Appellate court finds withdrawal of mother's attorney violated fundamental fairness

Indigent parents in Tennessee have the right to counsel in termination of parental rights matters under statute.  Pursuant to court rule, the right to counsel extends "throughout the proceedings, including any appeals, until the case has been concluded or counsel has been allowed to withdraw by a court.”

In In re Lila F., the appellate court reversed and remanded the termination of a mother's parental rights, finding that the trial court abused its discretion in permitting withdrawal of the mother's attorney. No. E2023-01112-COA-R3-PT, 2024 WL 1480174 (Apr. 5, 2024).  The issue in the case was "whether the court violated Mother's due process rights when it allowed her attorney to withdraw at the outset of trial." Id. at *2.

The reasons cited by mother's attorney in support of her motion to withdraw included "Mother's 'difficulties ... attending appointments'" and her absence at the start of trial. Id. at *2.  However, the appellate court reasoned that mother had at least attempted to let the attorney know about her whereabouts the morning of trial and that "counsel offered no other information about her efforts to communicate with her client." Id. at *3.  The trial court even failed to "ascertain whether counsel gave Mother any prior warning that she intended to withdraw" as required by Tenn. Sup. Ct. R. 8 and Rule of Professional Conduct 1.16(b)(5). Id. at *2-3.  Accordingly, the record did not support that the decision to withdraw was supported by applicable rules. 

The appellate court also rejected the Department's contention that mother had implicitly waived her right to counsel.  The Lila F. court distinguished the facts from those present in State Dep't of Children's Servs. v. Agbigor, No. M2000-03214-COA-R3-JV, 2002 WL 31528509, at *5-6 (Tenn. Ct. App. Nov. 15, 2002), in which a mother was found to have "effectively waived" her right to counsel where she failed to contact counsel for months, "was unreachable by counsel, voluntarily travelled out of the country for an extended period until two weeks before trial, and did not prepare for or arrive on time to trial." Lila F., 2024 WL 1480174 at *3 [citing also to e.g., In re Elijah B., No. E2010-00387-COA-R3-PT, 2010 WL 5549229, at *5 (Tenn. Ct. App. Dec. 29, 2010)].  The court stated:

Given the limited information provided by Mother's counsel, the court erred in granting the request to withdraw at the outset of trial. Parents are entitled to fundamentally fair procedures in termination proceedings. In re Carrington H., 483 S.W.3d at 522 (citing Santosky v. Kramer, 455 U.S. 745, 754 (1982)). In Tennessee, an important component of those procedures is the statutory right to appointed counsel for indigent parents. See id. at 533-34.

Id.