IN RE: TERMINATION OF PARENTAL RIGHTS AS TO C.J. (2025)

OPINION

¶1 Father appeals the superior court's order terminating his parental rights to the child (born in 2020) based on the statutory grounds of abandonment and length of incarceration for a felony conviction. In father's opening brief, his counsel conceded he found no arguable issue meriting reversal. Father's counsel then asked the court to conduct an independent review for any arguable issue. Father's counsel relied on two criminal cases to argue the court must conduct his requested review: Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530 (App. 1999). No Arizona court has found a review under Anders extends to termination proceedings. We decline to do so and affirm the superior court's order terminating father's parental rights.

FACTUAL AND PROCEDURAL HISTORY

¶2 Throughout the life of this case, father has been in prison in California, serving a seven-year sentence. When the child was born in 2020, father had already been incarcerated for seven months. About five months after giving birth, mother moved to Arizona to be closer to her own mother. Two years later, mother divorced father. A short time later, mother filed this private petition to terminate father's parental rights based on abandonment and length of felony-sentence incarceration. See A.R.S. § 8 -533.B.1, .4.

¶3 In June 2024, the superior court held a termination adjudication. Three people testified: father, mother, and the attorney who conducted the social study. For grounds, the superior court found as follows by clear and convincing evidence: (1) father abandoned the child and (2) father would be incarcerated for a felony conviction for a period of years sufficient to deprive the child of a normal home with father. The superior court also found termination was in the child's best interests by a preponderance of the evidence. Despite father's strides to better himself while incarcerated, the superior court also found father's past domestic abuse and controlling behaviors towards mother would be detrimental to the child.

¶4 In the opening appellate brief, father's counsel cited Anders as the basis for father's appeal. The brief asked the court to “independently review the transcript of proceedings and case file to determine whether any possible error exists.” The brief also asked the court to “permit him to withdraw as attorney of record for this appeal.”

¶5 The court, of its own accord, directed the parties to file supplemental briefs, addressing whether: (1) Arizona law required review under Anders and Clark; and (2) father needed a 15-day extension to file an opening brief under Rule 607(e), Arizona Rules of Procedure for the Juvenile Court. In the supplemental brief, father's counsel asked the court to extend Anders to appeals of orders terminating parental rights and said father did not want an extension to file his own opening brief.

¶6 Because this appeal is from a private termination, the Arizona Department of Child Safety is not a party. The court thus directed amici briefs from the Department and entities representing indigent clients across Arizona.

¶7 The court has jurisdiction over father's timely appeal under Article VI, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235.A, 12-2101.A.1, and Rule 603(a).

ANALYSIS

¶8 Father's counsel argues the court should extend Anders to appeals of parental termination orders because the consequences of a termination of parental rights is “no less permanent and serious than” the consequences in a criminal case. Father's counsel also argues “extending Anders to [termination of] parental rights cases would promote fairness, consistency, and the protection of fundamental liberties in the family court system.”

I. History of Anders in Arizona

¶9 For almost 60 years, Anders has offered those convicted of a crime a “prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.” Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987). That constitutional right to counsel derives from the Sixth Amendment of the United States Constitution and applies only in certain criminal cases. Anders, 386 U.S. at 742; see Finley, 481 U.S. at 554–55 (holding Anders does not extend to postconviction proceedings because prisoners do not have a constitutional right to counsel in such proceedings).

¶10 Anders recognized the right to counsel “assure[s indigent] defendants the same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by those” who can afford private counsel. 386 U.S. at 745. And such “substantial equality and fair process can only be attained where counsel acts in the role of an active advocate [o]n behalf of his client.” Id. at 744. Anders thus requires court-appointed counsel, wanting to withdraw, to file a “brief referring to anything in the record that might arguably support the appeal” and then allowing a defendant time to raise any points they chose to after receiving that brief. Id. At bottom, Anders balances the indigent criminal defendant's constitutional right to counsel and court-appointed counsel's ethical obligations to the client and the court.

¶11 The Anders requirements apply to the states through the Fourteenth Amendment. 386 U.S. at 742, 744. In 1999, the Arizona Supreme Court outlined a framework for Arizona to comply with Anders in State v. Clark. Under Clark, when counsel finds an indigent defendant's case contained no arguable issue for appeal and wished to withdraw, counsel must file an Anders brief with references to the record and detailed history of the case. 196 Ariz. at 537 ¶ 30. The indigent defendant receives a copy of counsel's brief and has an opportunity to file a brief as a self-represented party. Id. Then, the court reviews the entire record for reversible error. Id. The Clark procedure “adequately protects the indigent defendant's rights to counsel, equal protection, and due process” in criminal proceedings. Id. at 534, 536, 538 ¶¶ 17, 24, 32.

