APPEALS Dependency and Terminations. June 20, 2014 Gainesville, Georgia

Transcription

1 APPEALS Dependency and Terminations June 20, 2014 Gainesville, Georgia

2 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.

3 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

4 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

5 Motion for New Trial OCGA et. al. After final judgment, may file Motion for New Trial. Immediately order the transcript. Final judgment is defined in OCGA (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.

6 Motion for New Trial OCGA et. al. OCGA 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.

7 Motion for New Trial OCGA et. al. Grounds for New Trial OCGA to 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

8 Motion for New Trial OCGA et. al. Ineffective Assistance of Counsel Grounds for New Trial 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.

9 Motion for New Trial OCGA 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.

10 Motion for New Trial OCGA 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.

11 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

12 Direct Appeals OCGA IMPORTANT: An appeal from the termination of parental rights is not a direct appeal, it is an application for discretionary appeal 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. NO WAY TO FIX IT.

13 Direct Appeals OCGA Time Limits OCGA and Rule 30 of the Georgia Court of Appeals NOA 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. NOA filed in juvenile court. Docketing of Appeal. Docketed upon receipt of record and transcript. 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.

14 Direct Appeals OCGA 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.

15 Direct Appeals OCGA Motion for Oral Arguments: Must be made separately with filing of brief to be considered. E- FILE, but be careful of rejection! If you file your brief after 4:30pm, but before 11:59pm of the final day to file, there are no clerks there to determine that your brief was complete when filed. If you receive a rejection from the clerks the next day, your brief was not timely filed.

16 Direct Appeals OCGA 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 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.

17 Direct Appeals OCGA 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.

18 Application for Discretionary Appeal OCGA (12) All appeals from the termination of parental rights is by application only. Time Limits OCGA & 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.

19 Application for Discretionary Appeal OCGA (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

20 Application for Discretionary Appeal OCGA (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.

21 Application for Discretionary Appeal OCGA (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.

22 Application for Discretionary Appeal OCGA (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.

23 The Power of Case Law Why is using case law Important? Record Being Overturned Emotional Attachment: Powerful and Moving

24 Wicked

25 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!

26 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.

27 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)

28 Poverty and Instability 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

29 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

30 Poverty and Instability 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

31 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)

32 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)

33 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)

34 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

35 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)

36 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)

37 THANK YOU!!! Remember We Are Lawyers - USE LAW