IN THE COURT OF APPEALS STATE OF GEORGIA In the interest of:

IN THE COURT OF APPEALS
STATE OF GEORGIA
In the interest of:
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Appeal from Pike County Juvenile
*
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B. R. F., f/k/a,
Docket # A14A1536
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B. R. M,
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Female, DOB: 06/16/2011,
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A Child Under the Age of 18 Years *
BRIEF OF APPELLANT
THOMAS C. RAWLINGS
GEORGIA BAR NO. 595795
P.O. BOX 5746
SANDERSVILLE, GA 31082
478-552-2467
ATTORNEY FOR APPELLANT
pg. 1
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Part I. Statement of Proceedings Below and Statement of Facts
This is a granted “out-of-time” discretionary appeal by an indigent parent
following an order of the Juvenile Court of Pike County terminating the parental rights
of the appellant Mother. The termination of parental rights (“TPR”) order was entered
on January 13, 2014. (R. 00004). On September 16, 2013, the undersigned appellate
counsel presented to this Court an application for out-of-time discretionary appeal,
raising issues of the sufficiency of the evidence below but importantly asking the Court
to grant the untimely application on the basis that Mother had been denied the
assistance of appellate counsel to pursue an application for appeal. This Court granted
the appeal on October 16, 2013 and specifically requested the parties address “the
question whether this court has jurisdiction to grant an out-of-time appeal.”
As this brief argues, an out-of-time appeal is appropriate in this case to consider
the enumerations of error cited herein. The sufficiency of the evidence below is raised
and should be reviewed to determine, “after reviewing the evidence in the light most
favorable to the juvenile court's disposition, [whether] any rational trier of fact could
have found by clear and convincing evidence that the natural parent's right to custody
should be terminated.” In re A.D., 243 Ga. App. 727, 728, 534 S.E.2d 457, 458 (2000).
Statement of Facts
The Mother of a little girl born June 16, 2011 (referred to by the pseudonym
“June” throughout this brief) appeals an order of the Pike County Juvenile Court
terminating her parental rights and placing the child with the Division of Family and
pg. 2
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Children Services (DFCS) for adoption by a foster couple with whom the child has lived
since September, 2011 (R. 00004, T. 410).
June was born when her mother, whose date of birth is November 23, 1993, was
17 years old (R. 00074). At the time, Mother was living with her own father, who shall
be referred to herein as “Grandfather.” The trial court itself described Mother as
“mentally `slow’,” (R. 10, TPR Order, Para. 20 ), although it appears her IQ is 99 (R.
00099). DFCS immediately became involved with the case and requested removal of
the child, but following a few days in shelter care the juvenile court sent the child home
with Mother and Grandfather.
(T. 210, 225; R. 00064-00065).
Grandfather was
uncooperative with DFCS’ attempts to put services in the home, so in August 2011, June
was again removed (T. 225; R. 00073, 00074). Shortly thereafter, Mother and June
were placed together in a “Second Chance Home” where Mother could learn to care for
June (T. 210; R00010 (TPR Order, para. 19)).
Grandfather interfered with DFCS’
attempts to help the Mother and with the placement, causing Mother and June to be
separated. (R. 00010, para 19, TPR Order). Until Mother turned 18 in late November,
2011, Grandfather prevented Mother from cooperating with DFCS. (T. 210-211, 232234). Testimony indicated that Grandfather has a personality disorder (T. 502), comes
across as intimidating and threatening (T. 227), and had done such things as write down
all the tag numbers of cars in the DFCS parking lot (T. 230).
According to the State’s witnesses, once Mother turned 18 in November, 2011,
she began cooperating with DFCS (T. 263-265).
She was given a case plan in
September, 2011, although it seems the case plan was not made a part of the Court’s
pg. 3
In the Int of BRF. Brief of Appellant
Docket # A14A1536
order until January 9, 2012 (R. 00050, T. 212). That case plan required Mother to
show:
1. Six months of stable housing;
2. Income;
3. Completion of her high school education;
4. Completion of parenting classes and demonstration that lessons of parenting
classes were learned;
5. Visitation with her child;
6. Completion of a psychological exam and parental fitness evaluation and
adherence to its recommendations; and
7. Cooperation with a family service worker, parent aide, and other DFCS staff.
(T. 206-212; R 00117, case plan)
According to the lead agency witness, Mother did complete parenting classes but
could not completely show she had learned her lessons (T. 209).
