APPEALS Dependency and Terminations - Parent …parentattorney.org/wp-content/uploads/2014/04/appealspaac2014.pdf•Motion for Reconsideration ... 16 of the Georgia Court of Appeals

APPEALS

Dependency and Terminations

April 11, 2014

Darice M. Good, J.D., CWLS

Preserving Issues For Appeal

• Note:

• January 31, 2014

• Power Point

• Margaret E. Flynt

• GPDSC Appellate Division

Consult with Client

Appeals can take a long time (3 months – 18 months). If you tried the case you should have an idea of how successful an appeal may be for your client. Some clients do not wish to go through the appellate process as it is lengthy and are difficult to win. Be realistic about the parent’s chance on appeal. Be familiar with cases that were overturned on appeal so you can measure you parent’s chance of success.

Types of Appeal Procedures

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

• Application for Interlocutory Appeal

• Motion for New Trial

• Direct Appeal

• Application for Discretionary Appeal

• Motion for Reconsideration

• Petition for Certiorari

Interlocutory Application for Appeal

OCGA §5-6-34(b)

Rule 30 of the Georgia Court of Appeals

• Interlocutory appeals are by application.

• OCGA §5-6-34(b): When the court issues an order that is not

otherwise subject to direct appeal, (For example, denies a Motion to

Dismiss or Motion to Exclude Evidence.) you may request a

certificate of immediate review from the court. A certificate of

immediate review states that the issue is of such importance to the

case that the issue must be immediately reviewed by the appellate

court.

Interlocutory Application for Appeal • Ten days from the filing of the certificate of

immediate review with the clerk of court, you must file

an Application for Interlocutory Appeal with the

appellate court.

• There are no extensions for filing the Application for

Interlocutory Appeal.

Interlocutory Application for Appeal • Your application should include:

• Practice Point: Some attorneys only write a brief summary of the case and why the application should be granted, however, the more your application mirrors an appellate brief the more likely it will be granted.

• Rule 25 and Rule 30 of the Georgia Court of Appeals:

• Cover Page (Including name and addresses of all parties or counsel of record if represented) In juvenile cases, the names of the children must be in initials and the children can only be referred to by their initials in the application.

• Table of Contents

• Statement of Jurisdiction

• Statement of Procedural History

• Exhibit List


Contents of Application, Continued

• Part One: Statement of Facts

• Part Two: Enumeration of Errors

• Part Three: Legal Argument and Citation to Authority.

• Certificate of Service (Including name and addresses of all parties or counsel of record if represented).

• Exhibits: (Tabbed)

• Filed copy of the trial court’s order.

• Filed copy of the motion/petition that led to trial court’s order.

• Filed copy of any responses to the motion/petition.

• Filed copy of your order of appointment (if not, you will be required to pay the $300.00 application fee).

• Any other documents that are relevant to the issue.


Form of Application • Court of Appeals Rules 1, 6, & 24

• Must be signed by you.

• 8.5 X 11

• No less then 10 characters per inch or TNR 14pt

• Must have two inch margin at top and at least one inch on the other sides

• Must be double spaced

• Must be numbered at bottom of page

• Must be no more then 30 pages

• Must not have any attachments

• Must have one original and two copies

• Non-glossy, heavy white backing

• Bound at top with fasteners or staples


• An Application for Interlocutory Appeal must be less than 30 pages long Tables of

content, tables of citations, cover sheets and certificates of service shall not be

counted toward the applicable page limit for interlocutory appeal applications and

responses.

• The application must conform to the requirements in Rule 24 of the Georgia

Court of Appeals.

• The opposing party has ten days from the date your application is filed with the

appellate court to respond.

• There is no extension for time to file the Application for Interlocutory Appeal.


• Grounds for granting an Application for Interlocutory Appeal Rule 30 of the Georgia Court of Appeals.

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

•The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment in which case the appeal will be expedited; or

•The establishment of precedent is desirable.


• The appellate court has forty-five days from the filing date of your application

to grant or deny your application. OCGA §5-6-34(b).

• If the appellate court grants your application, you must file a notice of appeal in

the juvenile court within ten days of the court granting your application.

• The notice of appeal must specifically state how the appellate court has

jurisdiction, the record and the transcript be sent to the appellate court, and a

short procedural history.

