APPEALS Dependency and Terminations - Parent...
Transcript of APPEALS Dependency and Terminations - Parent...
APPEALS
Dependency and Terminations
June 20, 2014
Gainesville, Georgia
Consult with Client
Appeals can take a long time (3 months – 18 months). Ifyou tried the case you should have an idea of howsuccessful an appeal may be for your client. Some clientsdo not wish to go through the appellate process as it islengthy and are difficult to win. Be realistic about theparent’s chance on appeal. Be familiar with cases that wereoverturned on appeal so you can measure you parent’schance of success.
Types of Appeal Procedures
• Types of appeal procedures that are relevant to Dependencies and Terminations:
• Application for Interlocutory Appeal
• Motion for New Trial
• Direct Appeal
• Application for Discretionary Appeal
• Motion for Reconsideration
• Petition for Certiorari
• Due to time constraints we will not be discussing Interlocutory Appeal, Motion for Reconsideration or Petition for Certiorari. But,
discussion of these can be found in Darice M. Good’s Appeal CLE on the PAAC website
Content and Form of Applications and Briefs
•Contents of Application: Rule 25 & Rule 30 of the Georgia
Court of Appeals
•Contents of Brief:
•Form of Application and Brief: Court of Appeals Rules
1, 6, & 24
Motion for New Trial OCGA §5-5-20 et. al.
• After final judgment, may file Motion for New Trial.
•Immediately order the transcript.
•Final judgment is defined in OCGA 5-6-34(a)(1).
•Examples of a final judgment in juvenile court, includes, but isnot limited to an adjudication of dependency, termination,non-reunification, grant or denial of legitimation, grant ordenial of temporary or permanent guardianship, dispositionorder, etc.
Motion for New Trial OCGA §5-5-20 et. al.
•OCGA §5-5-40 A Motion for New Trial
must be filed within 30 DAYS of the trial
court’s order being filed with the clerk of
court.
•Filed in Juvenile Court.
Motion for New Trial OCGA §5-5-20 et. al.
Grounds for New Trial•OCGA §5-5-20 to §5-5-25
•Verdict Contrary to Evidence and Justice
•Verdict Against Weight of Evidence
• Illegal Admission of Exclusion of Evidence
•Newly Discovered Evidence
• Jury Instructions (Not Applicable)
•Catch All
Motion for New Trial OCGA §5-5-20 et. al.
Grounds for New Trial
• Ineffective Assistance of Counsel
• If you are going to argue that prior counsel was ineffective it is very
important to allege it in your motion for new trial and examine trial
counsel at the Motion for New Trial hearing. Case law is very clear that
not having trial counsel testimony at a motion for new trial almost always
precludes the appellate court reviewing an ineffective claim.
• If you argument is that trial counsel failed to introduce evidence, you
must proffer the evidence at Motion for New Trial that you are claiming
was not introduced by trial counsel.
Motion for New Trial OCGA §5-5-20 et. al.
Grounds for Motion for New Trial, Continued
• Procedural Issues: being prevented from
making a closing argument, being prevented
from thoroughly examining a witness,
transcript, constitutional violations, etc.
Motion for New Trial OCGA §5-5-20 et. al.
• STOPS appellate clock and restarts if MFNT denied.
• IMPORTANT: Any other motion, including a Motion for Reconsideration does not stop the
clock.
• Practice Point:If you are not the trial counsel, filing a Motion for New Trial is a great way to stop
the appellate clock to give you time to review and investigate the case and most importantly,
review the transcript.
• Caveat: If the appeal is a direct appeal, you will have an opportunity to review the transcript
after you file the Notice of Appeal and hence, a motion for new trial is not needed solely for
this reason.
• If MFNT is denied 30 DAYS from the date the trial court’s order of denial is filed with the clerk
of court to file a NOA or a DAA.
Content and Form: For all Applications and
Briefs in the Court of Appeals
•Contents of Application: Rule 25 & Rule 30 of the Georgia
Court of Appeals.
•Contents of Brief: Same as Application, but no exhibits.
•Form of Application and Brief: Court of Appeals Rules
1, 6, & 24
Direct Appeals OCGA §5-6-34
• IMPORTANT: An appeal from the termination ofparental rights is not a direct appeal, it is an applicationfor discretionary appeal
• If you file a notice of appeal on a termination case andmiss the deadline to file a discretionary application,your parent will lose all their appellate remedies. NOWAY TO FIX IT.
Direct Appeals OCGA §5-6-34
• Time Limits OCGA §5-6-34 and Rule 30 of the Georgia Court of Appeals
•NOA must be filed within 30 DAYS of the trial court’s order being filed inthe clerk of court OR within 30 DAYS of the trial court’s order denying anew trial being filed with the clerk of court.
•NOA filed in juvenile court.
•Docketing of Appeal. Docketed upon receipt of record and transcript. If theappellate court dockets the case before the transcript is ready, you can file amotion under Rule 16 of the Georgia Court of Appeals requesting that thecase is removed from the docket and re-docketed upon receipt of thetranscript.
