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Discretionary Appeals from Juvenile Court

TPR Cases:
A 10-year retrospective, and a look to the future

Tom C. Rawlings
Child Welfare Legal Academy
Barton Child Law and Policy Center
Emory University School of Law
April 21, 2015

The Past
Direct Appeals from TPRs- around 50
published decisions per year.
12% reversal rate among those, 2005-2008

303 days on average from notice of appeal in

TPR to final judgment at COA.
Blanket statements of the law
Deference to juvenile court.
Same factors showing deprivation show harm.
Were TPR cases treated as routine?

The Past
Time from TPR to Adoption:
Oct. 2004-Sept. 2005: 1,213 adoptions,
median time from TPR to Adoption was 10.3
Oct. 2007-Sept. 2008: 1,030, median time 9

ASFA: Focus on Permanency

1997 Adoption and Safe Families Act.
Federal incentives to speed up permanency.
(Disincentives IV-E funds)

If child has been in care 15 of the most recent

22 months, DFCS must file TPR petition
unless compelling reason to do otherwise. 42
USC 675 (5)(E)
Incorporated into OCGA 15-11-58 (m), now
OCGA 15-11-233 (a) (1).

ASFA: Focus on Permanency

Push all over the country to speed up
For example, between 2003 and 2014, the
median time from removal to TPR for
adoption cases decreased from 23.4 months to
17.4 months

Many scholars and courts also focused on

expediting appeals in dependency and
TPR cases.

ASFA: Focus on Permanency

Georgia: Committee on Justice for Children
Federally-funded child welfare improvement

When parent-child relationships remain in

legal limbo, parents are unable to provide
security and stability for a developing child.
Appeal process means families and children must
put their lives on hold.

Focus on Permanency
Result: HB 369 (2007)
Amended OCGA 5-6-34 and -35.
TPRs went from being directly appealable
to appealable only through discretionary
application process.
Dependency (deprivation) still directly

Focus on Permanency
Reduce number of unnecessary appeals.
Court of Appeals grants discretionary appeals only
where error appears or where the establishment of
precedent is desirable.

Reduce time to permanency.

Discretionary application filed within 30 days of
judgment, granted within 30 days of application.
60 days is a lot shorter than a year!

Has It Worked?
Granted TPR discretionary appeals are
From an average of 50 published decisions
annually to a total of 109 granted appeals
since 2010 (avg. 22/year)

Median time from TPR to Adoption,

overall, has not changed much.
9 months in 2007-2008 (1,030 adoptions)
9.8 months in 2013-2014 (811 adoptions)

Has It Worked?
A bit difficult to compare given lack of info
regarding unpublished decisions prior to HB
369, but:
304 discretionary applications filed between 2010
and 2014
Applications ruled on in average of 22.8 days of
2005 to 2008: reversal rate among published
decisions: 12%.
2010 to present: Reversal rate among published
decisions is 50%, but taking into account
likelihood of many more unpublished
affirmances, more like 12%.

Has It Worked?
Problems noted by practitioners and the
Court of Appeals.
Applications that dont accurately reflect
transcripts because transcript was not
available when application filed. Appeals
granted improvidently.
Fact that AGs office does not respond to
applications for appeal gives the COA central
staff a one-sided view of the situation.

Reviewing the Cases

Reviewed approximately Court of Appeals
50 TPR opinions published since 2010
Focused on those involving granted
discretionary appeals and those involving the
fact-intensive, Four Factor review.
Former 15-11-94 (b)(4)
Now 15-11-310 (a)(5)

Four-Factor Test
The court must find by clear and convincing
(a) That the child is dependent (formerly
(b) That the parent is the cause of the
dependence or deprivation;
(c) That the dependence or deprivation is likely
to continue or will not likely be remedied; and
(d) That the continued dependency or
deprivation will cause or is likely to cause
serious physical, mental, emotional, or moral
harm to the child.

