Ex Parte Cauthen

291 S.C. 465 (1987)

354 S.E.2d 381

Ex parte Max B. CAUTHEN, In re SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent v. Mary Ann Garcia ALMENDAREZ, Arnold Olivo, Jr., Adam Chavez, Jr., and Enrique Almendarez, of whom Mary Ann Garcia Almendarez, Arnold Olivo, Jr., and Adam Chavez, Jr., are Respondents. Appeal of Enrique ALMENDAREZ is Appellant. In re Minerva GARCIA, b. 5/5/69, Gilbert Garcia, b. 5/27/71, Elida Almendarez, b. 7/7/78, Frances Garcia, b. 9/2/81, Virginia Garcia, b. 12/23/82, minor children.

Supreme Court of South Carolina.

March 25, 1987.

Appellant, an indigent, appeals an order terminating his parental rights to three children. Appellant's attorney, who is also appellant's Guardian ad Litem, petitions the Court to be relieved in both capacities alleging that the appeal lacks merit and that he cannot afford to bear the costs of this appeal. See Supreme Court Rule 3. We deny the petition and adopt the following procedure.

When an indigent person appeals an order terminating his parental rights in an action to which the South Carolina Department of Social Services (DSS) is a party, the appellant's attorney shall file a Motion to be Allowed to Proceed Without Costs along with the Notice of Intent to Appeal. A copy of this motion shall be served on all parties. Unless appellant's indigent status is challenged within ten days of service of this motion, he shall be deemed indigent for the purposes of this appeal. No filing fees shall be assessed against him.

The indigent appellant's attorney shall then order a copy of the entire trial transcript. DSS shall pay for this transcript. If, after reviewing it, the attorney determines that there are any meritorious issues, he shall serve a Proposed Case and Exceptions on the respondent(s) and shall proceed according to the Supreme Court Rules. DSS shall bear all reasonable costs of perfecting the appeal. If, however, the attorney determines that the appeal is without merit, he shall docket the transcript with this Court within thirty days of its receipt. Along with the transcript, the attorney shall file his affidavit stating his belief, as an offer of the court, that the appeal lacks merit. A copy of this affidavit shall be served on all parties and on the appellant. While neither the respondent(s) nor the appellant shall be required to file a response to counsel's affidavit, either may do so if he wishes.

The Court shall then review the transcript in its entirety. If the Court determines after its review that there are no meritorious issues, it shall affirm the appeal. If, however, the Court determines that any issue warrants briefing then the attorney will be informed of that *468 issue(s) and required to brief it. This brief shall then be served on the respondent(s) who shall file a responsive brief.

Appellant's attorney's petition to be relieved is denied. The procedure outlined in this order shall be followed in this appeal. In light of the documents already filed with this Court, appellant is deemed indigent for the purposes of this appeal.

It is so ordered.