SUMMARY: It is a violation of procedural due process to proceed with a hearing on the termination of parental rights in the absence of the parent and the parent’s attorney, more so when the parent’s attorney had been suspended from the practice of law.
The mother, Christine, has five children who have been under court jurisdiction since December 2004. On January 25, 2008, the State filed a motion to terminated the parents’ parental rights, which included notice that the termination hearing would be held on April 21, 2008. The mother’s attorney was personally served with the motion and notice on the same day. The court found that the mother was also personally served with notice of the hearing on March 19, 2008. On March 31, 2008, an application to suspend the mother’s attorney’s license was filed, and on May 7, 2008, the attorney’s license was indefinitely suspended. At the termination hearing on April 21, 2008, neither the attorney nor the mother appeared. The court proceeded with the hearing and on April 22, terminated the mother’s parental rights. On May 27, 2008, the court learned that the attorney had been suspended and appointed a new attorney, who filed a motion to set aside the termination. The court entered an order denying the motion. The mother appeals this order.
The Nebraska Court of Appeals reversed the order. It applied the reasoning in In re Interest of Joseph L., 598 N.W.2d 464, 471 (1999) that, where the mother and her attorney received notice but were absent the first day of the termination trial, “[f]or a hearing of this gravity to proceed without the presence of either the party or his or her counsel rises to one of those “fundamental flaws, which never have been thought harmless…”” The Court in Joseph L. concluded that “the absence of both [the mother] and her counsel from that proceeding, regardless of whether she had been put on adequate notice, compels a finding that her due process rights were violated.” Id. at 470. In the present case, the Court of Appeals applied this reasoning and concluded that the mother’s due process rights were not protected with the absence of her attorney from the hearing. Furthermore, the attorney’s suspension from practice resulted in the mother being unrepresented, which further violated her procedural due process rights. The Court of Appeals reversed the order and directed the juvenile court to grant the mother’s motion to set aide the termination.