Parental Rights Termination Vacated and Remanded

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Nove mber 12, 2025 Session I N RE AYBREE Y. 1 Appeal from th e Ju venile Co urt for Knox C ounty No. 117904 Timothy E. Irwin, Judge ___________________________________ No. E2025-00400- COA -R3- PT ___________________________________ This action involves the termination of a mother ’s parental rights to her minor child. Following a bench trial with neither the mother nor her counsel present, the court found that clear and convincing ev idence establi sh ed several grounds of termination and that termination was in the best interest of the child. The mother argues on appeal, inter alia, that the court erred in permitting counsel to withdraw on the day of the hearing. We vacate the judgment and remand for further proceedings. Tenn. R. App. P. 3 Appeal as o f Right; Judgment of the Juvenile Court Vacated; Case Rem anded J OHN W. M C C LARTY, P. J., E.S., delivered the opinion of the court, in which T HOMAS R. F RIERSON, II, and K RISTI M. D AVIS, JJ., joined. Michael B. Menefee, Knoxville, Tennessee, for the appellant, Paige C. Margaret Held, Jonathan Baumgartner, and Amy Paul, Knoxville, Tennessee, for the appellee s, Mohammed Y. and Jennifer M. OPINION I. BACKGROUND Aybree Y. (“the Child”) was born to Paige C. (“Mother”) and Mohammed Y. (“Father”) in August 2014. The parties shared custody of the C hild. Meanwhile, Mother ga ve birth to a son, Deklan, with a different partner in July 2018. The Tennessee Department of Children’s Services (“DCS”) removed both child ren from M other’s custody 1 This court has a policy of protecting the identity of childr en in parental rights ter mination cases by initializing the last name of the parties. 03/05/2026

based upon allegations of dependency and neglect due to substance abuse in April 2021. The C hild was placed with Father, and Deklan was placed with his paternal grandparents. Mother was granted supervised visitation with both children, who attended visitation together to further develop the sibling bond. Mother regularly attended visitation through Volunteer Visitation for approximately two months before the ag ency refused add itional visitation as a result of Mother’s alleged failure to follow their policies. Visitation was then coordinated through the Assurance Group. The record reflects that Mother visited the c hildren 7 t imes from May 8, 2022, through November 13, 2022. M other regularly brought crafts, food, and gifts to visitation. The c hildren were happy to see Mother, who remained engaged throughout each visit. Mother fail ed to appear for visitation on September 18. T he record does not explain her absence on that dat e. Mother’s regular attendance at visitation continued throughout 2023, with 11 visits from January 8, 2023, through August 6, 2023. A gain, Mother regularly brought crafts, food, and gifts to visitation and remained engaged throughout the visits. T he c hildren appeared happy to see Mother, who expressed her love and care for them. However, two incidents were reported in 2023. O ne such incident occurred on May 14, 2023, when Deklan took Mother’s vape pen. M other quickly retrieved the pen. The second incident occurred on August 6, 2023, when the visit was cut short due to failure to adhere to visitation guidelines. The record reflects that Mother planned a party for the c hildren for their birthday with approximately 30 people in attendance at a secondary location. Se veral of the party attendees were not approved by DCS, and Mother failed to adhere to the visitation supervisor’s requests to stay in sight with the Children. F urther, Mother was hostile and aggressive toward the supervisor wh en the supervisor ended the visit early. On September 15, 2023, Father and his wife, Jennifer M. (“ Stepmother ”) (collectively “ the Petitioners”), mo ved to terminate Mother’s parental rights and for Stepmother’s adoption of the Child based upon the following statutory grounds: (1) abandonment by willful failure to remit child support; (2) the persistence of conditions which led to removal; and (3) failure to manifest an ability and willingness to assume custody of the Child. Mother f iled an answer, denying the allegations. Shortly thereafter, Deklan’s paternal grandparents filed a petition for termination of her rights to Deklan. 2 The case s proceeded to discovery, and joint trial date s w ere set for April 4 and April 8, 2024. The parties filed joint motion s to continue the companion cases based upon their failure to complete discovery. T he trial court granted continuance s by order, dated April 1, 2024, in which the court directed all parties “to cooperate to set a new trial date.” Mother attended a deposition in May 2024 and was advised that a second deposition would occur at a later date and that the trial would occur after the second deposition. 2 Mother’s parental rights to Deklan wer e ter minated in the sa me proceeding; however, the children are the subject s of different appeals.

