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People ex rel South Dakota Dep't of Social Services v. D.S.Y.3/31/2004
ppears in K.S.M., 61 SW3d at 633 - 34:
The case before us differs from an Anders case because appeals from orders terminating parental rights are civil rather than criminal . The minority jurisdictions, which we cited above, argue that the right of concern in Anders is the federal constitutional right to counsel in criminal cases. In contrast, the right involved in a parental termination case is based solely in state law. We find this argument unpersuasive. Like indigent criminal appellants, indigent appellants challenging an order terminating their parental rights enjoy a right to counsel on appeal. [citing Texas statutes and case law].
In addition, the difference in the nature of the case, i.e., civil rather than criminal , makes no difference in the duties court-appointed counsel owes his or her client. From counsel's perspective, counsel's duty to competently and diligently represent the client is exactly the same in a civil appeal from an order terminating parental rights as in an appeal from a criminal conviction. Moreover, in both criminal and parental termination cases, counsel may conclude, after thoroughly and conscientiously examining the case, that a case lacks any non-frivolous issues for appeal. Despite the civil or criminal nature of the appeal, counsel in such a situation faces the same dilemma of having to diligently represent the indigent client who wants to appeal while still complying with counsel's other ethical duties as a member of the Bar. For these reasons, we hold that when appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief. (citations omitted).
. We find these views to be in accord with the objectives served by requiring the appointment of counsel for the parents in termination of parental rights cases. See SDCL 26-7A-31 (appointment of attorney for indigent parents in juvenile cases). Adhering to Anders in these cases merely provides additional protection for the indigent appellant's right to the assistance of counsel. As noted by the Alabama Court of Civil Appeals in coming to a similar conclusion in J.K., 668 So2d at 816, "if the procedure outlined in Anders passes muster in criminal cases, it certainly should be adequate in [the termination of parental rights] context."
. Based upon the foregoing, it would appear to be the majority view that Anders should be held applicable to appeals in termination of parental rights cases. Because Korth, supra defines the Anders process in South Dakota, counsel's submission of a Korth brief in this termination of parental rights case was procedurally appropriate and the State's arguments to the contrary are rejected.
SECTION B ISSUES
. Counsel raises four issues requested by father in Section B of his brief: that the trial court inappropriately used past domestic abuse charges and prison sentences against father in arriving at its disposition; that father disagreed with DSS guidelines requiring him to attend aftercare, NA, AA and counseling in order to see his daughter; that the trial court stated it did not like father; and, that father's counselor stated he must attend church in order to continue counseling and thereby violated his right to freedom of religion.
. Father's issues lack merit. SDCL 26-7A-34 requires a dispositional hearing to be conducted "to inform the court fully of the exact status of the child and to ascertain the history, environment and past and present physical, mental and moral condition of the child and of the child's parents, guardian or custodian." (emphasis added). Father's past domestic abuse charges
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