II. Various state appellate courts have considered whether Anders applies to parental termination proceedings.

¶12 Many states have elected to extend Anders to parental termination proceedings because it protects an indigent parent's constitutional or statutory right to counsel by ensuring they have the same opportunities as those who can retain private counsel. See, e.g., In re Keller, 486 N.E.2d 291, 292 (Ill. App. Ct. 1985) (applying Anders because it was a way to have indigent parents “on the same footing as those able to afford private counsel”); People ex rel. S.D. Dep't of Soc. Servs., 678 N.W.2d 594, 598 (S.D. 2004) (applying Anders because it “provides additional protection for the indigent [parent's] right to the assistance of counsel”); State ex rel. D.A.G., 935 So. 2d 216, 219 (La. Ct. App. 2006) (applying Anders to provide indigent parent with the assistance and support of counsel in preparing their appeal); In re Taijha H.-B., 216 A.3d 601, 626 (Conn. 2019) (applying Anders because it would protect the due process rights of the indigent parent without imposing undue financial burdens or delays).

¶13 Several states reached the same result even after they concluded parents have just a statutory right to counsel in parental termination proceedings. Those states ruled court-appointed counsel's duty in a civil and criminal case are “no differen[t]” and thus allowed counsel to file an Anders brief. See L.C. v. State, 963 P.2d 761, 763–64 (Utah Ct. App. 1998); accord In re D.E.S., 135 S.W.3d 326, 328–29 (Tex. App. 2004) (recognizing other appellate courts “found no distinction between the duties owed by court-appointed counsel in a parental-rights termination proceeding and those owed in a criminal proceeding”); Linker-Flores v. Ark. Dep't of Hum. Servs., 194 S.W.3d 739, 745 (Ark. 2004) (recognizing an indigent parent's right to counsel on appeal through statute and case law); S.D. Dep't of Soc. Servs., 678 N.W.2d at 598; A.C. v. Cabinet for Health & Fam. Servs., 362 S.W.3d 361, 366–67, 370 (Ky. Ct. App. 2012) (analyzing whether a statute in the juvenile code provided a right to counsel, but deciding “the source of right to counsel [is] irrelevant[,] as long as there is a right to counsel”).

¶14 Some states elected to extend Anders to parental termination proceedings because it balances the conflict between the parent's right to effective counsel and court-appointed counsel's ethical obligations to the court. See A.C., 362 S.W.3d at 370; Linker-Flores, 194 S.W.3d at 745 (applying Anders correctly balances “the rights of indigent parents and the obligations of their appointed attorneys”). And other states extended Anders to parental termination proceedings without any substantive reasoning as to why. See, e.g., In re V.E., 611 A.2d 1267, 1275–76 (Pa. Super. Ct. 1992); In re H.E., 59 P.3d 29, 32 (Mont. 2002); In re Justina Rose D., 28 A.D.3d 659 (N.Y. App. Div. 2006).

¶15 But several states have declined to extend review under Anders to parental termination proceedings because parents have no federal-constitution-based right of counsel for these types of proceedings. See, e.g., In re Welfare of Hall, 664 P.2d 1245, 1248 (Wash. 1983) (noting a right of counsel only through state law); A.L.L. v. People, 226 P.3d 1054, 1062 (Colo. 2010) (noting a right of counsel just through statute); In re S.C., 88 A.3d 1220, 1223 ¶ 5 (Vt. 2014) (same); J.L. v. Ala. Dep't of Hum. Res., 335 So. 3d 670, 674–76 (Ala. Civ. App. 2021) (same). Some appellate courts have determined Anders should not apply because it does not concern the risk of a parent's loss of physical liberty like a criminal action does. See N.S.H. v. Fla. Dep't of Child. and Fam. Servs., 843 So. 2d 898, 902–03 (Fla. 2003) (declining to apply Anders because “termination proceedings do not involve the risk of loss of physical liberty”); accord In re Sade C., 920 P.2d 716, 740–41 (Cal. 1996) (declining to apply Anders because parents and criminal defendants “are not similarly situated” because defendants face punishment but parents do not); A.L.L., 226 P.3d at 1062 (declining to apply Anders, concluding it inappropriate and unnecessary in termination proceedings because both appellate review and counsel's assistance sufficiently protect parent's rights). One court noted extending Anders would require the courts to depart from its “traditional role as a neutral decision maker” and become “advocates for the party whose counsel seeks to withdraw.” N.S.H., 843 So. 2d at 901–02 (citation omitted); accord A.L.L., 226 P.3d at 1063 (noting Anders does “little for judicial economy” because it “requires appellate courts to play the roles of both advocate and tribunal”).

