332 Ga. App. 49
Ga. Ct. App.2015Background
- Mother (born 1993) had child B.R.F. in 2011; DFCS removed the child after concerns about the mother’s parenting and grandfather’s interference. Child was adjudicated deprived and placed in foster care.
- Mother was represented at the termination hearing by a conflict-contract public defender; after the hearing counsel told mother she was not entitled to appointed appellate counsel and closed the file. Trial court later entered an order terminating parental rights (Jan. 14, 2013).
- Mother filed a pro se appeal that was dismissed for failure to follow discretionary-appeal procedure; with new counsel she filed an out-of-time application for discretionary appeal.
- Court of Appeals asked parties to brief whether it had jurisdiction to grant an out-of-time discretionary appeal after In the Interest of S.M.B.; majority found a constitutional violation (deprivation of appellate counsel) and exercised discretion to permit the out-of-time application.
- On the merits the court reviewed the termination order under the clear-and-convincing standard, found sufficient evidence (mother’s immaturity, failure to complete plan, inability/willingness to parent, continued risk and need for permanency), and affirmed termination.
Issues
| Issue | Mother’s Argument | State/DFCS’s Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to grant out-of-time discretionary appeal after mother was denied appointed appellate counsel | Trial counsel’s erroneous advice and failure to provide appellate counsel denied mother her right to counsel for her one "first" appeal; due process requires relief | Statutory deadline for discretionary appeals is jurisdictional; In re S.M.B. and Gable suggest out-of-time relief is unavailable absent a constitutional right to the first appeal | Court exercised jurisdiction: where ineffective assistance/denial of counsel created a constitutional violation as to the only first appeal, appellate court may grant out-of-time discretionary application |
| Whether mother was the cause of the child’s deprivation and whether deprivation would continue | Mother blamed grandfather; argued DFCS failed to assist her independence; challenged timing (<1 year after plan) | Mother voluntarily stopped services, expressed inability to parent, signed surrender documents, failed case-plan requirements; risk of continued deprivation and need for permanence | Evidence supported finding mother caused deprivation, likelihood it would continue, and harm from continued deprivation; termination affirmed |
| Whether continued deprivation was likely to cause serious harm | Mother disputed the causal link and likelihood of harm | DFCS and experts: prolonged foster care harms child; child had bonded to foster parents who sought adoption; mother could not provide stable home | Court held continued deprivation likely to cause serious emotional/other harm; permanency concerns supported termination |
| Whether termination was in child’s best interest | Mother did not contest best-interest finding but argued against underlying predicate facts | DFCS: need for stable, permanent placement; mother unable to provide it | Court: best interest satisfied given child’s need for stability, evidence of mother’s incapacity and foster parents’ suitability |
Key Cases Cited
- Douglas v. California, 372 U.S. 353 (right to counsel on first appeal as of right)
- Evitts v. Lucey, 469 U.S. 387 (right to effective assistance of counsel on first appeal)
- Lassiter v. Dept. of Social Svcs. of Durham County, 452 U.S. 18 (due process balancing for appointment of counsel in parental-termination proceedings)
- Santosky v. Kramer, 455 U.S. 745 (clear-and-convincing standard for terminating parental rights)
- Gable v. State, 290 Ga. 81 (Georgia rule: equitable exceptions to jurisdictional appeal requirements only to remedy constitutional violations concerning the appeal)
- In the Interest of S. M. B., 319 Ga. App. 125 (prior Court of Appeals decision limiting out-of-time discretionary appeals in parental-termination context)
- In the Interest of A. C., 285 Ga. 829 (discretionary-appeal scheme for termination cases and interest in expedited permanency)
- Rowland v. State, 264 Ga. 872 (ineffective assistance that frustrates appeal can equate to denial of counsel)