NURIS JIMENEZ, APPELLANT,
v.
THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE

Fla. 3d DCA | 1996-03-13
No. 95-1564
Before COPE, GERSTEN and GODERICH, JJ.
669 So. 2d 340 Florida District Court of Appeal, Third District (1996) Negative Treatment
Cited by 35 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This case addresses the proper procedure for appellate counsel in termination of parental rights cases when counsel believes there is no meritorious basis for appeal. The court held that the Anders procedure from criminal law does not apply to parental rights terminations and instead adopted a civil appeal procedure allowing the court to give the appellant an opportunity to file a pro se brief before dismissing.


Holding

The Anders procedure from criminal appeals does not apply to termination of parental rights proceedings. Instead, when appointed appellate counsel determines there is no meritorious basis for appeal, counsel should file a motion to withdraw, and the court should give the appellant an opportunity to file a pro se brief before dismissing the appeal for failure to prosecute or summarily affirming if the brief fails to show a preliminary basis for reversal.


Headnotes

[1] The Anders v. …

[2] In termination of parental rights appeals, appointed counsel finding no meritorious basis for appeal should move to withdraw and notify the client.

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Key Quotes

“the United States Supreme Court's decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), applies only to criminal appeals and does not apply to proceedings for the termination of parental rights”

Establishes the fundamental holding that Anders procedure does not govern parental rights termination appeals

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Facts & Procedural History

Nuris Jimenez's parental rights were terminated by the trial court and she timely appealed with appointed counsel. Appellate counsel reviewed the reco…

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Opinion of the Court
COPE, Judge.

COPE, Judge.

The question before us is what procedure to follow when appointed appellate counsel in a termination of parental rights proceeding determines that there is no meritorious point to be argued on appeal.

The trial court entered a final order terminating the parental rights of Nuris Jimenez and a timely notice of appeal was filed. Jimenez had had appointed counsel during the trial proceedings, and counsel was appointed for an appeal.

In response to a motion to dismiss the appeal, Jimenez’ counsel advised the court that she had reviewed the record and transcripts in the case and had determined that there was no meritorious basis for the appeal. Counsel also advised that she had been unable to locate Jimenez despite diligent effort.

This court finds persuasive Judge Farmer’s opinion in Ostrum v. Department of Health and Rehabilitative Services, 663 So. 2d 1359 (Fla. 4th DCA 1995). The Ostrum court concluded, and we agree, that the United States Supreme Court’s decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), applies only to criminal appeals and does not apply to proceedings for the termination of parental rights. 663 So. 2d at 1361.

The Ostrum court held that where appellate counsel finds that there is no meritorious basis for the appeal:

It will be enough for appellate counsel to file a motion seeking leave to withdraw as counsel for the parent whose rights have been terminated. As we do in all civil appeals where appellate counsel seeks leave to withdraw, we can then give the party a period of time in which to argue the case without an attorney. If the party then fails to file a brief within the time period granted for that purpose, we will conclude that the party no longer wishes to prosecute the appeal and dismiss for failure to prosecute. If the party has filed a brief, we will review the brief and if it fails to present a preliminary basis for reversal we will summarily affirm under rule 9.315. When we find that the party’s brief presents a preliminary basis for reversal, the case will then proceed as any ordinary appeal.

Id. at 1361.

By way of further explanation, when appointed appellate counsel moves to withdraw because of the absence of a meritorious basis for appeal, we will initially withhold ruling on the motion to withdraw and allow the appellant an opportunity to file a brief. If the appellant files a brief which appears to show a meritorious basis for appeal, this court will retain the discretion to deny the motion to withdraw and direct that appointed counsel proceed with the appeal.1 We agree with the Fourth District that if the appellant fails to respond, then the appeal should be dismissed for failure to prosecute, and if the appellant files a response which fails to show a preliminary basis for reversal, then the judgment should be summarily affirmed under Florida Rule of Appellate Procedure 9.315.2

In this case we have treated Jimenez’ counsel’s response to the motion to dismiss as a motion for an order permitting withdrawal of counsel for appellant. An order was sent to Jimenez’ last known address allowing thirty days for submission of a pro se initial brief. The order was returned undelivered and filed with the Clerk pursuant to Florida Rule of Appellate Procedure 9.420(c)(1).

In accordance with the procedure outlined in Ostrum, we dismiss the appeal for lack of prosecution.

Appeal dismissed.

. This appears to be the approach taken in Ostrum. See 663 So. 2d at 1361-62 (granting motion to withdraw after consideration of appellant’s response.)

. In several prior termination of parental rights cases in this court, appellate counsel has followed the Anders procedure and has filed a motion to withdraw accompanied by an Anders brief. This court responded by following the remainder of the procedure prescribed by An-ders. In light of Ostrum, we now decide that a full Anders proceeding is not necessary.


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Citator

Cited By (18 total)

  • Pullen v. State, 802 So. 2d 1113 (Fla. 2001)
    …gs where the right to counsel arises from the due process clause. See, e.g., Ostrum v. Dep’t of Health & Rehabilitative Servs., 663 So. 2d 1359 (Fla. 4th DCA 1995) (termination of parental rights); Jimenez v. Dep’t of Health & Rehabilitative Servs., 669 So. 2d 340 (Fla. 3d DCA 1996) (same); In re J.A., 693 So. 2d 723 (Fla. 5th DCA 1997) (same); In re K.W., 779 So. 2d 292 (Fla. 2d DCA 1998) (same); Gantt v. State, 714 So. 2d 1116 (Fla. 4th DCA 1998) (noncapital postconviction proceeding where court exercised d…
  • N.S.H. v. Fla. Dep't of Child. & Fam. Servs., 843 So. 2d 898 (Fla. 2003)
    …stricts have likewise declined to extend An-ders to termination of parental rights cases. See In re K.W., 779 So. 2d 292, 294 (Fla. 2d DCA 1998); In re J.A. 693 So. 2d 723, 724 (Fla. 5th DCA 1997); Jimenez v. Dep’t of Health & Rehabilitative Servs., 669 So. 2d 340, 341 (Fla. 3d DCA 1996). We agree with the district courts of appeal that Anders procedures should not be mandated in termination of parental rights cases. The Anders decision addressed the specific issue of the indigent criminal defendant’s right…
  • T.C. v. Dep't of Child. & Fam. Servs., 746 So. 2d 1229 (Fla. 3d DCA 1999)
    …PER CURIAM. Affirmed. Jimenez v. Department of Health & Rehabilitative Serv., 669 So. 2d 340 (Fla. 3d DCA 1996).…

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