She attended
visitation, although there were issues regarding her attentiveness and responsiveness to
the child (T. 210).
She completed her psychological evaluation (T. 239-40).
She
cooperated with the family service worker and parent aide (T. 211). However, she did
not maintain an income and continued to live with Grandfather, a home which DFCS
considered inappropriate for her and the child (T. 211, 217, 99-99). At the time of the
TPR hearing, Mother testified that she was still working on her case plan, was living
with Grandfather, had been seeing a therapist in a nearby town, and was almost finished
with her GED program (T. 94-95, 103, 105). The lead DFCS witness acknowledged that
pg. 4
In the Int of BRF. Brief of Appellant
Docket # A14A1536
some of the items on Mother’s case plan, including income, were outside Mother’s
control (T. 257-258, 239-40). At a hearing in April 2012, mother acknowledged that she
was not able to care for her child by herself (T. 96).
A “concurrent” plan of reunification and adoption was in place until August 7,
2012, at which time the court changed that plan to non-reunification and adoption and
discontinued reunification services. (T. 104). Part of the reason for that change was that
mother had attempted to surrender her parental rights to Grandfather (T. 302-303). In
July 2012, Mother had gone to the offices of Grandfather’s attorney and signed a
surrender of parental rights in his favor (T. 86-88). At the TPR hearing, she testified
she hoped in that way she could keep the child in her family and said she wanted to
assist in her child’s upbringing even though she understood that by surrendering she
would have no parental rights (T. 108-119).
The trial court found the Mother’s
surrender to Grandfather to be a subterfuge and rejected it. (T. 201). After signing the
surrender, Mother ceased visiting with June (T. 213).
DFCS presented testimony showing that the child had bonded with the foster
parents who want to adopt June (T. 182-83, 410-411), although the case worker also
acknowledged that June was bonded with Mother (T. 263). The State also presented
gGeneral evidence of the effect of lack of permanency on a child (T. 228).
Despite the fact that Mother’s ability to become an independent parent was a
critical issue in the trial, most of the testimony and documentary evidence focused on
Grandfather. The Court heard testimony that he had been barred from visitation as far
back as December 2011 (T. 223-224). Experts testified regarding his mental state,
pg. 5
In the Int of BRF. Brief of Appellant
Docket # A14A1536
including his paranoia and personality disorder (T. 354-356, 502). Another expert
testified regarding his lack of a bond with June (T. 183; R. ____, DFCS exhibit 31). The
case manager testified that one of the reasons June could not live with her Mother was
that Grandfather would not cooperate. As the case manager testified, “We’ve had no
idea how to prepare for this [TPR] hearing, and it’s all been based on does [Grandfather]
want the Department involved or not?” (T. 233-234).
In its order terminating mother’s parental rights, the Court made several findings
of fact and conclusions of law that are key to Mother’s appeal. First, the Court recited as
a finding of fact that Grandfather “was an impediment to services the Department was
trying to provide to the Mother and Child” (R. 000109, para. 19). At the same time, the
Court found as fact that Mother “was not able to demonstrate appropriate parenting
skills” based on reunification efforts with Mother during times she was underage and
later when she was living with this same obstructionist father (R.00010, para. 20). As
noted above, the Court referred to the mother as “mentally slow” in that same paragraph
(R. 00010). Although the Court found that the Mother was not bonded with June, that
finding appears to directly contradict the only evidence presented on the issue by the
agency’s witness (R. 00011, para. 20; T. 263). Finally, while the Court found that
Mother had failed, “without justifiable cause,” to follow a reunification case plan for
“more than a year,” (R. 00014, para. 44), the evidence is undisputed that the earliest
possible date of the case plan in question was September 11, 2011, at which time Mother
was underage and all parties agree that Grandfather was preventing her from
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In the Int of BRF. Brief of Appellant
Docket # A14A1536
cooperating with the agency (T. 211-212). Those reunification services were stopped by
the Court on August 7, 2011, only 9 months after Mother’s 18th birthday (T. 104).
Also critical to the Court’s determination in this case are the facts regarding the
actions of the Court and of indigent defense counsel during and immediately following
the TPR hearing in this case, as well as the actions of Mother following the TPR hearing.
