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In re Austin C.
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-1073 Rel
Case Date: 08/04/2004

NO. 4-03-1073
 

IN THE APPELLATE COURT
 

OF ILLINOIS
 

FOURTH DISTRICT

In re: AUSTIN C. AND ALEXIS C., Minors,
THE PEOPLE OF THE STATE OF ILLINOIS,
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                         Petitioner-Appellee
,
                         v.

LATEASHA SHAFFER,
                         Respondent-Appellant
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Appeal from
Circuit Court of
Adams County
Nos.
01JA29
         01JA30

Honorable
John C. Wooleyhan,
Judge Presiding.


PRESIDING JUSTICE KNECHT delivered the opinion of thecourt:

In November 2003, the trial court found respondent mother,Lateasha Shaffer, and father, Todd Bommarito, unfit parents and ruledit was in the best interest of Austin C. and Alexis C., Shaffer andBommarito's children, to terminate Shaffer and Bommarito's parentalrights. Shaffer appeals, and appellate counsel filed a motion towithdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d493, 87 S. Ct. 1396 (1967). After examining appellate counsel'smotion to withdraw as counsel on appeal, we deny the motion.

I. BACKGROUND

On September 23, 2001, Adams County sheriff's deputiesarrested Shaffer for driving under the influence and aggravatedbattery to a police officer. When the deputies arrested Shaffer,Alexis C. and Austin C. (fraternal twins born April 15, 1999) were inShaffer's vehicle. Shaffer only had one of the children in a child-restraint seat.

On September 26, 2001, the State of Illinois (State) filedpetitions for the adjudication of wardship for both Alexis C. andAustin C. The same day, the trial court conducted a shelter-carehearing and ordered the children placed in shelter care "as a matterof immediate and urgent necessity for their own safety."

In December 2001, the trial court heard arguments on theState's petition for adjudication of wardship. The court found bothAlexis C. and Austin C. were neglected as defined by the JuvenileCourt Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 through 7-1(West 2002)) based on the following factual bases: (1) Shaffer'sparental rights on another child had been terminated; (2) Shaffer hadlost custody of yet another child; (3) Shaffer was found intoxicatedwith Alexis C. and Austin C. in a vehicle; (4) Shaffer fought withthe police and tried to start her vehicle to flee from the police;and (5) Shaffer was lodged in jail. The court found it was contraryto the health, welfare, and safety of Alexis C. and Austin C. toremain in the home with Shaffer.

In January 2002, the trial court ordered Alexis C. andAustin C. to be made wards of the court. The court granted theDepartment of Children and Family Services (DCFS) guardianship andcustody with the power to place the children.

In September 2002, DCFS returned the children to Shaffer. However, DCFS remained the children's guardian. Shaffer, Shaffer'shusband, and the two children were to live with Shaffer's husband'sparents in Ursa, Illinois. Shaffer was told she was not allowed toleave Illinois with the children without an interstate compact, whichshe did not have.

In November 2002, Shaffer was arrested in Missouri fordriving while intoxicated (DWI). Alexis C. and Austin C. were in thevehicle with Shaffer at the time. Neither of the twins, who wereonly three years old at the time, was in a child-restraint seat. Once again, DCFS took the children into protective custody.

In March 2003, the State filed motions to terminateShaffer and Bommarito's parental rights with regard to Alexis C. andAustin C. In both motions, the State alleged Shaffer was an unfitparent for the following reasons:

"a) She has failed to make reasonableprogress toward the return of the minor[s]within nine months after an adjudication ofneglected minor[s] under the Juvenile CourtAct[;]

b) she has failed to maintain a reasonabledegree of interest, concern[,] orresponsibility as to the child[ren's] welfare;

c) she has failed to protect thechild[ren] from conditions within the [minors']environment[,] which are injurious to the[minors'] health and well[-]being."

Further, the State alleged it would be in the children's bestinterest to give DCFS the power to consent to the adoption of AlexisC. and Austin C.

In November 2003, the trial court heard evidence andarguments concerning the State's motion to terminate. The courtfirst heard testimony and arguments on the State's allegationsShaffer and Bommarito were unfit. As to Bommarito, the court foundeach of the State's allegations were proved by clear and convincingevidence and found Bommarito unfit with regard to Alexis C. andAustin C. As for Shaffer, the court addressed all three of theState's allegations concerning Shaffer's fitness. The court statedthe evidence showed between June 2002 and March 2003, Shaffer hadmade some progress and was doing some of the things required of her. However, in November 2002, Shaffer moved the children to Missouriwithout permission and was arrested for DWI. After that, a lack ofcontact and visitation occurred between Shaffer and her children. Asa result, the court found the State proved all three of itsallegations by clear and convincing evidence and declared Shaffer anunfit parent with regard to Alexis C. and Austin C.