¶16 In 2007, a North Carolina appellate court expressly declined to apply Anders but, in doing so, urged its supreme court and legislature to reconsider the issue. In re N.B., 644 S.E.2d 22, 24 (N.C. Ct. App. 2007). Two years later, that call to action led North Carolina to adopt a rule allowing counsel to file an Anders-type brief. In re L.E.M., 831 S.E.2d 341, 344 (N.C. 2019). A decade later, the North Carolina Supreme Court held that rule plainly required the courts to conduct an independent review. Id. at 344–45.

¶17 Within the last seven years, appellate courts in Wyoming and Alabama made the switch from applying Anders to declining to apply Anders, overruling their earlier precedent. See In re NRL, 344 P.3d 759 (Wyo. 2015), overruled by In re JJD, 529 P.3d 1091, 1093 (Wyo. 2023); J.K. v. Lee Cnty. Dep't of Hum. Res., 668 So. 2d 813, 816 (Ala. Civ. App. 1995), overruled by J.L., 335 So. 3d at 674. Those courts emphasized “[i]t is the duty of counsel to proceed as best he or she can to advocate on behalf of his or her client, even given a generally less-than-ideal fact situation.” JJD, 529 P.3d at 1093 (citation omitted); J.L., 335 So. 3d at 674 (citation omitted). The Alabama court specifically noted the Anders procedure “has hindered, rather than furthered, this court's charge to expedite the decision of such appeals.” J.L., 335 So. 3d at 675.

¶18 The United States Supreme Court has not ruled on this issue, declining certiorari in two cases. See In re Sade C., 920 P.2d 716, cert. denied sub nom. Gregory C. v. L.A. Cnty. Dep't of Children's Servs., 519 U.S. 1081 (1997); N.S.H., 843 So. 2d 898, cert. denied, 540 U.S. 950 (2003).

III. Arizona concluded that a parent has no right to file an Anders brief in a parental termination proceeding.

¶19 In 1998, this court declined to extend (or require) a review under Anders to an appeal from a parental termination order because a parental termination proceeding is “clearly civil in nature” and “is not essentially the same as a criminal proceeding.” Denise H. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 257, 258, 259 ¶¶ 1, 5–6 (App. 1998); see also Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305 ¶ 12 (App. 2014) (parental termination proceedings are “civil in nature”). Denise H. addressed two key differences between termination proceedings and criminal proceedings.

¶20 First, Denise H. observed that “a parent whose rights are sought to be terminated [does not] enjoy the same rights as a person accused of committing a crime.” Denise H., 193 Ariz. at 259 ¶ 5. Instead, a criminal defendant's right to counsel derives from the Sixth Amendment or Article II, Section 24, of the Arizona Constitution. But a parent's right to counsel in a parental termination proceeding in Arizona derives purely from statute—section 8-221.B—and the Fourteenth Amendment's Due Process Clause. Denise H., 193 Ariz. at 259 ¶ 6. Second, the burden of proof to convict a criminal defendant—beyond a reasonable doubt—is greater than the burdens of proof to terminate parental rights in proceedings—clear and convincing evidence as to statutory grounds and a preponderance of the evidence as to the child's best interests. See id. ¶ 7; see also Royce C. v. Dep't of Child Safety, 252 Ariz. 129, 137 ¶ 25 (App. 2021). And so, the burdens of proof to convict a criminal defendant and to terminate parental rights “are neither very similar nor do they derive from the same source.” Denise H., 193 Ariz. at 259 ¶ 7 (quotations omitted).

IV. In lieu of a review under Anders, Rule 607(e) passes constitutional muster, balancing a parent's statutory right to counsel and court-appointed counsel's ethical obligations to the indigent parent and the court.

¶21 Though “[p]arents possess a fundamental liberty interest in the care, custody, and management of their children,” those rights are not absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 24 (2005); see also A.R.S. § 1-601. The courts must conduct termination proceedings “as the requirements of due process and fairness allow.” Ariz. R.P. Juv. Ct. 103(b). As applicable here, the procedures are required to be tailored to ensure parents are “given a meaningful opportunity to present their case.” Royce C., 252 Ariz. at 136 ¶ 16 (citation omitted). And as mother's counsel, the Department, as amicus curiae, and the Office of the Legal Advocate, as amicus curiae, advocated in their briefs, Rule 607(e) does exactly that, making a review under Anders unnecessary and inappropriate in a termination proceeding.

¶22 Under Rule 607(e)(1), counsel “may file a Notice and Avowal in Lieu of Opening Brief, avowing either or both” of the following:

(A) The appellant has failed to maintain contact with counsel, and despite diligent efforts, counsel has been unable to locate appellant. Counsel must state the last date on which the appellant and counsel had contact, and the efforts counsel has made to locate the appellant. Counsel must avow that for this or any other reason, which counsel must specify, counsel believes the appellant has abandoned the appeal.

