Pike County Times
The Pike County Times, PO Box 843, Zebulon, Georgia 30295. Click here to donate through PayPal. Becky Watts: Phone # 770-468-7583 editor@pikecountytimes.com
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Pike Case to Be Heard in the Georgia Supreme Court

ATLANTA - A Pike County case is being argued before the Georgia Supreme Court today. The following is a Summary of Facts and Issues from the Supreme Court of Georgia's website. The following is on the page from which the summary was listed: "Please note: These summaries are prepared by the Office of Public Information to help news reporters determine if they want to cover the arguments and to inform the public of upcoming cases. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations... Most cases are decided within six months of oral argument." The following is verbatim from the Georgia Supreme Court's website. [Note from the Editor: This is the Randall Moss case that has been argued in court here and discussed even before the Board of Commissioners and a DFCS meeting that I attended. A quick search in the search box will bring up those articles.]

IN THE INTEREST OF B.R.F., A CHILD (S15G1301). A mother is appealing a Georgia Court of Appeals decision upholding the termination of her parental rights. The legal issue in this case is the appellate court’s decision that it had the authority to review her case even though her application to appeal was filed months after the deadline.

FACTS: B.R.F was born in June 2011 to a 17-year-old girl, who lived in Pike County with her father. The Department of Family and Children’s Services was alerted that the baby was not being properly cared for and initially became involved with the family in an effort to keep the baby with her mother and the family intact. For the next year, the child welfare agency worked with the mother, trying to get services for her at home so she could learn how to parent her child, but the father interfered and impeded the agency’s attempts to help his daughter and grandchild. In August 2011, a Pike County juvenile judge ordered the mother and baby be placed in a shelter for teenage mothers where she could learn parenting skills, and they were placed together in a “Second Chance Home.” But the mother did not want to be in the group home, and her father continued to interfere in her care of her baby. In September 2011, the judge determined the child was deprived and awarded custody to the State. The baby, who was not quite 3 months old, was placed in foster care. Shortly after, the court released the mother from the group home and she returned to live with her father. The child welfare agency continued to work with the mother, and she received services from a therapist and a parent aide, and continued to visit her baby. Meanwhile, her father filed a petition in superior court to adopt B.R.F. after the baby’s father surrendered his parental rights.

In July 2012, the baby’s mother went to her father’s attorney and signed documents surrendering her parental rights to her father. At that point, the Department of Family and Children’s Services cancelled the mother’s visitations with her child. In September 2012, the department filed a petition for the termination of the mother’s parental rights. At the hearing, the social services administrator testified that from the beginning, the mother’s father had not wanted the child welfare agency involved and would not allow his daughter to cooperate with them. The administrator testified that the mother had not shown proof she was taking medication for her mental health diagnosis and that while she had completed parenting classes, she was unable to do what she had been taught. She had no source of income and had not completed high school or a GED program, as the safety plan she had signed stipulated. At the hearing, the mother testified she had executed the documents surrendering her parental rights in favor of her father so that her baby could “stay...with the family,” and said she would be an “assistant person” to her father, or a “big sister,” to the child, but not the child’s primary caregiver. In an earlier hearing, the mother had acknowledged she was not able to care for her child by herself. The child welfare agency presented expert testimony showing that the baby had bonded with her foster parents, who want to adopt her, although the same expert caseworker also testified that the baby had bonded to her mother as well. The State also presented testimony regarding the effect of a lack of permanency on a child. The child welfare agency conducted a home placement evaluation of the grandfather’s home, but rejected it as a suitable placement for B.R.F. Following the termination hearing where the mother was represented by an indigent defense attorney, in January 2013, the juvenile court entered an order terminating the mother’s parental rights, finding that that the mother had surrendered her rights to her father only to avoid completing her court-ordered reunification goals and as a subterfuge to avoid the involuntary termination of her parental rights.

At issue legally in this case is what happened next. The mother wanted to appeal the decision, but her court-appointed attorney wrote her a letter stating it was his understanding “that you are not entitled to indigent defense for a discretionary appeal of a civil case (termination of parental rights).” (Under Georgia Code § 15-11-262, an indigent parent has the right to appointed counsel in all dependency and termination of parental rights cases, including at all stages.) So the teenage mother, described by the juvenile court as “mentally ‘slow,’” then tried to represent herself, but she filed the wrong form in court–a notice of appeal, which is what is required in a “direct” appeal, or an appeal that the appellate court automatically grants. But the appeal of a termination of parental rights is now by law a “discretionary” appeal, meaning the appellate court may decide whether or not to hear the appeal. Because she filed a direct appeal, her case was dismissed for failure to follow the discretionary appeal procedure. She then appealed to the Georgia Court of Appeals, which in a split 4-to-3 decision, granted her application for discretionary appeal, even though it was filed months past the 30-day deadline to do so, in violation of court procedure. The Court of Appeals ruled that in refusing to assist the mother with applying for a discretionary appeal and actively telling her the wrong way to appeal on her own, the indigent defense attorney had violated her constitutional rights to due process. After accepting her appeal and considering her case, however, the Court of Appeals upheld the termination of the mother’s parental rights, finding it was “in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and need for a secure and stable home.” Represented by the State’s former Child Advocate, the mother now appeals to the Georgia Supreme Court, which has agreed to review the case to determine whether the Court of Appeals was wrong to conclude that it had the authority to excuse the late filing of a discretionary application in a parental termination case.

