CHILDERS V: ARKANSAS DEP'T OF HUMAN SERVS ARK ] Cite as 360 Ark 517 (2005) 517 Sherry CHILDERS v ARKANSAS DEPARTMENT of HUMAN SERVICES 05-30 202 S,W:3d 529 Supreme Court of Arkansas
Opinion delivered February 3, 2005 1 APPEAL & ERRo R — RECORD NanT TIMFLY FII Fn —APPFI I ANT NOT PENALIZED BECAUSE MOTIoN FOR RULE oN FIERK NOT AVAIL ABLE IN CIVIL CASES — In a criminal case where the record is not timely filed as required by Ark, R. App. P.—Civ. 5 (2004), appellant could have petitioned the court pro se for a rule on clerk to enable her to file the record and thereby perfect her appeal: however, no such remedy exists for appellants in civil cases [Bogachotf v: Arkansas Dept: ofHuman Services, 360 Ark: 259, 200 S,W,3d 884 (2005)], thus, appellant should not be penalized for her failure to file a motion for rule on clerk, 2. PARENT & CHILD — TERMINATION OF PARENTAL RIGHTS — RIGHTS OF INDIGENT PARENTS — Under the supreme court's recent decision in Linker-Flores v: Ark. Dept: ofHuman Services, 359 Ark, 131, 194 S,W.3d 739 (2004) (Linker-Flores I,: Ark, Dept: of Human Services II), indigent parents have a nght to appeal from a judgment terminating parental rights, the supreme court has also held that indigent parents are entitled to court-appointed counsel on appeal [Linker-Flores v: Arkansas Dept, of Human Services, 356 Ark, 369, 149 S:W:3d 884 (2004) (Linker-Flores v. Ark: Dept: of Human Services I)], thus appellants's appointed attorney was obhgated to proceed with her appeal in accordance with the procedures recently adopted by the supreme court for appeals involving indigent parents in terrnmanon GUIC5
CI IILDLRS ARKANSAS Du, i ui HUMAN SERVS
518 Cite a 30 Ark 517 (2005) [360 PARENT & CHILD — TERMINATiuN OF PAREN 1AL RIUNTS — RIGHT TO APPEAL CANNOT BE CONDITIONED ON ABILITY TO PAY — Appellant's nght to appeal from the termination of her parental rights cannot be conditioned on her ability to pay for preparation of a record; if appellant is unable to afford the preparation of a transcript, she may proceed informa paupens, and the transcript shall be furnished at the State's expense: furthermore, if appointed counsel, after a conscientious review of the record, believes the appeal is frivolous, counsel should file a no-ment brief with the court along with a petition to withdraw as counsel, 4 APPEAL & ERROR_ — APPELLANT'S ATTORNEY DIRECTED TO PROCEED WITH APPEAL IN MANNER CONSISTENT WITH PROCEDURES SET OUT IN LINKER-FLOREE AND BOGACHOFF — MOTION TO DISMISS DENIED —Because the Linker-Flores and Bogachoffcases were decided well after appellant's extended time for filing the record had expired, the court chose not to penalize her or her attorney for fahng to comply with the court's directives set forth in those decisions, instead, appellant's appointed attorney was directed to proceed with the appeal in a manner consistent with the procedures adopted by the court in the Linker-Flores and Bogachoff cases; motion to disnuss was denied Motion to dismiss denied: Gary Allen Turner, for appellec% No response, ER CURIAM This case is an appeal from an order entered p by the Sebastian County Circuit Court, Fort Smith District, Juvenile Division, on December 18, 2003, terminating the parental rights of Appellant Sherry Childers Counsel appointed by the circuit court to represent Ms Childers filed a timely notice ot appeal on January 15, 2004, and an order extending the time to file the record until June 4, 2004, was entered by the circuit court_ See Ark App P 5(b) The time granted under the extension order
passed, and the record was not timely filed with our clerk See Ark_ R App. P 5(a) (2004) Eventually, on January 7, 2005, the Department of Human Services (DHS) tiled a partial record along with its motion to dismiss the instant appeal_ Ark R App P 5(c) (2004) The partial record does not contain an affidavit of
CHILDERS V. ARKANSAS DEP'T OF HUMAN SERVS ARK ] rite as 30 Ark 517 (2005) 519 indigency, but the notice of appeal filed by appointed counsel states that Ms: Childers "has been found to be indigent and the undersigned lawyer was appointed to represent her,- [1] If this were a criminal case and appointed counsel failed to timely tender the record to this court as required by Ark: R App P —Civ 5 (2004), Ms Childers could have petitioned this court pro se for a rule on clerk to enable her to file the record and thereby perfect her appeal. Atkins v. State, 308 Ark. 675, 827 S,W,2d 636 (1992): No such remedy, however, exists for appellants in civil cases. Bogachoff v: Arkansas Dept: of-Human Services, 360 Ark: 259, 200 S:W,3d 884 (2005), Thus, Ms: Childers should not be penalized for her failure to file a motion for rule on clerk, [2, 3] Under our recent decision in Linker-Flores v, Ark: Dept of Human Services, 359 Ark, 131, 194 S,W.3d 739 (2004) (Linker-Flores v Ark Dept of Human Services II), indigent parents have a right to an appeal from a judgment terminating parental rights. We have also held that indigent parents are entitled to court-appointed counsel on appeal: Linker-Flores v. Arkansas Dept, of Human Services, 356 Ark, 369, 149 S:W.3d 884 (2004) (Linker-Flores v: Ark: Dept: of Human Services I): Thus, Ms: Childers's appointed attorney is obligated to proceed with her appeal in accordance with the procedures recently adopted by this court for appeals involving indigent parents in termination cases: See Linker-Flores v. Ark: Dept: of Human Services II, supra; Bogachoff v. Arkansas Dept: of Human Services, supra: More specifically, Ms: Childers's right to appeal from the termination of her parental rights cannot be conditioned on her ability to pay for the preparation of a record: M.L.B. v: S.L.J., 519 U:S: 102 (1996): If Ms: Childers's is unable to afford the preparation of a transcript, she may proceed in forma pauperis, and the transcript shall be furnished at the State's expense: Bogachoff v: Arkansas Dept: of Human Services, supra; Petition of Hutton, 301 Ark, 538, 785 S:W,2d 33 (1990): Furthermore, if appointed counsel, after a conscientious review of the record, believes the appeal is frivolous, counsel should file a no-merit brief with this court along with a petition to withdraw as counsel: Linker-Flores v. Ark: Dept: of Human Services II, supra: [4] Because the Linker-Flores and Bogachoff cases were decided well after Ms: Childers's extended time for filing the record had expired, we will not pen Ali 7l a her or her attorney for failing to
520 [360 comply with the court's directives set forth in those decisions: Instead, we now direct Ms: Childers's appointed attorney to proceed with the appeal in a manner consistent with the procedures adopted by this court in the Linket-Flotes and BoRaclw cases. If Ms, Childers has chosen to waive her right to an appeal, she should file an affidavit of waiver with this court. Motion to dismiss denied:
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