Procedures and Tips for Appealing Deprivations and Terminations

1. Procedures and Tips for Appealing Deprivations and Terminations Darice M. Good, J.D., CWLS

2. Preserving the Trial Record • Appeals begin at Trial • Importance of a Preserving Trial Record • Clean Trial Record

3. Five Tips for a Clean Trial Record 1. Pre-Trial Motions • Limine, Exclude • Stipulation 2. Clear and Concise Objections • Stand, Objection, Basis, If needed, Further Explanation • Make Sure the Court Makes a Clear Ruling • Ask for the Appropriate Remedy

4. 3. Proffering Evidence if excluded at trial. • Proffer must still be admissible evidence unless stipulated to by opposing counsel. • Witness • Documentary Evidence 4. Miscellaneous Preservation Issues • Sidebar • Exhibits 5. Review Final Order

5. Motion for New Trial & Appeal • Discuss Appeal with your Client

6. Motion for New Trial • Why • Transcript • Ineffective Assistance of Counsel • Buy time to familiarize yourself with the record • Time Limits 5-5-40 • Must be filed within 30 days of the date the final order is filed with the Clerk of Court • Grounds for New Trial 5-5-20 to 5-5-25 • Verdict contrary to the evidence and justice • Verdict against the weight of the evidence • Illegal Exclusion of Admission of Evidence • Newly Discovered Evidence • Other Grounds (Court Discretion)

7. Preparing for New Trial • Read Transcript • Determine Issues (Grounds) • Substantive • Evidence • Admissibility • Sufficiency • Procedural Issues • Ineffective Assistance of Counsel • Hearing on Motion for New Trial • Anything not raised at MFNT is deemed waived for purposes of appeal. • Argument • Cite Case Law • Ineffective Assistance of Counsel • Evidence • Review Final Order

8. Appeal • Deprivation • Direct Appeal 5-6-34 • Notice of Appeal 5-6-38 • Must be filed in Juvenile Court within 30 days of date Adjudication Order or denial of Motion for New Trial is filed with Juvenile Clerk of Court • Extension for Filing Notice of Appeal 5-6-39 • Notice of Docketing COA Rule 13

9. Deprivation Appeal, Continued • 20 days to file Appellant brief in COA from date of docketing COA Rule 23 • Includes weekend. If date of filing falls on Saturday, Sunday or Holiday date of filing is extended to next business day. • Must be filed by 4:30pm • If you sign up for electronic filing you have until 12:00am to file. • Extension for Time for Filing COA Rule 16 – Look at order carefully.

10. Deprivation Appeal, Continued • Contents of Appellant Brief • Statement of Jurisdiction • Judgment Appealed • Part One: Statement of Facts • Part Two: Enumeration of Error • Part Three: Legal Argument and Citation to Authority • Conclusion • Certificate of Service • Appointment Order or Affidavit of Indigency

11. Deprivation Appeal, Continued • Requirements of Brief • COA 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 • Certificate of Service

12. Appeal • Termination • Discretionary Application 5-6-35 • Must file an Application for Discretionary Appeal in COA within 30 days of filing of Termination Order or Order of denial of Motion for New Trial with Juvenile Court Clerk of Court • Cannot be filed online.

13. Termination Appeal, Continued • Contents of Appellant Brief • Statement of Jurisdiction • Judgment Appealed • Exhibits • Part One: Statement of Facts • Part Two: Enumeration of Error • Part Three: Legal Argument and Citation to Authority • Conclusion • Certificate of Good Faith • Certificate of Service • Appointment Order or Affidavit of Indigency

14. Termination Appeal, Continued • Requirements of Brief (Same as Deprivation except Exhibits must be tabbed) • Once Filed, Application will be docketed. Opposing Counsel has ten days to respond after docketing. (Department has standing policy that it does not respond to Applications) • Application will be granted or denied within 30 days of the date of filing the application. 5-6-35 • If Application is granted, appellate process is identical to direct appeal except you must file Notice of Appeal within 10 days of application being granted.

