In re Interest of B.R.F.
Decision Date | 30 March 2015 |
Docket Number | No. A14A1536.,A14A1536. |
Citation | 332 Ga.App. 49,770 S.E.2d 912 |
Parties | In the Interest of B.R.F., a child. |
Court | Georgia Court of Appeals |
Thomas C. Rawlings, Sandersville, McMillan & Rawlings, for Appellant.
Samuel S. Olens, Atty. Gen., Shalen S. Nelson, Penny L. Hannah, Senior Asst. Attys. Gen., Tammy M. Griner, Asst. Atty. Gen., for Appellee.
Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, Atlanta, Jane Okrasinski, amici curiae.
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.
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
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,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...
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