In re Interest of B.R.F

• Decision Date: 05 July 2016
• Docket Number: S15G1301
• Citation: 299 Ga. 294,788 S.E.2d 416
• Parties: In The Interest of B.R.F f/k/a B.R.M., a Child.
• Court: Georgia Supreme Court

299 Ga. 294

788 S.E.2d 416

In The Interest of B.R.F f/k/a B.R.M., a Child.

S15G1301

Supreme Court of Georgia.

Decided: July 5, 2016

Britt Cagle Grant, Dennis R. Dunn, Deputy Attorney General, Penny Hannah, Assistant Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Mark James Cicero, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant.

Vicky Ogawa Kimbrell, Lisa Jane Krisher, Phyllis J. Holmen, Georgia Legal Services Program, 104 Marietta Street, N.W., Suite 250, Atlanta, Georgia 30303–2743, Marcy Alexandra Muller, Georgia Legal Services Program, 1508 N. Thornton Avenue, Suite 100, P.O. Box 2004, Dalton, Georgia 30722, for Amicus Appellant.

Jane Garrett Okrasinski, 145 Three Oaks Dr., Athens, Georgia 30607, Nathan Andrew Hayes, Office of the Child Attorney, 395 Pryor Street, S.W., Suite 4098, Atlanta, Georgia 30312, Suparna Malempati Joshi, Atlanta's John Marshall Law School, 1422 West Peachtree Street NE, Atlanta, Georgia 30309, for Neutral Amicus.

Thomas Charles Rawlings, McMillan & Rawlings, LLP, P.O. Box 5746, Sandersville, Georgia 31082, for Appellee.

Todd Andrew Harding, MAddox & Harding LLC, 113 East Solomon Street, Griffin, Georgia 30223, Roger Craig Montgomery, 4797 Tuck Persons HWY, Talbotton, Georgia 31827–0000, Charles Burton O'Neill, Jr., Charles B. O'Neill, Jr., P.C., 9840 U. S. Highway 19, P.O. Box 1188, Zebulon, Georgia 30295–1188, for Other Party.

BENHAM, Justice.

This appeal comes to us from the grant of a petition for a writ of certiorari. In the underlying case, appellee Mother's parental rights were terminated on January 14, 2013. Since Mother was indigent, she was represented by appointed counsel during the termination proceedings in the juvenile court per OCGA § 15–11– 98 (2012).¹ In a letter that was apparently written prior to the issuance of the final termination of rights order,² trial counsel told Mother that he could not represent her in an appeal, that she was not entitled to indigent defense for the discretionary appeal of a civil case, and that she should contact the public defender if she had questions or needed the appointment of another lawyer.³ On February 13, 2013, Mother, who was acting pro se, filed a notice of appeal in the juvenile court;⁴ but, months later on May 22, 2013, the juvenile court dismissed the notice of appeal because Mother was required to seek review by discretionary application per OCGA § 5–6–35 (a) (12).⁵ On September 16, 2013, Mother, represented by a new attorney, filed in the Court of Appeals an “application for an out-of-time discretionary appeal,” requesting review of the January 2013 termination of rights order.

The Court of Appeals concluded it had jurisdiction to grant Mother's application for an out-of-time discretionary appeal. It reasoned that, although Mother's right to appellate counsel in a civil termination action was statutory and she had no categorical constitutional right to court-appointed counsel as an indigent parent, “the state rule was not applied consistent with the requirements of fair procedure guaranteed by the Due Process Clause.” (Emphasis supplied.) In the Interest of B.R.F. , 332 Ga.App. 49, 54, 770 S.E.2d 912 (2015). The Court of Appeals further explained:

[I]n 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.

Id. at 54–55, 770 S.E.2d 912. Having decided it could grant the application for out-of-time discretionary review, the Court of Appeals went on to consider the merits and ultimately affirmed the termination of Mother's parental rights.⁶ We granted the Georgia Division of Family and Children Services' (“the State's”) petition for certiorari and posed the following question on appeal: “Did the Court of Appeals err in finding that an appellate court has the authority to excuse the untimely filing of a discretionary application in a civil parental termination case?” For the reasons set forth below, the judgment of the Court of Appeals is vacated and the case is remanded so that the Court of Appeals may issue an order dismissing Mother's application for out-of-time discretionary review.