ARGUMENTS: The attorney for B.R.F.’s mother argues that appellate courts are authorized to grant applications for late appeals from a juvenile court’s termination of parental rights rulings to guarantee a parent’s statutory and constitutional rights under the Georgia and federal constitutions. “This case involves a very important issue of child welfare law with the potential to impact the public’s confidence in our state judiciary, our indigent defense system, and our child welfare system,” the attorney argues in briefs. “When the court-appointed attorney for a ‘slow’ teenaged mother whose parental rights are terminated following a contested juvenile court trial, refuses her request to seek appellate review of the matter and instead gives her incorrect legal advice regarding appellate procedure, causing her to lose her opportunity to seek appellate review, can our courts provide her with any relief?” In this case, the State of Georgia persuaded the juvenile court to terminate an indigent mother’s rights to her infant child. Under a Georgia statute, the mother was entitled to appointed counsel on appeal. But she also had a constitutional right to court-appointed counsel, the attorney contends. While the State argues that under the U.S. Supreme Court’s 1981 decision in Lassiter v. Dept. of Social Services of Durham City, indigent parents have no federal constitutional right to an attorney in parental rights termination cases, the “State is incorrect,” the attorney argues. “The Lassiter Court found that where the case is complex, the parent’s capacity to defend himself or herself low, and the risk of error high, due process may require the appointment of counsel for indigent parents in termination proceedings.” Because the mother had a right to representation at all states of the proceedings, she also had the right to effective representation when she asked her court-appointed attorney to help her seek an appeal of the juvenile court’s ruling. “Even in the absence of a recognized constitutional right to counsel in termination cases, this Court has recognized that indigent parents are entitled to effective assistance of counsel and are allowed to raise such claims.” The appropriate response is a motion for new trial alleging ineffective assistance. “That additional step undoubtedly delays permanency for the child, but no one seems ever to have suggested that such a procedure is incorrect or unfair to the child for whom adoption is sought.” “It is beyond doubt that efforts by a State government to terminate a parent’s rights impact rights that the U.S. Supreme Court has determined are ‘of basic importance in our society’ and that are ‘sheltered by the fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect,’” the attorney argues. “To protect those rights, as well as those guaranteed by the Georgia Constitution, our appellate courts must have the opportunity to ensure that trial courts in contested termination cases have applied ‘the most stringent procedural safeguards’ to guarantee due process for parents in termination cases.”

The Attorney General, representing the State, argues the Court of Appeals erred in ruling it had the authority to grant a late application for a discretionary appeal in a civil parental rights termination case where ineffective assistance of counsel is alleged. That decision, the State contends, “is foreclosed by this Court’s precedents, barred by the Court of Appeals’ own case law, and, if allowed to stand, would introduce uncertainty into both the child adoptive process and the state appellate process.” As the Georgia Supreme Court ruled in 2011 in Gable v. State, “Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal.” “There is no such constitutional right available here; although Georgia law grants a statutory right to counsel in termination proceedings, neither the federal nor the state Constitution guarantees that right,” the State argues. The decision by the appellate court is all the more surprising because it decided the same question in the opposite way in its 2012 decision in In the Interest of S.M.B., finding it lacked jurisdiction to consider an appeal “where no constitutional right of appeal or of counsel is implicated.” “In short, the court’s conclusion that it has the authority to excuse the untimely filing of a discretionary application in a civil parental rights termination case is plainly contrary to this Court’s instruction in Gable that only a constitutional violation is sufficient to excuse compliance with stat utory requirements.” Here the mother failed to file an application for discretionary review for nine months after the juvenile court issued its decision, rather than within the 30 days required by state law. “Because, as the Court of Appeals itself concluded, there was no constitutional right to counsel at stake, the courts are without authority to excuse the late filing.” As long as there is a possibility for the filing of an application for a discretionary appeal long after its deadline, “there will be no certainty for any deprived child that his or her stable, permanent home placement will be maintained,” the State argues. “The decision by the Court of Appeals was in clear error, and presents a threat to the finality of future (and past) termination proce edings."

Attorney for Appellant (Mother): Thomas Rawlings
Attorneys for Appellee (State): Samuel Olens, Attorney General, Britt Grant, Solicitor General, Dennis Dunn, Dep. A.G., Shalen Nelson, Sr. Asst. A.G., Penny Hannah, Sr. Asst. A.G.

Submitted 1.5.16