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.