State v. Bonnie H. (In re Interest Landon H.), S–13–140
| Decision Date | 27 December 2013 |
| Docket Number | No. S–13–140,S–13–140 |
| Citation | 841 N.W.2d 369,287 Neb. 105 |
| Parties | In re Interest of Landon H., a child under 18 years of age. State of Nebraska, appellee, v. Bonnie H., appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Separate Juvenile Court of Lancaster County: Toni G. Thorson, Judge. Vacated and remanded with direction.
David P. Thompson, of Thompson Law, P.C., L.L.O., for appellant.
Joe Kelly, Lancaster County Attorney, and Daniel Zieg for appellee.
1. Constitutional Law: Due Process: Appeal and Error. Whether the procedures given an individual comport with constitutional requirements for procedural due process presents a question of law, which an appellate court independently reviews.
2. Constitutional Law: Parental Rights: Due Process. Because of a natural parent's fundamental liberty interest in the care, custody, and management of their child, if the State intervenes to adjudicate a child or terminate the parent-child relationship, its procedures must meet the requisites of the Due Process Clause.
3. Juvenile Courts: Parental Rights: Due Process. A juvenile court order that terminates parental rights through procedures that violate the parent's due process rights is void.
4. Constitutional Law: Due Process. Procedural due process requires notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and a hearing before an impartial decisionmaker.
5. Juvenile Courts: Parental Rights: Right to Counsel. In juvenile proceedings, Neb.Rev.Stat. § 43–279.01(1)(b) (Reissue 2008) gives a parent the right to appointed counsel if the parent cannot afford an attorney.
6. Juvenile Courts: Parental Rights: Due Process. When a juvenile court knows that a parent is incarcerated or confined nearby, it should take steps, without request, to afford the parent due process before adjudicating a child or terminating the parent's parental rights.
7. Juvenile Courts: Parental Rights: Attorney and Client: Notice. A juvenile court may not assume that a parent has avoided communications with his or her attorney unless the attorney shows that he or she has made diligent efforts to serve notice to the parent of the attorney's intent to withdraw from the representation.
8. Juvenile Courts: Parental Rights: Right to Counsel: Due Process. Absent circumstances showing that a parent has avoided contact with his or her attorney, a juvenile court must respect the parent's due process right to representation by an attorney.
The juvenile court allowed the attorney for the appellant, Bonnie H., to withdraw at the start of a default hearing to terminate Bonnie's parental rights without requiring the attorney to show that he gave notice to Bonnie of his intent to withdraw. We conclude that the court's ruling denied Bonnie due process and constituted plain error. We vacate the court's order and remand the cause with direction.
In October 2011, Bonnie was ingesting narcotics in a parked vehicle with a male companion. Landon H., who was then age 2, was asleep in the back seat. Police officers arrested Bonnie and took Landon into emergency custody. Landon's father, Shawn H., was incarcerated at the time. Landon was later placed with foster parents. He has reactive attachment disorder and behavioral problems. Bonnie has a history of substance abuse and had previously relinquished her parental rights for her two other children.
The court appointed counsel for Bonnie in November 2011. At the first adjudication hearing in December, Bonnie's counsel appeared without her to deny the allegations. The court continued the hearing. In January 2012, Bonnie appeared and pleaded no contest to the State's allegation that she had cocaine on her person when the police searched her. The court adjudicated Landon under Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) because of parental neglect. The juvenile court's rehabilitation plan required Bonnie to cooperate with drug treatment and testing, obtain a legal means of income, maintain regular contact with the representative for the Department of Health and Human Resources (Department), and provide contact information.
In February 2012, counsel appeared with Bonnie for a disposition hearing. The court found that she was unemployed and homeless, had not cooperated with offered services, and had not consistently provided the Department with her contact information. The court found that she had made poor progress toward the goal of reunification. The alternative plan was adoption.
