In re A.P.

• Decision Date: 29 March 2019
• Docket Number: No. M2017-00289-COA-R3-PT,M2017-00289-COA-R3-PT
• Parties: IN RE A.P.
• Court: Tennessee Court of Appeals

IN RE A.P.

No. M2017-00289-COA-R3-PT

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

March 5, 2019 Session

March 29, 2019

Appeal from the Juvenile Court for Davidson County

No. 2010-002897

Sheila Calloway, Judge

Mother appeals the trial court's order terminating her parental rights as to her minor child. Because we conclude that the trial court erred in allowing Mother's counsel to withdraw the morning of trial, without considering whether Mother had notice of the withdrawal, we vacate the trial court's order and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and KENNY ARMSTRONG, JJ., joined.

E. Elijah Wilhoite, Nashville, Tennessee, for the appellant, U. E. E.

Thomas H. Miller, Nashville, Tennessee, for the appellees, D. P., and A. O. P.

OPINION

Background

The child at issue in the present case is the non-marital child of U.E.E. ("Mother") and A.O.P. ("Father"). Father and his wife, D.P., (collectively with Father, "Appellees") filed a petition to terminate Mother's parental rights in the Juvenile Court for Davidson County ("trial court") on January 29, 2016. At some point, Mother retained attorney William Stover ("Mr. Stover") to represent her in the termination proceedings. Although the trial was originally set for August of 2016, the matter was continued several times due to scheduling issues. The trial court eventually held a hearing on September 13, 2016, during which it set the matter for trial on February 1, 2017 and February 3, 2017. The trial court's notes from the September 13, 2016 hearing indicate that only Mr. Stover and Appellees' counsel were present in court on that date.

Thereafter, on November 14, 2016, Mr. Stover filed a motion to withdraw as Mother's counsel, stating that Mother had failed to stay in communication with Mr. Stover, and that Mother had otherwise failed to fulfill her contractual obligations. Mother's name and address was not included in the certificate of service attached to the motion to withdraw. The trial court heard Mr. Stover's motion on January 17, 2017, and allowed the withdrawal but appointed Mr. Stover as Mother's attorney.¹ See generally Tenn. Sup. Ct. R. 13(d)(2).

The case proceeded to trial on February 3, 2017. However, the morning of trial, Mr. Stover filed a second motion to withdraw as Mother's counsel, this time contending that a conflict had arisen between Mother and him such that Mr. Stover could no longer represent her. The motion further stated that Mother had failed to stay in contact with Mr. Stover and the attorney-client relationship was thereby broken. Again, Mother's name and address was not listed on the certificate of service attached to the motion to withdraw, nor was Mother present in court on February 3, 2017.

The trial court addressed Mr. Stover's motion to withdraw at the start of the hearing, whereupon the following exchange occurred:

MR. STOVER: . . . . In preparing for the trial, it just became apparent to me, based upon some of the information that I reviewed recently, that I have a conflict, Your Honor. Based on what I need to be able to do in the case and the responsibility, you know, based upon the Rules of Professional Responsibility and things that I would need to do - maybe should do, I feel like I can't do in this situation. And I think that, you know, without going into further detail, I just don't feel like that I should remain on as counsel for [Mother] in this case, based upon that.

* * *

THE COURT: Mr. Stover, when was the last time you had actual contact with [Mother]?

MR. STOVER: I believe it was an e-mail back when I filed the last motion to withdraw.

THE COURT: To withdraw, okay.

MR. STOVER: And she emailed that - requested - I mean, just asked what happened. It was a couple of words, you know, two - one sentence. I replied, and that was it. I want to say it was back in November. I would have to look - try to look back. I want to say that was back in November.

THE COURT: The holiday was - so she responded to you after the -

MR. STOVER: After the hearing day.

THE COURT: - after the hearing day?

[OPPOSING COUNSEL]: If - I would suggest that [Mother] has abandoned her attorney and this case.

THE COURT: It sounds like that. So she was aware - she asked you, after the case, after the motion to withdraw, she was aware that I had denied that and appointed you as her attorney?

MR. STOVER: Right. Yes, . . . ma'am, I put that in my response. I let her know what happened.

