Citation Codes

Equivalent Citations

citation codes

Docket Number

A01A1942.

Attorney(S)

Christopher J. McFadden, for appellant. Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Philip B. Campbell, Assistant Attorneys General, for appellee.

Judges

Herbert E. Phipps

See more information ...

Smart Summary

Case Summary — In the Interest of J. R. T. and G. F. T., A01A1942 (Court of Appeals of Georgia, July 24, 2001)

Factual and Procedural Background

The Fulton County Juvenile Court terminated the parental rights of the mother of J.R.T. and G.F.T. The mother, who is indigent and represented by court-appointed counsel on appeal, challenged that termination. The juvenile court previously had placed custody of the children with the Fulton County Department of Family and Children Services (DFACS) in part because of the mother's chronic use and abuse of illegal drugs. The mother failed to comply with a case plan that required drug screens and completion of drug treatment, failed to provide financial support, failed to regularly contact the children, and did not maintain stable housing. DFACS was unable to complete a home study because of the mother's lack of cooperation. The children have been in foster care with prospective adoptive parents. At the termination hearing, the mother's trial attorney moved for a continuance due to the mother's unexplained absence; the juvenile court denied that motion but indicated it would entertain a motion to set aside any adverse judgment if good cause were shown (no such motion was filed). On appeal, the mother's counsel raised the denial of the continuance and the sufficiency of the evidence (present unfitness and best interest). Counsel also sought permission to withdraw from the appeal; the State moved for sanctions for a frivolous appeal. The Court of Appeals affirmed the juvenile court's judgment and denied counsel's motion to withdraw.

Legal Issues Presented

Whether the juvenile court abused its discretion by denying the mother's trial attorney's motion for a continuance after the mother's unexplained absence from the termination hearing.
Whether the evidence was sufficient to establish that the mother was presently unfit and that termination of her parental rights was in the best interest of the children.
Whether the appeal was frivolous such that sanctions should be imposed against the appellant and/or appellate counsel.

Arguments of the Parties

Appellant's Arguments (as presented by appellate counsel)

The juvenile court erred in denying the motion for a continuance due to the mother's unexplained absence from the hearing.
The evidence was insufficient to prove the mother is presently unfit and that termination of parental rights is in the children's best interest.
Appellate counsel sought to withdraw, asserting a dilemma created by an appeal that counsel believed might be arguably frivolous.

Appellee/State's Arguments

The State supported termination and, after counsel raised concerns about frivolous appeal sanctions, filed a motion seeking imposition of sanctions for a frivolous appeal. The State relied on the Court of Appeals' prior decision in In the Interest of A. W. to argue that sanctions may be appropriate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In the Interest of A. H. P., 232 Ga. App. 330, 332 (1) (500 S.E.2d 418) (1998).	Standards governing continuances and appellate review of denial of continuance.	The court cited this authority in upholding the juvenile court's denial of the continuance and found no abuse of discretion where the mother had been served and orally informed of the hearing and no timely motion to set aside was filed.
In the Interest of J. M. M., 244 Ga. App. 171 (534 S.E.2d 892) (2000).	Standards relevant to establishing present parental unfitness for termination proceedings.	The court cited this case in connection with the conclusion that the evidence was sufficient to show the mother was presently unfit.
In the Interest of L. M. J., 247 Ga. App. 756 (545 S.E.2d 127) (2001).	Standards regarding best-interest determinations in termination cases.	The court cited this decision as authority supporting the conclusion that termination would be in the children's best interest.
In the Interest of L. S., 244 Ga. App. 626, 628 (1) (536 S.E.2d 533) (2000).	Principles related to best-interest analysis for termination of parental rights.	The court relied on this authority in affirming that termination served the children's best interest.
In the Interest of A. W., 242 Ga. App. 26 (528 S.E.2d 819) (2000).	Circumstances under which appellate sanctions for a frivolous appeal are appropriate—specifically where appellants made "outrageous, unsupported factual assertions" contrary to the record.	The court described A. W. as a case in which sanctions were warranted because of outrageous, unsupported assertions. The court distinguished that case from the present appeal and declined to impose sanctions here.

Court's Reasoning and Analysis

The Court of Appeals addressed each disputed matter in turn:

Continuance: The juvenile court denied the trial attorney's motion for a continuance because the mother had been served with notice of the hearing and had been orally informed of it. The juvenile court also offered to entertain a motion to set aside any adverse judgment if the mother later showed good cause for her absence; no motion to set aside was filed. Applying the applicable standard (cited authority), the Court found no abuse of discretion in denying the continuance.
Sufficiency of the Evidence (present unfitness and best interest): The Court summarized the State's evidence: the mother is the parent of approximately a dozen children, all in state custody; custody of these two children was placed with DFACS in part because of the mother's chronic illegal drug use; she failed to comply with case-plan requirements (drug screens and drug treatment); over the nearly two-and-one-half years between DFACS's assumption of custody and the termination hearing she provided no financial support, did not regularly contact the children, failed to maintain stable housing, and was sufficiently uncooperative that DFACS could not complete a home study. The children were in foster care with prospective adoptive parents. The court concluded that this evidence was sufficient to show that the mother was presently unfit and that terminating her parental rights would be in the children's best interest, citing precedent supporting those elements.
Frivolous-Appeal Sanctions and Counsel's Motion to Withdraw: Appellate counsel asserted a dilemma about pursuing an appeal that might be arguably frivolous and cited In the Interest of A. W., where sanctions were imposed against an appellant and his attorney for making outrageous, unsupported factual assertions contrary to the record. The State filed a motion seeking sanctions here. The Court examined the record and noted that the State's evidence at the termination hearing consisted of eleven and one-half pages of testimony from the DFACS worker and prior deprivation orders of which the juvenile court took judicial notice. The Court emphasized that whether the evidence met all statutory criteria for termination was a legitimate appellate inquiry. Although the Court rejected the appellant's evidentiary challenge on the merits, it determined that this appeal was not frivolous and that imposition of sanctions was not appropriate; indeed, the Court observed that the State's motion for sanctions could itself be considered arguably frivolous. The Court therefore denied counsel's motion to withdraw and refused to impose sanctions.

