311 Ga. App. 629
Ga. Ct. App.2011Background
- Mother, 17, was in Baldwin DFACS custody at birth of A. B. and DFACS also took custody of A. B. at birth; deprivation petition filed on December 7, 2006 and temporary custody ordered for 12 months.
- S. B. was born March 12, 2009 and placed in Baldwin DFACS custody, residing in a foster home with A. B.
- A. B. was diagnosed with expressive language disorder and later ADHD with a consideration of autism; further psychiatric evaluation was recommended.
- September 10, 2009 the mother voluntarily surrendered parental rights but withdrew the surrender on September 14, 2009; DFACS proceeded with termination.
- DFACS filed its petition to terminate on October 15, 2009; a termination hearing was set for December 29, 2009; before full hearing, the mother signed a written consent to terminate her rights as to A. B., and the court entered an order January 8, 2010 based on that consent and stipulations.
- The juvenile court terminated the mother's rights to A. B. and granted six months to demonstrate the ability to regain custody of S. B., finding noncompliance with a case plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the consent to terminate knowing and voluntary? | Miller | Miller | Consent voluntary and knowing; affirmed termination |
| Does OCGA § 5-6-35(a)(12) discretionary appeal violate due process? | Miller argues due process violation | State argues no due process violation | Discretionary appeal does not violate due process; affirmed |
Key Cases Cited
- In the Interest of N. A. U. E., 287 Ga. 797 (2010) (upholds constitutionality of discretionary appeal in termination cases)
- In the Interest of T. C. R., 281 Ga. App. 517 (2006) (no grace period to withdraw voluntary surrender under termination statutes)
- In the Interest of K. N., 272 Ga. App. 45 (2005) (standard of review for termination of parental rights)
- In the Interest of K. W., 291 Ga. App. 623 (2008) (fraud elements in surrender/consent contexts)
- In the Interest of A. C., 285 Ga. 829 (2009) (limited exception allowing appellate review of constitutionality of appellate-procedure statute)