The trial court then heard evidence regarding the bestinterest of Alexis C. and Austin C. After hearing the evidence, thecourt ruled the State proved by clear and convincing evidence it wasin the best interest of Alexis C. and Austin C. to terminate theparental rights of both Shaffer and Bommarito.

In December 2003, Shaffer appealed; Bommarito is not aparty to this appeal.

II. ANALYSIS

In March 2004, Shaffer's appellate counsel filed a motionto withdraw as counsel on appeal pursuant to Anders.

A. Clarification of In re S.M.

This court previously has set out the proper Andersprocedure in parental rights termination cases. In In re S.M., 314Ill. App. 3d 682, 685-86, 732 N.E.2d 140, 143 (2000), we stated:

"Under Anders, appellate counsel's requestto withdraw must, first, 'be accompanied by abrief referring to anything in the record thatmight arguably support the appeal.' Anders,386 U.S. at 744, 18 L. Ed. 2d at 498, 87 S. Ct.at 1400. In other words, appellate counselmust set out any irregularities in the trialprocess or other potential errors, which,although in his judgment are not a basis forappellate relief, might arguably be meritoriousin the judgment of the client, anotherattorney, or the court. Second, if such issuesare identified, counsel must (a) sketch theargument in support of the issues that couldconceivably be raised on appeal, and then (b)explain why he believes the arguments arefrivolous. [Citation.] Third, counsel mustconclude the case presents no viable groundsfor appeal. [Citation.] Fourth, to enable usto properly fulfill our responsibilities underAnders, counsel should include transcripts ofthe relevant hearings, i.e., in termination[-]of[-]parental[-]rights cases, the fitness andbest[-]interests hearings.

The procedure for appellate counsel towithdraw as outlined in Anders applies tofindings of parental unfitness and terminationof parental rights. [Citation.] Parentalrights and responsibilities are of deep humanimportance and are not terminated lightly.[Citation.] Termination is only allowed aftera separate best[-]interests hearing [citation],after which the trial court concludes the Statehas proved termination of parental rights is,in fact, in the minor's best interests[citation]. Thus, we conclude as a thresholdmatter in these cases, appellate counsel shouldreview both (1) the finding of unfitness and(2) the best[-]interests determination. Toclarify that he or she did so and to assist usin the execution of our duties under Anders, ifcounsel finds no appealable issue is present asto one of these two stages sufficient totrigger the Anders procedure above, he or sheshould so state in the introduction to theargument portion of the brief, i.e., statecounsel also reviewed the 'X' hearing andconcludes no appealable issue whatsoever ispresented with respect to it." (Emphases inoriginal.)

The Second District recently distinguished our decision inS.M., stating our use of the term "if" in the phrase "if such issuesare identified" (S.M., 314 Ill. App. 3d at 685, 732 N.E.2d at 143)"suggests that withdrawing counsel need not always identify apotentially justiciable issue and that the 'sketching of an argument'and an explanation of the argument's frivolity are not required ifcounsel does not identify any such issue." In re Alexa J., 345 Ill.App. 3d 985, 988, 803 N.E.2d 7, 10 (2003). As a result, the SecondDistrict chose not to follow our decision in S.M. on that particularpoint. Alexa J., 345 Ill. App. 3d at 988, 803 N.E.2d at 10. This isa point well taken. We now clarify that statement in S.M.: as toany such issue identified, counsel must (1) identify the issue, (2)sketch out an argument, and (3) explain the argument's frivolity.

B. Deficiencies in Counsel's Anders Motion

In the instant case, we conclude Shaffer's appellatecounsel has not followed proper Anders procedure in attempting towithdraw from this case. First, appellate counsel does not state ifhe reviewed the trial court's best-interest determination. In fact,appellate counsel makes no mention of the court's best-interestfinding in his motion. As we stated in S.M., "as a threshold matterin these cases, appellate counsel should review both (1) the findingof unfitness and (2) the best[-]interests determination." (Emphasisomitted.) S.M., 314 Ill. App. 3d at 685, 732 N.E.2d at 143.

Second, while appellate counsel addressed the trialcourt's fitness findings, we find his discussion and argumentinadequate. In his argument, appellate counsel fails to state whichof the court's three findings of unfitness he is addressing. Counsel's argument basically consists of only (1) a brief recitationof case law stating parents have a liberty interest in raising theirchildren and courts should not easily terminate parental rights; (2)some factual details of the case; and (3) a brief discussion of onecase, In re R.E., 317 Ill. App. 3d 227, 738 N.E.2d 1007 (2000), tosupport counsel's argument it would be frivolous to argue the court'sdecision regarding Shaffer's fitness was against the manifest weightof the evidence.