OCGA § 5–6–35 provides that a party must file an application in order to seek an appeal regarding the termination of parental rights. OCGA § 5–6–35 (a) (12) and (b). This Court has held that requiring litigants in termination of rights cases to seek appellate review by application pursuant to OCGA § 5–6–35 (a) (12)⁷ is constitutional and not a violation of due process. In the Interest of N.A.U.E. , 287 Ga. 797, 700 S.E.2d 393 (2010) (noting that there is no “right to appeal granted by either the State or Federal Constitutions to civil litigants”); In the Interest of A.C. , 285 Ga. 829, 686 S.E.2d 635 (2009). See also M.L.B. v. S.L.J. , 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (in a termination of parental rights case, “due process does not independently require that the State provide a right to appeal”). Thus, litigants in this state cannot obtain relief from an order terminating parental rights by filing a direct appeal. A discretionary application seeking appellate review of an order terminating parental rights must be filed with the clerk of the appellate court within 30 days of entry of the termination order. OCGA § 5–6–35 (d).

In this case, there is no dispute that Mother failed to timely file an application for discretionary review. The Court of Appeals nevertheless granted her application for out-of-time discretionary review and considered the merits because it concluded Mother's constitutional rights were violated when her “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.” In the Interest of B.R.F. , supra, 332 Ga.App. at 49, 770 S.E.2d 912. In the context of criminal appeals, we have held that the failure to file a timely application for discretionary review is a jurisdictional defect which typically deprives the appellate court of the ability to consider the case. See Gable v. State , 290 Ga. 81 (2) (a), 720 S.E.2d 170 (2011). However, such a jurisdictional defect may be excused in a criminal case when such allowance is necessary to avoid or remedy a constitutional violation which concerns the appeal. Id. at 85–86, 720 S.E.2d 170.⁸ Mother contends this rationale in Gable should be extended in the civil context to her termination of rights case because she argues she had a constitutional right to appointed appellate counsel and that the ineffectiveness of trial counsel and/or the failure to appoint appellate counsel frustrated her ability to file a timely discretionary application.

The termination of parental rights is a civil matter. In the Interest of A.R.A.S. , 278 Ga.App. 608, 629 S.E.2d 822 (2006). Civil litigants typically do not enjoy a constitutional right to counsel. See, e.g., Turner v. Rogers , 564 U.S. 431, 441, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) (The Sixth Amendment does not apply to civil cases.) In this vein, the United States Supreme Court has held that the federal constitution does not require the appointment of counsel at every parental rights termination proceeding. See Lassiter v. Dept. of Social Services of Durham County, N.C. , 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Thus, no indigent parent, including Mother, has a categorical constitutional right to the appointment of counsel. Id.⁹ The Lassiter Court also acknowledged, however, that there may be some indigent parents who are entitled to representation in a termination proceeding as a matter of due process, depending on those parents' individual circumstances. Id. at 30–31, 101 S.Ct. 2153.¹⁰ In these situations, the trial court is to make the initial decision, on a case-by-case basis, as to whether the appointment of counsel is necessary to effect due process for the indigent parent whose parental rights are at stake. Id. at 31–32, 101 S.Ct. 2153.

In Georgia, the legislature has decided as a matter of statutory law that a parent is entitled to the appointment of counsel during termination proceedings if the parent is found to be indigent. See the former OCGA § 15–11–98 (b) (2012).¹¹ In this case, there is no dispute that Mother had counsel for proceedings that took place in the juvenile court. Rather the issues are (1) whether Mother was constitutionally entitled to counsel on appeal per Lassiter¹² and, if the answer to that inquiry is in the affirmative, (2) whether she received effective assistance. If the answer to the last question, should it be reached, is negative, then the final determination would be whether Mother is entitled to file an out-of-time application for discretionary review as a remedy.

The Court of Appeals was not authorized to consider any of these issues. First, since the application was untimely, the Court of Appeals lacked jurisdiction over the case. Gable v. State , 290 Ga. at 82, 720 S.E.2d 170. Secondly, as per Lassiter , such matters are first required to be considered by the trial court. 452 U.S. at 32, 101 S.Ct. 2153. As such, any initial determinations as to whether this Mother was constitutionally entitled to the appointment of appellate counsel for the purpose of filing a discretionary application, whether this Mother's due process rights were frustrated by ineffective...