Appointed appellate counsel may not withdraw because appeal lacks merit. "Anders" procedure rejected.

In re S.C., Juvenile 2014 VT 7 (10-Jan-2014)

PER CURIAM.  In each of these appeals from a termination-of-parental-rights judgment, appointed counsel for appellant parent has moved to withdraw on the ground that continued representation violates the prohibition of Rule 3.1 of the Vermont Rules of Professional Conduct against bringing or defending a proceeding without a basis in law and fact for doing so that is not frivolous. We conclude that, absent client consent, a motion to withdraw by appointed appellate counsel in termination proceedings will generally not be granted, and therefore deny the motions.

The assertion of a claim that an attorney believes to be without merit or lacking any meaningful chance of success does not render an appeal “frivolous” or unethical. An argument is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. Even an utter lack of merit does not render an appeal by right wholly frivolous. 

A good faith argument may be predicated on whatever pertinent facts and controlling law are most favorable to the client and need not conclude with the lawyer’s assertion that his or her client is entitled to prevail. Rather than withdrawing or filing an Anders brief, appointed appellate counsel should present the contention succinctly in the brief in a way that will do the least harm to the client’s cause.

Note. Anders v. California, 386 US 738 (1967) permitted a court-appointed attorney to withdraw from the appeal of a criminal case because of a belief that the appeal was frivolous, but only upon filing a brief outlining the case and identifying potential grounds for appeal. See the various opinions discussing the "Anders" procedure in In re Bailey, 2009 VT 122.

Court has “status” jurisdiction to terminate rights of parent who lacks minimum contacts with Vermont.

In re R.W., 2011 VT 124 (Burgess, J.)

This termination of parental rights case presents novel jurisdictional questions because the parents and children are citizens of Sri Lanka and, although mother and the children have been residents of Vermont for a number of years, father continues to reside in Sri Lanka and has never been to Vermont.  The Department for Children and Families (DCF) petitioned to terminate father’s residual parental rights.  The family division concluded it lacked personal jurisdiction over father.  DCF argues that even though father lacks minimum contacts with Vermont, the court has jurisdiction to adjudicate the status of his children, who were within the court’s jurisdiction.  We reverse the court’s decision as to both parents and remand the cases.

 The critical question in this appeal is whether a child’s relationship to her parents is adjudication exempt from the “‘minimum contacts” test.  “Status cases” are exempt from the United Supreme Court’s jurisprudence that established the minimum contacts test as the basis for jurisdiction for both in personam and in rem case. “[C]cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff’s home State even though the defendant could not be served within that State.”  Shaffer v. Heitner, 433 U.S. 186, 201 (1977) (citing Pennoyer, 95 U.S. at 733-35).  The Supreme Court has not defined status jurisdiction or explicitly recognized its application to any type of case other than divorce. In Vermont, we have applied status jurisdiction in divorce actions, but not to other situations, such as custody. 

We conclude that status jurisdiction applies to cases involving termination of parental rights.  Much like the marriage relationship, severance of a parent’s legal relationship to his or her child requires state intervention and is a matter of state concern.  Thus, a child’s home state has jurisdiction to adjudicate the status of a child present there even if the parents lack minimum contacts with the forum.