In the Interest Of: B. R. F. F/K/A B. R. M., a Child (Mother)

• Court: Court of Appeals of Georgia
• Decided: March 30, 2015
• Docket: A14A1536
• Status: Published

Opinion

WHOLE COURT

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia A14A1536. IN THE INTEREST OF B. R. F., a child.

PHIPPS, Chief Judge.

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.

1 319 Ga. App. 125 (735 SE2d 122) (2012). 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.

During the termination hearing, which began on December 5, 2012 and

concluded on December 13, 2012, the mother was represented by counsel appointed

pursuant to a conflict contract through the Griffin Circuit Public Defenders Office.

Upon the conclusion of the hearing, the mother’s counsel sent the mother a letter in

response to a call the mother had made to counsel’s office. Counsel informed the

mother that it was his

understanding from the circuit Public Defender, [name] that you are not entitled to indigent defense for a discretionary appeal of a civil case (termination of parental rights). You can file a private appeal with out indigent defense counsel within thirty days from the entry of final judgment. The final order should be entered within the next week. It should be noted as well that my contract with the Public Defenders Office does not include appellant [sic] work and any appeal or further action on this case would require appoint [sic] of another attorney.

2 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

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

2 See OCGA § 5-6-35 (a) (12), (d). 3 Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995) (citation and punctuation omitted). 4 OCGA § 5-6-35 (d).

3 statutory right to the appointment of counsel to appeal an order terminating his or her

parental rights.5

In In the Interest of S. M. B.,6 this court held that a trial court had no authority

to grant an out-of-time discretionary appeal application from a termination of the

5 See former OCGA § 15-11-98 (2012), which was in effect at the time of the termination proceeding (“(a) In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as the child’s counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child’s counsel. (b) If the parent or parents of the child desire to be represented by counsel but are indigent, the court shall appoint an attorney for such parent or parents . . . .”). See also Nix v. Dept. of Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (“It is . . . quite evident that the entire legislative scheme written into the pertinent provisions of the Juvenile Code was intended to provide to an indigent parent effective representation at all stages of any proceeding involving the termination of that parent’s right to his or her child” including for appeal); Dell v. Dell, 324 Ga. App. 297, 302 (2) (748 SE2d 703) (2013) (“An indigent parent has a statutory right to effective legal representation in termination proceedings. Moreover, an indigent parent whose parental rights have been terminated is entitled to a paupered copy of the transcript for use in appealing the decision of the trial court.”) (citations and punctuation omitted); In the Interest of B. C. P., 229 Ga. App. 111, 116 (3) (493 SE2d 258) (1997) (an indigent mother is entitled to court-appointed counsel to appeal a determination of deprivation). And see former OCGA § 15-11-6 (b) (2012) (a “party is entitled to representation by legal counsel at all stages of any proceedings alleging . . . deprivation, and if, as an indigent person, a party is unable to employ counsel, he or she is entitled to have the court provide counsel for him or her.”). 6 Supra.

4 applicant’s parental rights.7 Citing Gable v. State,8 the court recognized, however, that

“an appellate court may, at its discretion, permit an out-of-time discretionary appeal

where a constitutional right is at stake.”9 Indeed, in Gable, the Supreme Court of

Georgia held that “Georgia Courts may excuse compliance with a statutory

requirement for appeal only where necessary to avoid or remedy a constitutional

violation concerning the appeal.”10

In In the Interest of S. M. B.,11 this court rejected the notion of correlating a

parent’s right to an out-of-time appeal on ineffectiveness grounds to that of a criminal

defendant.12 The court recognized, as stated by the Georgia Supreme Court, that

[o]ut-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. . . . However,

7 In the Interest of S. M. B., supra at 128. 8 290 Ga. 81 (720 SE2d 170) (2011). 9 In the Interest of S. M. B., supra at 126-127. 10 Gable, supra at 85 (2) (b). 11 Supra. 12 In the Interest of S. M. B., supra at 127.

5 for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal.13

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

13 Id. (quoting Stephens v. State, 291 Ga. 837 (2) (733 SE2d 266) (2012) (emphasis omitted; emphasis supplied). 14 In the Interest of S. M. B., supra. 15 Douglas v. California, 372 U. S. 353, 356 (83 SCt 814, 9 LE2d 811) (1963); see Evitts v. Lucey, 469 U. S. 387, 402 (III) (B) (105 SCt 830, 83 LE2d 821) (1985), citing Ross v. Moffitt, 417 U. S. 600, 602-605, 609-612 (I), (III), (IV) (94 SC 2437, 41 LE2d 341) (1974) (holding that, following a direct appeal of right, a criminal defendant has no constitutional right to counsel to pursue further discretionary state appeals and applications for review by the United States Supreme Court).

6 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.

16 Supra. 17 Gable, supra at 86 (2) (c) (citations omitted). 18 Supra. 19 Gable, supra at 82 (1).

7 In Douglas v. California,20 the United States Supreme Court held that the

Fourteenth Amendment guarantees a criminal defendant the right to counsel on his

“first appeal, granted as a matter of right,”21 and in Evitts v. Lucey,22 the United States

Supreme Court held that that right to counsel included the right to the effective

assistance of counsel.23 The rationale was that although the

Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors[,] . . . if a State has created appellate courts as “an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant,” the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.24

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,”

20 Supra. 21 Douglas, supra at 356 (emphasis in original). 22 Supra. 23 Evitts, supra at 392, 404 (II), (III) (C). 24 Id. at 393 (II) (A) (citations omitted). 25 Supra.

