Wе granted the parents’ application for discretionary review of the juvenile court’s order denying their motion pursuant to OCGA § 15-11-40 to modify or vacate the order terminating their parental rights to their five minor children, A. M., A. M., D. M., E. M., and M. M., based on newly discovered evidence and changed circumstances. On appeal, the parents contend that their trial counsel was ineffective and the trial court failed to consider changes to the parents’ circumstances and newly discovered evidence. They also raise issues regarding the termination itself. Upon our review, we affirm.
1. We note at the outset that, although the parents filed an application for discretionary review, the juvenile court’s order denying their motion seeking modification under OCGA § 15-11-40 was a final judgment and thus directly appealable under OCGA §§ 5-6-34 (a) (1) and 15-11-3. See In the Interest of J. N. F.,
2. This court previously vacated and remanded a November 2009 order by the juvenile court granting the motion of the Department of Family and Childrеn Services (“the Department”) to cease family reunification efforts involving these parents and children. In the Interest of A. M.,
The juvenile court gave the Department legal custody for one yеar from the date they were removed from their parents, and in January 2009 the juvenile court entered an order incorporating case plans for all five children. In June 2009, the Department moved to extend custody and sought permission to cease its efforts to reunify the family. During the hearing on the nonreunification motion, the case manager testified about the children’s medical conditions. In the Interest of A. M.,
In our opinion issued on October 6, 2010, this court determined thаt clear and convincing evidence supported the juvenile court’s conclusion that reunification efforts would be detrimental to the children, because the parents were unable to meet their children’s medical needs and the children’s lives would be endangered without the appropriate level of medical care. In the Interest of A. M.,
Upon review of the case, the juvenile court issued a modified order on October 15, 2009, based on the evidence previously considered and this court’s direction, again granting the Department’s motion to cease reunification services. The parents did not appeal that order. In December 2009 and again in September 2010, the Department petitioned the juvenile court to terminate the parents’ rights to the children based on their inability to mеet the children’s extreme special needs. In November 2010, the Department filed an amended deprivation petition, and in February 2011, the juvenile court issued a judicial review order finding that the children should continue in their current placements.
Finally, on June 10, 2011, the juvenile court issued an оrder terminating the parents’ parental rights, finding that they would never be able to meet their children’s special needs. The court found that the children had a combined total of seventy-five medical appointments each month, that their care required three adults working full-time and а fourth adult part-time, and that the parents had no concrete plan to meet the children’s daily needs. The juvenile court noted that the children needed stability and permanence, and that the foster parents intended to adopt all five children if the termination petitiоns were granted. That order was not timely appealed.
Four months later, on October 12, 2011, the Department petitioned the court to review the adoption efforts for the children, who were doing well in adoptive placement as the Department awaited approval for adoption assistance. On October 14, 2011, the juvenile court appointed a guardian ad litem to represent the children and scheduled a hearing for November 2, 2011. That same day, the parents filed a motion for new trial and a motion for reconsideration, which thе Department moved the court to dismiss. In December 2011, the parents filed an amended motion to modify or vacate the termination order based on newly discovered evidence and changed circumstances. The juvenile court conducted a hearing in February 2012 and issued аn order denying the parents’ motion to modify the termination order, which is the order now on appeal.
Regarding the parents’ challenge to the termination order, the juvenile court has continuing jurisdiction over its orders and can subsequently modify or vacate them. OCGA § 15-11-40 (b); In the Interest of B. S. H.,
3. The parents contend that in denying their motion to modify or vacate the termination order, the juvenile court fаiled to consider newly discovered evidence and significant changes in the parents’ circumstances which had occurred subsequent to the termination hearing. They maintain that evidence of several offers of assistance from organizations to help them gain legal rеsidency status and to help them care for their children was evidence of both changed circumstances and newly discovered evidence that would affect their ability to attain certain case goals.
“An order of the court shall be set aside if [ ]... [n] ewly discovered evidеnce so requires.” OCGA § 15-11-40 (a) (3).
At the hearing on the motion to modify or vacate the termination order, a diplomat from the parents’ native country testified that the Consulate was coordinating efforts to support the family, including efforts to expedite the parents’ application process for legal residency status, and had acquired letters of support from other organizations. However, he also admitted that the Consulate had “provided support to the... family since the beginning of this case” and had paid for legal services for the family since 2009.
As noted above, we must affirm the juvenile court’s ruling absent an abuse of discretion. In the Interest of J. N. F.,
Given that there was evidence to support the juvenile court’s ruling, we cannot find that the court abused its discretion.
4. The parents also contend that a language barrier existed at the time of the termination hearing and during critical times in their case, including their two psychological evaluations, because they did not have a translator who spoke their Guatemalan dialect of Mam. However, the testimony at the hearing on their motion demonstrated that the couple had always used a Spanish interpreter and had never complained about the interpreter’s sеrvices, expressed any confusion to the court, or requested an interpreter who spoke the Mam dialect. Further, in their previous appeal of the juvenile court’s November 2009 nonreunification order, the parents asserted only that the Department
5. Although the parents also complain that their trial counsel was ineffective at the termination hearing, that certain psychological examinations supporting the termination were not included in the reсord, and that the evidence was insufficient to support the termination, as noted in Division 2, we may only consider the correctness of the order denying the motion to modify or vacate the underlying judgment, not the merits of that judgment.
That the parents maintain an ineffectiveness ground for their trial counsel’s failure to pursue the appeal of their termination order does not demand a different result. In raising such a claim, the parents are essentially requesting that the juvenile court grant them an out-of-time appeal of the underlying termination order. In In the Interest of S. M. B.,
for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. The father did not have the right to file a direct appeal in this case, and so no out-of-time appeal is available on ineffective assistance grounds.
(Citation omitted.) Id. at 127.
Judgment affirmed.
Notes
OCGA § 5-6-35 (j) provides, in relevant part:
When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permissiоn to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. . . .
We recognize that “[t]here is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously.” McCormick v. Dept. of Human Resources,
Effective until January 1, 2014. Ga. L. 2013, p. 294, § 1/HB 242.