Direct Appeals OCGA §5-6-34
Time Limits Continued
•20 DAYS from the date of docketing to file an appellant’s brief.
•The opposing party 20 DAYS from the date of filing of the
appellant brief or 40 DAYS from the date of docketing,
whichever is longer to file an appellee brief.
•20 DAYS from the date of the filing of appellee’s brief to file a
reply brief.
•The appellate court has TWO TERMS to decide your case.
Direct Appeals OCGA §5-6-34
•Motion for Oral Arguments: Must be made separatelywith filing of brief to be considered.
•E- FILE, but be careful of rejection! If you file yourbrief after 4:30pm, but before 11:59pm of the finalday to file, there are no clerks there to determine thatyour brief was complete when filed. If you receive arejection email from the clerks the next day, yourbrief was not timely filed.
Direct Appeals OCGA §5-6-34
• Filing an appeal does not supersede the trial court’s order. The trial
court’s order will remain in effect until it is overturned. OCGA §15-
11-35. The trial court in its discretion may change its order.
• When NOA filed, juvenile court loses jurisdiction over the case.
• It is rare that you would be filing a direct appeal with the Supreme
Court of Georgia (usually only where the sole issue is a constitutional
issue). If you are filing in the Supreme Court of Georgia, follow its
rules for direct appeals and not the Court of Appeals.
Direct Appeals OCGA §5-6-34
• If you have any doubt as to where the direct appeal should be
filed, file with the Court of Appeals and if need be the case will
be transferred to the Supreme Court of Georgia by the Court of
Appeals.
• If the order on appeal is reversed the case will be remitted to the
juvenile court for disposition or with instructions on how to
proceed on the case.
Application for Discretionary Appeal
OCGA §5-6-35(12)
• All appeals from the termination of parental rights
is by application only.
• Time Limits OCGA §5-6-35 & Rule 31 of the Georgia Court of Appeals
•Application filed with the Court of Appeals within 30 DAYS of the
date the termination order OR the order denying motion for new trial
is filed with the juvenile clerk of court.
•There are no extensions for filing your application.
Application for Discretionary Appeal
OCGA §5-6-35(12)
• Practice Point: Brief Summary vs. Full Brief
•Some lawyers do a brief summary of the case and
its issues, however, doing a full brief gives you a
better chance of your application being granted.
• NO E-FILE
Application for Discretionary Appeal
OCGA §5-6-35(12)
• Grounds for granting an Application for Interlocutory Appeal Rule 30 of
the Georgia Court of Appeals.
•The issue to be decided appears to be dispositive of the case; or
•The order appears erroneous and will probably cause a substantial
error at trial or will adversely affect the rights of the appealing party
until entry of final judgment in which case the appeal will be
expedited; or
•The establishment of precedent is desirable.
Application for Discretionary Appeal
OCGA §5-6-35(12)
• The opposing party 10 DAYS to respond. DFACS Policy on response.
• 45 DAYS to grant or deny.
• If granted, 10 DAYS to file NOA in juvenile court.
• NOA: how the appellate court has jurisdiction, request record and the
sent to the appellate court, and a short procedural history.
• Then follow the procedure for direct appeals.
• Once the application is filed, the juvenile court loses jurisdiction.
Application for Discretionary Appeal
OCGA §5-6-35(12)
• It is rare that you would be filing an discretionary appeal with the SupremeCourt of Georgia (usually only where the sole issue is a constitutional issue). Ifyou are filing in the Supreme Court of Georgia, follow its rules fordiscretionary applications and not the Court of Appeals.
• If you have any doubt as to where the direct appeal should be filed, file with theCourt of Appeals and if need be the case will be transferred to the SupremeCourt of Georgia by the Court of Appeals.
• If the order on appeal is reversed the case will be remitted back to the juvenilecourt for disposition of the case or with instructions on how to proceed on thecase.
The Power of Case Law
• Why is using case law Important?
• Record
• Being Overturned
• Emotional Attachment: Powerful and Moving
Wicked
I'm through with playing by the
rules of someone else's game.
Too late for second-guessing Too
late to go back to sleep. It's time
to trust my instincts. Close my
eyes and leap!
It's time to try
Defying Gravity
I'm through accepting limits
'cause someone else says they're so
Some things I cannot change
But till I try, I'll never know!
Unlimited
Together we're unlimited
Together we'll be the
greatest team there's ever
been
If we work in tandem:
There's no fight we
cannot win
Just you and I
Defying Gravity
Everyone deserves the chance to
fly! And if I'm flying solo,
At least I'm flying free.
To those who'd ground me,
Take a message back from me.
Tell them how I am
Defying Gravity
And soon I'll match them in
renown And nobody in all of
DeKalb Juvenile, No DFACS or
Court that there is or was…
Is ever gonna bring me down!
Translate your “theme song” to a …
“theme case law”
•Use case law to create a theme for your
case that inspires you and gets you moving
emotionally.
The Power of Case Law
• “There can scarcely be imagined a more fundamental and fiercelyguarded right than the right of a natural parent to its’ offspring. Toterminate that right is to sever that right for the future as effectivelyin law as if it never had existed. It is a tearing of the flesh and itcan be done by the court only under the most carefully controlledand regulated circumstances for the sake of the child.”