8 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

26 Douglas, supra at 357. 27 Evitts, supra at 405 (III) (C) (punctuation and footnote omitted). 28 Lassiter v. Dept. of Social Svcs. of Durham County, 452 U. S. 18, 24 (II) (101 SCt 2153, 68 LE2d 640) (1981). 29 Id. at 31 (II) (C). 30 285 Ga. 829 (686 SE2d 635) (2009). 31 Id. at 834 (2) (citation omitted).

9 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

32 Id. 33 Santosky v. Kramer, 455 U. S. 745, 753-754 (II) (102 SCt 1388, 71 LE2d 599) (1982) (citations and punctuation omitted). 34 Ross, supra at 609-610 (III).

10 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 for finally adjudicating

termination of parental rights cases, and this system, which entitles indigent parents

to court-appointed counsel for appeals and provides appellate review of termination

orders and a possibility for a full appeal, must be applied in accordance with the

requirements of fair procedure guaranteed by the Due Process Clause of the

Constitution.35 But in 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

35 See Evitts, supra at 400-401 (III) (A) (“The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms. For instance, although a State may choose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause. Similarly, a State has great discretion in setting policies governing parole decisions, but it must nonetheless make those decisions in accord with the Due Process Clause. In short, when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution -- and, in particular, in accord with the Due Process Clause.”) (citations omitted; emphasis supplied); Douglas, supra.

11 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.36 As the

remedy for this due process violation, we acknowledge that we have jurisdiction of

the discretionary appeal and, as determined previously in granting the application, we

proceed to review the appeal on the merits.37

2. We affirm the trial court’s termination of the mother’s parental rights.

In reviewing the sufficiency of the evidence supporting a termination order, we view the evidence in the light most favorable to DFCS and determine whether . . . any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court’s factfinding and

36 See generally Rowland, supra at 873 (1) (“An attorney who through negligence, ignorance, or misinterpretation of the law . . . fails to perform routine duties resulting in a dismissal of his client’s appeal, thereby denying such client a right of review after conviction cannot be said to be rendering effective assistance. The result is the same as no assistance at all.”) (citation omitted). 37 See In the Interest of A. C., supra; Rowland, supra at 875 (2) (“The out-of-time appeal is granted where the deficiency involves not the trial but the denial of the right of appeal. . . . [A]n out-of-time appeal is the remedy for a frustrated right of appeal[.]”).

12 affirm unless the evidence fails to satisfy the appellate standard of review.38

B. R. F. was born on June 16, 2011. At the time, her mother was 17 years old

(born November 23, 1993), and still living with her own father (the “grandfather”).

The Department of Family and Children’s Services (DFCS) became concerned that

the child’s needs were not being met in the home, and DFCS attempted to work the

case as a “family preservation ongoing case without court intervention.” But on July

19, 2011, the court entered an order for shelter care, stating therein that a complaint

had been made to the court concerning the child, and that DFCS had made reasonable

efforts to prevent or eliminate the need for removing the child from the home and to

make it possible for the child to remain safely in the home by providing parenting

services in the home to work with the mother and child for two weeks, by

implementing two safety plans for supervision, and by holding family conferences

and providing family preservation services. The order continued, however, that the

mother had been unable to “demonstrate appropriate parenting abilities,” that the

grandfather had recommended that the mother’s 18-year-old ex-boyfriend supervise

38 In the Interest of D. P. E., 282 Ga. App. 529, 530 (639 SE2d 535) (2006) (citation and footnote omitted).

13 the mother and child during the day, and that there was “no appropriate supervision

of the mother and child in the home.” The court placed the child in the custody of the

Pike County DFCS, pending a 72-hour hearing.

On July 22, 2011, the court entered a 72-hour hearing order. The court made

the following findings in its order:

Based upon the evidence presented, . . . the Court finds that there is probable cause to believe the . . . child is deprived pursuant to OCGA § 15-11-2(8)(A): the Mother, a minor lacks appropriate parenting skills and may have some cognitive issues which could possibly be hindering her ability to grasp and demonstrate parenting skills being taught by [the parenting services company]; the maternal grandfather has been an impediment to DFCS attempting to place aid, training, resources and services in the home to assist the Mother and Child.

Notwithstanding, the court concluded that continuation in the home would not

be contrary to the welfare of the child, and that “risk” could be managed with the

child in the home provided that the parties strictly complied with certain conditions.

Specifically, the mother and the grandfather were required to comply with a prior

safety plan, which plan required that the child reside in the home of the grandfather,

that the mother be supervised at all times with the child, and that the grandfather

ensure that the mother had a suitable caretaker for the mother and child at all times.

14 The court also ordered the following in the July 22, 2011 order: the mother and child

would be supervised at all times; the mother would submit to a psychological

evaluation/parental fitness assessment; the mother and grandfather would provide

DFCS with a list of at least three individuals over the age of 21 who would be

available to meet with and cooperate with DFCS and who would be available to

supervise the mother and child when the grandfather was at work; the grandfather

could not supervise the mother and child; the mother would attend all scheduled

parenting services appointments, conferences with DFCS, and services provided by

DFCS; and the grandfather would not interfere with or impede DFCS’s obligations

to provide services, training, assistance, and targeted case management to the mother

and child. The juvenile court sent the child home with her mother and grandfather

with this order and safety plan in place.

With regard to the mother, on August 17, 2011, the court entered a “Consent

Order for Shelter Care.” The court found that based on information that had been

brought before it on August 16, 2011, continuation in the grandfather’s home would

be contrary to the mother’s welfare. The court found that it was necessary for the

mother’s protection that the mother be placed in shelter care

15 because [the mother] is 17 and has a 2 month old infant and needs help raising the infant; [DFCS] tried in-home parenting sessions through [a parenting services company]; however, due to some cognitive limitations, immaturity, and interference from the [grandfather]/sole legal guardian, [the mother] was unable to learn and/or demonstrate adequate parenting skills.

