APPEALS

Dependency and Terminations

June 20, 2014

Gainesville, Georgia

Consult with Client

Appeals can take a long time (3 months – 18 months). Ifyou tried the case you should have an idea of howsuccessful an appeal may be for your client. Some clientsdo not wish to go through the appellate process as it islengthy and are difficult to win. Be realistic about theparent’s chance on appeal. Be familiar with cases that wereoverturned on appeal so you can measure you parent’schance of success.

Types of Appeal Procedures

• Types of appeal procedures that are relevant to Dependencies and Terminations:

• Application for Interlocutory Appeal

• Motion for New Trial

• Direct Appeal

• Application for Discretionary Appeal

• Motion for Reconsideration

• Petition for Certiorari

• Due to time constraints we will not be discussing Interlocutory Appeal, Motion for Reconsideration or Petition for Certiorari. But,

discussion of these can be found in Darice M. Good’s Appeal CLE on the PAAC website

Content and Form of Applications and Briefs

•Contents of Application: Rule 25 & Rule 30 of the Georgia

Court of Appeals

•Contents of Brief:

•Form of Application and Brief: Court of Appeals Rules

1, 6, & 24

Motion for New Trial OCGA §5-5-20 et. al.

• After final judgment, may file Motion for New Trial.

•Immediately order the transcript.

•Final judgment is defined in OCGA 5-6-34(a)(1).

•Examples of a final judgment in juvenile court, includes, but isnot limited to an adjudication of dependency, termination,non-reunification, grant or denial of legitimation, grant ordenial of temporary or permanent guardianship, dispositionorder, etc.

Motion for New Trial OCGA §5-5-20 et. al.

•OCGA §5-5-40 A Motion for New Trial

must be filed within 30 DAYS of the trial

court’s order being filed with the clerk of

court.

•Filed in Juvenile Court.

Motion for New Trial OCGA §5-5-20 et. al.

Grounds for New Trial•OCGA §5-5-20 to §5-5-25

•Verdict Contrary to Evidence and Justice

•Verdict Against Weight of Evidence

• Illegal Admission of Exclusion of Evidence

•Newly Discovered Evidence

• Jury Instructions (Not Applicable)

•Catch All

Motion for New Trial OCGA §5-5-20 et. al.

Grounds for New Trial

• Ineffective Assistance of Counsel

• If you are going to argue that prior counsel was ineffective it is very

important to allege it in your motion for new trial and examine trial

counsel at the Motion for New Trial hearing. Case law is very clear that

not having trial counsel testimony at a motion for new trial almost always

precludes the appellate court reviewing an ineffective claim.

• If you argument is that trial counsel failed to introduce evidence, you

must proffer the evidence at Motion for New Trial that you are claiming

was not introduced by trial counsel.

Motion for New Trial OCGA §5-5-20 et. al.

Grounds for Motion for New Trial, Continued

• Procedural Issues: being prevented from

making a closing argument, being prevented

from thoroughly examining a witness,

transcript, constitutional violations, etc.

Motion for New Trial OCGA §5-5-20 et. al.

• STOPS appellate clock and restarts if MFNT denied.

• IMPORTANT: Any other motion, including a Motion for Reconsideration does not stop the

clock.

• Practice Point:If you are not the trial counsel, filing a Motion for New Trial is a great way to stop

the appellate clock to give you time to review and investigate the case and most importantly,

review the transcript.

• Caveat: If the appeal is a direct appeal, you will have an opportunity to review the transcript

after you file the Notice of Appeal and hence, a motion for new trial is not needed solely for

this reason.

• If MFNT is denied 30 DAYS from the date the trial court’s order of denial is filed with the clerk

of court to file a NOA or a DAA.

Content and Form: For all Applications and

Briefs in the Court of Appeals

•Contents of Application: Rule 25 & Rule 30 of the Georgia

Court of Appeals.

•Contents of Brief: Same as Application, but no exhibits.

•Form of Application and Brief: Court of Appeals Rules

1, 6, & 24

Direct Appeals OCGA §5-6-34

• IMPORTANT: An appeal from the termination ofparental rights is not a direct appeal, it is an applicationfor discretionary appeal

• If you file a notice of appeal on a termination case andmiss the deadline to file a discretionary application,your parent will lose all their appellate remedies. NOWAY TO FIX IT.

Direct Appeals OCGA §5-6-34

• Time Limits OCGA §5-6-34 and Rule 30 of the Georgia Court of Appeals

•NOA must be filed within 30 DAYS of the trial court’s order being filed inthe clerk of court OR within 30 DAYS of the trial court’s order denying anew trial being filed with the clerk of court.

•NOA filed in juvenile court.

•Docketing of Appeal. Docketed upon receipt of record and transcript. If theappellate court dockets the case before the transcript is ready, you can file amotion under Rule 16 of the Georgia Court of Appeals requesting that thecase is removed from the docket and re-docketed upon receipt of thetranscript.

Direct Appeals OCGA §5-6-34

Time Limits Continued

•20 DAYS from the date of docketing to file an appellant’s brief.