At some point, the attorneys agreed to a trial date of July 31, 2024. Mother’s co unsel advised her of the trial date by email; however, Mother failed to appear at the hearing. Mother’s counsel mo ved for a continuance, stating: Up until a few weeks ago, [Mother] had been very involved in this case. She did depositions. She brought me some discovery answers [.] I have -- I have tried to communicate with her sev eral times this mo nth, as recently as yesterday. I h av e not received a response from her. S o I’m not really sure why she is not here for today’s hearing. S o I would ask the Court for a continuance on her behalf. She has -- the proof would have shown, had she been here, she ’ s very bonded with [the Child]. She does visit. They have a very strong relationship. So it ’ s kind of odd to me that she ’ s not here. The court denied the motion, citing the Child’s need for permanency and holding that it would not grant a continuance in the absence of an y explanation for Mother’s failure to appear. C ounsel moved to withdraw, citing her inability to adequately represe nt Mother due to lack of communication. S he stat ed that Mother failed to appear at a meeting scheduled earlier in the month and had failed to respond to telephone calls and emails. The court granted the motion, and the action proceeded to a hearing witho ut counsel or Mother. As pertinent to this appeal, Deklan’s paternal grand mother confirmed that they would continue sibling visitation between the children if Mother’s rights were terminated. Father likewise agreed that he would continue in his support of the sibling relationship between the children. As to Mother, Father stated that he initially shared co - parenting time without incident prior to the Child’s removal by DCS due to allegations of methamphetamine use. He claimed that Mother told him that she last used drugs in October 2022. H e noted that she lived with her parents and was involved with a nother man as recently as February 2024. He alleged that the man used drugs and was abusive. Father testified t hat Mother worked at various establishments but never remitted payment for child support. He presented evidence to establish that Mother was employed at Token Games from April 2023 through July 2023. She received pay ment as follows: Date Gross Net April 28, 2023 $980.51 $325.68 May 12, 2023 $760.45 $68.07 May 26, 2023 $ 311.76 $30.85 June 9, 2023 $922.08 $94.11 June 23, 2023 $136.61 $24.40 July 7, 2023 $1,1 18.31 $112.50 Total $4,229.72 $655.61

Father claimed that Mother obtained employment at First Watch at some point in 2024 and was employed there at the time of her deposition in April 2024. He did not present any evidence of her income from First Watch. As to the Child, Father stated that he was in the process of moving the family to a larger house, where the Child would reside with him, her stepmother, and her half -sister. He had also enrolled the Child in a private school. He alleged that the Child was fearful of Mother at times and that she evidenced signs of fear after visitation. In contrast, he described a loving relationship between Stepmother and the Child. Stepmother testified, confirming her loving relationship with the Child and indicating her desire to adopt the Child in the event that Mother’s parental rights were terminated. Following the hearing, t he trial court granted the termination petition based upon the statutory grounds alleged. The court found that termination of Mother’s parental rights was in the best interest of the Child. Shortly thereafter, Mother learned of the termination order and filed a motion for new trial, claiming that her attorney advised her of the hearing by email on Saturday, July 27. S he did not read the email until Father told her of the term ination days after the hearing. She asserted that her attorney informed her of other important dates by telephone; however, she received no telephone call or notice by mail informing her of the trial date. The trial court denied the motion for new trial, finding that Mother had waived her right to counsel “by her failure to participate in preparing for this litigation, her failure to communicate with her attorney, and her failure to appear at the final trial.” This appeal followed. II. ISSUES We consolidate and restate the issues pertinent to this appeal as follows: A. Whether Mother received proper notice of the hearing. B. Whether the trial court abused its discretion in its denial of the attorney’s request for a continuance. C. Whether the trial court abused its discretion in granting the attorney’s request to withdraw. D. Whether clear and convincing ev idence supports the court’s finding of statutory grounds for termination. E. Whether clear and convincing ev idence supports the co urt’s finding that termination was in the best interest of the Child.