The order stated that the mother sought to be placed in a group home with her infant

child, and the court directed that the mother be placed in a group home for teenaged

mothers, pending a 72-hour hearing on September 1, 2011.

With regard to the child, the court entered a second shelter care order on

August 24, 2011. The order stated that a petition had been filed and that an

adjudicatory hearing had commenced on August 16, 2011. The court found that the

mother was still unable to demonstrate the parenting skills taught to her by outside

services, and that the grandfather had been an impediment to the services DFCS had

been attempting to provide the mother. The court ordered that the child be placed in

the custody of DFCS, pending the continuation of the adjudicatory hearing on

September 1, 2011.

All the parties stipulated that the mother was deprived, and on August 18,

2011, the mother and her child were placed together in a “Second Chance Home”

16 where the mother could learn to care for her child. But the mother did not want to be

at the group home, the grandfather continued to interfere in the mother’s care of the

child, and there was no evidence that the mother could parent the child alone. On

September 20, 2011, the child was placed in a foster home, where the child resided

as of the date of the termination hearing.

The court entered a 31-page order on November 3, 2011, nunc pro tunc to

September 8, 2011, adjudicating the child deprived and awarding temporary custody

to DFCS. The order stated that the matter had come before the court on August 16,

2011, September 1, 2011, and September 20, 2011 for hearings. The court adjudged

the mother not deprived and released her from the custody of DFCS, as the

grandfather had withdrawn his consent as to her deprivation; the mother was thus

released from the group home. The order also required DFCS to prepare “concurrent

permanency plans of reunification and non-reunification/live with fit and willing

relatives” for the mother and father, and to set up a visitation schedule for the mother

and father.39 The court required that the mother and father comply with case plan

conditions, including obtaining six months of stable housing, six months of stable

income, a high school education or GED, and a psychological evaluation and parental

39 The father of B. R. F. legitimated the child in October 2011.

17 fitness evaluation; neither parent had to pay child support provided they continued

to be enrolled in school full-time. The court added that it was “paramount” that the

parents not only fulfill the foregoing requirements, but that they show successful

implementation of parenting skills they had been taught.

A case review hearing was held in April 2012, at which the mother testified

that she did not believe that she was capable of caring for her child. At the conclusion

of that hearing, the judge told the mother that he would allow her to decide whether

she wanted services offered by DFCS and in which services she wanted to participate;

at the time of the hearing, the mother had been receiving DFCS services from several

different people, including “a therapist and a parent aide and then someone that was

supervising [the mother] with visitation for parenting.” After the hearing, the mother

did not participate in any services offered by DFCS; the mother did, however,

continue to visit the child. A few months later, in July 2012, the mother went to the

offices of the grandfather’s attorney and, without the knowledge of her own attorney,

signed documents surrendering her parental rights to the grandfather.40 DFCS

thereafter terminated the mother’s visitations with the child, and there was no further

40 The grandfather had filed in superior court a petition to adopt B. R. F. and B. R. F.’s father surrendered his parental rights to DFCS.

18 contact between DFCS and the mother. Although DFCS had initially asked for a

reunification permanency plan, in July 2012, DFCS requested a change to a

concurrent reunification and non-reunification/adoption plan.

On September 24, 2012, DFCS filed a petition to terminate the mother’s

parental rights to the child. A hearing was held over the course of several days in

December 2012. At the termination hearing, a DFCS social services administrator

testified that she had been involved in B. R. F.’s case since the beginning. The social

services administrator testified that when the case began, the grandfather would not

allow the mother to cooperate with DFCS; the grandfather did not want DFCS

involved. He would not allow DFCS to speak with the mother outside the presence

of her attorney, and he would tell the mother not to cooperate with the in-home parent

aide or to do something contrary to what the in-home parent aide was telling the

mother to do.

Concerning whether the mother had completed her case plan goals, the social

services administrator testified that the mother had completed a psychological and

parental fitness evaluation, but that she had not followed all the recommendations of

the psychological evaluation. Specifically, the mother had not shown proof that she

had followed up on a mental health diagnosis that required her to take medication,

19 and had not shown proof that she had been seen or was being seen by a therapist. The

mother had completed parenting classes, but she was unable to implement what she

had been taught. The mother attended weekly scheduled visitations with her child but

there were issues with her attentiveness and her responsiveness during the visitations.

For instance, the mother would send text messages on her cell phone during the entire

visit, or would not be fully engaged with the child. The mother did not obtain and

maintain a source of income; the mother did not obtain and maintain stable, clean and

safe housing approved by DFCS; and the mother had not completed high school or

a GED program. The mother had had no contact with DFCS since she had executed

the surrender of parental rights documents.

The psychologist who conducted the psychological and parental fitness

evaluation of the mother on August 24, 2011 wrote in his report that the mother had

described her relationship with the grandfather as “amazing. I’m a daddy’s girl.”

When the psychologist asked the mother what she had learned in her parenting

classes and at the group home, the mother replied that she did not know. With regard

to the mother’s mental health history, the mother told the psychologist that when she

was 14 or 15 years old, she had taken a certain drug “for ADHD,” and that she just

stopped taking it because it “wasn’t doing anything.” But the psychologist noted that

20 the drug the mother had specified was not a medication that was commonly

prescribed for ADHD. The mother described her own mood as “Bitchy,” stating that

that was “just my personality.”

The psychologist wrote that the mother generally came across as

“extraordinarily immature, with mannerisms and speech that usually is seen in much

younger children,” and that the mother gave nonsensical responses to some questions.