During the TPR hearing, Mother’s appointed indigent counsel stated to the Court on the
record that his role and assignment in the case ended with the TPR hearing and did not
extend to any appellate assistance. He reiterated that position to Mother. These facts
are demonstrated by the attorney’s letter to the mother included in the mother’s
application for discretionary appeal and in his colloquies with the trial court over this
issue (T. 314-315, 1016; R. ____). The Court itself appears to have agreed with the
mother’s attorney that his representation of her did not include any appeal process (T.
1016, lines 9-17). While the mother tried, pro se, to file a timely direct appeal (R. __)
and later requested a court-appointed attorney for appeal, (R. __), her notice of appeal
was dismissed and motion for appointed counsel rejected by the Court following a
hearing on May 22, 2013 (R. __).
Part II: Enumeration of Errors
The Court will please note that these enumerated errors are reached only after
the court first determines the Procedural Issue:
Whether this Court had
authority to grant the present out-of-time discretionary appeal.
(1)
pg. 7
In the Int of BRF. Brief of Appellant
Docket # A14A1536
A reasonable finder of fact could not find, by clear and convincing evidence, that
any deprivation caused to June was caused by the Mother, as required by former OCGA
§ 15-11-94 (b)(4)(A)(ii). Therefore, the termination of Mother’s rights must be reversed.
(2)
A reasonable finder of fact could not find, by clear and convincing evidence, that
any deprivation suffered by June was likely to continue or likely not to be remedied, as
required by former OCGA § 15-11-94 (b)(4)(A)(iii).
Therefore, the termination of
Mother’s rights must be reversed.
(3)
A reasonable finder of fact could not find, by clear and convincing evidence, that
continued deprivation will cause or is likely to cause serious physical, mental,
emotional, or moral harm to June, as required by § 15-11-94 (b)(4)(A)(iv). Therefore,
the termination of Mother’s rights must be reversed.
pg. 8
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Part III: Argument and Citation of Authority
Procedural Issue: whether this Court had authority to grant the present
out-of-time discretionary appeal.
A preliminary and paramount (if not primordial) issue in this case is whether this
Court has the authority to grant an indigent mother an out-of-time appeal from an
order terminating her parental rights when her court-appointed attorney failed to do so
on the basis that his appointment did not include any appellate representation. There is
no question here as to the mother’s indigence or to the fact that the appointed attorney
believed his appointment did not include the representation of the mother on appeal.
This latter fact is demonstrated by his letter to the mother included in the mother’s
application for discretionary appeal and in his colloquies with the trial court over this
issue (T. 314-315, 1016). The Court itself appears to have agreed with the mother’s
attorney that his representation of her did not include any appeal process; at a
minimum, the trial judge appears to have acquiesced to that position (T. 1016, lines 917). While the mother later tried, pro se, to file a timely direct appeal (R. ___) and later
requested a court-appointed attorney for appeal, (R. __), her notice of appeal was
dismissed and motion for appointed counsel rejected by the Court following a hearing
on May 22, 2013 (R. __).
Pursuant to the applicable statutes, there is no question that the mother was
entitled to appointed counsel on appeal.
Certainly, both the current and former
provisions of the Georgia Juvenile Code provide an indigent mother confronting the
State’s efforts to terminate her parental rights with the right to counsel “at all stages of
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In the Int of BRF. Brief of Appellant
Docket # A14A1536
the proceeding,” including appeals. Former OCGA § 15-11-6 (b); current OCGA § 15-11262 (a). The appeals process is undoubtedly a “stage” of the termination proceeding,
whether the process for appeal is direct or discretionary. As this Court has stated, “To
be fully meaningful, the right to appointed counsel [under this juvenile code provision]
for “all stages of any proceedings” includes the appellate process.” In Interest of B.C.P.,
229 Ga. App. 111, 115, 493 S.E.2d 258, 262 (1997). And just as the entitlement to a free
transcript for indigent parents is implied (“inest de jure”) in the right of an indigent
parent to appointed counsel at all stages of the proceedings, so is the right to the
assistance of appointed counsel in applying for a discretionary appeal from an order
terminating that parent’s rights. See Nix v. Dep't of Human Resources., 236 Ga. 794,
795, 225 S.E.2d 306, 307-08 (1976).