III. STANDARD OF REVIEW Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d 643, 652–53 (Tenn. Ct. App. 2004). “Terminati on of a person ’ s rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1- 113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)). Although parental rights are superior to the claims of other persons and the government, they are not absolute and may be terminated upon statutory grounds. See In Re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence of the existence of the grounds. In re Drinnon, 776 S.W.2d at 97. A parent ’ s rights may be terminated only upon (1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent ’ s or guardian ’ s rights is in the best interest[ ] of the child. Tenn. Code Ann. § 36-1- 113(c). “[A] court must determine that clear and convinc ing evidence proves not only that statutory grounds exist [for the termination] but also that termination is in the child ’ s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence of at least one statutory basis for termination of parental rights will support the trial court ’ s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). The heightened burden of proo f in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing ev idence standard establishes that the truth of the facts asserted is highly probable and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” In re Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a fact - finder ’ s mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2016, the Tennessee Supreme Court provided guidance to this court in reviewing cases involving the termination of parental rights: An appellate court reviews a trial court ’ s findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, how ever, the reviewing court must ma ke its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parenta l rights. The trial court ’ s ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d 507, 523 – 24 (Tenn. 2016) (citations omitted); see also In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017). In the ev en t that the “resolution of an issue [] depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide th ose issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). “[T] his court gives great weight to the credibili ty accorded to a particular witness by the trial court.” In re Christopher J., No. W2016 - 02149- COA - R3 - PT, 2017 WL 5992359, at *3 (Tenn. Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837). IV. DISCUSSION As a threshold and dispositive issue, we must first address whether the trial court properly determined that Mother effectively waived her right to counsel. M other asserts that the trial court violated her due process rights by allowing her “appointed counsel” to withdraw. The Due Process Clause of the United States Constitution d oes not provide an absolute right to appointed counsel in termination proceedings. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 31 – 32 (1981); In re Lila F., No. E2023 -01112- COA - R3 - PT, 2024 WL 1 480174, at *2 (Tenn. Ct. App. Apr. 5, 2024). T he record also does not contain evidence establishing Mother’s indigency or the appointment of counsel based upon a finding of indigency.

However, all parents in Tennessee are entitled to fundamentally fair procedures and representation by coun sel at all stages of a termination proceeding regardless of financial status. T enn. Code Ann. § 37-1- 126(a)(2), (3); In re Carrington H., 483 S.W.3d at 527– 2 8. Once counsel undertakes representation of a client either through court appointment or retaine r, such counsel may only withdraw from representation by leave of court in accordance with the Rules of Professional Conduct found in Tennessee Supreme Court Rule 8. The Rules provide, inter alia, that withdrawal is permissible if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has us ed the lawyer ’ s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or imprudent; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer ’ s servic es and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unanticipated and substantial financial burden on the lawyer or has been rendered unreasonably difficult b y the client; (7) other good cause for withdrawal exists; or (8) the client gives informed consent confirmed in writing to the withdrawal of the lawyer. RPC 1.16(b). “The grant or denial of a request to withdraw as counsel is a ma tter addressed to the trial court ’ s discretion.” Odom v. Odom, No. M2018 -00405- COA - R3 - PT, 2019 WL 3546437, at *4 (Tenn. Ct. App. Aug. 5, 2019). Here, counsel based her request to withdraw on Mother’s lack of communication in the weeks prior to the hearing. Counsel alleged that Mother failed to respond to telephone calls and emails, faile d to appear at a scheduled meeting earlier in the month, and failed to appear at the termination hearing. Notably, counsel did not allege that she provided notice that failure to communicate would result in the withdrawal of her representation or explain how her representation had been rendered unreasonably diffic ult by the recent absence.