The psychologist wrote that “in spite of [the mother’s] being coherent and reasonably

articulate, [her] diction, nonverbal gestures, and overall presentation suggested the

possibility of cognitive deficits.” The psychologist wrote that it was of extreme

concern to him that throughout the evaluation, the mother had expressed frustration

with having to care for her baby “round the clock,” noting that the child cried and that

the crying kept her up at night. The mother had complained about nearly all aspects

of caring for the infant child, and more than once asked whether the evaluation could

be extended so that she could delay having to return to the group home and being

saddled with the responsibility of caring for her child.

The psychologist reported that the mother’s IQ test results were in the average

range, which seemed to indicate the absence of any cognitive or intellectual deficits

that would inherently prevent her from potentially exercising adequate judgment or

21 making sound parenting decisions, but the mother’s responses to certain questions

suggested the potential for extremely poor judgment. The psychologist recommended

that the mother participate in individual therapy, and obtain diagnostic clarification

of mental health needs she may have. The psychologist cautioned that any plan for

the mother to independently care for the child should be undertaken with “extremely

high degrees of caution.”

A therapist whom the grandfather had contacted in August 2012 testified that

he (the therapist) had had four sessions with the mother, and that the grandfather had

accompanied the mother to the sessions. The therapist testified that it was his

impression that the mother “knows she’s not ready for [parenting] and that she knows

that someone else is going to be – do that [sic],” that the mother was “pretty

immature” and did not “have a real good understanding . . . of moving toward

independence,” and that in his opinion, the mother did not have the ability to care for

a baby and had told him so.

At the time of the termination hearing, the mother lived with the grandfather.

She testified that she had executed documents surrendering her parental rights in

favor of her father (the grandfather) so that the child could “stay . . . with the family,”

and that she would be an “assistant person” to the grandfather, or a “big sister” to the

22 child, but not the child’s primary caregiver. DFCS had conducted a home placement

evaluation of the grandfather’s home, but did not approve the home as a placement

resource for B. R. F.

In rendering its judgment, the juvenile court first addressed DFCS’s contention

that the mother’s voluntary surrender of her parental rights to the grandfather was

invalid. At the termination hearing, DFACS argued, and the juvenile court ultimately

agreed, that the mother had surrendered her rights only to avoid completing her court-

ordered reunification goals and as a subterfuge to avoid the involuntary termination

of her parental rights, with the hope that she could maintain control of B. R. F.

through the grandfather.41 The court continued with the termination hearing, and

thereafter terminated the mother’s parental rights.

On appeal, the mother contends that a reasonable finder of fact could not have

found by clear and convincing evidence that: she was the cause of the child’s

deprivation for the requisite amount of time; any deprivation suffered by the child

was likely to continue or likely not to be remedied; and deprivation would cause or

was likely to cause serious physical, mental, or emotional harm to the child.

41 The juvenile court found that the biological father’s surrender of his parental rights was voluntarily given and not later revoked.

23 To prove that parental rights ought to be terminated, [DFCS] first must prove “parental misconduct or inability” by clear and convincing evidence.[42] Such proof requires [DFCS] to establish that (1) the child is deprived; (2) the deprivation results from a lack of proper parental care or control; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.[43] Where [DFCS] carries this burden, it then must prove that termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.44

(a) Parental Misconduct or Inability. The mother contends that a reasonable

finder of fact could not have found by clear and convincing evidence that she was the

cause of the child’s deprivation as required pursuant to former OCGA § 15-11-94 (b)

(4) (A) (ii). She asserts that the child was deprived due to the grandfather’s conduct;

that DFCS did not do enough to assist her in gaining independence from the

42 OCGA § 15-11-94 (a) (2012). 43 See OCGA § 15-11-94 (b) (4) (A) (i)-(iv) (2012). 44 In the Interest of M. S. S., 308 Ga. App. 614, 620 (2) (708 SE2d 570) (2011) (citations and punctuation omitted).

24 grandfather; and that there was no evidence that she had failed to comply with the

reunification plan for at least a year prior to the filing of the termination petition.

(i) Deprivation. The juvenile court previously adjudicated the child to be

deprived and, in the order terminating the mother’s parental rights, took judicial

notice of its deprivation order. As the mother never appealed the deprivation finding,

she is now bound by it.45

(ii) Lack of proper parental care or control caused the deprivation. The

mother’s claim that a reasonable factfinder could not have found by clear and

convincing evidence that she had unjustifiably failed to comply with the court’s

reunification plan and that the deprivation was due to the acts and omissions of the

“Mother as opposed to Grandfather” lacks merit.

Although the grandfather initially impeded the mother from cooperating with

DFCS, when the mother turned 18 years old on November 23, 2011, she was able to

(and did) attend parenting classes offered by DFCS. Moreover, the mother attended

scheduled supervised visits with the child. But in April 2012, she testified that she

was not capable of taking care of B. R. F., she elected to stop receiving services

45 See In the Interest of J. S. B., 277 Ga. App. 660, 661 (2) (a) (627 SE2d 402) (2006).

25 DFCS offered, and shortly thereafter, she executed documents surrendering her

parental rights. The mother told her therapist that she did not have the ability to care

for her child, and there was ample testimony that the mother was immature and,

ultimately standing alone, was not capable of mastering and utilizing the necessary

skills to meet her parenting obligations.46

Moreover, the evidence showed that the mother did not complete her case plan.

