Termination of Parental Rights--no right to file Anders brief--sufficiency of evidence
Although counsel for a parent appealing from a juvenile court's severance order has no
right to file an Anders brief since a parent whose rights are terminated is not equivalent to a
convicted criminal, the Court of Appeals exercised its discretion pursuant to N.C. R. App. P. 2
and upheld the trial court's termination of respondents' parental rights because the trial court's
findings of fact are supported by clear and convincing evidence.
David W. Rogers for respondent-appellants.
No response filed by petitioner-appellees.
EAGLES, Chief Judge.
Counsel appointed to represent respondents has filed a brief
in which he states that he is “unable to find any error that might
have substantially affected the respondent's rights.” He asks this
Court to conduct its own review of the record for possible
prejudicial error pursuant to Anders v. California, 386 U.S. 738,
18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377
(1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).
Counsel has not filed documentation with this Court showing that he
has complied with the requirements of Anders. However, counsel
states that he has advised respondents of their right to file
written arguments with the Court and provided them with a copy of
the documents pertinent to this appeal. As of this date,respondents have not filed any arguments on their own behalf.
“An attorney for a criminal defendant who believes that his
client's appeal is without merit is permitted to file what has
become known as an Anders brief.” State v. Mayfield, 115 N.C. App.725, 726, 446 S.E.2d 150, 152 (1994)(emphasis added).
However,
this jurisdiction has not extended the procedures and protections
afforded in Anders and Kinch to civil cases. The majority of
states who have addressed this issue have found that Anders does
not extend to civil cases, including termination of parental rights
cases. See Department of Children and Family Services v. Natural
Parents of J.B., 736 So.2d 111, 114 (Fla. App. 1999)(Anders
procedures do not apply in termination of parental rights cases);
County of Kern v. Dillier, 69 Cal. App. 4th 1412, 1419, 82 Cal.
Rptr. 2d 318, 322 (1999)(“Anders's 'prophylactic' procedures are
designed solely to protect the indigent criminal defendant's right,
under the Fourteenth Amendment's due process and equal protection
clauses, to the assistance of appellate counsel appointed by the
state”); Denise H. v. Arizona Dept. of Economic Sec., 193 Ariz.
257, 259, 972 P.2d 241, 243 (1998)(counsel for a parent appealing
from a juvenile court's severance order has no right to file an
Anders brief). But see L.C. v. State, 963 P.2d 761, 348 Utah Adv.
Rep. 26 (1998), cert. denied, D.C. v. State, 982 P.2d 88 (1999).
In Denise H., counsel for a parent whose parental rights were
terminated sought to file an Anders brief and have the Arizona
Court of Appeals review the record for error. The Court declined,
stating:
[A] severance proceeding is not essentially the same as
a criminal proceeding, nor does a parent whose rights are
sought to be terminated enjoy the same rights as a person
accused of committing a crime. The right to file an
Anders brief derives from the Sixth Amendment right to
counsel, which applies to persons "accused" in "criminal
prosecutions" . . . . A severance proceeding, on the
other hand, is clearly civil in nature. It may be filedby the state, . . . or it may be filed by any private
person or agency with an interest in the welfare of a
child. . . . An indigent parent against whom a petition
has been filed has the right to appointed counsel, but
that right is afforded by statute and the Due Process
Clause, not the Sixth Amendment.
The burden of proof required to terminate a parent's
rights, although greater than that required for an
ordinary civil proceeding, is still less than that
required to convict a person of a crime. The requirement
that a person accused of a crime be found guilty beyond
a reasonable doubt is based on the common law presumption
of innocence. The statutory burden of proof for a
severance proceeding, on the other hand, is required by
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Thus, the burdens of proof
are neither "very similar" nor do they derive from the
same source. Because a parent whose rights are
terminated is not equivalent to a convicted criminal, we
conclude that counsel for a parent appealing from a
juvenile court's severance order has no right to file an
Anders brief.
Id. at 259, 972 P.2d at 243 (citations omitted). We agree with the
Arizona Court of Appeal's reasoning and adopt this majority rule. Nevertheless, in the exercise of our discretion,
see N.C.R.
App. P. 2, we have reviewed the record to determine whether the
evidence supports the trial court's findings of fact and
conclusions of law. We find that the trial court's findings are
supported by clear and convincing evidence and therefore affirm the
trial court's order terminating the respondents' parental rights.
Affirmed.
Judges WALKER and SMITH concur.
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