Holding and Implications

Holding: The Court of Appeals affirmed the Fulton County Juvenile Court's termination of the mother's parental rights and denied appellate counsel's motion to withdraw.

Implications:

The juvenile court's termination judgment stands; the direct effect is that the mother's parental rights to J.R.T. and G.F.T. were terminated and the children remained in foster care with prospective adoptive parents.
The Court declined to award sanctions for a frivolous appeal, distinguishing this appeal from prior cases in which sanctions were appropriate because of demonstrably outrageous, unsupported assertions. The opinion does not announce a new legal rule beyond applying existing precedents to the facts of this case.

Disposition: Judgment affirmed. Smith, P.J., and Barnes, J., concur.

Show full summary ...

IN THE INTEREST OF J. R. T. and G. F. T., CHILDREN

PHIPPS, Judge.

The indigent mother of J. R. T. and G. F. T. appeals the Fulton County Juvenile Court's termination of her parental rights. Her court-appointed appellate counsel has filed a brief complaining of the juvenile court's denial of the mother's motion for a continuance and contending that the evidence is insufficient to show that she is presently unfit or that termination of her parental rights is in the best interest of the children. Appellate counsel also has filed a motion to withdraw from the case. We affirm the judgment appealed and deny the motion.

1. At the beginning of the termination hearing, the mother's trial attorney moved for a continuance due to his client's unexplained absence. The court denied the motion because the mother had been served with notice of the hearing and orally informed of it. The court, however, agreed to entertain a motion to set aside any adverse judgment if the mother showed good cause for her absence from the hearing. No motion to set aside was filed. We find no abuse of discretion in the court's denial of the continuance.

See In the Interest of A. H. P., 232 Ga. App. 330, 332 (1) ( 500 S.E.2d 418) (1998).

2. The evidence showed that appellant is the mother of approximately a dozen children all of whom are in the custody of the state. Custody of J. R. T. and G. F. T. was placed in the Fulton County Department of Family and Children Services (DFACS) in part because of the mother's chronic use and abuse of illegal drugs. She failed to comply with a case plan which required her to submit to drug screens and complete a drug treatment program. Moreover, during the almost two-and-one-half years between DFACS's assumption of custody of the children and the hearing on the petition for termination of parental rights, the mother failed to provide any financial support for the children, regularly contact them, or maintain stable housing. As a result of the mother's highly uncooperative behavior, DFACS was unable to conduct a home study. J. R. T. and G. F. T. are currently in foster care with parents who want to adopt them. Contrary to arguments advanced on appeal, this evidence was sufficient to show that the mother is presently unfit and that termination of her parental rights would be in the children's best interest.

See In the Interest of J. M. M. 244 Ga. App. 171 ( 534 S.E.2d 892) (2000).

See In the Interest of L. M. J., 247 Ga. App. 756 ( 545 S.E.2d 127) (2001); In the Interest of L. S., 244 Ga. App. 626, 628 (1) ( 536 S.E.2d 533) (2000).

3. In his motion to withdraw, counsel asserts that he has been placed in a dilemma by his appointment in an appeal which is arguably frivolous, because he is subject to frivolous appeal sanctions by pursuing the appeal. In arguing that he is subject to sanctions, counsel cites In the Interest of A. W., a termination of parental rights case in which a penalty for frivolous appeal was imposed against the appellant as well as his attorney. Persuaded by counsel's argument and citation of authority, the State has filed a motion against appellant and counsel for imposition of sanctions for frivolous appeal. Counsel, however, overlooks the fact that in A. W. the appellant and his attorney made "outrageous, unsupported factual assertions" that flew in the face of the record. Under those circumstances, we concluded that we would have been remiss in not imposing sanctions for frivolous appeal.

242 Ga. App. 26 ( 528 S.E.2d 819) (2000).

Id. at 30.

This case involves no such conduct. Moreover, in this case, the State's evidence only consists of eleven and one-half pages of testimony given by the DFACS worker assigned to the case, as well as prior unappealed deprivation orders of which the court took judicial notice. Whether the evidence establishes all the statutory criteria which must be met before a termination of parental rights is authorized is a subject of legitimate inquiry. Although we have rejected appellant's evidentiary challenge, we do not deem this appeal to be frivolous. Arguably, the State's motion for imposition of sanctions for frivolous appeal is itself frivolous.

See In the Interest of J. M. M., supra.

Judgment affirmed. Smith, P.J., and Barnes, J., concur.