She had not followed all the recommendations of the psychological evaluation, in that

she failed to show proof that she had followed up on a mental health diagnosis that

required her to take medication; she had not completed high school or a GED

program; she was inattentive during visits with the child; she still lived with the

grandfather and had not obtained and maintained stable, clean and safe housing

approved by DFCS; and most importantly, the mother was unable to implement the

parenting skills she had been taught.47

46 See In re A. R., 302 Ga. App. 702, 710 (1) (c) (691 SE2d 402) (2010) (“The test in determining termination of parental rights, . . . is whether the mother, ultimately standing alone, is capable of mastering and utilizing the necessary skills to meet her parenting obligations.”) (citations, punctuation, and footnotes omitted). 47 See id. (“Finally, and perhaps most importantly, we note that even when construed in her favor, the testimony of the psychologist and the witnesses called to testify on the mother’s behalf shows that the mother could parent the children only with some type of assistance.”); In the Interest of Z. H. T., 302 Ga. App. 424, 429 (1)

26 The mother complains that DFCS did not do enough to assist her in gaining

independence from the grandfather. But there was no evidence that the mother, who

described herself as a “daddy’s girl,” wanted to be independent of the grandfather.

Before she turned 18 years old, the mother and child were placed in a group

home for teenaged mothers so that the mother could learn to care for her child. But

the mother did not willingly go to the group home, and while there, she complained

about parenting tasks. After the mother turned 18 years old, she testified that she

wanted the grandfather to adopt B. R. F., and that she desired to live in the

grandfather’s home and act as an assistant to him in caring for B. R. F., but not as the

child’s primary caregiver. Moreover, in April 2012, the mother stopped participating

(a) (691 SE2d 292) (2010) (“Where, as here, the children have been removed from parental custody, DFCS may prove current deprivation by showing that, if the children were returned to their mother at the time of the hearing, they would be deprived. This may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.”); In the Interest of H. F. G., 281 Ga. App. 22, 26, 27 (1) (635 SE2d 338) (2006) (although the mother had completed most of her case plan goals and wished to be part of her child’s life, the evidence showed that she lacked the mental capacity to care for the child without “around-the-clock assistance from others,” something DFCS was not obligated to provide; given the mother’s mental capacity, her inability to care for her child by herself, and the fact that the child’s foster parents wished to adopt him, the juvenile court did not abuse its discretion in finding that termination of the mother’s parental rights served the best interests of the child).

27 in services provided by DFCS and declined the court’s offer to receive DFCS

services; yet she later went with the grandfather to see a therapist.

The mother observes that the case plan order was entered on November 3,

2011, yet the petition to terminate her parental rights was filed less than a year later,

on September 24, 2012.

Former OCGA § 15-11-94 (b) (4) (C) (iii) (2012) provided that in addition to

the considerations in subparagraph (B) of OCGA § 15-11-94 (b) (4) (2012),

where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights . . . to comply with a court ordered plan designed to reunite the child with the parent or parents. . . .48

“[E]ven if the reunification plan has been in effect for less than one year, a

termination of parental rights may be warranted by other factors.”49 “The court should

remain mindful that the time limitation in former OCGA § 15-11-94 (b) (4) (C) is

48 In the Interest of C. A. S., 308 Ga. App. 757, 760 (2) (708 SE2d 655) (2011). 49 Id. (citation and punctuation omitted).

28 designed to give the parent whose rights are subject to termination sufficient time and

opportunity to demonstrate his or her ability to comply with the terms of the court’s

order.”50

Here, despite all parenting and reunification services provided, in April 2012

the mother testified that she was not capable of caring for B. R. F., she declined

further services by DFCS, and shortly thereafter, she executed surrender of parental

rights documents. Once given the opportunity to reside with the child away from the

grandfather and to learn parenting skills, the mother complained and sought to avoid

her parental responsibilities. The mother later expressed to her therapist that she was

unable to care for B. R. F., and she continued to reside with the grandfather, whose

home DFCS did not approve as a placement resource for B. R. F. The mother’s

actions were contrary to any desire to parent B. R. F., or to follow the court’s orders,

thus obviating the need for DFCS to wait approximately six more weeks before

moving to terminate her parental rights.51

50 Alizota v. Stanfield, 329 Ga. App. 550, 558 (765 SE2d 707) (2014) (punctuation and footnote omitted). 51 See generally In the Interest of C. A. S., supra.

29 (iii) Cause of the deprivation is likely to continue. The mother contends that a

reasonable finder of fact could not have found by clear and convincing evidence that

any deprivation suffered by the child was likely to continue or likely not to be

remedied.

The mother testified that she was not capable of taking care of B. R. F.; she told

her therapist that she was unable to care for B. R. F.; and the therapist testified that

the mother was immature and, in his opinion, did not have the ability to care for a

baby.

Here, the evidence showed that despite her good intentions, the mother has never successfully parented the [child] alone, and . . . there was more than clear and convincing evidence that the mother [was] simply not capable of fulfilling her parenting obligations. Thus, the court was entitled to infer from the evidence that, despite the best efforts of [DFCS] . . . , the same pattern of deprivation would continue if the [child] were reunited with [her] mother.52

Moreover, at the time of the termination hearing, the mother resided in the

grandfather’s home, from which B. R. F. had been removed in the first place, and

DFCS did not approve that home as a placement resource for the child.

52 In the Interest of A. R., supra at 710 (1) (d) (citations, punctuation, and footnotes omitted).

30 (iv) Continued deprivation is likely to cause harm. The mother contends that

a rational trier of fact could not have found by clear and convincing evidence that

continued deprivation was likely to cause serious physical, mental, emotional, or

moral harm to the child.53 The DFCS social services administrator and the

psychologist testified that the child, who had been in foster care for 16 months,

needed permanency, something that was unattainable in the mother’s care. The social

services administrator testified to the great emotional trauma suffered by a child “in

limbo.” B. R. F. had bonded with her foster parents, who wanted to adopt the child.