•The opposing party 20 DAYS from the date of filing of the

appellant brief or 40 DAYS from the date of docketing,

whichever is longer to file an appellee brief.

•20 DAYS from the date of the filing of appellee’s brief to file a

reply brief.

•The appellate court has TWO TERMS to decide your case.

Direct Appeals OCGA §5-6-34

•Motion for Oral Arguments: Must be made separatelywith filing of brief to be considered.

•E- FILE, but be careful of rejection! If you file yourbrief after 4:30pm, but before 11:59pm of the finalday to file, there are no clerks there to determine thatyour brief was complete when filed. If you receive arejection email from the clerks the next day, yourbrief was not timely filed.

Direct Appeals OCGA §5-6-34

• Filing an appeal does not supersede the trial court’s order. The trial

court’s order will remain in effect until it is overturned. OCGA §15-

11-35. The trial court in its discretion may change its order.

• When NOA filed, juvenile court loses jurisdiction over the case.

• It is rare that you would be filing a direct appeal with the Supreme

Court of Georgia (usually only where the sole issue is a constitutional

issue). If you are filing in the Supreme Court of Georgia, follow its

rules for direct appeals and not the Court of Appeals.

Direct Appeals OCGA §5-6-34

• If you have any doubt as to where the direct appeal should be

filed, file with the Court of Appeals and if need be the case will

be transferred to the Supreme Court of Georgia by the Court of

Appeals.

• If the order on appeal is reversed the case will be remitted to the

juvenile court for disposition or with instructions on how to

proceed on the case.

Application for Discretionary Appeal

OCGA §5-6-35(12)

• All appeals from the termination of parental rights

is by application only.

• Time Limits OCGA §5-6-35 & Rule 31 of the Georgia Court of Appeals

•Application filed with the Court of Appeals within 30 DAYS of the

date the termination order OR the order denying motion for new trial

is filed with the juvenile clerk of court.

•There are no extensions for filing your application.

Application for Discretionary Appeal

OCGA §5-6-35(12)

• Practice Point: Brief Summary vs. Full Brief

•Some lawyers do a brief summary of the case and

its issues, however, doing a full brief gives you a

better chance of your application being granted.

• NO E-FILE

Application for Discretionary Appeal

OCGA §5-6-35(12)

• Grounds for granting an Application for Interlocutory Appeal Rule 30 of

the Georgia Court of Appeals.

•The issue to be decided appears to be dispositive of the case; or

•The order appears erroneous and will probably cause a substantial

error at trial or will adversely affect the rights of the appealing party

until entry of final judgment in which case the appeal will be

expedited; or

•The establishment of precedent is desirable.

Application for Discretionary Appeal

OCGA §5-6-35(12)

• The opposing party 10 DAYS to respond. DFACS Policy on response.

• 45 DAYS to grant or deny.

• If granted, 10 DAYS to file NOA in juvenile court.

• NOA: how the appellate court has jurisdiction, request record and the

sent to the appellate court, and a short procedural history.

• Then follow the procedure for direct appeals.

• Once the application is filed, the juvenile court loses jurisdiction.

Application for Discretionary Appeal

OCGA §5-6-35(12)

• It is rare that you would be filing an discretionary appeal with the SupremeCourt of Georgia (usually only where the sole issue is a constitutional issue). Ifyou are filing in the Supreme Court of Georgia, follow its rules fordiscretionary applications and not the Court of Appeals.

• If you have any doubt as to where the direct appeal should be filed, file with theCourt of Appeals and if need be the case will be transferred to the SupremeCourt of Georgia by the Court of Appeals.

• If the order on appeal is reversed the case will be remitted back to the juvenilecourt for disposition of the case or with instructions on how to proceed on thecase.

The Power of Case Law

• Why is using case law Important?

• Record

• Being Overturned

• Emotional Attachment: Powerful and Moving

Wicked

I'm through with playing by the

rules of someone else's game.

Too late for second-guessing Too

late to go back to sleep. It's time

to trust my instincts. Close my

eyes and leap!

It's time to try

Defying Gravity

I'm through accepting limits

'cause someone else says they're so

Some things I cannot change

But till I try, I'll never know!

Unlimited

Together we're unlimited

Together we'll be the

greatest team there's ever

been

If we work in tandem:

There's no fight we

cannot win

Just you and I

Defying Gravity

Everyone deserves the chance to

fly! And if I'm flying solo,

At least I'm flying free.

To those who'd ground me,

Take a message back from me.

Tell them how I am

Defying Gravity

And soon I'll match them in

renown And nobody in all of

DeKalb Juvenile, No DFACS or

Court that there is or was…

Is ever gonna bring me down!

Translate your “theme song” to a …

“theme case law”

•Use case law to create a theme for your

case that inspires you and gets you moving

emotionally.

The Power of Case Law

• “There can scarcely be imagined a more fundamental and fiercelyguarded right than the right of a natural parent to its’ offspring. Toterminate that right is to sever that right for the future as effectivelyin law as if it never had existed. It is a tearing of the flesh and itcan be done by the court only under the most carefully controlledand regulated circumstances for the sake of the child.”

