In the Interest of JLLP, a Minor [2002] GUSC 21; 2002 Guam 21 (22 November 2002)

IN THE SUPREME COURT OF GUAM

IN THE INTEREST OF J.L.L.P.,
Minor;

DAVID PEREZ,
Respondent-Appellant.

OPINION

Filed: November 22, 2002

Cite as: 2002 Guam 21

Supreme Court Case No.:CVA02-014
Superior Court Case No.:JP0566-97

For Appellant: Seth Forman, Esq. Law Office of Keogh & Forman Suite 105, C&A Prof. Bldg. 251 Martyr St. P.O. Box GZ Hagatna, GU 96932

For Petitioner-Appellee: Vernon P. Perez Assistant Attorney General Office of the Attorney General 2-200E Guam Judicial Ctr. 120 W. O=Brien Dr. Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, JR., Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; FRANCES TYDINGCO-GATEWOOD, Associate Justice.

CARBULLIDO, J.:

[1] This matter comes before the court upon a motion to withdraw filed by Attorney Seth Forman (AForman@), court-appointed counsel for the Respondent-Appellant David Perez (APerez@). Forman filed a notice of appeal but now seeks to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), on the ground that an appeal in this case would be wholly frivolous. The issue before the court is whether Anders procedures apply to appeals of decisions which adversely affect a parent=s custody of his or her child. For the reasons set forth herein, we hold that the Anders does not apply to appeals from such decisions, and we further decline to extend the use of Anders procedures to these types of appeals. However, because Forman has submitted an Anders brief in this case, we have exercised our discretion and reviewed the brief notwithstanding the rule we announce to be applied in all future cases. We find that Forman has raised several non-frivolous issues in this appeal and therefore deny his motion to withdraw.

I.

[2] Perez, an adult, is the biological father of the minor child, J.L.L.P. Perez is diagnosed as having cognitive and psychological disabilities. On or about November 10, 1999, the Superior Court appointed Ms. Connie Castro (ACastro@), an employee of Guma= Mami, as permanent guardian of J.L.L.P. At a hearing on or about March 27, 2002, Castro informed the court that she intended to move to the state of Oregon on July 18, 2002, and requested to take J.L.L.P. with her. At a hearing on May 16, 2002, the lower court granted Castro=s request, which was memorialized in a written order filed on June 12, 2002, and entered on the docket on June 27, 2002.[1]

[3] As court-appointed counsel, Forman filed a Notice of Appeal on June 26, 2002 on behalf of Perez, appealing the June 12, 2002 order. On that date, Forman filed an Application to Proceed in Forma Pauperis[2] and a Guam Rule of Appellate Procedure (AGRAP@) 37 Motion for Leave to File a Brief In Pro Per on Perez= behalf. Forman also filed a Motion to Withdraw, a GRAP 9(b)(2)(D) Motion For Appointment of Counsel, and an Anders Brief.[3]

[4] This court requested that the parties brief the issue of whether Anders procedures must or should apply to appeals of orders adversely affecting parental rights.[4] The court also invited briefing of this issue from the Guam Bar Association as amicus curiae. Forman submitted a response to the court=s request, in which he essentially averred to his discussion of the issue as set forth in his Anders brief that Anders should apply to the instant civil appeal. The Family Division of the Office of the Attorney General also submitted a brief on the issue, arguing that the court should limit the application of Anders to criminal appeals and should reject the use of Anders procedures in the context of the present civil case.

II.

[5] This court has jurisdiction over this appeal pursuant to Title 7 GCA ' 3107 (1994). Considering that the preliminary issue regarding the applicability of Anders in this case is one of first impression, we find it necessary and beneficial to issue an opinion for the purpose of clarifying the rule to be applied in this jurisdiction.

III.

A. The Issue and the Parties= Arguments

[6] Court-appointed counsel for a criminal defendant who seeks to withdraw from representing the defendant on appeal due to counsel=s belief that an appeal would be frivolous is required to follow the procedures announced in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). See GRAP 37 (permitting counsel for the ADefendant-Appellant@ to file an Anders Brief); see also People v. Leon Guerrero, 2001 Guam 19, && 9-10, 36 (dismissing a criminal defendant=s appeal as frivolous after conscientiously reviewing the record as set forth in Anders).[4] The issue in this case is whether court-appointed counsel in a civil case involving child custody may file both a motion to withdraw and an Anders brief in this court if the attorney wishes to withdraw from an appeal. Specifically, the issue presently before us is whether Anders procedures must or should be made applicable to an appeal from a decision adversely affecting a parent=s custody of his or her child.

[7] Forman argues that the underlying order appealed from amounts to a de facto termination of Perez= parental rights. Forman argues that because GRAP 37 does not limit the use of an Anders brief to criminal cases, the Anders brief he filed in the instant case should be accepted. He further contends that Anders should apply to this case because attorneys representing parents in juvenile special proceedings involving termination or extreme curtailment of parental rights face the same ethical dilemmas as court-appointed attorneys when clients insist on pursuing frivolous appeals. Finally, Forman points out that like criminal defendants, parents possess certain constitutionally protected rights and should therefore be afforded Anders protections.

[8] In contrast, the Family Division argues that Anders should not apply to appeals of orders adversely affecting parental rights. Specifically, the Family Division argues that permanency plans which result from these proceedings require a showing that the Aprompt and permanent placement with responsible substitute caretakers and family in a safe and secure home is in the best interests of the child,@ and that such requirement presents safeguards for parents and indicate that the protections afforded by Anders procedures is outweighed by the costs of the use of those protracted procedures in termination of parental rights cases. Regarding Anders Brief, pp. 10-11 (Sept. 18, 2002). The Family Division further argues that the use of Anders procedures should be limited to criminal appeals because the procedures are derived from Aa liberty deprivation exclusive to criminal defendants.@ Regarding Anders Brief, p. 12 (Sept. 18, 2002).

B. Discussion

[9] We agree with the Family Division that Anders does not and should not be made applicable to appeals of orders adversely affecting a parent=s custody of his or her child. See Sade, 920 P.2d at 733 (Cal. 1996); see also In re Harrison, 526 S.E.2d 502, 502-03 (N.C. Ct. App. 2000); Denise H. v. Arizona Dep=t of Econ. Security, 972 P.2d 241, 243 (Ariz. Ct. App. 1998); Ostrum v. Dep=t of Health & Rehab. Servs., 663 So. 2d 1359, 1361 (Fla. Dist. Ct. App. 1995)[5]. The procedures formulated in Anders were specifically made applicable to criminal appeals,