In Re A.P.

03/29/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 5, 2019 Session
IN RE A.P.
Appeal from the Juvenile Court for Davidson County
No. 2010-002897 Sheila Calloway, Judge
___________________________________
No. M2017-00289-COA-R3-PT
___________________________________
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.
1
The trial court’s order contains no certificate of service.
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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
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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
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(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 527; see also Tennessee Code Annotated section 37-1-
126(a)(2)(B)(ii) (“A parent is entitled to representation by legal counsel at all stages of
any proceeding under this part in proceedings involving . . . [t]ermination of parental
rights pursuant to § 36-1-113.”). Consequently, there is no dispute that Mother initially
had a statutory right to be represented by counsel in the termination proceedings in the
trial court, nor does anyone dispute Mother’s right to a fundamentally fair termination
proceeding.
While a parent’s right to appointed counsel in a termination of parental rights
proceeding is well-established in Tennessee, this Court has also acknowledged that where
a parent fails to adequately cooperate or communicate with their counsel before trial, the
client may have impliedly waived the “right to appointed counsel by his or her conduct.”2
In re Jamie B., No. M2016-01589-COA-R3-PT, 2017 WL 2829855, at *4 (Tenn. Ct.
App. June 30, 2017); see also 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)
(holding that the right to counsel was waived where father left the country before trial,
failed to contact and otherwise cooperate with his attorney, and returned only shortly
before the termination hearing); In re M.E., No. M2003-00859-COA-R3-PT, 2004 WL
1838179, at *12 (Tenn. Ct. App. Aug. 16, 2004) (“Failure to cooperate with appointed
counsel can constitute a waiver of the right to appointed counsel.”). Here, the trial court
relieved Mr. Stover of his appointment and proceeded with the trial without appointing
alternative counsel for Mother concluding that Mother had abandoned and/or forfeited
her right to counsel. Therefore, we must determine whether the record is sufficient to
show that Mother effectively waived her right to counsel through her actions, and the
2
We note that a far stricter standard has been adopted by the Tennessee Supreme Court with
regard to the forfeiture of constitutionally mandated appointed counsel in criminal actions. See State v.
Holmes, 302 S.W.3d 831, 838 (Tenn. 2010) (“A criminal defendant may be deemed to have forfeited this
right when he or she engages in “extremely serious misconduct,” or engages in an “egregious
manipulation” of the right to counsel “so as to delay, disrupt, or prevent the orderly administration of
justice.” (quoting State v. Carruthers, 35 S.W.3d 516, 548 (Tenn. 2000) (internal citation omitted)). This
standard has never been applied by Tennessee courts in the context of a civil matter involving termination
of parental rights, where the right to counsel is provided by statute rather than constitutional mandate. As
such, no party suggests that the standard outlined in Holmes is applicable here.
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concomitant issue of whether the proper procedure was followed in allowing the
withdrawal.3
In evaluating both Mr. Stover’s request to withdraw and whether Mother
effectively waived her right to counsel, both this Court and the trial court must “consider
the principles embodied in the [Tennessee] Rules of Professional Conduct . . . .” In re
Jamie B., 2017 WL 2829855, at *6 (citing Zagorski v. State, 983 S.W.2d 654, 660
(Tenn. 1998)); see also Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App. 2004)
(citing D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995)) (holding that a trial court’s
“discretion is not unbounded, it must be based on proof and appropriate legal
principles”). The Rules of Professional Conduct provide that a lawyer may withdraw
from representation in a number of circumstances. See Tenn. Sup. Ct. R. 8, Rule 1.16(b).
But see Tenn. Sup. Ct. R. 8, Rule 1.16(a) (outlining those circumstances where
withdrawal is mandatory). Relevant to this appeal, a lawyer may withdraw when “the
client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled[.]” Id. at Rule 1.16(b)(5). Another instance where withdrawal may
3
We would also point out that at the final hearing, Mr. Stover stated that a “conflict” had arisen
between he and Mother and that this alleged conflict required Mr. Stover to withdraw as Mother’s
counsel. However, as we perceive it, the only potential conflict apparent from the record would have been
Mother’s alleged lack of participation and failure to communicate with Mr. Stover. Neither party has
argued on appeal that a separate, distinct conflict required Mr. Stover to withdraw as counsel to Mother;
indeed, Appellees focus their briefing on this issue on their contention that Mother has waived her right to
counsel through her lack of communication; no other purported conflict is mentioned or argued.
Moreover, the trial court, in its order allowing Mr. Stover to withdraw, noted the following:
3. The Motion to withdraw presently before the court is based upon a conflict of interest
that appears to the court to be incapable of reconciliation.
