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In re B.R. F.

Court of Appeals of Georgia

March 30, 2015

In the Interest of B.R. F., a child

Reconsideration denied April 14, 2015.

Editorial Note:

This opinion is uncorrected and subject to revision by the court.

Termination of parental rights. Pike Juvenile Court. Before Judge Miller.

McMillan & Rawlings, Thomas C. Rawlings, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Tammy M. Griner, Assistant Attorney General, for appellee.

Jane Okrasinski, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, amici curiae.

PHIPPS, Chief Judge. Barnes, P. J., and Ellington, P. J., concur. McFadden, J., concurs fully and specially. Andrews, P. J., Ray and McMillian, JJ., dissent.


Phipps, Chief Judge.

In granting a mother's out-of-time application for discretionary appeal of the termination of her parental rights to her minor child, B.R. F., citing In the Interest of S. M. B.,[1] we asked the parties to address in their appellate briefs the question of whether this court has jurisdiction to grant the out-of-time appeal. We conclude that, under the circumstances of this case, this court has jurisdiction to grant an out-of-time application for discretionary appeal from an order terminating parental rights. And for the reasons set forth herein, we affirm the trial court's termination of the mother's parental rights.

1. In this case, a constitutional violation concerning the appeal occurred when the mother's right to file an application for discretionary appeal with the assistance of a court-appointed attorney was frustrated because of the ineffective assistance or denial of counsel; therefore, this court has jurisdiction to grant the out-of-time application for discretionary appeal from the order terminating the mother's parental rights.

During the termination hearing, which began on December 5, 2012 and concluded on December 13, 2012, the mother was represented by counsel appointed pursuant to a conflict contract through the Griffin Circuit Public Defenders Office. Upon the conclusion of the hearing, the mother's counsel sent the mother a letter in response to a call the mother had made to counsel's office. Counsel informed the mother that it was his

understanding from the circuit Public Defender, [name] that you are not entitled to indigent defense for a discretionary appeal of a civil case (termination of parental rights). You can file a private appeal with out indigent defense counsel within thirty days from the entry of final judgment. The final order should be entered within the next week. It should be noted as well that my contract with the Public Defenders Office does not include appellant [sic] work and any appeal or further action on this case would require appoint [sic] of another attorney.

Counsel further informed the mother that he was closing his file of the case, and that if she had any further questions, she should direct them to the county public defenders office. On January 14, 2013, the trial court entered an order terminating the mother's parental rights.

The mother, acting pro se, timely filed a direct appeal from the juvenile court's order; but the juvenile court dismissed the notice of appeal due to the mother's failure to follow the discretionary appeals procedure.[2] On September 16, 2013, the mother, with the assistance of new counsel, filed an out-of-time application for discretionary appeal.

" It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction." [3] Pursuant to OCGA § 5-6-35 (d), an application for a discretionary appeal must be filed within 30 days of the entry of the order being appealed.[4] And an indigent parent has a statutory right to the appointment of counsel to appeal an order terminating his or her parental rights.[5]

In In the Interest of S. M. B.,[6] this court held that a trial court had no authority to grant an out-of-time discretionary appeal application from a termination of the applicant's parental rights.[7] Citing Gable v. State,[8] the court recognized, however, that " an appellate court may, at its discretion, permit an out-of-time discretionary appeal where a constitutional right is at stake." [9] Indeed, in Gable, the Supreme Court of Georgia held that " Georgia Courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal." [10]

In In the Interest of S. M. B.,[11] this court rejected the notion of correlating a parent's right to an out-of-time appeal on ineffectiveness grounds to that of a criminal defendant.[12] The court recognized, as stated by the Georgia Supreme Court, that

[o]ut-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. ... However, 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.[13]

The court concluded that " [t]he [parent] 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." [14] In context, however, it is apparent that by " direct appeal," the Supreme Court of Georgia meant simply a first appeal, i.e., an appeal not taken by discretionary or mandatory review " beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court." [15]

In Gable,[16] the Supreme Court of Georgia held that " [t]here is no constitutional right to counsel, much less the effective assistance of counsel, in filing or litigating a post-conviction extraordinary motion for new trial or a discretionary application to appeal the ruling on such a motion." [17] In Gable the remedy of an out-of-time application was not available because no violation of the defendant's constitutional rights had occurred when counsel rendered ineffective assistance by failing to file a timely application for discretionary appeal; as in Ross v. Moffitt,[18] the defendant's convictions in Gable had been previously affirmed on direct appeal, and the defendant had the assistance of counsel in pursuing the prior appeal.[19] The application for discretionary review in this case is not like the applications in Ross or Gable, which applications had been taken for the purpose of further appellate review, following first direct appeals as of right.