Four-Factor Test
It is well settled that compelling facts
are required to terminate parental
In re C.G., 324 Ga. App. 110, 115,
749 S.E.2d 411, 415 (2013).

Four-Factor Test
It is well settled that compelling facts
are required to terminate parental
In re C.G., 324 Ga. App. 110, 115,
749 S.E.2d 411, 415 (2013).

Four-Factor Test
2010-2012: COA
19 affirmed, 2 reversed, 1 vacated
for more findings
2013-present: COA
10 of 15 reversed.

Whats going on here?

Four-Factor Test
1. Lack of findings on specific
required factors.
Requiring findings on all four factors,
especially likelihood that dependency will
continue and harm.
I find it troubling that many of our prior
decisions upholding the termination of
parental rights appear to rely . . . On
generalizations without specifically tying
them to particularized findings of fact . . . .

Dillard, J., In the Int. of A.E.S., 310 Ga. App. 667 (2011)

Four-Factor Test
2. Orders that contradict transcripts
Transcript refuted juvenile courts finding
that there was no bond between father and
In the Int. of C.K.S., 329 Ga. App. 226 (2014).

When do you get transcripts?

Who is preparing the orders?
What about delaying the final order until
you have a transcript?

Four-Factor Test
3. Judicial concerns over the significance of
these cases
Parental death penalty high standard
Permanency as a goal is not in and of itself
enough to permanently sever the parent-child
Merely failing a case plan isnt sufficient

Four-Factor Test
Whats required:
Proof of every factor by clear and convincing
Not enough to show parental incapacity; must
also show how the deficit affects the child.
If the COA thinks DFCS or the juvenile court has
not given the parent a fair shot at completing a
case, plan, expect reversal
If the juvenile courts opinion smacks of
discrimination on the basis of poverty, expect
Even where a parent has significant issues that
keep him or her from caring for the child, COA
will not presume that an ongoing relationship
with the parent will harm the child.

Four-Factor Test
In Sum:
The Courts doing nothing that it hasnt been
doing for 20 years.
Same statements of law.
Difference is that because these cases are not
handled by direct appeal, they are no longer
reviewed as routine and are attracting
heightened scrutiny.
Thats my personal opinion, so take it for what its

Recommended Improvements
Dealing with the transcript issue on
How to ensure it reflects the case, avoid
dismissed appeals?
Motion for New Trial to await the transcript?
Agreed-to transcript (substitute)?
Speeding up time to prepare transcript
Florida: 20 days, serve notice on court reporter

Allowing the court to review the transcript

and make corrections and additions to the

Recommended Improvements
Dealing with the transcript issue on
Allowing the court to review the transcript
and make corrections and additions to the
OCGA 9-11-52: Upon motion made not
later than 20 days after entry of judgment,
the court may make or amend its findings
or make additional findings and may
amend the judgment

Recommended Improvements
2. Truly expedited appeals?
States priority on appeal (OCGA 9-10-1)
and COA internal procedures insufficient
NCJFCJ and ABA 215 to 240 days is
Parental Notification Act: Resolved within
two weeks.
Florida: Cases must be decided within 60
days of briefing.

Recommended Improvements
3. Attorneys
Further complicated by B.R.F. (April 14,
Out-of-time discretionary appeal may be granted
where parent denied appellate counsel.

Counseling clients that appeal is not

Avoiding Bar Complaints
Duty of Candor to the Court?
Possible solutions:
Consultation verification
Florida procedures.

Recommended Improvements
4. Improving understanding of the COAs
We dont know what happens to all those
applications that are currently filed.
We should be able to review them and use
them to better understand what the Court of
Appeals considers an error meriting reversal
or requiring precedent
OCGA 15-11-700 and 15-11-704

Tom C. Rawlings
McMillan & Rawlings, LLP
Law | Communications | Consulting

120 N. Harris St.

Sandersville, GA 31082
(478) 552-2467