The juvenile court was authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child[ ]. Indeed, children need permanence of home and emotional stability or they are likely to suffer serious emotional problems. A caseworker’s testimony about the need for permanency may be considered. The evidence sufficed on this factor.54

“[T]he same facts that support a juvenile court’s conclusion that a child is

deprived and that the deprivation is likely to continue if placed with the parent also

53 See OCGA 15-11-94 (b) (4) (A) (iv) (2012). 54 In the Interest of M. C. L., 251 Ga. App. 132, 136 (1) (b) (553 SE2d 647) (2001) (punctuation and footnotes omitted).

31 support a conclusion that continued deprivation would likely cause the child serious

harm.”55 “Based on the [mother’s] past behavior and [her] unwillingness and inability

to comply with significant requirements of [her] case plan, we find that a rational

factfinder could have found by clear and convincing evidence that giving custody to

[the mother] would seriously harm the child.”56

(b) Best interest of the child. As for the second prong of the termination

analysis, the mother does not challenge the juvenile court’s finding that termination

of her parental rights was in the best interest of the child. Notwithstanding, we are

persuaded that the evidence showed that termination of the mother’s parental rights

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.”57

55 In the Interest of A. E., 314 Ga. App. 206, 209 (2) (c) (723 SE2d 499) (2012) (citation and punctuation omitted). 56 In the Interest of D. O. R., 287 Ga. App. 659, 663 (1) (iv) (653 SE2d 314) (2007). 57 In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d 189) (2005).

32 “The same evidence showing parental misconduct or inability may, and here

does, establish this requirement.”58 A child needs permanency, stability, and a safe

environment, which the mother cannot provide.59 “The juvenile court was authorized

to consider the [child’s] need for a stable home situation and the detrimental effects

of prolonged foster care.”60 The DFCS social services administrator and the

psychologist testified that the child, who had been in foster care for more than a year,

needed permanency. “Given this evidence, and having reviewed the entire record in

this case, we find that there is sufficient clear and convincing evidence to support the

juvenile court’s decision to terminate the mother’s parental rights.”61

Judgment affirmed. Barnes, P. J., and Ellington, P. J., concur. McFadden, J.,

concurs fully and specially. Andrews, P. J., Ray and McMillian, JJ., dissent.

58 In the Interest of T. J., 281 Ga. App. 673, 675-676 (1) (637 SE2d 75) (2006) (citations and punctuation omitted); see In the Interest of M. L. P., 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999) (juvenile court has broad discretion in determining how the interest of the child is best served). 59 See In the Interest of T. J., supra at 676 (1). 60 Id. (citation and punctuation omitted). 61 Id.; see In the Interest of A. E., supra at 210 (2) (d); In the Interest of D. O. R., supra at 663 (2).

33 A14A1536. IN THE INTEREST OF B. R. F., a child.

MCFADDEN, Judge, concurring fully and specially.

I join fully in the majority opinion and write separately to explain that our

exercise of jurisdiction over the merits is mandated by Lassiter v. Dept. of Social

Svcs. of Durham County, 452 U. S. 18 (101 SCt 2153, 68 LEd2d 640) (1981).

The Supreme Court of the United States has repeatedly drawn boundaries

beyond which state termination-of-parental-rights proceedings may not trespass. It

has held that parental rights may not be terminated upon less than clear and

convincing evidence, Santosky v. Kramer, 455 U. S. 745, 769-770 (IV) (102 SCt

1388, 71 LEd2d 599) (1982), and it has held that a state may not condition appeals

from terminations of parental rights on the ability to pay record preparation fees.

M.L.B. v. S.L.J., 519 U. S. 102, 119-124 (V) (117 SCt 555, 136 LEd2d 473) (1996)

(reaffirming that courts must resist the “feeble enticement of the civil label-of-

convenience”) (citation and punctuation omitted).

And, contrary to the dissent, the Supreme Court of the United States recognized

a due process right to counsel in termination cases in Lassiter v. Dept. of Social Svcs.

of Durham County, 452 U. S. 18. It is true that Lassiter does not recognize an

unqualified right to counsel. Indeed, it recognizes a “presumption that an indigent

litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Id. at 26-27 (II) (A). But the holding of Lassiter is that this

presumption can be overcome: “It is against this presumption that all other elements

in the due process decision must be measured.” Id. at 27 (II) (A).

As to the performance of this measurement, Lassiter identifies

three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.

452 U. S. at 27 (II) (B) (citation omitted).

The Lassiter court first analyzed those factors as to termination cases generally.

It summarized that analysis as follows.

[T]he parent’s interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high.

2 452 U. S. at 31 (II) (C).

Having determined that appointed counsel could be, but would not always be

required by due process, 452 U. S. at 31 (II) (C), the Lassiter court turned to the facts

of individual cases, particularly the risk of an erroneous termination, and held that the

risk of error is to be evaluated on a case-by-case basis. “[T]he decision whether due

process calls for the appointment of counsel for indigent parents in termination

proceedings [is] to be answered in the first instance by the trial court, subject, of

course, to appellate review.” Id. at 32 (II) (C) (citation omitted).

“Nevertheless, because child-custody litigation must be concluded as rapidly

as is consistent with fairness,” the Supreme Court went on to decide “whether the trial

judge denied Ms. Lassiter due process of law when he did not appoint counsel for

her.” 452 U. S. at 32 (III). The Court noted at the outset of its opinion that a year after

her child was taken, “Ms. Lassiter was charged with first-degree murder, was

convicted of second-degree murder, and began a sentence of 25 to 40 years of

imprisonment.” Id. at 20 (I) (footnote omitted). It set out an analysis of the evidence

presented at the termination hearing, which is quoted in the margin,1 and found that

1 The Supreme Court analyzed the evidence in Lassiter as follows:

The respondent represents that the petition to terminate Ms.

