In re Interest of Landon H. ( 2013 )

Nebraska Advance Sheets
IN RE INTEREST OF LANDON H. 105
Cite as 287 Neb. 105
CONCLUSION
We conclude that the Co-op has not appealed from a final
order because the trial court has determined only that Jacobitz’
accident occurred in the scope of his employment, but has not
yet determined benefits. We therefore dismiss the appeal and
remand the cause for further proceedings.
Appeal dismissed, and cause remanded
for further proceedings.
McCormack, J., participating on briefs.
In re I nterest of
Landon H., a child
under18 years of age.
State of Nebraska, appellee, v.
Bonnie H., appellant.
___ N.W.2d ___
Filed December 27, 2013. No. S-13-140.
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 indepen-
dently reviews.
2. Constitutional Law: Parental Rights: Due Process. Because of a natural par-
ent’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 con-
front 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 terminat-
ing the parent’s parental rights.
Nebraska Advance Sheets
106 287 NEBRASKA REPORTS
7. Juvenile Courts: Parental Rights: Attorney and Client: Notice. A juve-
nile 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.
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.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
The juvenile court allowed the attorney for the appellant,
Bonnie H., to withdraw at the start of a default hearing to ter-
minate 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.
BACKGROUND
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
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IN RE INTEREST OF LANDON H. 107
Cite as 287 Neb. 105
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 coun-
sel 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 adjudi-
cated Landon under Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2008) because of parental neglect. The juvenile court’s reha-
bilitation plan required Bonnie to cooperate with drug treat-
ment 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 con-
tact information.
In February 2012, counsel appeared with Bonnie for a dis-
position 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 con-
tact 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, coun-
sel appeared without Bonnie. The court continued the hearing
until June. At the June hearing, counsel appeared again with-
out Bonnie. In addition to its previous requirements, the court
ordered Bonnie to obtain psychiatric treatment. The court con-
tinued 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.
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108 287 NEBRASKA REPORTS
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 person-
ally 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 perma-
nency plan hearing. The order commanded Bonnie and Shawn
to appear and stated, “You or your attorney may present evi-
dence 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 sched-
uled several meetings at his office but that she had failed to
appear and had not responded to his telephone calls and let-
ters. 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 con-
tacted 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
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IN RE INTEREST OF LANDON H. 109
Cite as 287 Neb. 105
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 affi-
davits showed that he met Bonnie “in custody” on October 19
and again on October 24, the date of the first termination hear-
ing. 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.
ASSIGNMENTS OF ERROR
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
STANDARD OF REVIEW
[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
1
See, Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012); In re Interest of
Samantha L. & Jamine L., 286 Neb. 778, ___ N.W.2d ___ (2013), citing
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
2
See, e.g., State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012); In re
Interest of Davonest D. et al., 19 Neb. Ct. App. 543, 809 N.W.2d 819 (2012).
Nebraska Advance Sheets
110 287 NEBRASKA REPORTS
ANALYSIS
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 and cross-examining the
State’s witness.
The State disagrees. It contends that a parent waives the
right to be present at a termination hearing if he or she vol-
untarily or negligently fails to appear after proper notice. It
further contends that the court did not deny her due process
because she had an opportunity to contact her attorney or
appear at the hearing to represent herself or to ask the court
for a new attorney. But the record does not affirmatively
show that Bonnie elected to be unrepresented or that the
court took any steps to afford her due process in a termina-
tion proceeding.
[2,3] Because of a natural parent’s fundamental liberty inter-
est in the care, custody, and management of their child,3 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.4 A juvenile court order that terminates
parental rights through procedures that violate the parent’s due
process rights is void.5
[4,5] Procedural due process requires notice to the per-
son whose right is affected by the proceeding; reasonable
opportunity to refute or defend against the charge or accusa-
tion; reasonable opportunity to confront and cross-examine
adverse witnesses and present evidence on the charge or
accusation; representation by counsel, when such representa-
tion is required by the Constitution or statutes; and a hearing
3
Michael E. v. State, 286 Neb. 532, ___ N.W.2d ___ (2013).
4
In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442
(2004).
5
See id.
