A parent facing termination of his/her parental rights is entitled to appointed counsel if he/she cannot afford to retain a lawyer. If appointed counsel seeks to withdraw from representation, a parent must be notified of this request. A parent is also entitled to written notice of a hearing to determine whether his parental rights will be terminated.
In this case, respondent’s counsel failed to notify respondent of his intent to withdraw from representation, and the court failed to notify respondent of the date of the termination trial.
Several statues and court rules establish the notice required for termination hearings. The statue provides in relevant part: Not less than 14 days before a hearing to determine if the parental rights to a child should be terminated, written notice of the hearing shall be served upon all of the child’s parents. Most critically, a respondent must be served with a summons at least 14 days before a termination hearing.
The trial court apparently determined that because respondent was served with notice of the initial trial date (September 25) and could have presented himself for trial on that day, he was constructively served for the adjourned date (October 16). The appeals court does not interpret the statute to permit constructive notice, however. In their view, the statute and the court rule mandate that a respondent be provided with actual notice of a termination trial date. Service may occur at a hearing rather than by summons, but the record reveals that respondent was never served in any manner with notice of the October 16 trial date. This defect in the proceedings, standing alone, required them to vacate the termination order and remand for a new trial.
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