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In the Interest of B. R. F.

The Court of Appeals erred in finding that an appellate court has the authority to excuse the untimely filing of a discretionary application in a civil parental termination case.

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This appeal comes to us from the grant of a petition for a writ of certiorari. In the underlying case, appellee Mother’s parental rights were terminated on January 14, 2013. Since Mother was indigent, she was represented by appointed counsel during the termination proceedings in the juvenile court per OCGA § 15-11- 98 2012.1 In a letter that was apparently written prior to the issuance of the final termination of rights order,2 trial counsel told Mother that he could not represent her in an appeal, that she was not entitled to indigent defense for the discretionary appeal of a civil case, and that she should contact the public defender if she had questions or needed the appointment of another lawyer.3 On February 13, 2013, Mother, who was acting pro se, filed a notice of appeal in the juvenile court;4 but, months later on May 22, 2013, the juvenile court dismissed the notice of appeal because Mother was required to seek review by discretionary application per OCGA § 5-6-35 a 12.5 On September 16, 2013, Mother, represented by a new attorney, filed in the Court of Appeals an application for an out-of-time discretionary appeal, requesting review of the January 2013 termination of rights order.

The Court of Appeals concluded it had jurisdiction to grant Mother’s application for an out-of-time discretionary appeal. It reasoned that, although Mother’s right to appellate counsel in a civil termination action was statutory and she had no categorical constitutional right to court-appointed counsel as an indigent parent, the state rule was not applied consistent with the requirements of fair procedure guaranteed by the Due Process Clause. Emphasis supplied. In the Interest of B.R.F., 332 Ga. App. 49, 54 1 770 SE2d 912 2015. The Court of Appeals further explained:

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