SUMMARY: A juvenile court cannot allow an attorney to withdraw without a showing that the attorney made diligent efforts to notify the parent of his intent to withdraw. Due process was violated because the court excused the mother’s attorney from representing her at the TPR trial without notifying her while knowing the parent was in jail but failing to take steps to afford her due process by attending or being represented.
In October 2011, Landon, age 2, was removed from his mother, Bonnie, after Bonnie was ingesting narcotics in a car with Landon present. An attorney was appointed for Bonnie in November 2011. In January 2012, Bonnie pled no contest to the 3a petition and Landon was adjudicated. Bonnie was ordered to cooperate with drug treatment and testing, obtain legal income, maintain regular contact with DHHS and provide contact information. In February 2012, Bonnie’s counsel appeared alone at a disposition hearing and found the court found Bonnie to be making poor progress. In April 2012, Bonnie’s counsel again appeared alone and the court continued the hearing. In June 2012, Bonnie’s counsel again appeared without Bonnie. Bonnie also failed to appear at the next review hearing in September 2012. The State then moved to terminate Bonnie’s parental rights. The termination hearing was scheduled for October 24, and the court ordered the clerk to issue summons and notice to Bonnie. Bonnie did not appear at the October 24, 2012, hearing and the court continued until December 5. In November, the court rescinded an order to provide notice to Bonnie by publication noting she had been personally served but the record does not show such personal service. At the December 5, 2012, hearing, counsel appeared without Bonnie and the hearing was continued to January 4, 2013. The order commanded Bonnie to appear and stated “You or your attorney may present evidence on your behalf…” This order was mailed to Bonnie at the Lancaster County Jail. At the January 4, 2013, hearing, Bonnie again did not appear and Bonnie’s counsel asked for leave to withdraw, saying he’s had no contact with Bonnie since February 2012, having failed to attend scheduled meetings or respond to his phone calls and letters. The court granted the request. However, Bonnie’s attorney had requested payment of fees which included his meeting Bonnie in custody on October 19 and October 24, and for telephone calls to Bonnie, most recently on October 8. The termination hearing proceeded and the court terminated Bonnie’s parental rights after its conclusion. Bonnie appealed.
The Nebraska Supreme Court reversed the termination of parental rights. It first noted that procedural due process in juvenile proceedings includes the right to confront witnesses, the right to present evidence and the right to appointed counsel if the parent can’t afford an attorney. The Supreme Court reviewed the record and noted that the court knew Bonnie was in jail in November because it mailed the order there but made no efforts to ensure Bonnie could participate in the termination proceeding or verify that her attorney could still represent her. It added that the court is not required to determine the whereabouts of every missing parent but when it knows a parent is incarcerated, it should take steps to afford that parent due process. In this case, the court did not try to find out whether Bonnie would be released for the January hearing, whether her attorney could represent her in her absence, why her attorney couldn’t communicate with her in jail or how to arrange for her participation. The Supreme Court cited Neb. Ct. R of Prof. Cond. 3-501.3 and found that Bonnie likely would have had a reasonable belief that her attorney was representing her since he had done so at previous hearings and so the court should not have permitted the attorney to withdraw before showing he had provided notice of intent to withdraw or tried to do so. The Supreme Court concluded that “we hold that 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” and found that Bonnie’s due process rights were violated. 287 Neb. at 115.