• You will then follow the procedure for direct appeals, which is outlined below.

Interlocutory Application for Appeal • Once the application is filed with the Court of Appeals, the juvenile court loses jurisdiction of the case

until the Court of Appeals issues a decision.

• An Application for Interlocutory Appeal is rare in juvenile court, but are being seen more and more.

• It is rare that you would be filing an interlocutory appeal with the Supreme Court of Georgia (usually

only where the sole issue is a constitutional issue). If you are filing in the Supreme Court of Georgia,

follow its rules for interlocutory applications and not the Court of Appeals.

• If you have any doubt as to where the direct appeal should be filed, file with the Court of Appeals and

if need be the case will be transferred to the Supreme Court of Georgia by the Court of Appeals.

• If the order on appeal is reversed the case will be remitted back to the juvenile court for disposition of

the case or with instructions on how to proceed on the case.

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

• After any final judgment, you are allowed to file a Motion for New Trial.

• Immediately order the transcript. The transcript is ordered by sending a

transcript request to the court reporter. (Appendix CC)

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

•Examples of a final judgment in juvenile court, includes, but is not

limited to an adjudication of dependency, termination, non-reunification,

grant or denial of legitimation, grant or denial of temporary or

permanent guardianship, disposition order, etc.


• OCGA §5-5-40 A Motion for New Trial must be

filed within 30 days of the trial court’s order being

filed with the clerk of court.

•A Motion for New Trial is filed in the juvenile

court.


• Grounds for Motion for New Trial

• OCGA §5-5-20 to §5-5-25

• Ineffective Assistance of Counsel

• If you are going to argue that prior counsel was ineffective it is very important to allege it in your motion for new trial and examine trial counsel at the Motion for New Trial hearing. Case law is very clear that not having trial counsel testimony at a motion for new trial almost always precludes the appellate court reviewing an ineffective claim.

• If you argument is that trial counsel failed to introduce evidence, you must proffer the evidence at Motion for New Trial that you are claiming was not introduced by trial counsel.


Grounds for Motion for New Trial, Continued

•Procedural Issues: Example evidence illegally

admitted, being prevented from making a closing

argument, being prevented from thoroughly

examining a witness, etc.

•Substantive Issues: Insufficient evidence.


• Filing a Motion for New Trial will stop the appellate clock. The clock will not start again until or if the motion is denied. IMPORTANT: Any other motion, including a Motion for Reconsideration does not stop the clock.

• Practice Point: If you are not the trial counsel, filing a Motion for New Trial is a great way to stop the appellate clock to give you time to review and investigate the case and most importantly, review the transcript.

• Caveat: If the appeal is a direct appeal, you will have an opportunity to review the transcript after you file the Notice of Appeal and hence, a motion for new trial is not needed solely for this reason.

• If a Motion for New Trial is denied you will then have 30 days from the date the trial court’s order of denial is filed with the clerk of court to file a Notice of Appeal or a Discretionary Application for Appeal (if it is a termination case).

Direct Appeals OCGA §5-6-34

• IMPORTANT: An appeal from the termination of parental rights is not a direct appeal, it is an application for discretionary appeal (which is discussed below). If you file a notice of appeal on a termination case and miss the deadline to file a discretionary application, your parent will lose all their appellate remedies.


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

• Notice of Appeal must be filed within 30 days of the trial court’s order being filed in the clerk of court or within 30 days of the trial court’s order denying a new trial being filed with the clerk of court.

• The Notice of Appeal is filed in the juvenile court and in the same form as discussed in Paragraph (d)(x) of this section.

• Docketing of Appeal. Your appeal will be docketed once the appellate court receives the record and transcript from the juvenile court. If the appellate court dockets the case before the transcript is ready, you can file a motion under Rule 16 of the Georgia Court of Appeals requesting that the case is removed from the docket and re-docketed upon receipt of the transcript.


Time Limits Continued

•You will have twenty days (20) from the date of docketing to file an

appellant’s brief.

•The opposing party will have twenty days (20) from the date of filing of the

appellant brief or forty days (40) from the date of docketing, whichever is

longer to file an appellee brief.

•You will have twenty days (20) from the date of the filing of appellee’s brief

to file a reply brief.

•The appellate court has two terms to decide your case.


