This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1044

 

In the Matter of the Children of B. P.

 

Filed January 9, 2001

Reversed

Shumaker, Judge

 

Hennepin County District Court

File No. JX98058028

 

 

Thomas G. Dunnwald, Special Assistant Public Defender, 400 Flour Exchange, 310 South Fourth Avenue, Minneapolis, MN 55415 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, J. Michael Richardson, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children and Family Services)

 

Deborah T. Eisenstadt, 8014 Olson Memorial Highway, No. 228, Golden Valley, MN 55427 (for B.H., L.H., and J.H.)

 

Shirley A. Reider, 2575 University Avenue, Suite 130A, St. Paul, MN 55114 (for guardian ad litem)

 

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Holtan, Judge.*

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant B.P. challenges the district court’s order terminating her parental rights on the ground that irregularities in the proceedings and improper representation by her former attorney resulted in a denial of due process.  We reverse.

FACTS

            Assisted by her court-appointed attorney on October 20, 1999, appellant B.P. entered into an agreement with Hennepin County for the voluntary termination of B.P.’s parental rights to three of her eight minor children.  The agreement provided that the termination order would be stayed for 90 days pending an assessment of the appropriateness of transferring custody of the children to B.P.’s sister, and the order indicated that B.P.’s attorney reserved for B.P. “the right to withdraw the consent for voluntary termination of parental rights if there are objections to the [sister’s] home study.”

            After completion of the home study, the county moved to finalize the termination.  The district court heard the motion on February 16, 2000.  The children’s guardian ad litem opposed the transfer.  B.P. raised issues of visitation and said she would withdraw her consent if the transfer did not occur immediately.  She suggested that she might want to have a trial.  The court explained the effect of a termination on B.P.’s visitation rights.  B.P. indicated that she felt pressured and wanted to think about what she should do.

            The court agreed to allow B.P. ten days to choose between the options of continuing with a voluntary termination or having a trial on the termination issue.  The court instructed B.P. to notify her attorney of her choice and instructed B.P.’s attorney to let the court and county know whether a trial date would be necessary.

            At a hearing on May 11, 2000, the court considered foster-care issues regarding B.P.’s two older children and the county’s motion to vacate the stay of the termination order as to the three children who were the subjects of B.P.’s termination agreement.  During that hearing, the court learned that B.P. wanted to discharge her attorney.  Saying, “I think we’re in conflict,” the attorney asked to be discharged but agreed to continue to observe the proceedings.  The court discharged the attorney.

            As the hearing continued, the assistant county attorney noted that, during the ten-day period for considering options, B.P. told her attorney that she wanted to continue with the voluntary termination and that the attorney related that choice to both the county and the court.  The assistant county attorney indicated that B.P. now had changed her mind and wanted a trial but argued that the court should finalize the termination and should order the transfer of custody of the children.  In response, B.P. told the court that, during the ten-day option period, she “* * * notified [her attorney] that I wanted to go to trial on my parental rights * * * .”  The court noted that B.P.’s response raised the issue of what notice she actually gave to her attorney during the ten-day option period.

            The court took under advisement the county’s motion to vacate the stay of the termination order, stating:

In the event that I vacate the stay, that’s one thing.  In the event I don’t vacate the stay, I would then have to set a [termination of parental rights] trial * * * .

 

The court invited a response from the assistant county attorney, who asked for an immediate trial if the court decided not to vacate the stay.

            The court told B.P. that if there were a trial it would occur in two or three days and that she could not have a different court-appointed attorney because the public defender would not assign someone other than her discharged attorney.  In answer to the court’s inquiry, B.P. said she could not afford to hire a lawyer and did not know what she would do about legal representation at a trial.

            When the court asked B.P.’s discharged attorney if he could say anything “without violating privilege,” he offered to testify under oath.  The court asked if the attorney would testify on the limited issue of the “ten-day notice requirement,” and he said he would.  After being sworn, the discharged attorney testified that B.P. had told him that “she wanted to go ahead with the transfer of legal custody to her sister,” and that is what he told the court and the county.  The court allowed B.P. to examine the attorney, but she asked argumentative questions to which the attorney gave no response.