These statutory rights, however, do not adequately answer the question at hand,
as the authority of this Court to grant an out-of-time appeal is limited to situations in
which “a constitutional right is at stake.” In re S.M.B., 319 Ga. App. 125, 126-27, 735
S.E.2d 122, 124 (2012) cert. denied, 134 S. Ct. 237, 187 L. Ed. 2d 176 (U.S. 2013). As the
Court noted in that case, “Georgia courts may excuse compliance with a statutory
requirement for appeal only where necessary to avoid or remedy a constitutional
violation concerning the appeal. [Cit].” S.M.B., 319 Ga App. at 126. The question, then,
revolves around whether the denial of representation at the appellate stage constituted a
violation of the mother’s constitutional rights.
Because a termination of parental rights (“TPR”) action is a civil case, finding a
constitutional right to appointed counsel in a termination of parental rights does not
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In the Int of BRF. Brief of Appellant
Docket # A14A1536
involve the right to indigent counsel granted by the Sixth Amendment of the U.S.
Constitution. See generally Lassiter v. Dep't of Soc. Servs. of Durham Cnty., N. C., 452
U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640 (1981). In Lassiter, the Supreme
Court suggested that such a federal constitutional right in TPR cases requires
determining issues of fundamental fairness and due process. 42 U.S. at 31-32.
Our
own Georgia Constitution states that “[n]o person shall be deprived of life, liberty, or
property except by due process of law.” Ga. Const. 1983, Art. I, § 1, ¶ I. Many Georgia
cases have interpreted the federal and state due process standards to hold, for example,
that “parents have a fundamental liberty interest in the care, custody, and management
of their children, “ including “the right to establish a home, direct the upbringing of their
children, and control their children's education.” Clark v. Wade, 273 Ga. 587, 593-94,
544 S.E.2d 99, 104 (2001). This Court itself has emphasized on many occasions the
fundamental nature of the right of a parent to raise his or her child, stating as the Court
did in In re C.J.V., 323 Ga. App. 283, 746 S.E.2d 783, 784-85 (2013):
There is no judicial determination which has more drastic significance
than that of permanently severing a natural parent-child relationship. It
must be scrutinized deliberately and exercised most cautiously. “The right
to raise one's children is a fiercely guarded right in our society and law,
and a right that should be infringed upon only under the most compelling
circumstances.”
See also In re C.S., 319 Ga. App. 138, 144, 735 S.E.2d 140, 145 (2012); In re A.F., 283
Ga. App. 509, 516, 642 S.E.2d 148, 153 (2007). “Due process under the Fourteenth
pg. 11
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Amendment requires that “before a state may sever the rights of a parent in his natural
child, the state must support its allegations of the parent's unfitness by at least clear and
convincing evidence.” In re B.N.A., 248 Ga. App. 406, 407, 546 S.E.2d 819, 820 (2001)
(citation and punctuation omitted).
If this right is so protected as to be fundamental, what then is required to ensure
it is infringed upon only in accordance with the due process guarantees of the Georgia
and federal constitutions? This Court must have the opportunity to ensure that the trial
court has applied “the most stringent procedural safeguards” to guarantee due process
for parents in termination cases. In re J.M.B., 296 Ga. App. 786, 790, 676 S.E.2d 9, 12
(2009). Effective legal representation is a key part of ensuring that due process. If an
indigent parent in a termination case has been deprived of legal representation, this
Court sitting en banc has held that error “presumptively harmful because it calls into
question the very structural integrity of the fact-finding process.” Id.
That protection should extend to legal representation during the next stage, at
which the parent is given the legal right under OCGA § 5-6-35 (a)(12) to apply to this
Court for a review of his or her case below and to submit argument and materials, when
appropriate, advocating that “reversible error appears to exist 0r the establishment of a
precedent is desirable.” Ct. Apps. Rule 31. While “[s]tates are free to create immunities
and to eliminate causes of actions, and that legislative determination provides all the
process that is due,” Santana v. Georgia Power Co., 269 Ga. 127, 129, 498 S.E.2d 521,
523 (1998), the Legislature has in fact created a procedure allowing a parent in a TPR
case to apply for appeal. Denying an indigent parent the assistance of counsel in making
pg. 12
In the Int of BRF. Brief of Appellant
Docket # A14A1536
that application denies him or her due process and access to the courts.
