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People ex rel South Dakota Dep't of Social Services v. D.S.Y.3/31/2004
at tapered off in early 2003. By that time, DSS had suspended father's visitation rights pending his compliance with the visitation guidelines. Father made no effort to comply with the guidelines and, consequently, by the time of the dispositional hearing, had not exercised visitation for some time. Moreover, father was unemployed for extended periods, had no suitable housing for a child and fell behind in the rent on his apartment. Father also resisted DSS efforts to consult with him on child's special needs. A telephone conference between father and child's counselor and therapist had to be terminated because of father's insistence that child had no special needs. By March 2003, father had ceased contact with DSS, had failed to undergo required counseling and aftercare and had failed to follow through with family counseling recommendations.
. The dispositional hearing as to father was held in May 2003. In July, the trial court entered findings of fact, conclusions of law and an order terminating father's parental rights. Father appeals.
ISSUE ONE
. Whether court-appointed counsel in an appeal of a termination of parental rights case is permitted to file a "Korth brief" conceding a lack of arguably meritorious issues for appeal and submitting only those issues requested by the client?
. In State v. Korth, 2002 SD 101, 650 NW2d 528, this Court adopted an alternative briefing procedure for criminal appeals where court appointed counsel identifies no "arguably meritorious" issues for appeal. The procedure requires bifurcated briefing in which counsel indicates in Section A of the brief that he has not identified any arguably meritorious issues for appeal and submits, in Section B of the brief, any claim of error requested by the client. Father's court appointed counsel has submitted his brief as a "Korth brief." The State argues that the Korth procedure is reserved for criminal appeals and is inapplicable in appeals from civil proceedings to terminate parental rights. Accordingly, the State contends that father's brief should be stricken and that the decision of the trial court should be affirmed.
. The Korth procedure was adopted by this Court to safeguard a criminal defendant's right to appellate counsel as required by the United States Supreme Court's decision in Anders v. State of California, 386 US 738 (1967). See also Smith v. Robbins, 528 US 259 (2000)(states are not bound by the steps outlined in Anders and may adopt different procedures so long as they adequately safeguard a defendant's right to appellate counsel). Thus, Korth is applicable in any case in which Anders requirements are applicable. Although jurisdictions are split on the issue of Anders' applicability to appeals in termination of parental rights cases, the majority appear to support such application. See J.K. v. Lee County, 668 So2d 813 (AlaCivApp 1995); Jones v. Department of Human Resources, 271 SE2d 27 (GaCtApp 1980); Matter of Keller, 486 NE2d 291 (IllAppCt 1985); Morris v. Lucas County Children Serv. Bd., 550 NE2d 980 (OhioCtApp 1989); In Re V.E., 611 A2d 1267 (PaSuperCt 1992); In Re K.S.M., 61 SW3d 632 (TexApp 2001); L.C. v. State, 963 P2d 761 (UtahCtApp 1998). Contra Denise H. v. Arizona Dept. of Economic Sec., 972 P2d 241 (ArizCtApp 1998); In Re Sade C., 920 P2d 716 (Cal 1996); N.S.H. v. Florida D.C.F.S., 843 So2d 898 (Fla 2003); In Re Harrison, 526 SE2d 502 (NCCtApp 2000). See also In Re Welfare of Hall, 664 P2d 1245 (Wash 1983)(absent client consent, withdrawal of counsel on appeal in a child deprivation proceeding will never be permitted).
. A succinct analysis of the divergent views on the applicability of Anders to termination of parental rights cases a
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