• Nix v. DHR 236 Ga. 794 (1976) Dependency K.S. 271 Ga. App. 891(2005)

• “In a nutshell, this case is the poster child for all that is wrong with this Court's

termination-of-parental-rights jurisprudence: the mother essentially had her

parental rights terminated by the trial court for being poor.” CJV

• “It is the height of irony that Georgia, a state founded for the purpose of

providing a fresh start for those whose "misfortunes and want of Employment ...

are not able to provide a maintenance for themselves and Families,“ now has an

institutionalized policy of severing the natural parent-child relationships of its

poorest and most vulnerable citizens simply because they are unable to keep up

with the Joneses.” CJV

Poverty and Instability

Poverty and Instability• “Indeed, the notion that parental rights can be terminated, in part, because a parent has

failed to secure independent housing, stable employment, or work on "vocationalrehabilitation" is not only patently unconstitutional but morally repugnant--as such "goals,"disproportionately discriminate against those who are socioeconomically disadvantaged.”CJV

• “Securing independent housing, stable employment, and furthering one's job training oreducation are commendable goals, and there is nothing inherently wrong with thegovernment encouraging the citizens it serves to better their lives. What the government is notentitled to do, regardless of any apparent statutory authority for doing so, is to force somegeneralized, bureaucratic, Orwellian notion of parenting onto citizens who have temporarilylost custody of their children as a precondition to regaining custody of those children.”CJV

Poverty and Instability

• “The State has no right to irrevocably sever the natural parent-child relationship simplybecause a parent is incapable of providing her children with an idyllic middle-class lifestyle.”CJV

• “In my view, this reasoning [that parental rights should be terminated to do unstable housingand employment) makes a mockery of the cherished and sacrosanct right to familialrelations and the concomitant right of parents to raise their children as they see fit, and I willcontinue to highlight this Court's inherently flawed and unconstitutional approach to thesecases as long as I am privileged to serve Georgians in my capacity as an appellate judge. CJV

• “An order terminating parental rights is the death penalty of civil cases, and this Courtshould start treating it as such.” CJV

Poverty and Instability

• “The fact that a mother is unemployed, without prospects for future

employment, and without any stable living arrangements is not sufficient to

terminate parental rights." MM 263 Ga. App. 363

• The evidence in the present case shows poverty and instability in the

mother's living arrangements, but it does not show any of the profoundly

detrimental and egregious parental conduct which led to termination of

rights in previous cases. Leyva 145 Ga. App. 619 (1978)

Domestic Violence• The only basis for asserting that any of the children were deprived wasDeryl's violence toward Patricia. Even assuming that spousal abuse alonecould support a finding that a child is deprived, the evidence was undisputedthat Patricia and Deryl were no longer living together at the time of thedeprivation hearing and were in the process of obtaining a divorce.

• Thankfully, we have not yet reached the point where the State is authorizedto take children away from an admittedly fit mother based solely on the merepossibility that she may in the future have contact with someone who haspreviously beaten her.

• CDE 248 Ga. App. 756 (2001)

No Adoptive Resource

• We note that the Department presented no identifiable prospects for

adoption, and the current foster parents do not want to adopt the

children. It appears to us that the Department wishes to terminate

the children's existing relationship with their mother, which they

cannot show is likely to cause serious harm, in return for the

possibility that the children will be placed in an as yet unidentified

permanent home.

• DF 251 Ga. App. (2001)

Failure to Prove Harm

• We find no expert testimony with regard to the effect on the children if the

mother's parental rights were not terminated; there is no testimony that the

children's relationship with their mother was harmful; and there is no

testimony that the children are currently suffering due to their placement in

foster care or that without a permanent placement that they would suffer

serious harm. The lack of testimony as to harm has repeatedly caused

us to reverse the lower court's order of termination.

• AT 271 Ga. App. 270

Substantial Completion of Case Plan

• Both parents made significant progress on their case plans, and their inabilityto dot every “i” and cross every “t” cannot be placed entirely on their ownshoulders.

• Additionally, a failure by parents “to live up to societal norms forproductivity, morality, cleanliness and responsibility does not summarily robthem of the right to raise their own offspring, nor does it end the children'sright to be raised by their own parents.” AF 283 Ga. App. 509 (2007)

• Case plans are significant factors, but delayed compliance with a minority of a plan's goals cannot serve as the sole basis for terminating parental rights. MM 263 Ga. App. (2003)

Immigration Status

• “Essentially, the termination of the father's parental rights was based on the

possibility that the father could someday be deported and, with her mother's

parental rights also severed, A. P. might be returned to DFACS's custody or

sent to Mexico. When we wield the awesome power entrusted to us in these

cases, our decisions must be based on clear and convincing evidence of

parental misconduct or inability and that termination is in the best interest of

the child, and not speculation about the vagaries or vicissitudes that beset

every family on its journey through the thickets of life.”

• MM 263 Ga. App. 353 (2003)

THANK YOU!!!

• Remember We Are Lawyers - USE LAW