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                              Appellate Court                            Date: 2017.01.09
                                                                         10:22:24 -06'00'




                      In re J.P., 2016 IL App (1st) 161518



Appellate Court   In re J.P., a Minor (The People of the State of Illinois, Petitioner-
Caption           Appellee, v. Tanisha C., Respondent-Appellant).



District & No.    First District, Second Division
                  Docket No. 1-16-1518



Filed             October 31, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 15-JA-455; the
Review            Hon. Kimberly D. Lewis and the Hon. Maxwell Griffin, Jr., Judges,
                  presiding.



Judgment          Affirmed.



Counsel on        Amy P. Campanelli, Public Defender, of Chicago, for appellant.
Appeal
                  Anita M. Alvarez, State’s Attorney, of Chicago, for the People.

                  Marv Raibard, of Chicago, guardian ad litem.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justices Neville and Pierce concurred in the judgment and opinion.
                                              OPINION

¶1        Respondent Tanisha C. is the biological mother of the minor, J.P. The public defender of
     Cook County, Tanisha’s attorney, has moved for leave to withdraw under Pennsylvania v.
     Finley, 481 U.S. 551 (1987), based on the conclusion that there are no meritorious issues raised
     in this appeal. Although the motion cites Finley, counsel has filed a brief referring to matters
     that might arguably support an appeal, complying with the stricter standard for withdrawal
     established in Anders v. California, 386 U.S. 738 (1967). Copies of the motion and brief were
     sent to respondent advising her to submit any points in support of the appeal. She has not
     responded.
¶2        Tanisha seeks to appeal from trial court orders that (i) found the minor was abused or
     neglected due to an injurious environment, physical abuse, and substantial risk of physical
     injury (705 ILCS 405/2-3(1)(b), (2)(i)-(ii) (West 2014)); (ii) made no finding on the identity of
     the perpetrator of the abuse and neglect; (iii) determined respondent is unable, for reasons
     other than financial circumstances alone, to care for, protect, train, or discipline the minor (705
     ILCS 405/2-27 (West 2014)); and (iv) adjudged the minor to be a ward of the court and placed
     her in the custody and guardianship of the Department of Children and Family Services. (The
     trial court also determined that Julius P., the father of J.P., was unable, for reasons other than
     financial circumstances alone, to care for, protect, train, or discipline the minor. He is not a
     party to this appeal.)

¶3                     Withdrawal from Representation in Parental Rights Cases
¶4        Before considering the motion, we wish to address the correct manner by which appellate
     counsel should seek to withdraw from representation on direct appeal, where the respondent
     appeals from orders affecting parental rights under the Juvenile Court Act of 1987 (Act) (705
     ILCS 405/1-1 et seq. (West 2014). No decision from the First District has resolved this issue,
     and, in similar cases before this court, appellants’ attorneys have sought leave to withdraw
     under Anders or Finley. Therefore, we clarify that the correct procedure for withdrawing from
     representation follows the decision of the United States Supreme Court in Anders, rather than
     Finley. See In re S.M., 314 Ill. App. 3d 682, 685 (2000) (“The procedure for appellate counsel
     to withdraw as outlined in Anders applies to findings of parental unfitness and termination of
     parental rights.”).
¶5        In clarifying the appropriate procedure, we briefly contrast the holdings in Anders and
     Finley. In Anders, appointed counsel may request leave to withdraw from representation on
     direct appeal. Anders, 386 U.S. at 744. Recognizing that indigent defendants for whom
     appellate counsel is appointed must receive “the same rights and opportunities” enjoyed by
     defendants who can afford private counsel, the Court determined that appointed counsel must
     act as “an active advocate,” even in the absence of issues of merit. Id. at 744-45.
¶6        As this court has explained, the Anders process consists of four steps. See In re S.M., 314
     Ill. App. 3d at 685. First, counsel must file a brief that refers to anything in the record that
     might arguably support the appeal, even though not a basis for appellate relief, or that might
     arguably be meritorious in the judgment of the client, another attorney, or the court. Id. Next,
     counsel must “(a) sketch the argument in support of the issues that could conceivably be raised
     on appeal, and then (b) explain why [counsel] believes the arguments are frivolous.” Id. Then,
     counsel must conclude that no viable grounds exist for the appeal. Id. Finally, counsel, “to

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       properly fulfill *** responsibilities under Anders,” should attach transcripts of the relevant
       hearings, including, in cases involving termination of parental rights cases, the fitness and best
       interests hearings. Id.
¶7         In Finley, by contrast, the Court held that the Anders procedure is not required where
       counsel seeks to withdraw from representation on collateral appeal. Finley, 481 U.S. at 554-55.
       The Court explained that states may elect to recognize a right to counsel in collateral
       proceedings but are not so required by the United States Constitution. Id. at 556-57.
       Consequently, states need not impose Anders’ “prophylactic framework” when appellate
       counsel requests leave to withdraw on collateral appeal, as “no [federal constitutional]
       obligation to provide this avenue of relief” exists. Id. at 555, 557.
¶8         As we have stated, Anders, and not Finley, provides the correct procedure where counsel
       seeks to withdraw from representation on direct appeal from orders affecting parental rights
       under the Act. Although proceedings related to parental rights are civil in nature, and a parent’s
       right to counsel is statutory (705 ILCS 405/1-5(1) (West 2014)), nonetheless, Anders applies
       because it “put[s] the indigent appellants on the same footing as those able to afford private
       counsel and accomplishes the constitutional and statutory purpose for their appointment.” In re
       Keller, 138 Ill. App. 3d 746, 747-48 (1985). Also, “[t]ermination of parental rights is a serious
       matter” (In re Adoption of H.B., 2012 IL App (4th) 120459, ¶ 18), which affects
       responsibilities “of deep human importance” (In re S.M., 314 Ill. App. 3d at 685). Given these
       equitable considerations, the motion for leave to withdraw as counsel should specifically cite
       to Anders.

¶9                                         Review in This Case
¶ 10       Here, we observe that counsel’s motion included a memorandum of law that meets the
       Anders requirements. We have carefully reviewed the record, along with counsel’s brief, and
       find no issues of arguable merit to be asserted on appeal. Therefore, although counsel
       designated the motion under Finley, we grant counsel’s motion for leave to withdraw and
       affirm the orders of the circuit court. We instruct the bar, however, that Finley is inapposite to
       cases involving direct appeals from orders affecting parental rights under the Act, and reiterate
       that, in these type of cases, motions to withdraw are properly brought under Anders.

¶ 11      Affirmed.




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