Facts: The Department of Children’s Services (“DCS”) took Child into custody because of Mother’s drug use. Father was unknown.

Months after Child was found dependent and neglected in Mother’s care, DCS petitioned to terminate Mother’s parental rights. Because Mother was indigent, the trial court appointed counsel to represent her 78 days before trial.

When the trial began, Mother was not present. The trial court asked Mother’s counsel if she knew her client’s whereabouts. Counsel responded:

Well, I don’t, Your Honor. I know [Mother] knows about this court date, and I had gotten a text from my assistant just about an hour ago that she had emailed, she just came from a job interview and got a job. So but that, well, that’s been over an hour ago, Your Honor.

Mother’s counsel orally moved to withdraw because Mother was not present, counsel had difficulty communicating with Mother, and Mother hadn’t shown up for appointments with counsel. The trial court allowed Mother’s counsel to withdraw.

The trial moved forward without Mother or her counsel. Mother arrived during the testimony of DCS’s second witness. After the direct examination, the trial court informed Mother that her lawyer had been allowed to withdraw. The trial court indicated that Mother would represent herself for the rest of the trial. Mother explained she was late because of a job interview, and she said she had informed her lawyer of her whereabouts. The trial court responded, “I understand, but this has to have priority.”

After the trial, the trial court terminated Mother’s parental rights.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

In Tennessee, indigent parents have a statutory right to counsel at all stages of a parental termination case.

A court-appointed attorney must seek permission to withdraw. The grant or denial of a request to withdraw as counsel is left to the court’s discretion.

The principles in the Rules of Professional Conduct must guide the court’s decision on an attorney’s motion to withdraw. These rules let an attorney withdraw when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services” or “the representation … has been rendered unreasonably difficult by the client.”

The Court found error in the trial court’s decision to allow counsel to withdraw:

Here, counsel moved to withdraw based on Mother’s “difficulties … attending appointments” and her failure to appear for trial. But the decision to withdraw does not appear to be guided by Rule of Professional Conduct 1.16. The record does not support a finding that Mother failed substantially to fulfill an obligation to her counsel or that the representation had been rendered unreasonably difficult. Counsel did not establish that Mother failed to fulfill an obligation. We do not know how many appointments Mother missed or if Mother offered counsel any explanation for not attending. Nor did the court ascertain whether counsel gave Mother any prior warning that she intended to withdraw.

A failure to communicate with counsel or appear for trial can render a representation unreasonably difficult. And, reviewing the evidence in the most favorable light, Mother missed more than one appointment. But counsel offered no other information about her efforts to communicate with her client in the short period of time between counsel’s appointment by the court and the trial. It also appears that Mother at least attempted to notify counsel about her whereabouts on the day of trial. Counsel did not indicate whether she tried to contact her client after receiving the email about the job interview…. Counsel’s vague reference to missed appointments is not enough to support a finding that Mother failed to remain in contact with her attorney in the months before trial. Nor did she skip the trial without explanation.

Given the limited information provided by Mother’s counsel, the trial court erred in granting the request to withdraw at the outset of trial. Parents are entitled to fundamentally fair procedures and termination proceedings. In Tennessee, an important component of those procedures is the statutory right to appointed counsel for indigent parents.

Because the trial court erred in granting Mother’s counsel leave to withdraw, the Court of Appeals vacated the trial court’s ruling terminating Mother’s parental rights and remanded the case for a new trial.

Source: In re Lila F. (Tennessee Court of Appeals, Eastern Section, April 5, 2024).

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