In her affidavit in support of her motion for new trial, Mother claimed that she was present for her deposition in May 2024, after which she was advised that the termination hearing would follow a second deposition that was no t yet scheduled. Mother attested that she did not receive any telephone calls or a notice by mail informing her of the new trial date. S he acknowledged that counsel sent her an email on Saturday, July 27, four days before the scheduled hearing. She clai med that counsel informed her of all prior hearings by telephone and that she did not open the email until after she spoke with Father, who informed her of the termination decision. Once she learned of the termination decision, Mother promptly drove to the Knox County Juvenile Court, where a clerk confirmed that the termination hearing had occurred and that her parental rights were terminated. Citing Lila, Mother now assert s on appeal that she was not provided any prior warning that her counsel intend ed to withdraw and that the record did not contain any evidence that she failed to fulfill an obligation to counsel or that counsel’s representation had become unreasonabl y difficult. 2024 WL 1480174, at *2–3 (vacating the court’s termination of parental rights based upon the court’s erroneous decision to allow counsel to withdraw). In Lila, the mother missed appointments prior to the hearing but also advised counsel of a job interview scheduled for the day of trial. Id. at *2. T he mother then appeared at the hearing shortly after counsel’s withdrawal from representation. Id. The Petitioners respond that the circumstances presented we re more akin to the scenario presented to the court in In re Elijah B., No. E2010-00387- COA - R3 - PT, 2010 WL 5549229, at *5 (Tenn. Ct. App. Dec. 29, 2010), where counsel had been unable to reach the father in a termination proceeding for over a month. In that case, the father conceded that counsel provided verbal notice of the trial date. A p anel of t his court held on appea l that the father had “effectively waived his right to appointed counsel by failing to assist his counsel or communicate with her at all in the two months before the hearing. ” Id. at *6. Following our review, we hold that this case is distinguishable from In re Elijah B., where the father had actual notice of the trial date but faile d to appear. R ecent case law has also limited the application of In re Elijah B., decided in December 2010. See generally In re Metric D., No. M2023-00700- COA - R3 - PT, 2024 WL 3948615, at *2, 5 (Tenn. Ct. App. Aug. 27, 2024) (vacating the court’s termination decision even though the father had prior notice of the hearing date because the father’s attorney was allowed to withdraw when the father’s status of incarceration was unclear at the time of the hearing and when the att orney did not provide any prior warning of withdrawal should the father not appear); In re Tavarius M., No. M2020 -00071- COA - R3 - PT, 2020 WL 7479411, at *2 (Tenn. Ct. App. Dec. 18, 2020) (vacating the court’ s termination decision because the father’s attorney was allowed to withdraw based upon the father’s absence on the first day of the hearing when the attorney had not provi ded him with any prior warning that t he attorney might withdraw); In re A.P., No. M2017-00289- COA - R3 - PT, 2019 WL 1422927, at *5 –7 (Tenn. Ct. App. Mar. 29, 2019) (holding that the court abused its discretion in permitting counsel’s withdrawal when the evidence was insufficient to establish that the mother had prior notice of the trial date and when the attorney did not provide any prior war ning that he might

withdraw); and In re Jamie B., No. M2016 - 01589 - COA - R3 - PT, 2017 WL 2829855, at *6 (Tenn. Ct. App. June 30, 2017) (holding that the court abused its discretion in permitting withdrawal after the mother appeared late for the hearing and was unsure how to proceed with her defense but had been provided no prior warning that her attorney might withdraw). Here, Mother was not provided any prior warning of her counsel’s intent to withdraw, despite the fact that her contact information remained the same throughout the pendency of the action. C ounsel also failed to establish how representation had been rendered unreasonably difficult by Mother’s absence when Mother participated throughout the discovery process and sat for a deposition just two months prior to the termination hearing. Under these circumstances, we conclude that the trial court erred in permitting counsel’s withdrawal, rendering the termination proceedings fundamentally unfair. Accordingly, we vacate the judgment of the trial court and remand for a new trial. T his holding is dispositive of the appeal and effectively pretermits our review of any remainin g issues. See In re Jamie B., 2017 WL 2829855, at *7 (vacating the court’s termination decision and declining review of findings “ based on evidence... offered at a hearing during which [the m] other did not have the benefit of counsel ”). V. CONCLUSION The judgment of the trial court is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of the appeal are taxed equally to the appell ees, Mohammed Y. and Jennifer M. s/John W. McClarty JOHN W. McCLARTY, JUDGE