Contents of Brief

•Contents of the brief are listed in Rules 24 and 25 of the Rules of the

Georgia Court of Appeals.

•Appellant brief shall include:

• Cover Page (Including name and addresses of all parties or

counsel of record if represented)

• In juvenile cases, the names of the children must be in

initials and the children can only be referred to by their

initials in the application.


Contents of Brief, Continued







• Certificate of Service (Including name and addresses of all parties or counsel of record if

represented).


Form of Brief • Court of Appeals Rules 1, 6, & 24


• 8.5 X 11











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

order will remain in effect until it is overturned. OCGA §15-11-35. The trial

court in its discretion may change its order.

• As soon as the Notice of Appeal is filed, the juvenile court loses jurisdiction

over the case until a decision is rendered by the appellate court.

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

Georgia (usually only where the sole issue is a constitutional issue). If you are

filing in the Supreme Court of Georgia, follow its rules for direct appeals and

not the Court of Appeals.


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

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

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

Appeals.

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

juvenile court for disposition or with instructions on how to

proceed on the case.

Application for Discretionary Appeal

OCGA §5-6-35(12)

• All appeals from the termination of parental rights is by application only.

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

Appeals

•The Application must be filed with the Court of Appeals within 30

days of the date the termination order or the order denying motion for

new trial is filed with the juvenile clerk of court.

•There are no extensions for filing your application.


OCGA §5-6-35(12)

• Your application should include:

•Practice Point: Some attorneys only write a brief

summary of the case and why the application

should be granted, however, the more your

application mirrors an appellate brief the more

likely it will be granted.


OCGA §5-6-35(12)

Contents of Application • Rule 25 and Rule 31 of the Georgia Court of Appeals: Cover Page (Including name and addresses of all parties or

counsel of record if represented) In juvenile cases, the names of the children must be in initials and the children can

only be referred to by their initials in the application.




• Exhibit List





OCGA §5-6-35(12)

Contents of Application, Continued • Certificate of Service (Including name and addresses of all parties or counsel of record if

represented).

• Exhibits: (Tabbed)

• Filed copy of the trial court’s order.

• Filed copy of the motion/petition that lead to trial court’s order.

• Filed copy of any responses to the motion/petition.

• Filed copy of your order of appointment (if not, you will be required to pay the

$300.00 application fee).

• Any other documents that are relevant to the issue.


OCGA §5-6-35(12)

Form of Application, Continued • Court of Appeals Rules 1, 6, & 24


• 8.5 X 11











OCGA §5-6-35(12)

• An Application for Discretionary Appeal must be less than 30 pages long

Tables of content, tables of citations, cover sheets and certificates of

service shall not be counted toward the applicable page limit for

interlocutory appeal applications and responses.

• The application must conform to the requirements in Rule 24 of the

Georgia Court of Appeals.

• The opposing party has ten days from the date your application is filed

with the appellate court to respond.


OCGA §5-6-35(12)

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

the Georgia Court of Appeals.

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

•The order appears erroneous and will probably cause a substantial

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

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

expedited; or

•The establishment of precedent is desirable.


OCGA §5-6-35(12)

• The appellate court has forty-five days from the filing date of your application to grant or

deny your application. OCGA §5-6-34(b).

• If the appellate court grants your application, you must file a notice of appeal in the juvenile

court within ten days of the court granting your application.

• The notice of appeal must specifically state how the appellate court has jurisdiction, the

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

(Appendix AA)

• You will then follow the procedure for direct appeals, which is outlined above.

• Once the application is filed with the Court of Appeals, the juvenile court loses jurisdiction

of the case until the Court of Appeals issues a decision.


OCGA §5-6-35(12)

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

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

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

Motion for Reconsideration


• A Motion for Reconsideration may be filed with the Court of Appeals after the decision is rendered by

the Court.

• A Motion for Reconsideration must be filed within ten days of the decision.

• Carefully review the decision because the Court of Appeals may remit the case before the ten days

expire (if so, you must file before it is remitted) or limit the time to file the Motion for Reconsideration.

• No response is required to a Motion for Reconsideration.

• A reconsideration will be granted on motion of the requesting party, only when it appears that the

Court overlooked a material fact in the record, a statute or a decision which is controlling as authority

and which would require a different judgment from that rendered, or has erroneously construed or

misapplied a provision of law or a controlling authority. Rule 37.