In R.E., the parents, whose rights were terminated, "had ahistory of domestic violence requiring police intervention andresulting in two convictions for [the father] for domestic batteryprior to [the child's] birth." R.E., 317 Ill. App. 3d at 229, 738N.E.2d at 1009. After the child was born, DCFS became involved withthe child after the father tried to punch the mother while she washolding the baby. R.E., 317 Ill. App. 3d at 229, 738 N.E.2d at 1009. DCFS was also aware of other instances where the father had abusedthe mother. R.E., 317 Ill. App. 3d at 229, 738 N.E.2d at 1009. Inthe father's appeal of the termination of his parental rights, he didnot "contest the trial court's factual finding there had beeninsufficient efforts or progress on his part." R.E., 317 Ill. App.3d at 230, 738 N.E.2d at 1009. Instead, he argued section 1(D)(m) ofthe Adoption Act (750 ILCS 50/1(D)(m) (West 1998)) did not apply tohis situation. R.E., 317 Ill. App. 3d at 230, 738 N.E.2d at 1009. Appellate counsel may be correct the trial court's decision declaringShaffer unfit is clearly not against the weight of the evidence. However, R.E. does not provide sufficient support for this argumentas it could be distinguished from the facts in this case.

C. S.M. Plus: Organization and Necessity of Addressing UnfitnessFindings in Termination Cases

In the case at bar, the trial court found Shaffer unfitbased on the following grounds: (1) failure to make reasonableprogress toward the return of the children to her within nine monthsafter an adjudication of neglect, abuse, or dependency; (2) failureto maintain a reasonable degree of interest, concern, orresponsibility as to the children's welfare; and (3) failure toprotect the children from conditions within their environmentinjurious to their welfare.

Under Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498, 87 S.Ct. at 1400, if counsel finds no appealable issue is present as toone or more of the court's findings of unfitness to trigger theAnders procedure above, he or she should so state in the introductionto the argument portion of the brief, i.e., counsel also reviewed thetrial court's "X" finding of unfitness and concludes no appealableissue whatsoever is presented with respect to that finding. CompareS.M., 314 Ill. App. 3d at 685-86, 732 N.E.2d at 143. This will,first, clarify for the record that counsel reviewed each finding and,second, assist us in the execution of our duties under Anders.

By contrast, if appellate counsel determines an unfitnessfinding warrants Anders treatment, counsel should state anything inthe record that arguably supports an appeal with regard to thatfinding, sketch out the argument in support of the issue, and thenexplain why the argument would be frivolous, providing applicableauthority in support of his position. If counsel concludes theargument would be frivolous because at least one of the trial court'sother findings of unfitness is clearly not against the manifestweight of the evidence (see In re J.T.C., 273 Ill. App. 3d 193, 198,652 N.E.2d 421, 424 (1995) ("It is well settled that a finding ofunfitness may be based upon evidence sufficient to support any onestatutory ground")), counsel should so state and provide authority asto why the other finding is clearly not against the manifest weightof the evidence.

An appellate court "is entitled to have the issues clearlydefined and to be cited pertinent authority. A point not argued orsupported by citation to relevant authority fails to satisfy therequirements of Rule 341(e)(7) [(Official Reports Advance Sheet No.21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001)]." Canteen Corp. v. Department of Revenue, 123 Ill. 2d 95, 111-12, 525N.E.2d 73, 80 (1988). A court of review "is not simply a depositoryinto which an appealing party may dump the burden of argument andresearch." In re Estate of Thorp, 282 Ill. App. 3d 612, 616, 669N.E.2d 359, 362 (1996). While we endeavor to expedite casesinvolving minors (Official Reports Advance Sheet No. 8 (April 14,2004), R. 306A, eff. July 1, 2004), we need this assistance fromcounsel to both ensure the record shows counsel properly executed hisor her responsibilities and to assist us in executing ours.

D. Handling Deficient Motions in Termination Cases

Appellate counsel's motion to withdraw does not complywith the procedure we outlined in S.M. and here. We have severaloptions to address appellate counsel's noncompliance with this properAnders procedure. First, we could deny the motion with prejudice andorder appellate counsel to file an appellate brief. Second, we couldexcuse appellate counsel's inadequate motion, review the recordourselves, and then determine whether the trial court's decisionshould be affirmed. Third, we could deny appellate counsel's motionto withdraw without prejudice. We choose this third option. Shaffer's appellate counsel must either file a brief in support ofShaffer's appeal or must file a motion to withdraw from the appealfollowing the procedures authorized by Anders and set forth above.

III. CONCLUSION

For the above-stated reasons, we deny appellate counsel'smotion to withdraw as appellate counsel without prejudice.

Motion denied without prejudice.

APPLETON and McCULLOUGH, JJ., concur.

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