(B) Counsel has reviewed the entire record on appeal and finds no non-frivolous issue to raise. Counsel must include avowals that counsel has informed the appellant that counsel intends to file a notice under this rule, and that the appellant may file a [self-represented] brief.

¶23 If counsel files under subpart (e)(1)(B), counsel must provide the court with the parent's contact information and whether the parent intends to file a self-represented brief. Ariz. R.P. Juv. Ct. 607(e)(2). If counsel says the parent intends to file a self-represented brief, the court must order the parent to file a self-represented brief, generally without extensions, “no later than 15 days after the date of the order.” Ariz. R.P. Juv. Ct. 607(e)(3). Like a regular appeal, “[a]ny appellee may file an answering brief and [the parent] may file a [self-represented] reply brief.” Id. If counsel, however, files a Notice and Avowal in Lieu of Opening Brief avowing the parent “does not intend to file a [self-represented] brief, or if the [parent] fails to timely file a [self-represented] brief,” the court may dismiss the appeal and accelerate issuing its mandate. Ariz. R.P. Juv. Ct. 607(e)(4).

¶24 In 2021, the Arizona Supreme Court promulgated Rule 607(e), amending former Rule 106(G). Ariz. S. Ct., Order Amending the Rules of Procedure for the Juvenile Court and Related Rules No. R-20-0044, at 201 (effective July 1, 2022). Taking the recommendation of the Juvenile Rules Task Force, which was tasked with updating this rule, the Arizona Supreme Court amended the rule, adding an explicit provision allowing parents the chance to be heard by filing a self-represented brief. Id. at 170–71. The Task Force did not address whether the self-represented briefing process “would proceed as a regular appeal or more like an Anders.” Juv. Rules Task Force, Meeting Packet—Comments to the Proposed Rules (Second Draft) on March 5, 2021, at 53 (comment on how the self-represented briefing process would work).

¶25 Amici curiae—the Maricopa County Public Advocate, Pima County Public Defender, and Maricopa County Legal Defender's Offices— advocate “Rule 607(e) does not adequately protect parents’ fundamental rights” and an Anders-type review is needed to confirm no non-frivolous issue evaded counsel's review. But as this court observed in Denise H., it should be the “rare case in which [counsel declares] no arguable appellate issues exist” because:

A proceeding to terminate a parent's rights is one filled with facts and opinions, all relating to whether one of the statutory grounds for termination can be proved and whether termination will be in the child's best interests. No matter how egregious the facts may appear to be in such a case, they are rarely wholly one-sided or entirely clear-cut. In addition, experts’ opinions are frequently based on a limited knowledge of the applicable facts and vary from timely to stale.

Denise H., 193 Ariz. at 260 ¶ 9. The court presumes counsel will advocate for indigent parents and only file Rule 607(e) notices and avowals in rare cases in which counsel determines no non-frivolous issues exist.

¶26 The court recognizes counsel's conduct in a parental termination proceeding “might result in the denial of a parent's due process right to a meaningful opportunity to be heard.” Royce C., 252 Ariz. at 136 ¶¶ 16–17. In an unpublished case from this court, the parent's counsel filed a notice and avowal under Rule 607(e)(1)(B) and then the parent filed a self-represented brief. See In re K.L., 1 CA-JV 22-0182, 2023 WL 2980305, at *1 ¶ 4 (Ariz. App. Apr. 18, 2023) (mem. decision). Review of the parent's self-represented brief led this court to conclude “there were non-frivolous issues that required further briefing.” Id. The court struck counsel's notice and directed counsel to “file a merits brief addressing all non-frivolous issues in the case.” Id. Rule 607(e)’s procedure thus provides parents with constitutional due process by giving them a meaningful opportunity to be heard because they may file a self-represented brief. See Royce C., 252 Ariz. at 136 ¶ 16.

¶27 Father's counsel had the option to file a notice and avowal. See Ariz. R.P. Juv. Ct. 607(e)(1)(B). He affirmatively did not do so. Even if father's counsel had filed a notice and avowal under Rule 607(e), the Rule does not address whether the court must independently review the record for reversible error after counsel files an affidavit and avowal. We conclude it does not and leave that issue to the Arizona Supreme Court to decide otherwise, either by case law or through rule amendments.

CONCLUSION

¶28 We decline to extend review under Anders to an appeal of an order terminating parental rights. Because father raised no issues on appeal, we affirm the superior court's order terminating father's rights to the child.

GASS, Chief Judge: