Page:Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131 (2004).pdf/8

Rh be relieved as counsel, stating she could find no meritorious grounds for appeal. Linker-Flores v. Arkansas Dep't of Human Services, supra. We denied Smith's motion and ordered the parties to brief the issue of whether counsel representing an indigent parent in a termination proceeding should be required to file a no-merit brief, comparable to that required under Anders v. California, supra, where there appears to be no meritorious grounds for appeal. Based upon our review of Arkansas law and cases from other jurisdictions, we hold that the Anders procedure is a correct balancing of the rights of indigent parents and the obligations of their appointed attorneys, and we adopt this procedure for appeals involving indigent parents in termination cases.

At the outset, it must be noted that indigent parents have a right to counsel on appeal in Arkansas. Through Ark. Code Ann. § 9-27-316(h) (Supp. 2003), as well as relevant case law, Arkansas has recognized this right. This statute gives parents involved in proceedings to terminate parental rights "the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent." Id. In Gilliam v. State, 305 Ark. 438, 808 S.W.2d 738 (1991), our court interpreted identical language from Ark. Code Ann. § 9-27-316 (Repl. 1991), and concluded that a juvenile delinquent had a right to counsel on appeal. Furthermore, we have allowed the payment of attorney's fees for an attorney who represented an indigent parent on appeal. Baker v. Arkansas Dep't Of Human Services, supra. Most notably, in Linker-Flores v. Arkansas Dep't Of Human Services, supra, this court explicitly recognized an indigent parent's right to counsel on appeal.

Given that indigent parents are entitled to court-appointed counsel on appeal, we must determine the extent of counsel's obligations when counsel believes the appeal is frivolous. The Supreme Court addressed this concern in the context of criminal appeals in Anders v. California, supra. In Anders, the Court delineated the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after counsel has reviewed the record and conscientiously determined that it contains no meritorious issues for appeal. The Court was particularly concerned with possible discrimination against the indigent defendant, and the need for the defendant to have representation in the role of an advocate, rather than that of amicus curiae. To protect the indigent defendant's right to counsel on appeal, the court adopted the following procedure for counsel's withdrawal: