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In August 2002, the trial court found respondent, L.J., anunfit parent. 750 ILCS 50/1(D)(b), 1(D)(d), 1(D)(m), 1(D)(s) (West 2000). The court subsequently found that the termination ofrespondent's parental rights was in the best interest of his minorchild, Alexa J. Respondent filed a timely notice of appeal.

Kathryn Bischoff was appointed to represent respondent duringhis appeal. Citing the procedure set forth in Anders v.California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967),and In re Keller, 138 Ill. App. 3d 746 (1985), Bischoff has fileda motion for leave to withdraw as appellate counsel.

In the motion, counsel represents that she has read the recordof this case and has discovered no possible justiciable issue thatwould warrant relief in this court. In support of the motion, shehas filed a memorandum of law that summarizes the proceedings inthe trial court. The memorandum identifies no potentiallymeritorious issue and cites no authority for counsel's conclusion. After presenting the evidence most favorable to the State, theargument portion of counsel's memorandum generally asserts that"[t]he court's analysis is indisputedly [sic] correct."

The motion states that counsel mailed a copy of the motion torespondent. However, in her affidavit, counsel represents that shemailed a copy to the minor's mother. The affidavit also statesthat respondent "has been advised of the Motion for Leave toWithdraw and informed of the opportunity to present any additionalmatters to the Court within 30 days." The record contains a letterfrom counsel to respondent regarding the motion, but we have foundno proof of service or certificate of mailing. The clerk of thiscourt mailed respondent notice of the motion and informed him thathe would be afforded an opportunity to present, within 30 days, anyadditional matters to this court. There is no response fromrespondent, and the time to respond has expired.

Under Anders, appellate counsel's request to withdraw must be"accompanied by a brief 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 re Brazelton, 237 Ill. App.3d 269 (1992), an involuntary commitment case, and In re S.M., 314Ill. App. 3d 682 (2000), a termination of parental rights case,each involved a motion to withdraw from an appeal in the AppellateCourt, Fourth District.

In Brazelton, counsel's memorandum supporting the motion didnot identify any potentially meritorious issue and consisted ofonly a three-page statement of facts and a one-page argumenterroneously describing the State's burden of proof at trial. Thememorandum concluded that " '[t]he evidence clearly and entirelysupports the State's position.' " Brazelton, 237 Ill. App. 3d at271.

Initially, the appellate court acknowledged an attorney'sconflicting interests in filing a motion to withdraw:

"The attorney in an Anders situation is faced with anunusual difficulty. The attorney requesting the court'spermission to withdraw bears the knowledge a successful motionto withdraw necessitates the court's determination that anappeal would be frivolous. An attorney is expected tozealously argue in favor of that which he is requesting of thecourt. The initial impulse of an attorney seeking to withdrawfrom a case is to emphatically maintain the correctness of thecircuit court's determination and the frivolous nature of anyappeal. However, this impulse to convince the court of themerits of the motion to withdraw must be tempered by the dutyto the client.

Counsel's duty to the client mandates the attorney, tothe extent possible, remain as an advocate of the client. Theattorney may not act as an unbiased judge of the merits of theappeal. Rather he must set out any irregularities in thetrial process or other potential error, which, although in hisjudgment not a basis for appellate relief, might *** bemeritorious. [Citation.]" (Emphasis in original.) Brazelton,237 Ill. App. 3d at 271.

The appellate court denied the motion to withdraw, concludingthat it amounted to a "no-merit" letter that did not conform to theprocedure authorized by Anders. A no-merit letter is inadequatebecause it does not afford the reviewing court or the client anyguidance, and the court is forced to determine the frivolity of theclient's case without the benefit of legal argument in support ofthe client's position. Brazelton, 237 Ill. App. 3d at 272, citingAnders, 386 U.S. at 745, 18 L. Ed. 2d at 498-99, 87 S Ct. at 1400. The court emphasized that the memorandum raised only the questionof the State's burden of proof and then answered that questionincorrectly. Counsel was directed to submit an appellate briefsupporting the appeal. Brazelton, 237 Ill. App. 3d at 272.

The Brazelton court stated that a withdrawing attorney must"set out any irregularities in the trial process or other potentialerror." (Emphasis in original.) Brazelton, 237 Ill. App. 3d at271. This phrase alone could mean that appellate counsel need notpresent an issue if no irregularity or other potential errorexists. However, the remainder of Brazelton suggests that counselmust identify at least one potentially justiciable issue in amotion to withdraw under Anders. If the attorney were not requiredto identify at least one potentially justiciable issue, the client and the appellate court would lack any guidance in determining thefrivolity of the appeal. Brazelton, 237 Ill. App. 3d at 272.

In S.M., the appellate court relied upon Brazelton in holdingthat Anders authorized a slightly different procedure. In S.M.,the attorney's memorandum initially asserted that there were noappealable issues but ultimately concluded that the trial courtabused its discretion in terminating the father's parental rights. S.M., 314 Ill. App. 3d at 686. The appellate court found that thememorandum deviated from the Anders procedure because, among otherthings, counsel (1) concluded that the trial court erred and (2)requested the alternative relief of granting the motion to withdrawor reversing the judgment. S.M., 314 Ill. App. 3d at 686. Despitecounsel's noncompliance with Anders, the appellate court reviewedthe record, granted the motion, and affirmed the judgmentterminating the parental rights. S.M., 314 Ill. App. 3d at 687.

Similar to Brazelton, the S.M. court stated that the brief"must set out any irregularities in the trial process or otherpotential errors, which, although in [counsel's] judgment are nota basis for appellate relief, might arguably be meritorious in thejudgment of the client, another attorney, or the court." (Emphasisin original.) S.M., 314 Ill. App. 3d at 685. However, the courtthen held that, "if such issues are identified, counsel must (a)sketch the argument in support of the issues that could conceivablybe raised on appeal, and then (b) explain why he believes thearguments are frivolous." (Emphasis added.) S.M., 314 Ill. App.3d at 685, citing Brazelton, 237 Ill. App. 3d at 272. The court'suse of the word "if" suggests that withdrawing counsel need notalways identify a potentially justiciable issue, and that the"sketching of an argument" and an explanation of the argument'sfrivolity are not required if counsel does not identify any suchissue. However, neither Anders nor Brazelton supports thisextension of the law, and we decline to follow S.M. on thisparticular issue.

However, S.M. is useful to the extent that it defines theremaining procedure for withdrawing from an appeal in atermination-of-parental-rights case. S.M. held that counsel mustconclude in the memorandum that the case presents no viable groundsfor appeal and include transcripts of the fitness and best interesthearings to enable us to fulfill our responsibilities under Anders. S.M., 314 Ill. App. 3d at 685. As a threshold matter in anonmeritorious termination-of-parental-rights appeal, counselshould state in the introduction to the argument portion of theAnders brief that he or she has reviewed both the finding ofunfitness and the best interest determination. S.M., 314 Ill. App.3d at 685-86.

In this case, counsel has provided the transcripts of both thefitness and best interest proceedings, and the argument portion ofher memorandum states that she has undertaken "[a] thorough reviewof the record." The argument section is labeled "Possible Issuefor Review," but, as in Brazelton, counsel has not framed anargument in support of any issue that could conceivably be raisedon appeal. Furthermore, the argument section is less than twopages and does not identify our standard of review or the State'sburden of proof at trial. Without citation to any authority,counsel merely asserts that "[t]he court's analysis is indisputedly[sic] correct." This statement is very similar to the conclusoryassertion in Brazelton that " '[t]he evidence clearly and entirelysupports the State's position.' " Brazelton, 237 Ill. App. 3d at271. Pursuant to Brazelton, we deny appellate counsel's motion towithdraw, but this does not end our analysis.

Brazelton and S.M. offer two approaches for addressing anattorney's noncompliance with Anders in a civil case. InBrazelton, the court denied the motion with prejudice and orderedcounsel to file an appellate brief. However, the court in S.M.excused the attorney's inadequate memorandum and granted themotion. Neither solution appears appropriate for the situation inthe case at bar. The path followed in S.M. would lead us to affirmthe trial court's granting of the motion, but this would result inupholding the denial of due process to which we have alreadyalluded. Following the direction taken in Brazelton would cause usto deny the motion and require the attorney to file a brief that isprobably not well founded. It appears that, based on the facts ofthis case, an alternative course of action is indicated.

In S.M., the record showed that the attorney served the parentwith the motion (S.M., 314 Ill. App. 3d at 683), but here,appellate counsel has not submitted any proof of service or acertificate of mailing. We find this deficiency troubling in lightof counsel's conclusory argument for affirming the termination ofrespondent's parental rights. Because "[p]arental rights andresponsibilities are of deep human importance and are notterminated lightly" (S.M., 314 Ill. App. 3d at 685), we deny themotion to withdraw, but we do so without prejudice.

By requiring counsel to proceed with the appeal, the court inBrazelton effectively decided that the parent's case might bemeritorious. We do not require counsel to file an appellate briefin support of respondent's position as the court did in Brazeltonbecause that course would prolong the case unnecessarily if, infact, respondent's appeal lacks merit. Cf. In re Abdullah, 85 Ill.2d 300, 310 (1981) (the interests of finality and judicial economyrequire that at some point a line must be drawn in terminatingparental rights). Instead, we direct appellate counsel toreconsider her position and file either a brief in support ofrespondent's appeal or a new motion to withdraw from the appeal. If counsel elects to file a new motion to withdraw, she must followthe procedure authorized by Anders, which is set forth herein.

For the preceding reasons, appellate counsel's motion towithdraw is denied without prejudice.

Motion denied without prejudice.

HUTCHINSON, P.J., concurs.

JUSTICE O'MALLEY, specially concurring:

I concur in the majority's result, but I write separatelybecause I do not think it useful to require attorneys who wish towithdraw from a frivolous appeal to manufacture "an issue thatmight arguably support the appeal" where none exists. Such apretense is neither supported by Anders v. California (386 U.S.738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967)) nor wise policy.

Anders requires that a request by appointed counsel towithdraw from a meritless appeal be "accompanied by a briefreferring to anything in the record that might arguably support theappeal." Anders, 366 U.S. at 744, 18 L. Ed. 2d at 498, 87 S. Ct.at 1400. Anders does not require that any other issues beidentified in the brief. Thus, no issue need be identified if noissue might arguably support an appeal.

According to the majority, however, an attorney seeking towithdraw must "identify at least one potentially justiciableissue." Slip op. at 4. This rule is simply not consistent withAnders. Anders holds only that a request to withdraw must beaccompanied by a brief referring to "anything," not something inthe record that might arguably support the appeal.

The majority puts attorneys who wish to withdraw from caseswhere there is no "potentially justiciable issue" in the untenableposition of having either to identify an issue that is notpotentially justiciable or to bring a patently frivolous appeal. In my view, the probable effect of the majority's rule is thatattorneys in this circumstance will simply identify issues that arenot potentially justiciable. The purpose of requiring the attorneyto identify issues that might arguably support the appeal is to aidthe court and the client in their own review of the record. SeeAnders, 366 U.S. at 745, 18 L. Ed. 2d at 498-99, 87 S. Ct. at 1400. I do not think that identification of issues that do notpotentially have merit furthers that purpose.

Furthermore, Anders does not support the idea that there is aminimum number of issues that need be identified. According toAnders, counsel should identify all issues in the record that mightarguably support the appeal. Nothing in Anders suggests that thenumber of issues, even if the number is zero, changes thisanalysis. Additionally, the majority's choice of "at least onejusticiable issue" as the minimum is arbitrary. There is norational basis for choosing one issue as the minimum as opposed to,for example, four issues.

Where no issue that might arguably support an appeal exists,I would allow an attorney seeking to withdraw to simply state assuch in his brief. We would then deny the motion to withdraw ifour review of the record revealed an issue that might arguablysupport the appeal. An appellate court is, after all, alreadysupposed to undertake a full examination of all of the proceedingsbefore granting a motion to withdraw. Anders, 366 U.S. at 744, 18L. Ed. 2d at 498, 87 S. Ct. at 1400.

United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976)), a case that purportedly holds that a brief from appellatecounsel stating "counsel for appellant has searched the record andhas failed to find anything in the record that might arguablysupport an appeal" is the equivalent of a "no-merit" letter and,therefore, not permitted under Anders, in substance, follows theprocedure I outlined above. The court reviewed the record anddetermined that there was an issue that might arguably support anappeal: "Our surface review of the record convinces us that theissue of the nature and scope of the warrantless search ofappellant's apartment following his initial arrest on drug chargesdeserves analysis." Johnson, 527 F.2d at 1329. To the extent thatJohnson addresses the circumstance where there truly is no issuethat might arguably support an appeal, it does so in dicta becausein that case the court specifically cited an issue that mightarguably support an appeal.

While I agree with the majority that the motion to withdrawshould have been denied for the notice reasons stated in themajority opinion, I would not have denied the motion on theadditional basis that appellate counsel did not identify at leastone potentially meritorious issue.