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In re M. G. W.

Court of Appeals of Georgia, Fifth Division

May 26, 2017

IN THE INTEREST OF M. G. W. et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          BRANCH, JUDGE.

         A mother who surrendered her parental rights to six children appeals the denial of her motions to vacate or set aside, and for reconsideration, of a juvenile court's decision to terminate her parental rights to the children. The mother primarily argues that she was denied her right to counsel at a hearing on her motions and also denied effective assistance of counsel. For the reasons given below, we vacate the court's order and remand for further proceedings.

         For approximately 18 months beginning in July 2014, the Glynn County Department of Family and Children Services ("the Department") had been involved with the mother, multiple fathers, and their children related to serious issues of domestic violence and the mother's failure to protect the children properly. In December 2015, the Department filed a petition to terminate the parental rights of the mother (and fathers) on several grounds, and the juvenile court appointed counsel to represent the mother. A hearing was set on the petition for May 9, 2016, but three days before the hearing, the mother executed both a "Surrender of Rights [and] Final Release for Adoption" and an "Acknowledgment of Surrender of Rights" for each of her six children named in the petition (the "surrender documents"). On May 9, the termination hearing proceeded during which the State represented that the mother had executed surrenders of parental rights to all six children on May 6. And the mother made a statement that she thought surrendering her rights to the children was in their best interests. The actual surrenders, however, were not admitted into evidence at that hearing.

         In the days following the hearing, however, the mother changed her mind and decided to withdraw her decision to surrender the rights to her children. On May 13, the mother saw the children for the last time and later wrote a note in which she stated that she wished to withdraw the surrenders; she served the Department's case manager with the withdrawal on May 17, 11 days after executing the surrenders in the first place. Nevertheless, on June 22, the juvenile court entered an order terminating the mother's parental rights on the ground that the mother surrendered her rights and did not withdraw her surrenders within 10 days as required by law. Under OCGA § 19-8-26 (g), the mother had ten days to revoke those surrenders, and that ten-day period included intervening weekends and holidays.[1]

         The mother, through her appointed counsel, then filed a motion to vacate or set aside the termination order and, later, a motion for reconsideration of the same. In the motion to vacate or set aside, the mother argued that her surrenders were timely and that she had not been afforded an opportunity to be heard on her surrenders, including whether they were timely. At the same time, the mother's counsel filed a motion to withdraw as counsel of record. On July 14, the juvenile court held the first of two hearings on the motions. At the first hearing, the mother appeared with her appointed counsel who explained that the mother contended that counsel wrongly advised the mother that the 10-day limit on withdrawing a surrender of parental rights did not include weekends, which is why the mother believed that she had timely withdrawn her surrenders. The court recognized that this constituted a colorable claim of ineffective assistance of counsel. Counsel also explained that the mother stated that she had new counsel and wanted appointed counsel to withdraw. But the mother's new counsel was not present and the mother sought a continuance. The court granted appointed counsel's motion to withdraw and granted a continuance to July 25, 2016. The court also directed the mother to provide the court with her new attorney's name, address, and telephone number by 5:00 p.m. the following day; she was also instructed that on July 25, the hearing would proceed "with or without an attorney." At the July 25 hearing, the mother reported that she had paid an attorney some money, but not the full fee, and had a receipt as evidence; although she had tried to contact that attorney, she did not know where he was that day. While court personnel attempted to contact the attorney, the court allowed the Department to question the mother under oath about her attempts to contact the attorney. Court personnel also attempted to determine if the name shown on the receipt was a member of the State Bar. According to the trial court's order, no such person could be found. The Department then asked the court if it should wait for resolution of the location of the mother's attorney or whether it could question the mother about the withdrawal of her surrenders; the court responded, "Well, I'm trying to decide whether I should appoint her an attorney for this." Following some additional questions about her attempts to contact the new attorney and her excuses for not enuring the attorney's presence, the court stated, "Well, I'll tell you what, I'm tired of all this foolishness." Ultimately, the court decided that it was going to proceed without an attorney for the mother.

         The Department then introduced the surrender documents and questioned the mother about them. Although she admitted signing the documents, she asserted that she cannot see well and that she relied on a statement by her appointed attorney to the effect that the 10-day deadline for withdrawing her surrenders did not include weekend days. She admitted, however, that her appointed counsel had read the surrender documents to her and that they said that the 10-day period for withdrawing her surrenders extended "not later than ten days from the date of the surrender and that after such ten-day period I shall have no right to revoke the surrender, [and] that the ten days shall be counted consecutively."[2] The court admitted the surrender documents into the record without objection by the mother.

         At the same hearing, the mother's former counsel testified that she fully explained the surrender documents to the mother, line by line. When asked what she told the mother about counting the ten-day period for withdrawing surrenders, however, the former counsel gave a somewhat ambiguous response:

Q: Did you at any time tell her weekends don't count in regard to counting the ten days?
A: I did, I told her that if . . . the tenth day fell on a Saturday, Sunday or holiday then those days wouldn't count, [it would] be the next business day.
Q: But you never told her that there was a general provision that weekends aren't counted in the calculation of ten days but if the last of that tenth day falls on one of those days?
A: I never did tell her that. I actually read [the paragraph of the surrender documents that explains the withdrawal period] to her many times and . . . I read it over and over to her.

         The mother, acting pro se, declined to cross examine her former counsel. The court ruled against the mother at the end of the hearing and entered an order denying the mother's motions to vacate/set aside and for reconsideration of the termination of her parental rights. The court held that the plain language of the surrender documents, which the mother admits her attorney read to her, "made it clear that only if the 10th day fell on a weekend or holiday, could the withdrawal be made after the 10th day." And, given that the mother filed her surrender on the 11th day following her execution of the surrenders and there being no allegation of duress, fraud or incapacity, the mother's attempt to withdraw her surrenders on the 11th day had no effect. The court added that

based upon a review of the record as a whole, [ ] even if the mother had not surrendered her parental rights, it is extremely probable that any rational trier of fact would have found by clear and convincing evidence that the Department had met its burden and that the petition for ...

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