| Improving the Appellate Process |
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Lead: Senior Judge James Morris
“Timeliness is a consideration in the resolution of all court disputes, but it is particularly important when children are involved and forced to remain in unstable, and perhaps violent, situations.” When parent-child relationships remain in legal limbo, parents are unable to provide security and stability for a developing child. The harm caused by such insecurity and lack of permanency is further exacerbated when a child forms new bonds with a foster/adoptive family and is later removed from the care of those parental figures. Under such circumstances, a child’s “emotional attachments become increasingly shallow and indiscriminate.” The legal bond of adoption can provide permanency to a child and help to remedy the lack of connection. However, when a termination of parental rights order is appealed, the child and all others involved with the case essentially have their lives put on hold. No adoptions can go forward until the appeal is resolved and the chance of disruption of a placement in a pre-adoptive home is greater than in one where the adoption has been legalized. Georgia’s data shows children are left in unstable placements due to both delays in preparation of the record and delays once the appeal has been docketed. From 2003 to 2006, about one-fifth of the children whose TPR cases were appealed were left in limbo for more than a year.
The Improving Appellate Process project will seek to expedite the appeals process for termination of parental rights matters and to enhance attorney involvement with appeals. Recognizing the tremendous harm done to children who are left in limbo without a permanent home, states across the country have recently addressed this matter in a variety of ways. This effort will seek to benefit from that experience by examining other states’ methods and determining those which are most applicable to Georgia’s process. J4C committee members and staff will identify specific steps that might be taken by the judicial system to decrease the length of time taken for TPR appeals, thereby improving permanency and positive outcomes for children in state custody.
Strategies – Determine the specific points in the appellate process that halt or slow down. The initial findings point to transcript preparations, extensions, filing problems, docketing conflicts.
Strategies – Examine court rules in Ohio, Alaska, Kentucky designed to shorten time frames. Tennessee and Texas instituted procedures to expedite TPR cases and now they have the fastest appellate decision time in the country. Massachusetts instituted a one justice review system decreasing appeal times by an average of 2.1 months. Iowa revised and simplified appellate process resulting in reduction in average time of TPR to final appellate order from 397 days to 90.
Strategies – Simply informing the judicial system participants of the crucial role they play in improving outcomes for children can bring change. Multiple presentations, communications with court reporters, clerks, attorneys and judges may result in increased attention and voluntary expedition of cases.
Progress:
The J4C Committee was instrumental in getting a law passed (Act 264) during the 2007 legislative session to change the appellate process for TPR appeals from direct appeal to discretionary appeal. Discretionary appeals require an application for appeal to be filed with the appellate court within 30 days from the entry of the lower court’s order. The opposing party then has up to 10 days to respond and the appellate court has another 30 days to determine if the application will be accepted or denied, for a total of 70 days in process. Cases that are accepted begin the normal appellate process and will not see any time savings under the new law. In fact, they could experience slightly longer times due to the added application process. Historically, however, many TPR appeals in Georgia have rested on the sole claim of insufficiency of the evidence. Given that Georgia’s appellate court uses a high standard of review that gives deference to the trial court, few such challenges are successful. It was the intent of HB 369 (now Act 264) that those cases that lack merit will have their application for appeal denied and will reach resolution much more quickly than in the past. In the end, for those cases that are not accepted, the TPR is final a maximum of 70 days after the trial court order. In 2006, prior to implementation of HB 369, the average time from notice to final judgment was 303 days.
References:
Keith, A.L. & Flango, C.R. (2002). Expediting Dependency Appeals: Strategies to Reduce Delay. At p. 1. State Justice Institute and National Center for State Courts.
Gordon, R.M., Drifting Through Byzantium: The Promise and Failure of the Adoption and Safe Families Act of 1997, 83 Minn. L. Rev. 637, 655 (1999); Eisen, C.R. Using a “Brief Case Plan” Method to Reconcile Kinship Rights and the Best Interests of the Child When an Unwed Father Contests a Mother’s Decision to Place an Infant for Adoption, 23 Nova L. Rev. 339, 356 (1998).
Goldstein, J., et. al., The Best Interests of the Child: The Least Detrimental Alternative 6 (1996) at 19.
Calculations are based on data provided by the Georgia Appellate Courts for all cases reported between 01/01/2003 and 12/31/2006. The time measured is from Notice of Appeal to Final Judgment.
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