            The court issued its order on May 17, 2000, finding that, during the ten-day option period, B.P.’s

intention was to proceed with the transfer of legal custody to [her sister], and she provided no notice to the Court or counsel that she wanted to withdraw her consent to terminate her parental rights.

 

The court vacated the stay and ordered termination of B.P.’s parental rights.  B.P. appeals.

D E C I S I O N

            Parents have a substantial and fundamental right to the custody of their children.  In re Welfare of HGB, 306 N.W.2d 821, 825 (Minn. 1981).  Accordingly, parental rights should be terminated only through the exercise of due process and only for “grave and weighty reasons.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted).  In a termination of parental rights (TPR) proceeding, due process embodies the value of fundamental fairness.  McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S. Ct. 1976, 1985 (1971).  In turn, fundamental fairness requires a meaningful adversarial hearing.  Id.  Our statutes also guarantee a meaningful adversarial hearing in a TPR proceeding.  Minn. Stat. § 260C.163, subd. 8 (Supp. 1999) (providing that parents are entitled to be heard, to present evidence, and to cross-examine witnesses).  Because of the magnitude of the rights involved in a TPR proceeding, strict adherence to due process is imperative.  See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981) (stating parents have a “commanding” interest in the care and custody of their children and in the accuracy of the decision terminating their parental rights); State ex rel. Ashcroft v. Jensen, 214 Minn. 193, 195, 7 N.W.2d 393, 395 (1943).

            Recognizing the enormity of the decision, whether by parent or court, to terminate parental rights and the need for scrupulous adherence to all requirements of due process, we hold that B.P. did not receive full due-process protection in the proceedings that culminated in the court’s order for termination of her parental rights to three of her children.

            The court’s sole basis for its termination order was its finding that B.P. informed the court, through her attorney, that she had elected to voluntarily terminate her parental rights.  The court made its finding after a hearing conducted at the court’s behest in which B.P.’s discharged attorney testified about a communication from B.P. to him during the attorney-client relationship.

            Due process requires reasonable notice, a meaningful opportunity for a timely hearing, the right to be represented by an attorney, and the opportunity to present evidence.  Humenansky v Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).

            B.P. was not given notice that there would be a hearing as to the option she exercised during the ten-day option period and was not informed that the hearing would be dispositive.  She was not given an opportunity to prepare for the hearing, to consult with counsel, or to meaningfully examine the witness against her, her own former attorney.

            Without the client’s consent, an attorney cannot be examined as to any communication from the client to the attorney during the professional relationship.  Minn. Stat. § 595.02, subd. 1(b) (1998).  The attorney-client privilege belongs to the client and cannot be waived unilaterally by the attorney.  State v. Walen, 563 N.W.2d 742, 752 (Minn. 1997).  We need not decide definitively whether or not B.P.’s former attorney violated the attorney-client privilege.  Rather, from a due-process perspective, B.P. should have been given an opportunity to object to her former attorney’s testimony on privilege grounds.  When the court asked for testimony from B.P.’s attorney about a communication during the professional relationship, a prima facie concern about attorney-client privilege necessarily arose.  When the court asked the attorney if he could testify to non-privileged information, the court incorrectly allowed the attorney, now in a posture adverse to B.P., to usurp the client’s right to assert or to waive privilege.  To comport with due-process guarantees on this critical, ultimate issue, the court should have given B.P. an opportunity to obtain independent legal advice as to whether or not she was entitled to assert the protection of the attorney-client privilege as to her former attorney’s testimony.

            We offer no opinion on the merits of the proposed termination or the credibility of B.P. or her former attorney.  We find only that significant procedural irregularities resulted in a diminution of the degree of due process the law requires in a proceeding that could result in terminating parental rights without a trial.

            Reversed.



*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art VI,  § 10.