THE COURT: And that the trial date was still on go?

MR. STOVER: I did. But just, Your Honor, just to briefly kind of respond to what [opposing counsel] was saying, I mean, I can go further into detail, but the more detail I go into, I think the worse the situation becomes because of the fact that -

THE COURT: I understand. I'm [not] going to make you go into more detail. I'm going to let you withdraw.

Consequently, the trial court allowed Mr. Stover to withdraw and proceeded with the termination hearing with no participation from Mr. Stover. At the close of evidence, the trial court determined that Mother's parental rights as to the child should be terminated, and a final order of termination was later entered on February 28, 2017. Mr. Stover, however, filed a notice of appeal with this Court on behalf of Mother on February 8, 2017. Thereafter, the trial court entered a written order on March 6, 2017, allowing Mr. Stover's withdrawal. In this order, the trial court also stated that Mother had "abandoned and, or forfeited her right to appointed counsel in this case." After Mother filed a pro se motion to this Court, Mother was appointed new counsel for purposes of this appeal.

Discussion

Although the parties raise various issues related to the trial court's decision to find clear and convincing evidence to terminate Mother's parental rights, we perceive the dispositive issue to be whether the trial court erred in allowing Mother's trial counsel to withdraw the day of the termination hearing. Because the decision "to permit the withdrawal of counsel is within the sound discretion of the trial court[,]" we review this issue for an abuse of discretion. Banks v. Univ. of Tennessee, No. M2017-01358-COA-R3-CV, 2018 WL 3621082, at *7 (Tenn. Ct. App. July 30, 2018). As such, this Court is not permitted to "second-guess the court below," or to "substitute [our] discretion for the lower court's." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 525 (Tenn. 2010) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999); Henry v. Goins, 104 S.W.3d 475 479 (Tenn. 2003)). "When called upon to review a lower court's discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the lower court's legal determinations de novo without any presumption of correctness." Id. at 525.

Here, Mother argues on appeal that the manner in which Mr. Stover was allowed to withdraw violated her due process right to a fundamentally fair proceeding in the trial court. Specifically, Mother asserts that she was not informed that the trial was set for February 1, 2017 and February 3, 2017, and, further, that she was not informed of Mr. Stover's intent to withdraw as counsel the day of trial. In support, Mother points out that her information was not included in the certificates of service for either of Mr. Stover's motions to withdraw, despite Mr. Stover knowing how to get in touch with Mother. Overall, Mother's contention on appeal is that she "has not been afforded notice reasonably calculated to apprise her not only of Mr. Stover's motion to withdraw[,]" but also of the trial itself. Moreover, Mother asserts that the responsibility to notify her rests with Mr. Stover, and that the trial court's inquiry regarding Mr. Stover's efforts to so notify Mother were inadequate.

On balance, the Appellees argue that the right to appointed counsel in a termination proceeding is not absolute and that Mother waived her right to an attorney by failing to communicate with Mr. Stover. Appellees assert that "[a] parent's due process rights in parental termination cases are not violated when a court finds that the parent has effectively waived his or her right to appointed counsel through the parent's own conduct." As such, Appellees dispute that Mother's fundamental rights were violated when the trial court allowed Mr. Stover to withdraw the day of trial.

Having reviewed the record and the applicable case law, however, we share Mother's concerns about the procedural history of this case. It is well-settled that a "parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Carrington H., 483 S.W.3d 507, 527 (Tenn. 2016), cert. denied sub. nom. Vanessa G. v. Tenn. Dep't of Children's Servs.

, 137 S. Ct. 44

(2016) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972)). As such, the rights implicated in parental termination cases are considered "far more precious than any property right[,]" and "[i]n light of the interests and consequences at stake, parents are constitutionally entitled to fundamentally fair procedures in termination proceedings." Id. at 522 (citing Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)). Although the United States Supreme Court has declined to hold that due process requires the appointment of counsel in each and every parental termination case, Lassiter v. Dep't of Social Servs., 452 U.S. 18, 31 (1981), "Tennessee statutorily provides the right to appointed counsel for indigent parents in every parental termination proceeding." In re Carrington H., 483 S.W.3d at...