In Re Harrison , 136 N.C. App. 831 ( 2000 )

526 S.E.2d 502 (2000)

In re Dustin Eric HARRISON, a minor child, and In re John Stanley Koros, III, a minor child.

No. COA99-834.

Court of Appeals of North Carolina.

March 7, 2000.

David W. Rogers, Rutherfordton, 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, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh'g denied, 388 U.S. 924, 87 S.Ct. 2094, 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 filed by 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 respondent's parental rights.

Affirmed.

Judges WALKER and SMITH concur.