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Procedures and Tips for Appealing Deprivations and Terminations
Darice M. Good, J.D., CWLS
Preserving the Trial Record Appeals begin at Trial
Importance of a Preserving Trial Record
Clean Trial Record
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
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
Motion for New Trial & Appeal
Discuss Appeal with your Client
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)
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
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
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.
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
Deprivation Appeal, ContinuedRequirements 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
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.
Termination Appeal, ContinuedContents 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
Termination Appeal, ContinuedRequirements 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.
Appeals
Oral Argument Rule 28Motion 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
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.
Appeals
TerminationNix, 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.
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.