At the April 2012 child support and review hearing, counsel appeared without Bonnie. The court continued the hearing until June. At the June hearing, counsel appeared again without Bonnie. In addition to its previous requirements, the court ordered Bonnie to obtain psychiatric treatment. The court continued the child support hearing and scheduled another review hearing for September. The court also scheduled a permanency plan hearing for January 2013.
At the September 2012 child support and review hearing, counsel appeared without Bonnie. Bonnie was still making poor progress toward the goal of reunification. The court scheduled the next review hearing to coincide with the January permanency plan hearing. But before the court issued the order, the State had already moved to terminate Bonnie's parental rights. The court scheduled the termination hearing for October 24. It ordered the clerk to issue summons and notice to both parents.
On October 24, 2012, counsel appeared without Bonnie. The court continued the hearing to December 5 to allow for service on Shawn by publication. In November, the court issued an order that rescinded a previous order for service on Bonnie by publication. The court stated that Bonnie had been personally served, but the record does not show where or when she was served.
On December 5, 2012, counsel appeared without Bonnie. The court continued the termination hearing, for good cause shown. It set a default hearing to terminate parental rights for January 4, 2013, the day previously scheduled for the permanency plan hearing. The order commanded Bonnie and Shawn to appear and stated, “You or your attorney may present evidence on your behalf....” The order warned the parents that it would be deciding whether to terminate their parental rights. A note at the bottom of the order specifically stated that the court sent a copy to Bonnie at the Lancaster County jail in Lincoln, Nebraska.
At the January 4, 2013, termination hearing, counsel again appeared without Bonnie. Before the hearing started, Bonnie's attorney asked the court for leave to withdraw. He said that he had had no recent contact with Bonnie and that his last contact was in February 2012. He also said that he had scheduled several meetings at his office but that she had failed to appear and had not responded to his telephone calls and letters. Because Bonnie had not communicated with him, the court allowed him to withdraw. But the court stated that it would consider Bonnie's request for counsel if she contacted the court.
The caseworker testified that Bonnie had not visited Landon since the previous summer and had moved to Grand Island, Nebraska, since then. The caseworker said that she last contacted Bonnie through an e-mail 4 to 5 months earlier but that Bonnie had not responded to her request for an address. She said that Bonnie had occasionally asked to see Landon, but without knowing her address, the caseworker could not provide visitation and drug testing services to Bonnie in Grand Island. She said that Bonnie had not provided any support for Landon and that Landon's behavioral problems had worsened when in Bonnie's presence. The court agreed with the Department that the evidence supported termination of both Bonnie's and Shawn's parental rights. The court's order noted that a copy was sent to Bonnie at an address in Edgar, Nebraska.
Bonnie's attorney moved for payment of his fees for February, July, and November 2012. Contrary to his statement to the court that he last contacted Bonnie in February, his affidavits showed that he met Bonnie “in custody” on October 19 and again on October 24, the date of the first termination hearing. He also listed fees for several telephone calls to or from Bonnie after February, most recently on October 8.
A written order shows that the day after the court issued its termination order, it heard Bonnie's request for appointment of a different attorney to represent her. The court sustained Bonnie's request for an attorney and later issued an order allowing Bonnie to proceed in forma pauperis on appeal.
Bonnie argues that the court's order, which allowed her attorney to withdraw before the termination hearing began, denied her due process. But in her brief, Bonnie has not assigned the court's action as error. Absent plain error, an appellate court considers only an appellant's claimed errors that the appellant specifically assigns in a separate “assignment of error” section of the brief and correspondingly argues in the argument section.1
Whether the procedures given an individual comport with constitutional requirements for procedural due process presents a question of law, which we independently review.2
Bonnie contends that she had a statutorily guaranteed right to counsel. She argues that the juvenile court violated her due process rights when it allowed her counsel to withdraw from representing her without notifying her. She argues that she was entitled to expect that her attorney would represent her by making proper arguments...
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