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

• Court: Court of Appeals of Georgia
• Decided: October 3, 2016
• 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

October 3, 2016

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

PHIPPS, Presiding Judge.

On January 14, 2013, the juvenile court terminated a mother’s parental rights

to her minor child, B. R. F. Over nine months later, on September 16, 2013, the

mother filed an application for out-of-time discretionary review. We granted the

application and affirmed the termination order. The Supreme Court granted certiorari

and vacated our judgment, determining that we lacked jurisdiction to consider the

application.

“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.”1 The filing deadline is jurisdictional, and this Court

is unable to accept an untimely application.2 While this Court is authorized to grant

an extension of time for the filing of an application for discretionary appeal, requests

for extensions must be filed “on or before the due date of the discretionary

application.”3 Otherwise, we lack the authority to grant the request.4

Because the mother’s application for discretionary review was untimely, we

lack jurisdiction to consider it, and this appeal is hereby dismissed. The mother is

advised, however, that “an indigent parent [may be] entitled to file an out-of-time

application for discretionary review to remedy ineffective assistance of counsel if that

parent was entitled to appointment of counsel as a matter of due process”5 pursuant

to Lassiter v. Dept. of Social Svcs.6 To pursue such relief, the mother must first direct

1 In the Interest of B. R. F., 299 Ga. 294, 296 (788 SE2d 416) (2016) (citing OCGA § 5-6-35 (d)), vacating In the Interest of B. R. F., 332 Ga. App. 49 (770 SE2d 912) (2015). 2 See B. R. F., supra, 299 Ga. at 298. 3 Court of Appeals Rule 31 (g). 4 See id.; B. R. F., supra, 299 Ga. at 298. 5 B. R. F., supra, 299 Ga. at 299. 6 452 U. S. 18 (101 SCt 2153, 68 LE2d 640) (1981). See also B. R. F., supra, 299 Ga. at 299.

2 her request to the juvenile court, which is tasked with initially determining the

mother’s rights.7 Similarly, any argument based on statutory ineffective assistance of

counsel must first be addressed to the juvenile court.8

If the juvenile court grants a request to file an out-of-time application for

discretionary review, the mother will have 30 days from the entry of that order to file

an application in this court.9 If the juvenile court denies the request, the mother will

have 30 days to file a notice of appeal from that decision.10

Appeal dismissed. Andrews, P. J., Barnes, P. J., Ellington, P. J., and

McFadden, Ray, and McMillian, JJ., concur.

7 See B. R. F., supra, 299 Ga. at 299 (discussing the role of the juvenile court in determining whether an indigent parent is entitled to file an out-of-time application for discretionary review). 8 See id. at 300, n. 15. 9 See OCGA § 5-6-35 (d); see also B. R. F., supra, 299 Ga. at 299 n. 13 (noting the similar process used in the criminal context, as explained in Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995)). 10 OCGA § 5-6-38 (a); see also B. R. F., supra, 299 Ga. at 298.