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IN RE INTEREST OF LANDON H. 111
Cite as 287 Neb. 105
before an impartial decisionmaker.6 In juvenile proceedings,
Neb. Rev. Stat. § 43-279.01(1)(b) (Reissue 2008) gives a par-
ent the right to appointed counsel if the parent cannot afford
an attorney.
The record shows that 5 days before the October 24, 2012,
termination hearing, Bonnie’s counsel met with her “in cus-
tody,” and he met with her again on October 24. The court
continued this hearing to provide time for the State to notify
Shawn of the hearing by publication. But Bonnie’s counsel did
not claim at the October 24 hearing that he could not represent
Bonnie because he had not communicated with her about the
termination proceeding.
As noted, in the court’s November 2012 order, it did not
state how or where personal service was made. But the record
shows that at the continued termination hearing on December
5, the court knew that Bonnie was in jail. In the court’s order,
which continued the termination hearing to January 2013 for
good cause, the court stated that a copy of the order was
mailed to Bonnie at the Lancaster County jail.
Although the court and counsel did not discuss Bonnie’s
confinement on the record, either the county attorney or
Bonnie’s attorney had obviously informed the court that
Bonnie was in jail. Yet, the court did not ensure that she
would be able to participate in the termination proceeding or
verify that despite Bonnie’s confinement, her attorney would
be able to represent her. The court’s failure to take these steps
is inconsistent with the requirements that we have set out for
these circumstances.
We have held that
parental physical presence is unnecessary for a hearing
to terminate parental rights, provided that the parent has
been afforded procedural due process for the hearing to
terminate parental rights.
If a parent has been afforded procedural due process
for a hearing to terminate parental rights, allowing a
6
Id.; In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992), citing
Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).
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parent who is incarcerated or otherwise confined in cus-
tody of a government to attend the termination hearing is
within the discretion of the trial court . . . .7
In that case, the parent was incarcerated in another state.
Although he did not personally appear, he received notice of
the accusations against him, participated telephonically in the
hearing, and was represented by counsel. So he was not denied
due process.
In In re Interest of Mainor T. & Estela T.,8 we considered a
parent’s due process rights who was jailed during the adjudica-
tion proceeding. There, the record showed that the court knew
the parent was in the county jail next door to the courthouse.
She was not represented by counsel and had not waived her
right to counsel, and the court did not provide an opportu-
nity for her to participate in the adjudication proceeding. The
court’s failure to ensure that she could participate personally or
through an attorney violated her due process rights. We vacated
the court’s order.
[6] We clarified that juvenile courts are not required to con-
duct inquiries into the whereabouts of every parent who fails
to appear for a scheduled hearing. In most cases, a parent who
has notice of the hearing should request to personally partici-
pate.9 But when a 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 terminat-
ing the parent’s parental rights.10
Here, instead of conducting the December 2012 termina-
tion hearing in a manner that afforded Bonnie due process, the
court continued the hearing until January 2013. Despite know-
ing that Bonnie was in jail in the same city, the court made no
inquiries whether she would be released for the January hear-
ing, whether her attorney could represent her without her pres-
ence, or how to arrange for her participation even if she was
7
In re Interest of L.V., supra note 6, 240 Neb. at 416, 482 N.W.2d at 258.
8
See In re Interest of Mainor T. & Estela T., supra note 4.
9
See id.
10
See id.
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IN RE INTEREST OF LANDON H. 113
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not present. At the continued termination hearing in January,
the court similarly took no steps to ensure that Bonnie was
afforded due process.
At the January 2013 hearing, Bonnie’s attorney stated to
the court that he had previously raised his lack of communica-
tions with Bonnie at the December 2012 hearing. As noted, he
reported at the January 2013 hearing that he had not communi-
cated with Bonnie since February 2012. But the court did not
ask counsel why he could not communicate with her in jail or
how he was able to represent her at the October 2012 termina-
tion hearing if he had not communicated with her. Moreover,
the court’s termination order stated that a copy was sent to
Bonnie at an address in Edgar, Nebraska, and Bonnie asked for
a new attorney 1 day after the court issued its order. But noth-
ing in the record shows that her attorney had tried to reach her
in jail or at her address in Edgar.