• Nix v. DHR 236 Ga. 794 (1976) Dependency K.S. 271 Ga. App. 891(2005)
• “In a nutshell, this case is the poster child for all that is wrong with this Court's
termination-of-parental-rights jurisprudence: the mother essentially had her
parental rights terminated by the trial court for being poor.” CJV
• “It is the height of irony that Georgia, a state founded for the purpose of
providing a fresh start for those whose "misfortunes and want of Employment ...
are not able to provide a maintenance for themselves and Families,“ now has an
institutionalized policy of severing the natural parent-child relationships of its
poorest and most vulnerable citizens simply because they are unable to keep up
with the Joneses.” CJV
Poverty and Instability
Poverty and Instability• “Indeed, the notion that parental rights can be terminated, in part, because a parent has
failed to secure independent housing, stable employment, or work on "vocationalrehabilitation" is not only patently unconstitutional but morally repugnant--as such "goals,"disproportionately discriminate against those who are socioeconomically disadvantaged.”CJV
• “Securing independent housing, stable employment, and furthering one's job training oreducation are commendable goals, and there is nothing inherently wrong with thegovernment encouraging the citizens it serves to better their lives. What the government is notentitled to do, regardless of any apparent statutory authority for doing so, is to force somegeneralized, bureaucratic, Orwellian notion of parenting onto citizens who have temporarilylost custody of their children as a precondition to regaining custody of those children.”CJV
Poverty and Instability
• “The State has no right to irrevocably sever the natural parent-child relationship simplybecause a parent is incapable of providing her children with an idyllic middle-class lifestyle.”CJV
• “In my view, this reasoning [that parental rights should be terminated to do unstable housingand employment) makes a mockery of the cherished and sacrosanct right to familialrelations and the concomitant right of parents to raise their children as they see fit, and I willcontinue to highlight this Court's inherently flawed and unconstitutional approach to thesecases as long as I am privileged to serve Georgians in my capacity as an appellate judge. CJV
• “An order terminating parental rights is the death penalty of civil cases, and this Courtshould start treating it as such.” CJV
Poverty and Instability
• “The fact that a mother is unemployed, without prospects for future
employment, and without any stable living arrangements is not sufficient to
terminate parental rights." MM 263 Ga. App. 363
• The evidence in the present case shows poverty and instability in the
mother's living arrangements, but it does not show any of the profoundly
detrimental and egregious parental conduct which led to termination of
rights in previous cases. Leyva 145 Ga. App. 619 (1978)
Domestic Violence• The only basis for asserting that any of the children were deprived wasDeryl's violence toward Patricia. Even assuming that spousal abuse alonecould support a finding that a child is deprived, the evidence was undisputedthat Patricia and Deryl were no longer living together at the time of thedeprivation hearing and were in the process of obtaining a divorce.
• Thankfully, we have not yet reached the point where the State is authorizedto take children away from an admittedly fit mother based solely on the merepossibility that she may in the future have contact with someone who haspreviously beaten her.
• CDE 248 Ga. App. 756 (2001)
No Adoptive Resource
• We note that the Department presented no identifiable prospects for
adoption, and the current foster parents do not want to adopt the
children. It appears to us that the Department wishes to terminate
the children's existing relationship with their mother, which they
cannot show is likely to cause serious harm, in return for the
possibility that the children will be placed in an as yet unidentified
permanent home.
• DF 251 Ga. App. (2001)
Failure to Prove Harm
• We find no expert testimony with regard to the effect on the children if the
mother's parental rights were not terminated; there is no testimony that the
children's relationship with their mother was harmful; and there is no
testimony that the children are currently suffering due to their placement in
foster care or that without a permanent placement that they would suffer
serious harm. The lack of testimony as to harm has repeatedly caused
us to reverse the lower court's order of termination.
• AT 271 Ga. App. 270
Substantial Completion of Case Plan
• Both parents made significant progress on their case plans, and their inabilityto dot every “i” and cross every “t” cannot be placed entirely on their ownshoulders.
• Additionally, a failure by parents “to live up to societal norms forproductivity, morality, cleanliness and responsibility does not summarily robthem of the right to raise their own offspring, nor does it end the children'sright to be raised by their own parents.” AF 283 Ga. App. 509 (2007)
• Case plans are significant factors, but delayed compliance with a minority of a plan's goals cannot serve as the sole basis for terminating parental rights. MM 263 Ga. App. (2003)
Immigration Status
• “Essentially, the termination of the father's parental rights was based on the
possibility that the father could someday be deported and, with her mother's
parental rights also severed, A. P. might be returned to DFACS's custody or
sent to Mexico. When we wield the awesome power entrusted to us in these
cases, our decisions must be based on clear and convincing evidence of
parental misconduct or inability and that termination is in the best interest of
the child, and not speculation about the vagaries or vicissitudes that beset
every family on its journey through the thickets of life.”
• MM 263 Ga. App. 353 (2003)
THANK YOU!!!
• Remember We Are Lawyers - USE LAW