“The
constitution of this state guarantees to all persons due process of law and unfettered
access to the courts of this state. These fundamental constitutional rights require that
every party to a lawsuit be afforded the opportunity to be heard and to present his claim
or defense, i.e., to have his day in court.” Cousins v. Macedonia Baptist Church of
Atlanta, 283 Ga. 570, 573, 662 S.E.2d 533, 536 (2008) (internal citation and
punctuation omitted).
So what then of this Court’s 2012 decision, In re S.M.B., 319 Ga. App. 125, 735
S.E.2d 122, 123 (2012), in which a seven-judge panel of this Court decided 4-3 that it
had no authority to grant an out-of-time appeal in a termination of parental rights case?
First, that case created no new law; rather, it merely affirmed the principle, laid down by
the Supreme Court in Gable v. State, 290 Ga. 81, 85, 720 S.E.2d 170, 173 (2011), that
only an appellate court may grant a motion for out-of-time appeal in a case requiring
application for discretionary appeal. This Court correctly dismissed the out-of-time
appeal after determining that the trial court had no authority to grant it. Second, in that
case it appears the father did have appointed counsel for the appeal; unfortunately, the
discretionary application was not timely filed. Third, the Court went further, in footnote
3, and cited all the reasons the application would not have been granted anyway :
At the time of the termination hearing, the father had not seen the child
for approximately seven years, had been incarcerated half of the child's life
and was not expected to be released until 2014, had a history of violence
toward the mother and S.M.B., had threatened in the past to kill himself
pg. 13
In the Int of BRF. Brief of Appellant
Docket # A14A1536
and the child, had provided no financial support for the child since 2007,
and had not established a parental bond with the child. Under these
circumstances it is extremely unlikely that the trial court committed
reversible error in terminating the father's parental rights, and thus
providing no basis for the grant of an application for discretionary appeal.
327 Ga. App. at 127 fn. 3. Thus, from S.M.B. we simply learn, once again, that
trial courts cannot grant untimely discretionary appeals and that if an attorney
who represented a parent at a TPR is appointed for appellate purposes and fails
to file the application for discretionary appeal in a case where there’s no chance
the Court would ever have granted that application, there’s no harm and no foul.1
While these points distinguish S.M.B. from the present case, one final
distinguishing point is critical.
This Court in S.M.B. noted that there is no
“constitutional” right to a TPR appeal, citing the Supreme Court’s decision in In re
N.A.U.E., 287 Ga. 797, 700 S.E.2d 393, 394 (2010). In that case, the Court held that the
Legislature may properly restrict TPR appeals to those in which this Court believes there
may be reversible error or in which the Court sees the need to make new law or
emphasize critical legal points. Here, the question is not whether the mother had a
“right” to an appeal; we already know that the only ”rights” she had were to file an
application for appeal and to have the assistance of a free attorney in considering the
wisdom of such an application and in filing it. Was she supposed to know, without the
Footnote 3 raises the hypothetical, “What would the Court have done if appellate counsel had not been
appointed? In that case, it could be questioned whether footnote 3, which amounts to a “harmless error”
finding, would conflict with In re J.M.B., 296 Ga. App. 786, 790, 676 S.E.2d 9, 12 (2009), in which the
entire court found that the failure to appoint indigent counsel for a parent is presumptively harmless.
1
pg. 14
In the Int of BRF. Brief of Appellant
Docket # A14A1536
assistance of an attorney, if there were serious errors in the trial meriting appellate
review? Was she required to determine, as a lay person, if this Court would likely find
the evidence sufficient? As a 19-year-old described by the Court as “slow,” was she
required on her on to assemble and file an application for appeal pointing out the
possible merits of her case so this Court could consider it?
Even the Lassiter court, reviewing a termination case held back when social
workers often conducted the proceedings for the state, noted the complexities of
termination cases and expressed concern that “[t]he parents [in a TPR action] are likely
to be people with little education, who have had uncommon difficulty in dealing with
life, and who are, at the hearing, thrust into a distressing and disorienting situation.”
Lassiter, 452 U.S. at 30. Here, the mother was a young woman, apparently under the
undue influence of a father who had infuriated many participants in the case, but who at
least had the mental faculties to ask her attorney about his representing her on appeal.
