In the Interest of B. R. F., a Child
299 Ga. 294
| Ga. | 2016Background
- Mother’s parental rights were terminated by the juvenile court (final order Jan. 14, 2013). She was indigent and had court‑appointed counsel during the juvenile proceedings.
- Trial counsel sent a letter telling Mother he could not represent her on appeal and (erroneously) that she was not entitled to indigent appellate counsel in a discretionary civil appeal.
- Acting pro se, Mother filed a direct appeal notice (Feb. 13, 2013); the juvenile court later dismissed that filing as improper because termination cases require a discretionary application under OCGA § 5-6-35.
- Months later, with new counsel, Mother filed in the Court of Appeals an application for an out‑of‑time discretionary appeal seeking review of the termination order.
- The Court of Appeals granted the out‑of‑time application on due‑process grounds (finding the state rule was not applied consistent with fair procedure because trial counsel’s misinformation frustrated Mother’s right to appointed appellate counsel) and then affirmed the termination on the merits.
- The Georgia Supreme Court granted certiorari, held the Court of Appeals lacked authority to excuse the untimely application, vacated its judgment, and remanded with directions to dismiss the out‑of‑time application so the juvenile court can make initial factual and procedural determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellate court may excuse an untimely discretionary application in a civil parental-termination case because of ineffective assistance/denial of counsel | Mother: Gable rule (criminal analog) should extend to civil termination cases — appellate court may excuse untimeliness to remedy a constitutional violation preventing filing | State: Court of Appeals lacked jurisdiction to excuse untimeliness; jurisdictional defect in timeliness cannot be cured by appellate court in civil termination context | Court: No — Court of Appeals lacked authority; untimely application deprived it of jurisdiction and the juvenile court must be the initial forum to address the claim |
| Whether Mother had a categorical constitutional right to appointed appellate counsel in a civil parental-termination case | Mother: Due process entitled her to appointed counsel for filing the discretionary application (Lassiter basis) | State: No categorical constitutional right; appointment is statutory and Lassiter does not guarantee appellate counsel for every indigent parent | Court: No categorical constitutional right; Lassiter governs and requires case‑by‑case trial‑court determination before appellate review |
| Where ineffective‑assistance or denial‑of‑counsel claims in termination cases must be litigated | Mother: Claim can be raised to appellate court as basis to excuse untimely filing | State: Such claims must be addressed first by the trial/juvenile court per Lassiter | Court: Trial/juvenile court must make initial determinations on entitlement to counsel and on ineffective assistance; then its decisions may be appealed |
| Appropriate remedy if trial court finds counsel prevented timely filing | Mother: Out‑of‑time discretionary application should be allowed as remedy | State: Remedy questions must be routed through juvenile court; appellate court should not itself grant out‑of‑time review when application untimely | Court: If juvenile court finds a due‑process entitlement and counsel failures, it may grant an out‑of‑time application; appellate courts should dismiss untimely applications and direct movant to the juvenile court |
Key Cases Cited
- Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981) (due process does not automatically require appointed counsel in all parental‑termination proceedings; entitlement determined case‑by‑case)
- Matthews v. Eldridge, 424 U.S. 319 (1976) (three‑part balancing test for assessing what procedural due process requires)
- Gable v. State, 290 Ga. 81 (2011) (failure to timely file a discretionary application is typically a jurisdictional defect; may be excused in criminal context to remedy constitutional violations)
- In the Interest of N.A.U.E., 287 Ga. 797 (2010) (requiring discretionary application for parental‑termination appeals is constitutional)
- In the Interest of A.C., 285 Ga. 829 (2009) (no state or federal constitutional right to civil appeal in termination cases)
- Rowland v. State, 264 Ga. 872 (1994) (procedures and remedial framework for out‑of‑time appeals when counsel error frustrates a criminal defendant’s right to appeal)