Petition for Writ of Certiorari


Rule 38 –Rule 45 of the Supreme Court of Georgia

• If you wish to have the Court of Appeals decision reviewed, you may file a Notice of Intent

to Petition for a Writ of Certiorari (Appendix FF) and a Petition for a Writ of Certiorari

(Appendix GG).

• Notice of Intent must be filed in the Court of Appeals within ten days of the decision.

• The Petition for Writ of Certiorari is to be filed in the Supreme Court within 20 days of the

decision in the Court of Appeals.

• Responses are not required, but encouraged. Failure to file a response is an admission that the

requirements were met to grant the petition, but is not binding on the court.

• Standard for Granting: Rule 40 A petition for the writ will be granted only in cases of great

concern, gravity, or importance to the public.

The Power of Case Law

• Wby is using case law Important?

• Record

• Being Overturned

• Emotional Attachment: Powerful and Moving

THEMES

• Favorite Workout song, cleaning song, running errands. A song that inspires you to do more, do better.

• Diana and I have a theme. I am going to tell you the story of the them and how it helped us embrace and efficiently use the Power of Case Law.

• We started in DeKalb around the same time. We noticed it was impossible to do almost anything on our cases without rocking the boat. Which, led to us getting black balled. We were called again to come back on the list and we decided, even it meant getting black balled again, that we were going to continue to zealously representing our clients. We knew that fighting for our clients was more important then getting black balled or being hated in the courthouse.

• AND SO, WE GOT …..

Wicked

I'm through with playing by the

rules of someone else's game.

Too late for second-guessing Too

late to go back to sleep. It's time

to trust my instincts. Close my

eyes and leap!

It's time to try

Defying Gravity

I'm through accepting limits

'cause someone else says they're so

Some things I cannot change

But till I try, I'll never know!

Unlimited

Together we're unlimited

Together we'll be the

greatest team there's ever

been

If we work in tandem:

There's no fight we

cannot win

Just you and I

Defying Gravity

Everyone deserves the chance to

fly! And if I'm flying solo,

At least I'm flying free.

To those who'd ground me,

Take a message back from me.

Tell them how I am

Defying Gravity

And soon I'll match them in

renown And nobody in all of

DeKalb Juvenile, No DFACS or

Court that there is or was…

Is ever gonna bring me down!

Translate your “theme song” to a …

“theme case law”

•Use case law to create a theme for your

case that inspires you and gets you moving

emotionally.

The Power of Case Law

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

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

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

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

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

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

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

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

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

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

with the Joneses.” CJV

Poverty and Instability

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

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

• “Securing independent housing, stable employment, and furthering one's job training or education are commendable goals, and there is nothing inherently wrong with the government encouraging the citizens it serves to better their lives. What the government is not entitled to do, regardless of any apparent statutory authority for doing so, is to force some generalized, bureaucratic, Orwellian notion of parenting onto citizens who have temporarily lost custody of their children as a precondition to regaining custody of those children.” CJV


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

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

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


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

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

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

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

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

detrimental and egregious parental conduct which led to termination of

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

Domestic Violence • The only basis for asserting that any of the children were deprived was

Deryl's violence toward Patricia. Even assuming that spousal abuse alone could support a finding that a child is deprived, the evidence was undisputed that Patricia and Deryl were no longer living together at the time of the deprivation hearing and were in the process of obtaining a divorce.

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

• CDE 248 Ga. App. 756 (2001)

No Adoptive Resource

• We note that the Department presented no identifiable prospects for

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

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

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

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

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

permanent home.

• DF 251 Ga. App. (2001)

Failure to Prove Harm

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

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

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

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

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

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

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

• AT 271 Ga. App. 270

Substantial Completion of Case Plan

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

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

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

Immigration Status

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

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

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

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

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

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

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

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

• MM 263 Ga. App. 353 (2003)

THANK YOU!!!

• Remember We Are Lawyers - USE LAW

• Darice M. Good, J.D., CWLS

• [email protected]

Documents

APPEALS Dependency and Terminations - Parent …parentattorney.org/wp-content/uploads/2014/04/appealspaac2014.pdf•Motion for Reconsideration ... 16 of the Georgia Court of Appeals