The attorney, apparently with the judge’s acquiesence, declined to assist her in filing an
application or in discussing possible issues for appeal. This Court, therefore, should
distinguish S. M. B. and rule that, at a minimum, indigent parents who suffer an adverse
TPR ruling are entitled to have the assistance of their appointed counsel in making
application for appeal. The denial of appointed counsel for that purpose violates the
parent’s fundamental right to due process and to take advantage of the legally-approved
method for obtaining and appeal and merits the discretionary grant by this Court of an
out-of-time application for appeal in appropriate cases.2
Contrary to the “presumptive harm” reasoning of J.M.B., this Court should not simply grant the
discretionary appeal upon the showing that appellate counsel was not appointed or abandoned the case.
2
pg. 15
In the Int of BRF. Brief of Appellant
Docket # A14A1536
General Discussion of the Requirements for Termination of a Parent’s
Rights
Moving on to the substance of the mother’s claim, there is little doubt from the
record that the mother ‘s daughter was deprived. She was born to a “slow” 17-year-old
mother who herself lived with a difficult, troubled father. Nor is there really any doubt
that, were this deprivation to be ongoing, it could possibly harm the child. The foster
parents in this case appear to be fine people who can give this baby a “forever home.”
The law, however, requires proof of much more. Specifically, it requires the State
prove by clear and convincing evidence that (1) Mother is the cause of the deprivation
(now called “dependency” under the new juvenile code; (2) the deprivation is likely to
continue and likely will not be corrected; and (3) the child will suffer harm unless the
parent-child relationship is terminated. See generally In re J.M., 251 Ga. App. 380,
382, 554 S.E.2d 533, 535 (2001).3 Each issue will be addressed separately.
Enumeration of Error One: a reasonable finder of fact could not find, by
clear and convincing evidence, that any deprivation caused to June was
caused by the Mother, as required by former OCGA § 15-11-94 (b)(4)(A)(ii).
Pursuant to former OCGA § 15-11-94 (b)(4)(A)(ii), the Court found that “the lack
of proper parental care or control by [Mother] is the cause of the child's status as
Rather, the Court should create a rule allowing it to treat such applications as timely and then proceeding
on them as the Court would with any other application for appeal from a TPR order. After all, the right
that appellate counsel protects is the right to file an appropriate application. It is up to this Court to
consider whether that application has merit.
3 As this case was decided under the former code, terminology used and cited shall be that of the prior law.
An uncodified provision of the legislation enacting the new code, Laws 2013, Act 127, § 5-1, provides:
“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and
juvenile proceedings commenced on and after such date.” (emphasis added). For the Court’s
convenience, however, the new code corresponding code sections have also been cited when possible.
pg. 16
In the Int of BRF. Brief of Appellant
Docket # A14A1536
deprived.” Its own order shows that, at least in part, it made that determination based
on findings that Mother “without justifiable cause 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.” Former OCGA § 15-11-94 (b)(4)(C)(iii) (emphasis added); See In re B.T., 291
Ga. App. 604, 607, 662 S.E.2d 656, 659 (2008).
Here, the evidence demonstrates two important facts. First, it is clear Mother
had justifiable cause to not follow and complete the reunification case plan. DFCS itself
acknowledged in its presentation of evidence that Grandfather refused to allow Mother
to cooperate with the agency before she turned 18, and he continued to make her
cooperation nearly impossible after that time. After Mother turned 18 and was able to
cooperate, the case plan required her to obtain “safe and stable housing” – presumably
apart from Grandfather – and income. Yet DFCS presented no evidence at the TPR
hearing that Mother had the financial ability to obtain her own residence, nor was there
any evidence that DFCS assisted her in any way to obtain subsidized housing a job,
Temporary Assistance to Needy Families, Food Stamps, or any other government
assistance that might have enabled her to achieve these requirements. In fact, the case
manager herself acknowledged that numerous requirements of the case plan were
“outside” mother’s control.
As the Court will note, so much of the TPR hearing
testimony focused not on the wrongdoing or omissions of the Mother but rather on the
wrongdoing of Grandfather. As this Court is well aware, DFCS is required to use
“reasonable efforts” to assist a parent in achieving a reunification case plan. Former
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In the Int of BRF. Brief of Appellant
Docket # A14A1536
OCGA §15-11-58 (a). Among other steps, the agency could have asked the juvenile court
for a protective order requiring Grandfather to cooperate or face contempt and removal
from the home he shared with Mother. See Former OCGA § 15-11-11.