In Douglas v. California,[20] the United States Supreme Court held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his " first appeal, granted as a matter of right," [21] and in Evitts v. Lucey,[22] the United States Supreme Court held that that right to counsel included the right to the effective assistance of counsel.[23] The rationale was that although the

Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors[,] ... if a State has created appellate courts as " an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant," the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.[24]

In Douglas,[25] the United States Supreme Court stated that " where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor," and, as to the indigent, " the right to appeal does not comport with fair procedure." [26] " 'Due Process' emphasizes fairness between the State and the individual dealing with the State[.]" [27] " [T]he phrase expresses the requirement of 'fundamental fairness[.]' " [28]

In the context of termination of parental rights cases, the discretionary appeal process is the one and only first appeal as of right. First, although the United States Constitution does not require states to appoint counsel for indigent parents in termination proceedings,[29] as previously set forth, in Georgia the right to court-appointed counsel for an indigent parent in termination proceedings includes the appellate process. Second, in In the Interest of A. C.,[30] the Supreme Court of Georgia said that the state has a " legitimate interest in not permitting children determined to be deprived to languish in temporary care, but instead, to leave this situation for permanent stable homes as expeditiously as possible," [31] and that the discretionary appeal process provided in OCGA § 5-6-35 (a) (12) " helps accomplish this goal by offering effective appellate review in an expedited manner, yet permitting a full appeal of the termination of parental rights if that is shown to be warranted." [32]

The United States Supreme Court stated:

In Lassiter, it was not disputed that state intervention to terminate the relationship between a parent and the child must be accomplished by procedures meeting the requisites of the Due Process Clause. The absence of dispute reflected this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.[33]

The dissenting opinion misses the mark when it focuses on whether the appeal rights in this case were granted by statute or by either the state or federal constitution. As Justice Harlan remarked in Douglas about the due process issue: " The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause." [34] Here, the state rule was not applied consistent with the requirements of fair procedure guaranteed by the Due Process Clause.

It is evident that the Georgia legislature incorporated the discretionary application appeal procedure as an integral part of the system for finally adjudicating termination of parental rights cases, and this system, which entitles indigent parents to court-appointed counsel for appeals and provides appellate review of termination orders and a possibility for a full appeal, must be applied in accordance with the requirements of fair procedure guaranteed by the Due Process Clause of the Constitution.[35] But in this case, the system did not comport with the Due Process Clause. In this case, an indigent person who desired appellate review of the decision terminating her parental rights was forced (due to the ineffective assistance of her trial counsel) to pursue her one and only first right of appellate review (and a possible full appeal) without an attorney when state law entitled her to be appointed an attorney for appeal. The parent, acting pro se, filed the wrong document in taking her appeal application to this court after her court-appointed trial attorney erroneously notified her that she had no right to court-appointed counsel for appeal.[36] As the remedy for this due process violation, we acknowledge that we have jurisdiction of the discretionary appeal and, as determined previously in granting the application, we proceed to review the appeal on the merits.[37]

2. We affirm the trial court's termination of the mother's parental rights.

In reviewing the sufficiency of the evidence supporting a termination order, we view the evidence in the light most favorable to DFCS and determine whether ... any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.[38]

B. R. F. was born on June 16, 2011. At the time, her mother was 17 years old (born November 23, 1993), and still living with her own father (the " grandfather" ). The Department of Family and Children's Services (DFCS) became concerned that the child's needs were not being met in the home, and DFCS attempted to work the case as a " family preservation ongoing case without court intervention." But on July 19, 2011, the court entered an order for shelter care, stating therein that a complaint had been made to the court concerning the child, and that DFCS had made reasonable efforts to prevent or eliminate the need for removing the child from the home and to make it possible for the child to remain safely in the home by providing parenting services in the home to work with the mother and child for two weeks, by implementing two safety plans for supervision, and by holding family conferences and providing family preservation services. The order continued, however, that the mother had been unable to " demonstrate appropriate parenting abilities," that the grandfather had recommended that the mother's 18-year-old ex-boyfriend supervise the mother and child during the day, and that there was " no appropriate supervision of the mother and child in the home." The court placed the child in the custody of the Pike County DFCS, pending a 72-hour hearing.

On July 22, 2011, the court entered a 72-hour hearing order. The court made the following findings in its order:

Based upon the evidence presented, ... the Court finds that there is probable cause to believe the ... child is deprived pursuant to OCGA ยง 15-11-2(8)(A): the Mother, a minor lacks appropriate parenting skills and may have some cognitive issues which could possibly be hindering her ability to grasp and demonstrate parenting skills being taught by [the parenting services company]; the maternal grandfather has been an impediment ...

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