3 Lassiter’s parental rights contained no allegations of neglect or abuse upon which criminal charges could be based, and hence Ms. Lassiter could not well have argued that she required counsel for that reason. The Department of Social Services was represented at the hearing by counsel, but no expert witnesses testified, and the case presented no specially troublesome points of law, either procedural or substantive. While hearsay evidence was not doubt admitted, and while Ms. Lassiter no doubt left incomplete her defense that the Department had not adequately assisted her in rekindling her interest in her son, the weight of the evidence that she had few sparks of such an interest was sufficiently great that the presence of counsel for Ms. Lassiter could not have made a determinative difference. True, a lawyer might have done more with the argument that William should live with Ms. Lassiter’s mother – but that argument was quite explicitly made by both Lassiters, and the evidence that the elder Ms. Lassiter had said she could not handle another child, that the social worker’s investigation had led to a similar conclusion, and that the grandmother had displayed scant interest in the child once he had been removed from her daughter’s custody was, though controverted, sufficiently substantial that the absence of counsel’s guidance on this point did not render the proceedings fundamentally unfair. Finally, a court deciding whether due process requires the appointment of counsel need not ignore a parent’s plain demonstration that she is not interested in attending a hearing. Here, the trial court had previously found that Ms. Lassiter had expressly declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even bothered to speak to her retained lawyer after being notified of the

4 evidence substantial enough that the absence of counsel did not render the

proceedings fundamentally unfair. Id. at 32-33 (III).

In order to apply Lassiter to Georgia terminations of parental rights generally,

we must address two ways in which current Georgia law differs from the North

Carolina law analyzed in Lassiter. First, as the majority acknowledges, Georgia has

established a statutory right to appointed counsel in termination cases, former OCGA

§ 15-11-98, current OCGA § 15-11-262, and that statutory right has been

authoritatively construed to include appellate counsel. Nix v. Dept. of Human

Resources, 236 Ga. 794, 795-796 (225 SE2d 306) (1976). The denial of appellate

counsel in this case was in violation of former OCGA § 15-11-98. So that statute and

its successor extinguish any pecuniary interest or interest in informal procedures that

termination hearing, and the court specifically found that Ms. Lassiter’s failure to make an effort to contest the termination proceeding was without cause. In view of all these circumstances, we hold that the trial court did not err in failing to appoint counsel for Ms. Lassiter.

452 U. S. at 32-33 (III) (footnote omitted). The Court added in a footnote, “Ms. Lassiter’s argument here that her mother should have been given custody of William is hardly consistent with her argument in the collateral attack on her murder conviction that she was innocent because her mother was guilty.” Id. at 33 n. 8 (III) (citation omitted).

5 the state might otherwise have been entitled to assert. Per force the state can have no

due process interest in an unlawful denial of a statutory right.

Second, terminations of parental rights are now subject to our discretionary

appeal procedure. OCGA § 5-6-35 (a) (12). By subjecting termination of parental

rights to that procedure, Georgia has greatly increased “the complexity of the

proceeding.” Lassiter, 452 U. S. at 31 (II) (C).

Those features of Georgia law constitute a strong argument for the proposition

that, under Lassiter, due process categorically mandates appointment of counsel for

all appeals from terminations of parental rights in this state. But we need not decide

that issue today. Although ultimately we are not persuaded by the arguments

presented by the mother’s appellate counsel that the termination before us was error,

nevertheless those arguments were substantial. Consequently, this is a case in which

– applying settled law handed down by the Supreme Court of the United States – we

must find a due process violation concerning this appeal and in which we therefore

have both the authority and the duty to “excuse compliance with [the] statutory

requirement for [discretionary] appeal[s].” Gable v. State, 290 Ga. 81, 85 (2) (b) (720

SE2d 170) (2011).

6 A14A1536. IN THE INTEREST OF B. R. F., a child.

MCMILLIAN, Judge, dissenting.

Because I believe that this Court lacks jurisdiction to consider the mother’s

out-of-time appeal, I must respectfully dissent.

As the majority correctly notes, applications for discretionary appeal must be

filed within 30 days of the entry of the order being appealed. OCGA § 5-6-35 (d).

And a party’s failure to meet this statutory deadline deprives us of jurisdiction to

consider the application. Wilson v. Carver, 252 Ga. App. 174 (555 SE2d 848) (2001),

overruled in part on other grounds in Gable v. State, 290 Ga. 81, 85 (720 SE2d 170)

(2011). This Court has long held that a trial court lacks authority to extend the time

for filing a discretionary appeal. Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d

740) (1983), overruled in part on other grounds in Gable, 290 Ga. at 85. And we more

recently held that a trial court has no authority to grant an out-of-time discretionary

application from the termination of parental rights. In the Interest of S. M. B., 319 Ga.

App. 125 (735 SE2d 122) (2012). Because the analysis in In the Interest of S. M. B.

does not distinguish between the authority of trial courts and appellate courts to grant

an out-of-time application under these circumstances, I believe that this Court

likewise does not have the authority to grant an out-of-time application for a

discretionary appeal even in a parental rights termination case. The United States Supreme Court has held that there is no federal

constitutional right to counsel in a parental rights termination case, and the mother

does not contend otherwise. Lassiter v. Dept. of Social Svcs. of Durham County, 452

U.S. 18 (101 SCt 2153, 68 LE2d 640) (1981). Nonetheless, I agree with the majority

that an indigent parent has a statutory right to the appointment of counsel to appeal

an order terminating his or her parental rights pursuant to OCGA § 15-11-262 (a).1

It bears emphasis, however, that this right to counsel in termination proceedings is

statutory, rather than constitutional. See Dell v. Dell, 324 Ga. App. 297, 302 (2) (748

SE2d 703) (2013); In the Interest of A. M. R., 230 Ga. App. 133, 136 (2) (495 SE2d

615) (1998) (“No state or federal constitutional right to counsel is involved because

a parental termination action is a civil matter, not a criminal proceeding.”); In the

Interest of Z. K., 285 Ga. App. 150, 150 (645 SE2d 637) (2007) (physical precedent

only), overruled in part on other grounds, In re J. M. B., 296 Ga. App. 786 (676 SE2d

9) (2009).