The evidence
indicates Mother cooperated with the Department when she was allowed to do so and
took those steps of the case plan that were within her control until such time as
Grandfather, who provided the only source of financial support she had, apparently
convinced her to sign her rights to the child over to him in a last-ditch effort to be able to
have her child. Under these circumstances, a reasonable factfinder simply could not
have found clear and convincing evidence that Mother “unjustifiably” failed to comply
with the court’s reunification plan, or even that the deprivation was due to the acts and
omissions of Mother as opposed to Grandfather. See In re D.P., A13A2496, 2014 WL
929264 (Ga. Ct. App. Mar. 11, 2014) (insufficient evidence to show failure to obtain
housing and employment, as required by case plan, was unjustifiable); Chancey v. Dep't
of Human Res., 156 Ga. App. 338, 339, 274 S.E.2d 728, 730 (1980).
Second, the trial court erroneously found that Mother unjustifiably failed to
comply with the reunification plan for at least a year. The record shows without dispute
that Mother had no independent capacity at age 17 to comply with an order to obtain
“safe and stable housing” and a job, especially when all parties agree her own legal
custodian was blocking her efforts to get her child back. Between the end of November,
2011 and the beginning of August, 2012, when the trial court stopped reunification
services, was a period of only 9 months.
These facts do not show clearly and
convincingly that the mother did not comply with her case plan, especially when other
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In the Int of BRF. Brief of Appellant
Docket # A14A1536
evidence from the State’s own witnesses shows she had completed several parts of her
case plan and was still working on her GED at the time of the TPR hearing. In re C.J.V.
323 Ga. App. 283, 286, 746 S.E.2d 783, 786 (2013).
Enumeration of Error Two: a reasonable finder of fact could not find, by
clear and convincing evidence, that any deprivation suffered by June was
likely to continue or likely not to be remedied, as required by former OCGA
§ 15-11-94 (b)(4)(A)(iii).
A reasonable factfinder could not have found from this record clear and
convincing evidence that June’s unfortunate situation was likely to continue indefinitely
or likely would not be corrected, as required by Former OCGA § 15-11-94 (b)(4)(A)(iii).
“The record must contain clear and convincing evidence that the cause of deprivation is
likely to continue.” In re C.S., 319 Ga. App. 138, 145-46, 735 S.E.2d 140, 146 (2012)
(citation and punctuation omitted).
On numerous occasions, this Court has reversed findings that deprivation was
likely to continue in cases involving incarcerated parents who, though they could not
complete their case plans during their incarcerations, could likely do so after their
release. In the Interest of R.C.M., 284 Ga. App. 791, 799, 645 S.E.2d 363, 369 (2007);
In re J.D.F., 277 Ga. App. 424, 428, 626 S.E.2d 616, 619 (2006). In those cases, the
question often boils down to whether the incarcerated parent has made a good-faith
attempt to comply with a case plan and maintain a bond with the child, and whether,
once they are “free,” they stand a good chance of doing all necessary to strengthen the
parental bond and care for the child. This case should be treated in a similar vein. As a
pg. 19
In the Int of BRF. Brief of Appellant
Docket # A14A1536
minor and very young, “slow,” “immature” adult who was under the roof of and control
of a domineering father who intimidated those around him and controlled the situation,
Mother was, in effect, incarcerated. The testimony in the case indicated that, were she
free of that control, she might well have the ability to parent her daughter. Yet instead
of using its resources to free Mother from these bonds, DFCS left Mother in the bonds of
Grandfather. The agency then came into Court and, while complaining of Grandfather’s
failure to cooperate, produced no evidence that it had helped Mother get away from that
situation. While there is ample evidence that, like the incarcerated parent, Mother
cannot parent while she is under her father’s control and in his home, there is no
evidence that she could not parent if given assistance in freeing herself from that
situation. She worked a case plan for less than a year as an adult while living with a
father who encouraged her not to cooperate, and despite those obstacles she completed
many of the tasks required of her. As Judge Banke wrote in a case involving another
young mother,
“There is no indication in the case before us that the appellant has ever
engaged in any misconduct detrimental either to her own child or to any
other child. Nor is there any evidence that she suffers from a mental or
physical condition which renders her incapable of caring for a child. The
evidence showed only that at the time of the hearing she was 16 years old,
unemployed, without prospects for future employment, and without any
stable living arrangements. This was insufficient as a matter of law to
authorize the termination of her parental rights.”
pg. 20
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Chancey v. Dep't of Human Res., 156 Ga. App. 338, 339, 274 S.E.2d 728, 730 (1980).