4. The Court recognizes that [Mother] has failed to adhere to the standard of conduct
reasonably expected from a client by their attorney, based in part upon her failure to
participate in the defense of this case. [Mother] has failed to communicate with her
attorney, and failed to appear at the trial of this matter.
5. As a result the court finds that [Mother] has abandoned and, or forfeited her right to
appointed counsel in this case.
Accordingly, it appears that the trial court based its decision to allow Mr. Stover’s withdrawal solely on
the allegation that Mother failed to substantially fulfill her obligations to Mr. Stover by failing to
communicate or participate in her defense, see Tenn. Sup. Ct. R. 8, Rule 1.16(b) (discussed in detail
infra), rather than some alternative conflict that required mandatory withdrawal. See id. at Rule 1.16(a)(1)
(mandating withdrawal of counsel if another Rule of Professional Conduct is violated by the
representation); see also, e.g., Tenn. Sup. Ct. R. 8, Rule 1.8 (governing conflicts with current clients);
Tenn. Sup. Ct. R. 8, Rule 1.9 (governing conflicts involving former clients and providing guidance of
when lawyers cannot represent clients due to these conflicts of interest); Tenn. Sup. Ct. R. 8, Rule 1.9
(governing imputation of conflicts).
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be appropriate occurs when “the representation . . . has been rendered unreasonably
difficult by the client.” Id. at Rule 1.16(b)(6). Rule 1.16 provides, however, that a lawyer
“shall, to the extent reasonably practicable, take steps to protect the client’s interests”
upon the lawyer’s withdrawal. Tenn. Sup. Ct. R. 8, Rule 1.16(d). “Depending on the
circumstances, protecting the client’s interests may include . . . giving reasonable notice
to the client[.]” Id. Moreover, even where a client has effectively waived the right to
counsel, this Court recently held that “[a]n attorney appointed by the juvenile court for an
indigent party in a parental termination case must seek leave of the court to withdraw” as
counsel. In re Jamie B., 2017 WL 2829885, at *5 (citing Tenn. Sup. Ct. R. 13, Sec.
1(e)(5)).
We have previously addressed the issue of a parent’s waiver of the right to counsel
in conjunction with the withdrawal of appointed counsel under circumstances similar to
those at hand. For example, in In re Elijah B., No. E2010-00387-COA-R3-PT, 2010 WL
5549229, at *5 (Tenn. Ct. App. Dec. 29, 2010), the father was served with a termination
petition but failed to appear at the bench trial. At the outset of the trial, the father did not
appear and his attorney informed the court that she had not had contact with the father in
two months; as such, the attorney made an oral motion to withdraw. Id. at *4. The trial
court allowed the withdrawal, and proceeded with the bench trial after which father’s
parental rights were terminated. Id.
On appeal, father argued that his due process rights were violated in that he was
not given appropriate notice of the bench trial, nor was he represented at the hearing. Id.
at *5. This Court, however, concluded that father’s arguments were without merit. First,
we noted the father’s concession that he knew about the hearing date in advance, as father
had appeared at a prior hearing during which the trial was reset. Id. at *6. As such, the
argument that he did not have notice of the hearing itself was unavailing. Id. Moreover,
we concluded that under these circumstances, father’s actions amounted to a waiver of
the right to counsel. Id. Indeed, we pointed out that on appeal, father completely failed to
“address his failure to contact or communicate with his counsel or offer any real reason
for his absence at the [bench trial.]” Id. Considering the fact that the father admitted
knowing about the upcoming trial and nonetheless failed to communicate with his
attorney in the months before, we determined that his right to counsel was waived. Id.
This Court more recently confronted the issue of waiver of a parent’s right to
counsel in In re Jamie B., 2017 WL 2829855, at *12, but reached the opposite
conclusion of the In re Elijah B. panel. In that case, the mother was late for the
termination proceeding and her attorney made a rather equivocating oral motion to
withdraw as counsel, noting that he had not been in contact with her for several months.
Id. at *2. The court granted the motion without questioning the attorney further regarding
his efforts to communicate with the mother. Id. Shortly after the hearing began, the
mother arrived and indicated that she did not wish to relinquish her parental rights and
wanted representation. Id. After a short conference with the mother, the attorney stated
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that he still wished to withdraw and that he was not prepared to go forward that day. Id.
at *3. The trial court proceeded with the hearing, and the mother’s parental rights were
terminated. Id. On appeal, mother argued in part that the trial court erred in allowing the
attorney to withdraw at the beginning of trial, leaving mother pro se. Id. at *4.
