350 Ga. App. 575
Ga. Ct. App.2019Background
- Child taken to ER June 29, 2017 after mother (driving on suspended license) reported the child had been taken from daycare and sexually assaulted; daycare video did not corroborate mother's account.
- Police released the child to maternal grandparents at the ER; mother disappeared July 20, 2017, leaving the child with grandparents who lacked legal authority to make medical decisions.
- DFACS petition (July 31, 2017) alleged mother was mentally ill, using illegal drugs, had unstable housing, and brought men into the home; mother admitted recent cocaine use, cash employment, unstable housing, and that the child reported sexual assault by a man who had lived with them.
- Juvenile court held evidentiary hearings (Aug. 30 and Oct. 11, 2017) and on Oct. 27, 2017 found by clear and convincing evidence the mother was mentally unstable, a drug user, unfit, and that the child was dependent; custody remained with maternal grandmother.
- Mother appealed pro se, claiming insufficient evidence, deprivation of due process/statutory procedural violations, and lack of notice; majority reached merits, dissent argued appellate jurisdiction is lacking because pro se notices were filed while counsel remained counsel of record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to adjudicate dependency | Mother: evidence did not prove child was dependent at time of order | DFACS/State: mother’s admissions, drug use, instability, and abandonment show present dependency and parental unfitness | Affirmed: record supported dependency by clear and convincing evidence |
| Validity of pro se notices / appellate jurisdiction | Mother: proceeded pro se and timely appealed | DFACS: record shows counsel had represented mother and formal withdrawal/order unclear; pro se notices may be invalid | Majority: there was no order appointing counsel and court authorized withdrawal; appellate jurisdiction proper. Dissent: pro se notices were filed while counsel still of record; appeal should be dismissed for lack of jurisdiction |
| Procedural statutory due-process claims (statutes governing removal, notice, timing, reports) | Mother: juvenile court and DFACS failed to comply with OCGA provisions for removal, notice, hearings, and 30-day reporting | DFACS: statutes cited apply only where child was removed/taken by state actors; here child was left with grandparents and not forcibly removed; no prejudice shown | Held: statutes inapplicable or no harm shown; claims lack merit |
| Notice of August 30 hearing / service of process | Mother: she lacked adequate notice of Aug. 30 evidentiary hearing | DFACS: mother was represented by counsel, testified at the hearing, and raised no contemporaneous objection | Held: Issue waived because mother, through counsel, participated and did not object at the hearing |
Key Cases Cited
- In the Interest of H. B., 346 Ga. App. 163 (Ga. Ct. App. 2018) (summarizes juvenile-code standards for dependency and parental unfitness)
- In the Interest of G. R. B., 330 Ga. App. 693 (Ga. Ct. App. 2015) (discusses parental unfitness and proof standards)
- In the Interest of T. B. R., 224 Ga. App. 470 (Ga. Ct. App. 1997) (abandonment supports finding of deprivation/neglect)
- In the Interest of E. G. M., 341 Ga. App. 33 (Ga. Ct. App. 2017) (no reversible due-process error absent a showing of harm)
- Tolbert v. Toole, 296 Ga. 357 (Ga. 2014) (formal withdrawal of counsel requires court order; counsel remains of record until withdrawal approved)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (U.S. 1981) (due-process considerations for appointment of counsel in parental-rights cases)
- In the Interest of B.R.F., 299 Ga. 294 (Ga. 2016) (remedy framework when counsel deprivation at trial implicates appellate relief)