Enumeration of Error Three: a reasonable finder of fact could not find, by
clear and convincing evidence, that continued deprivation will cause or is
likely to cause serious physical, mental, emotional, or moral harm to June,
as required by § 15-11-94 (b)(4)(A)(iv).
Finally, there was no specific showing of how a continued relationship between
Mother and child might harm June. The lead agency representative testified that “the
longer a child lingers in foster care with the uncertainty of permanency, the more issues
it could cause behaviorally later on in life” (T. 228). But no witness testified regarding
how a failure to terminate this Mother’s rights would cause this child harm. “The
mother's inability to care for her children does not necessarily mean that her current
relationship with them is detrimental.” In re J.S.B., 277 Ga. App. 660, 663, 627 S.E.2d
402, 406 (2006).
Conclusion
The undersigned does not have personal knowledge whether Mother in this case
can or cannot, in a reasonable time and with appropriate reasonable efforts from the
State, demonstrate the ability to give June a safe, stable, and permanent home. The
child does appear from the record to be in a very good placement with a couple who
wants to adopt her, and it is unfortunate that we are here over a year after the TPR
hearing was concluded discussing whether the evidence was sufficient to make the
findings the trial court made. But through this case, this Court has the opportunity to
remind the bench and bar that the right to counsel is fundamental and extends to “all
pg. 21
In the Int of BRF. Brief of Appellant
Docket # A14A1536
stages of the proceeding,” including the stage at which the parent may apply for review
of the trial court’s findings. Had that been timely done, this case would likely already be
finally decided.
Instead, we are before this Court over a year after the TPR hearing with serious
questions as to the propriety of the trial court’s order because, according to the only
evidence before us, our child protective services agency made two fundamental errors.
First, in its zeal to protect June from a Grandfather whose judgment it didn’t trust and
whose temper its staff feared, it forgot that the person really needing its services was
Mother: a young woman who, everyone agrees, has emotional and perhaps functional
issues.
As a result, the agency spent an inordinate amount of time analyzing
Grandfather and did not take the reasonable steps necessary to get Mother out of that
home, help her deal with her issues, and help her gain independence. Second, perhaps
in its anger at Grandfather’s machinations of the system, the agency abandoned efforts
to help Mother less than a year after she turned 18, even though it knew she had been
attempting to work her case plan. These fundamental errors left us with a transcript
and record devoid of clear and convincing evidence that Mother’s inability to parent will
continue for a significant period of time and will harm June.
Respectfully this __ day of ____, 2014.
McMillan & Rawlings, LLP
__________________________
Thomas C. Rawlings
Georgia Bar No: 595795
P.O. Box 5746
pg. 22
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Sandersville, GA 31082
478-552-2467
trawlings@tomrawlings.com
pg. 23
In the Int of BRF. Brief of Appellant
Docket # A14A1536
CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for the opposing party in the
foregoing matter with a copy of “BRIEF OF APPELLANT” by U.S. Postal Service to:
Michael Joseph Feltman
1413 North 9th Street
Griffin, GA 30223
Todd Harding, Esq.
113 E. Solomon Street
Griffin, GA 30223
Roger Montgomery, Esq.
4797 Tuck Persons Highway
Talbotton, GA 31827
Allen W. Adams
Circuit Public Defender
141 West Solomon St.
Griffin, GA 30223
Charles B. O’Neill, Jr.
P.O. Box 1188
Zebulon, GA 30295
Tammy M. Griner, Esq.
P.O. Box 319
Griffin, GA 30224
Honorable Ben J. Miller, Jr.
Spalding County
P.O. Box 1469
Griffin, GA 30224
pg. 24
In the Int of BRF. Brief of Appellant
Docket # A14A1536
Submitted this the ___ day of ____, 2014.
McMillan & Rawlings, LLP
__________________________
Thomas C. Rawlings
Georgia Bar No: 595795
P.O. Box 5746
Sandersville, GA 31082
478-552-2467
trawlings@tomrawlings.com
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