Thus, the question becomes whether the failure to provide statutorily required

counsel to the mother following the termination proceeding gives us authority to

1 See also former OCGA § 15-11-98, which was in effect at the time of the termination proceeding in this case.

2 grant her out-of-time discretionary application. In Gable, our Supreme Court

addressed a similar question of whether a trial court has the authority to grant an out-

of-time discretionary appeal from the denial of an extraordinary motion for new trial

in a criminal case where counsel failed to timely file a discretionary application.

Gable, 290 Ga. at 82 (1). The Court first considered that courts may grant extensions

of time for filing notices of appeal and other similar papers by statute, and

consequently found that this Court had the authority to grant an extension of time to

file a discretionary application so long as the extension request is timely filed. Id. at

84-85 (2). But the Supreme Court emphasized that appellate courts have no authority

to create equitable exceptions to jurisdictional requirements imposed by statute, and

thus, “Georgia courts may excuse compliance with a statutory requirement for appeal

only where necessary to avoid or remedy a constitutional violation concerning the

appeal.” (Emphasis supplied.) Id. at 85 (2).

And while I agree that “parents have a fundamental liberty interest in the care,

custody, and management of their children”2 and are certainly guaranteed due process

2 Clark v. Wade, 273 Ga. 587, 593 (544 SE2d 99) (2001). See also In the Interest of C. J. V., 323 Ga. App. 283, 283 (746 SE2d 783) (2013) (“there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship”) (citations omitted).

3 in the context of the trial court’s termination proceedings, there is no corresponding

constitutional right to a direct appeal of the termination. When the General Assembly

enacted OCGA § 5-6-35 (a) (12), which took effect on January 1, 2008, the procedure

for appeals from orders terminating parental rights was changed from direct to

discretionary. See In the Interest of A. C., 285 Ga. 829, 832 (1) (686 SE2d 635)

(2009) (finding the statute does not violate a parent’s equal protection rights). Shortly

thereafter, our Supreme Court upheld the change in procedure as constitutional and

not in violation of the parents’ due process rights, finding that

it is well settled that if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review, . . . even in termination of parental rights cases. Indeed, there is no right to appeal granted by either the State or Federal Constitutions to civil litigants or to the defendant or the State in criminal cases.

In the Interest of N. A. U. E., 287 Ga. 797, 797 (700 SE2d 393) (2010). And relying

on our Supreme Court’s decision in Gable, this Court has previously held that

because the father did not have a constitutional right to file a first appeal following

the termination of his parental rights, no out-of-time appeal was available even where

the father alleged that his counsel deprived him of the opportunity to timely file his

4 discretionary application. In the Interest of S. M. B., 319 Ga. App. at 127; see also

Gable, 290 Ga. at 86 (2) (“There 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.”).

If a parent has no constitutional or statutory right to a direct appeal following

the termination of his or her parental rights, and if a parent has no constitutional right

to counsel in a parental rights termination case, I fail to see how, as the majority

insists, a parent nonetheless has a constitutional right to an attorney to file a

discretionary application on his or her behalf. I believe the majority’s holding is at

odds with established precedent that we have no authority to grant an out-of-time

appeal even where the appellant’s attorney was ineffective in failing to timely file the

application. See Gable, 290 Ga. at 82; In the Interest of S. M. B., 319 Ga. App. at 128.

Thus, although I sympathize with the majority’s position that it is a violation

of due process for “an indigent person who desired appellate review of the decision

terminating her parental rights [to be] 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,” the United States Supreme Court has held that there

5 is no categorical right to counsel in a parental rights termination case under the due

process clause of the federal Constitution. Lassiter, 452 U.S. at 31 (II) (C); see also

Miller v. Deal, 295 Ga. 504, 509 (2) (761 SE2d 274) (2014) (under Lassiter, “no

categorical right to appointed counsel in proceedings to terminate parental rights”).

And our Supreme Court has not construed our State’s Constitution in that way. Thus,

it is outside this Court’s jurisdiction to find such a due process right in the first

instance. See City of Decatur v. DeKalb County, 284 Ga. 434, 437 (2) (668 SE2d

247) (2008) (“Because [the Supreme Court of Georgia] has exclusive appellate

jurisdiction over cases involving the construction of the state constitution, the Court

of Appeals erred when it construed the constitutional provision.”).

I am, though, deeply troubled that the mother, who was herself barely an adult

at the time of the termination proceedings, was erroneously told by her trial counsel

that she did not have the right to appointed counsel on appeal.3 And although I am

compelled to find that she has no constitutional right to counsel on appeal based upon

the state of Georgia law as it currently exists, I nonetheless echo the United States

Supreme Court’s sentiments that “[a] wise public policy, however, may require that

3 Nor did the juvenile court appoint her appellate counsel once her trial counsel informed the court that his contract with the public defenders office did not encompass appellate work.

6 higher standards be adopted than those minimally tolerable under the Constitution.”

Lassiter, 452 U.S. at 33. Those considerations, however, are best left for our

legislature’s determination.

Because I believe that this Court has no authority to grant the mother’s out-of-

time discretionary application from the termination of her parental rights, I would find

that her application was improvidently granted and that her appeal should be

dismissed.

2. Based on my conclusion that this Court lacks jurisdiction to address the

merits of this case, I do not reach the mother’s remaining enumerations of error,

which are addressed in Division 2 of the majority’s opinion.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in

this dissent.