It is true that we held in In re Interest of A.G.G.11 that after
a court has acquired jurisdiction over a parent and appointed
counsel, the parent has an obligation to keep the attorney and
the court informed of his or her whereabouts. There, we con-
cluded that termination of a mother’s parental rights did not
violate due process despite her absence from the hearing. But
the circumstances of that case were different. Although the
mother had avoided service, she had actual notice of the ter-
mination proceeding and nonetheless informed the caseworker
that she would not attend. The State had made diligent efforts
to serve her with notice. Most important, the mother was rep-
resented by counsel, who moved to dismiss the proceedings for
lack of jurisdiction. In fact, the trial court appointed that attor-
ney after it allowed the mother’s previous attorney to withdraw
because he could not communicate with her about the termina-
tion proceeding.
In contrast, here we cannot conclude that the parent has
avoided service or refused to attend the hearing despite hav-
ing actual notice. The court’s order suggests that Bonnie was
not in jail when the court issued its order on January 17, 2013.
But we do not know whether she was still in jail during the
11
See In re Interest of A.G.G., 230 Neb. 707, 433 N.W.2d 185 (1988).
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January 4 hearing. We are equally concerned that because
Bonnie’s attorney had represented her without her attendance
at many hearings, she would have believed that he would con-
tinue to do so.
Under Neb. Ct. R. of Prof. Cond. § 3-501.3, a lawyer must
act with reasonable diligence and promptness in representing a
client. Comment 4 explains that diligence includes continuing
the representation unless the lawyer has complied with the rule
for termination of representation, particularly when the client
has reason to believe that the lawyer will continue to serve the
client’s interests:
Unless the relationship is terminated as provided in
Rule 1.16, a lawyer should carry through to conclu-
sion all matters undertaken for a client. If a lawyer’s
employment is limited to a specific matter, the relation-
ship terminates when the matter has been resolved. If a
lawyer has served a client over a substantial period in a
variety of matters, the client sometimes may assume that
the lawyer will continue to serve on a continuing basis
unless the lawyer gives notice of withdrawal. Doubt
about whether a client-lawyer relationship still exists
should be clarified by the lawyer, preferably in writing,
so that the client will not mistakenly suppose the lawyer
is looking after the client’s affairs when the lawyer has
ceased to do so.
Bonnie’s mistaken reliance on her attorney creates our con-
cern here. Because Bonnie’s attorney had represented her at
many hearings, including the first termination hearing, with-
out her appearance, she could have reasonably believed that
he would also represent her at the continued hearing. So we
conclude that a juvenile court should not permit an attorney to
withdraw from representing a parent at a termination hearing
for lack of communication unless the attorney shows that he
or she has provided notice of an intent to withdraw or made
diligent efforts to do so.
Under Neb. Ct. R. of Prof. Cond. § 3-501.16(b), a lawyer
may withdraw from representing a client only if the lawyer
offers a specified reason for withdrawal and shows that he has
complied with notice laws or obtained the court’s permission
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to terminate the representation. A lawyer must “take steps to
the extent reasonably practicable to protect a client’s interests,
such as giving reasonable notice to the client [and] allow-
ing time for employment of other counsel.”12 A court should
consider whether withdrawal could be accomplished without a
material adverse effect on the client’s interests.13
[7] Indigent parents in juvenile proceedings have a statutory
right to an attorney because they have fundamental rights at
stake. Because of those rights, 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. As this
case illustrates, without a requirement that the attorney show
proof of service of an intent to withdraw, a court may not know
all the relevant circumstances of the parent’s whereabouts or
whether the attorney has in fact made diligent efforts to contact
the client.
[8] We cannot conclude that Bonnie irresponsibly avoided
her attorney when her parental rights were at stake, rather than
assuming that he would continue to represent her as he had at
the October 2012 termination hearing. Absent circumstances
showing that a parent has avoided contact with his or her attor-
ney, a juvenile court must respect the parent’s due process right
to representation by an attorney.
CONCLUSION
After reviewing for plain error, we conclude that the court’s
procedures denied Bonnie due process at the termination hear-
ing. We therefore vacate the court’s order and remand the cause
with direction to conduct a new termination hearing.
Vacated and remanded with direction.
12
§ 3-501.16(d).
13
See § 3-501.16(b)(1).