The Anders brief is not a substitute for an advocate’s brief on the merits.” McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 444, 108 S.Ct. 1895, 1904, 100 L.Ed.2d 440 (1988). Likewise, it is not an escape provision to end undercompensated, and sometimes uncompensated, legal services the lawyer agreed to provide.

….. Compare SCR 3.130, Preamble, III (requiring an attorney to “zealously assert the client’s position under the rules of the adversary system”) and SCR 3.130(1.2)(a) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation.”) with SCR 3.130(3.1) (“A lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”) …

In view of our consideration of this case under the standards of Anders and its progeny, the Cabinet’s Motions to Dismiss and to Advance are moot.

V. Conclusion

Based on the foregoing, the Kenton Family Court’s January 11, 2011 order terminating A.C.’s parental rights as to M.W.C. is affirmed.

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