This Court agreed with the mother, concluding that there was insufficient
information in the record to support a finding that mother had waived her rights by failing
to fulfill her obligations to her counsel. Id. at *6. Indeed, we noted that the attorney
provided essentially no information as to his efforts to communicate with the mother, nor
did he “indicate whether he provided [m]other any prior warning that he might
withdraw.” Id. Of particular importance in In re Jamie B. was the fact that the record
contained essentially no evidence as to “counsel’s efforts to communicate with his
client[;]” likewise, we noted that the trial court’s questioning in this regard was limited at
best. Id. Accordingly, we concluded that the mother’s counsel failed to establish how “his
apparent past difficulties in communication with [the mother]” amounted to a waiver on
her part, or that counsel “had provided suitable notice that he would withdraw if [the
mother] failed to satisfy those obligations.” Id. The trial court’s order was vacated and
the case was remanded for a new trial. Id.
Returning to the present case, we acknowledge that “a failure to communicate and
the failure to appear for trial can render a representation unreasonably difficult.” In re
Jamie B., 2017 WL 2829855, at *6 (citing Agbigor, 2002 WL 31528509, at *56). Such
difficulty can serve as a basis for withdrawal of representation under Rule 1.16. See
Tenn. Sup. Ct. R. 8, Rule 1.16(b)(5) & (6). Here, however, we perceive the facts at hand
to be analogous to In re Jamie B. and distinguishable from In re Elijah B. Chief among
our concerns is the lack of evidence in the record showing that Mother had proper notice
of the proceedings. Importantly, in In re Elijah B., there was no dispute that the father
was well aware of the hearing date but simply chose not to appear; the father’s decision
not to participate therefore weighed in favor of a finding that the father “effectively
waived his right to counsel” through his actions. 2010 WL 5549229, at *5–*6. In this
case, however, Mother sharply disputes that she was informed of the hearing date,4 and
the record contains nothing more than Mr. Stover’s assertions of notice to show that she
was actually informed. These statements are particularly unavailing in that Mr. Stover
could not definitively state when he last attempted to contact Mother, but that he believed
it was sometime in November of 2016.5 Moreover, the record tends to suggest that
4
In contrast, in In re Elijah B., the father in no way disputed the attorney’s statements
concerning his failure to communicate. See 2010 WL 5549229, at *6 (“Neither, however, does Father, in
his brief, address his failure to contact or communicate with his counsel or offer any real reason for his
absence at the [] hearing.”). Here, Mother asserts that her failure to appear and otherwise communicate is
attributable to the fact that she was not receiving documents from Mr. Stover. The fact that Mr. Stover
filed his motions to withdraw without including Mother on the certificate of service, discussed infra,
somewhat supports Mother’s allegations.
5
To reiterate, Mr. Stover stated the following: “I would have to look – try to look back. I want to
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Mother may not have been apprised of all of the proceedings. For example, there is
nothing in the record indicating that Mother was present at the September 2016 hearing in
which the trial court reset the date of the termination hearing to February 1 and February
3, 2017. Likewise, the order appointing Mr. Stover as counsel due to Mother’s indigency
contains no certificate of service whatsoever. Accordingly, it is not clear that Mother
knew the date that this matter was set for trial or was otherwise apprised of the
proceedings. In the absence of proof that Mother was aware of the trial date, we are
reluctant to conclude that her failure to appear coupled with Mr. Stover’s unsupported
allegations of lack of communication are sufficient to show that she effectively waived
her statutory right to appointed counsel.6
Like the In re Jamie B. panel, we are further concerned that the record is devoid
of anything that would indicate “whether [Mr. Stover] provided Mother any prior
warning” that he planned to withdraw as counsel the morning of trial. In re Jamie B.,
2017 WL 2829855, at *6. Indeed, the certificate of service attached to the second motion
to withdraw, filed the morning of trial, was addressed to opposing counsel and the
guardian ad litem, but not Mother.7 This is also true of the first motion to withdraw filed
by Mr. Stover in November of 2016.8 While the trial court briefly questioned Mr. Stover
about the last time he had contact with his client, at no point did the trial court attempt to
discern whether Mother was aware of Mr. Stover’s intent to withdraw from his
representation. As such, the trial court’s inquiry into Mr. Stover’s actions can only be
described as “limited” at best. Id. There is simply no evidence in the record, other than
Mr. Stover’s unsworn statements that he had not had contact with Mother since
November of 2016, that Mother’s actions amounted to an effective waiver of her right to
be represented by appointed counsel. See In re Jamie B., 2017 WL 2829855, at *6 (“As
for a failure to fulfill an obligation to counsel, we find the facts in the record insufficient
to support such a finding. The information provided by counsel regarding his efforts to
communicate with his client was limited as was the court’s questioning.”).
say that it was back in November.”
