Page:Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131 (2004).pdf/9

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[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he 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. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds, it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744. We must now decide whether to apply this procedure to an indigent parent's appeal of an order terminating parental rights.

Courts throughout the country have examined this issue, and the majority of jurisdictions addressing the question have concluded that the Anders procedures are appropriate in appeals from orders terminating parental rights. ''People ex rel. South Dakota Dep't of Social Services, 678 N.W.2d 594 (S.D. 2004); In the Interest of K.S.M., 61 S.W.3d 632 (Tex. Ct. App. 2001); State ex rel. Children, Youth, and Families Dep't v. Alicia P., 127 N.M. 664, 986 P.2d 460 (Ct. App. 1999); L.C. v. Utah, 963 P.2d 761 (Utah Ct. App. 1998); J.K. v. Lee County Dep't of Human Resources, 668 So.2d 813 (Ala. Civ. App. 1995); In re V.E. and J.E.'', 417 Pa. Super. 68, 611 A.2d 1267 (1992); Morris v. Lucas Co. Children Services, 49 Ohio App.3d 86, 550 N.E.2d 980 (1989); Matter of Keller, 138 Ill. App. 3d 746, 486 N.E.2d 291 (1985). In so concluding, some courts have looked at the similarities between the rights of indigent clients and duties of appointed counsel in both criminal and civil appeals. The Texas Court of Appeals in In the Interest of K.S.M., 61 S.W.3d at 634, stated:

Like indigent criminal appellants, indigent appellants challenging an order terminating their parental rights enjoy a right to counsel on appeal. 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.