Appeal from the Circuit Court of Winnebago County. No. 98-JA-290 Honorable Patrick L. Heaslip, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
In August 2002, the trial court found respondent, L.J., an unfit parent. 750 ILCS 50/1(D)(b), 1(D)(d), 1(D)(m), 1(D)(s) (West 2000). The court subsequently found that the termination of respondent's parental rights was in the best interest of his minor child, Alexa J. Respondent filed a timely notice of appeal.
Kathryn Bischoff was appointed to represent respondent during his appeal. Citing the procedure set forth in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and In re Keller, 138 Ill. App. 3d 746 (1985), Bischoff has filed a motion for leave to withdraw as appellate counsel.
In the motion, counsel represents that she has read the record of this case and has discovered no possible justiciable issue that would warrant relief in this court. In support of the motion, she has filed a memorandum of law that summarizes the proceedings in the trial court. The memorandum identifies no potentially meritorious issue and cites no authority for counsel's conclusion. After presenting the evidence most favorable to the State, the argument portion of counsel's memorandum generally asserts that "[t]he court's analysis is indisputably [sic] correct."
The motion states that counsel mailed a copy of the motion to respondent. However, in her affidavit, counsel represents that she mailed a copy to the minor's mother. The affidavit also states that respondent "has been advised of the Motion for Leave to Withdraw and informed of the opportunity to present any additional matters to the Court within 30 days." The record contains a letter from counsel to respondent regarding the motion, but we have found no proof of service or certificate of mailing. The clerk of this court mailed respondent notice of the motion and informed him that he would be afforded an opportunity to present, within 30 days, any additional matters to this court. There is no response from respondent, and the time to respond has expired.
Under Anders, appellate counsel's request to withdraw must be "accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498, 87 S. Ct. at 1400. In re Brazelton, 237 Ill. App. 3d 269 (1992), an involuntary commitment case, and In re S.M., 314 Ill. App. 3d 682 (2000), a termination of parental rights case, each involved a motion to withdraw from an appeal in the Appellate Court, Fourth District.
In Brazelton, counsel's memorandum supporting the motion did not identify any potentially meritorious issue and consisted of only a three-page statement of facts and a one-page argument erroneously describing the State's burden of proof at trial. The memorandum concluded that " '[t]he evidence clearly and entirely supports the State's position.' " Brazelton, 237 Ill. App. 3d at 271.
Initially, the appellate court acknowledged an attorney's conflicting interests in filing a motion to withdraw:
"The attorney in an Anders situation is faced with an unusual difficulty. The attorney requesting the court's permission to withdraw bears the knowledge a successful motion to withdraw necessitates the court's determination that an appeal would be frivolous. An attorney is expected to zealously argue in favor of that which he is requesting of the court. The initial impulse of an attorney seeking to withdraw from a case is to emphatically maintain the correctness of the circuit court's determination and the frivolous nature of any appeal. However, this impulse to convince the court of the merits of the motion to withdraw must be tempered by the duty to the client.
Counsel's duty to the client mandates the attorney, to the extent possible, remain as an advocate of the client. The attorney may not act as an unbiased judge of the merits of the appeal. Rather he must set out any irregularities in the trial process or other potential error, which, although in his judgment not a basis for appellate relief, might *** be meritorious. [Citation.]" (Emphasis in original.) Brazelton, 237 Ill. App. 3d at 271.
The appellate court denied the motion to withdraw, concluding that it amounted to a "no-merit" letter that did not conform to the procedure authorized by Anders. A no-merit letter is inadequate because it does not afford the reviewing court or the client any guidance, and the court is forced to determine the frivolity of the client's case without the benefit of legal argument in support of the client's position. Brazelton, 237 Ill. App. 3d at 272, citing Anders, 386 U.S. at 745, 18 L. Ed. 2d at 498-99, 87 S Ct. at 1400. The court emphasized that the memorandum raised only the question of the State's burden of proof and then answered that question incorrectly. Counsel was directed to submit an appellate brief supporting the appeal. Brazelton, 237 Ill. App. 3d at 272.
The Brazelton court stated that a withdrawing attorney must "set out any irregularities in the trial process or other potential error." (Emphasis in original.) Brazelton, 237 Ill. App. 3d at 271. This phrase alone could mean that appellate counsel need not present an issue if no irregularity or other potential error exists. However, the remainder of Brazelton suggests that counsel must identify at least one potentially justiciable issue in a motion to withdraw under Anders. If the attorney were not required to identify at least one potentially justiciable issue, the client and the appellate court would lack any guidance in determining the frivolity of the appeal. Brazelton, 237 Ill. App. 3d at 272.
In S.M., the appellate court relied upon Brazelton in holding that Anders authorized a slightly different procedure. In S.M., the attorney's memorandum initially asserted that there were no appealable issues but ultimately concluded that the trial court abused its discretion in terminating the father's parental rights. S.M., 314 Ill. App. 3d at 686. The appellate court found that the memorandum deviated from the Anders procedure because, among other things, counsel (1) concluded that the trial court erred and (2) requested the alternative relief of granting the motion to withdraw or reversing the judgment. S.M., 314 Ill. App. 3d at 686. Despite counsel's ...