15. Appeals • Oral Argument Rule 28 • Motion For Reconsideration Rule 37 • To be filed with COA within 10 days of decision on direct appeal • Petition for Certiorari to Supreme Court Rule 38 • Notice of Intention to be filed with the COA within 10 days of decision on direct appeal or denial of motion for reconsideration. • Rule 38 to Rule 45 SCOG

16. Appeals Helpful Case Law • Deprivation • E.C. 217 Ga. App 133: No admissible evidence that Mother smoked marijuana and even if there was “DFACS completely failed to establish how this conduct was relevant to a finding of deprivation” • D.S. 217 Ga. App 29: Children living in filthy conditions , but no evidence as to how that environment adversely effected the children. • Harper 159 Ga. App 758: Having only a 9th grade education, living in a trailer without water or toilet facilities in the rear of her mothers yard, not holding a steady job m and having a husband in prison was insufficient to show deprivation. • D.S. 283 Ga. App. 767: Stepfather’s verbal abuse and criticism of child was not sufficient to show Mother had deprived the child. • C.L.Z. 283 Ga. App. 247: Grandmother yelling at child, slammed child’s head in car. Evidence showed that this was an isolated, albeit inappropriate outburst by the grandmother, which was not sufficient to show deprivation. • D.N.K. 282 Ga. App. 430: No evidence of a medically verifiable mental deficiency that renders mother unable to provide for the needs of her children. • Suggs, 249 Ga. 365: Mother was immature, had economic hardships, child head behavioral problems, but insufficient evidence to show deprivation. • C.L.C., 299 Ga. App. 729: Petition alleged Mother had drug addiciton and she left child with other people for periods of time. Court stated that the Pettiion failed to state sufficient allegations of deprivation. • KS 271 Ga. App. 891: No Present Evidence that the child is deprived. • C.D.E. 248 Ga. App. 756: Only basis for deprivation was Mother’s boyfriend’s violence against her.Evidence undsiputed that they were no longer living together. «Thankfully, we have no yet reached a point where the State is authorized to take a child away from an admittedly fit mother based solely on the mere possibility that she may have future contact with someone who has previously beaten her.

17. Appeals • Termination • Nix, 236 Ga. 794: 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.” • Deprivation • Harper 159 Ga. App 758: Having only a 9th grade education, living in a trailer without water or toilet facilities in the rear of her mothers yard, not holding a steady job m and having a husband in prison was insufficient to show deprivation. • D.L.T.C. 299 Ga. App. 765: Past unfitness alone is not sufficient for present deprivation. • Ray, 155 Ga. App. 81: Must show parental unfitness caused either by the intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. • Patty, 154 Ga. App. 455: Poverty and instability in the Mother’s living arrangements is not profoundly detrimental and egregious parent conduct to justify termination of parental rights. • M.M. 263 Ga. App. 353: The possibility that the Father may someday be deported is not sufficient evidence to terminate parental rights.

18. Appeals • Termination, Continued • Not Likely to Continue • C.T. 286 Ga. App. 186: Poverty alone is not a basis for deprivation. Mother’s progress on case plan shows it is unlikely that the deprivation will continue. • S.M.W. 287 Ga. App. 288: Progress on case plan shows it its unlikely that the deprivation will continue. • K.D.E. 288 Ga. App. 520: Recent improvements and progress on case plan unlikely that the deprivation will continue. • Harm to Child • K.J. 226 Ga. App. 303: No evidence presented that the child likely to suffer harm if the termination were denied. • J.M. 251 Ga. App. 380: Evidence presented was insufficient for a finding of harm. No one testified that the child was thriving in foster care, that the child would suffer foster care drift, or that the children would be affected by a continued relationship with their mother. • D.F. 251 Ga. App. 859: No expert testimony as to harm, No testimony that Mother’s relationship with children was causing harm, present inability to care for child does not equal harm to child. • J.S.B. 277 Ga. App. 660: COA has repeatedly overturned cases for lack of harm. • Other Case Law • K.J. 226 Ga. App. 303:A dry recitation that certain legal requirements have been met is insufficient to satisfy requirements of the law.

19. Appeals Thank you. daricemgood@yahoo.com