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Court abused discretion in letting public defender withdraw appearance

December 8, 2016

An attorney seeking a motion to withdraw appearance had to prove there was justification for his withdrawal and provide sufficient notice to the party he represented before the motion could be granted, the Indiana Court of Appeals found Thursday.

In July 2014, M.G. and Je.G. filed a petition for adoption, alleging that Je.G. was the natural father of two children, A.G. and Ju.G., and that M.G. was married to him. The children’s natural mother, A.R., asked the court to deny the petition and asked for a civil public defender to be appointed to her for the proceedings. William Byer Jr. was appointed as A.R.’s civil public defender in the case.

But in November 2015, the Madison Circuit Court granted a motion to withdraw appearance for Byer, who argued that A.R. had failed to cooperate or communicate with him. A.R. asked in December if she could request another attorney, telling the court that she learned of Byer’s departure immediately before being taken to jail for an unrelated matter.

The trial court chose not to appoint replacement counsel for A.R. A court entry from Dec. 17 read, in part, “Because (A.R.) offered on (sic) satisfactory explanation for Byer’s withdrawal, no new PD will be appointed. However, the record will be left open until 12/29/15 to provide (A.R.) with an opportunity to privately retain counsel…” A.R. never had counsel during the proceedings.

An amended decree of adoption was issued Feb. 11, 2016, and A.R. appealed, arguing that the Madison Circuit Court abused its discretion in granting Byer’s motion to withdraw appearance that did not comply with local rules. Further, A.R. said the Indiana Court of Appeals requires the appointment of counsel in an adoption case. But Je.G. and M.G. argued that A.R. invited the error by failing to cooperate or communicate with Byer and that the denial of replacement counsel was harmless.

Judge Elaine Brown, writing for the unanimous panel on Thursday, said that people whose parental rights are in jeopardy have the right to counsel, whether retained or appointed. Further, Brown pointed to a Madison County local rule that requires attorneys seeking to withdraw to meet certain conditions and to give 21 days’ notice to the litigant of their intent to withdraw.
 
Byer’s motion did not state that one of the required conditions – the presence of another attorney to litigate the matter, a discharge of the attorney by the litigant or the litigant’s acceptance of the withdrawal – was met. Further, the motion did not state whether Byer had met the 21 day notice requirement.

Thus, Brown wrote, the trial court’s decision to grant his motion to withdraw appearance was an abuse of discretion in violation of Local Rule LR48-TR3.1-26. The case of In Re the Adoption of A.G. & J.G. A.R., v. M.G. and J.G., 48A02-1603-Ad-709, was remanded for further proceedings.

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