6
As discussed supra, Mr. Stover also alleged that a conflict had arisen between he and Mother,
although the conflict appears to have been Mother’s failure to communicate with Mr. Stover. However,
even to the extent that a different conflict requiring a mandatory withdrawal, see Tenn. Sup. Ct. R 8, Rule
1.16(a), had arisen, in the absence of proof that Mother effectively waived her right to counsel, the proper
course of action would have been to continue the trial and appoint Mother new counsel. In any event,
under these circumstances, Mr. Stover’s allegation of a conflict is inapposite as to the issue of whether
Mother should have received notice of Mr. Stover’s intent to withdraw as counsel.
7
Mother asserts on appeal that Mr. Stover knew of a P.O. Box at which Mother was to receive
mail but that he inexplicably refused to send mail to this address.
8
Unlike in In re Elijah B., in which the request to withdraw appears to have been made orally
when Father failed to appear, see 2010 WL 5549229, at *4, it appears in this case that Mr. Stover was
aware of his intent to withdraw prior to the hearing date and simply chose not to make an attempt to
inform Mother of that intent.
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In this case, an attempt to provide Mother notice of Mr. Stover’s intent to
withdraw may very well have proved fruitless. Nevertheless, we cannot ignore that the
record does not show that Mr. Stover made any attempt to give Mother notice and causes
this court doubt as to whether Mother had notice of the trial date. Consequently, the
actions of Mr. Stover and the trial court appear to conflict with the spirit of our
professional rules regarding withdrawal. See Rules of Prof’l Conduct R. 1.16(d)
(“Depending on the circumstances, protecting the client’s interests may include . . .
giving reasonable notice to the client”); see also Rules of Prof’l Conduct R. 1.16 cmt. 8
(“A lawyer may withdraw if the client refuses to abide by the terms of an agreement
relating to the representation, such as an agreement concerning fees or court costs or an
agreement limiting the objectives of the representation. The lawyer must, however, give
the client reasonable notice of the lawyer’s intention to withdraw.”). Although it is
apparent to us that notice to a client before withdrawal from representation is the clear
best practice under these circumstances, this went unacknowledged in this case.
Under these particular circumstances, we cannot conclude that the record on
appeal supports the assertion that Mother has waived her right to appointed counsel. The
“information provided by [Mr. Stover] regarding his efforts to communicate with his
client was limited[,]” and the trial court’s inquiry into these efforts was perfunctory at
best. In re Jamie B., 2017 WL 2829855, at *6. Moreover, the Appellees have provided
us with nothing that “indicates whether [Mr. Stover] provided Mother any prior warning
that he might withdraw.” Id. Considering the limited information contained in the record,
we simply cannot say that there is a sufficient basis for us to conclude that Mother’s
alleged shortcomings amount to a waiver of her right to counsel. See Id. (“To the extent
that counsel was relying upon his apparent past difficulties in communicating with
Mother, counsel failed to establish Mother’s obligations in that regard or that he had
provided suitable notice that he would withdraw if Mother failed to satisfy those
obligations.”). Where a trial court relieved a parent’s appointed counsel on the day of trial
without a proper showing that Mother had notice and effectively waived her right to
counsel, we have previously concluded that the parent was deprived of fundamentally fair
procedures such that a new trial was warranted. Id. at *7 (holding that it was
inappropriate to terminate the mother’s parental rights in this situation where the
petitioner’s evidence was “largely unchallenged by [the] [m]other and which was offered
at a hearing during which [the] [m]other did not have the benefit of counsel”). As we
explained, “[u]ltimate rights should be decided only when the court is ‘in possession of
the materials necessary to enable it to do full and complete justice between the parties.’”
Id. (quoting Interstate Transit, Inc. v. City of Detroit, 46 F.2d 42, 43 (6th Cir. 1931))
(some internal quotation marks omitted).
In light of the significant constitutional implications at issue in the present case,
and the deficiency of the information in the record as to how those rights were protected
by the trial court, we conclude that the order terminating Mother’s parental rights should
be vacated and the case remanded for a new trial. Consequently, all other issues raised in
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this appeal are pretermitted. See O’dneal v. Baptist Mem’l Hosp.-Tipton, 556 S.W.3d
759, 774 (Tenn. Ct. App. 2018) (“[W]hen presented with multiple issues on appeal, one
of which is dispositive, we have consistently found the remaining issues to be
pretermitted.”). On remand, Mother shall be entitled to appointed counsel unless and until
a proper motion for withdrawal of her current counsel is filed and granted.
Conclusion
The order of the Davidson County Juvenile Court is hereby vacated and the case
remanded for proceedings consistent with this Opinion. Costs of this appeal are assessed
against the Appellees, A.O.P. and D.P., for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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