Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A21D0292. IN THE INTEREST OF S. S., A CHILD (MOTHER).

In this dependency proceeding, the juvenile court entered an order on March

8, 2021, which (1) denied the mother’s motion for a hearing via video conferencing,

(2) allowed the child to undergo a medical examination under certain conditions, and

(3) directed that the child remain in the custody of the Gwinnett County Department

of Family and Children Services. Thirty-two days later, on April 9, 2021, the mother

filed this counseled application for discretionary review of the juvenile court’s order.

The mother’s counsel has filed a “motion for change of filing date due to

technical issues,” seeking to change her application filing date to April 7, 2021, in

order to render it timely. Counsel assertsthat: on April 7, 2021, she “took affirmative

actions” to ensure her account with this Court’s electronic filing system, eFast,

worked properly, including contacting the Clerk’s office, resetting her password, and

logging into eFast; and on April 8, 2021, she attempted to file the application but was

unable to log into eFast despite multiple attempts. In support, counsel has provided

an e-mail from 4:08 p.m. on April 7, 2021, indicating that counsel had changed her

eFast account password. 

The juvenile court’s order is subject to direct appeal. See In the Interest of A.

T., 309 Ga. App. 822, 824 n. 3 (711 SE2d 382) (2011) (“An order within a

[dependency] proceeding deciding temporary custody of the child is a ‘final order,’

within the meaning of OCGA § 5-6-34 (a) (1), from which a direct appeal lies.”)

(punctuation omitted). Ordinarily, if a party applies for discretionary review of a

directly appealable order, we grant the application under OCGA § 5-6-35 (j). To fall

within this general rule, however, the application must be filed within 30 days of

May 05, 2021
entry of the order to be appealed. See OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App.

582, 582-583 (420 SE2d 393) (1992). The requirements of OCGA § 5-6-35 are

jurisdictional, and this Court cannot accept an application for appeal not made in

compliance therewith. See Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57)

(1989). Because the mother filed her application 32 days after entry of the juvenile

court’s order, whether we have jurisdiction turns on whether her motion for change

of filing date should be granted.

Assuming that this Court has inherent authority to excuse compliance with

jurisdictional requirements, such authority is necessarily limited. See, e. g., Gable v.

State, 290 Ga. 81, 85 (2) (b) (720 SE2d 170) (2011) (in a criminal case, a court may

excuse compliance with such requirements only to the extent necessary to avoid or

remedy constitutional violations). Here, the only evidence of counsel’s apparent

attempt to file the application in a timely manner consists of an e-mail regarding

counsel’s eFast password fromlate in the afternoon on the application’s due date. The

burden is upon counsel, however, to maintain her eFast account and submit filings in

a timely manner. See Court of Appeals Rule 46 (a) (“The filing date and time of

documents filed electronically is determined in accordance with the efiling

instructions. Note that filingsthat fail to comply with Court rules will be rejected and

the filing date will be the date the itemissubmitted in compliance with Court rules.”);

Court of Appeals Rule 46 (c) (“Attorneys are personally responsible for ensuring that

their eFast profile information is up to date.”). If counsel encountered problems with

filing the application on its due date, she had means of recourse, butshe did not make

use of them. See In the Interest of B. R. F., 338 Ga. App. 762, 762 (791 SE2d 859)

(2016) (“While this [C]ourt is authorized to grant an extension of time for the filing

of an application for discretionary appeal, requestsfor extensions must be filed on or

before the due date of the discretionary application. Otherwise, we lack the authority

to grant the request.”) (citation and punctuation omitted); see also Court of Appeals

Rule 46 (a) (“The Clerk of Court may grant a request for exemption from mandatory

electronic filing for good cause shown. An adverse decision by the Clerk of Court

may be appealed by motion via a paper filing.”). In addition, as discussed below, the
mother may be entitled to file an out-of-time appeal1

in order to remedy any

constitutional violation. 

Under these circumstances, changing the application filing date and excusing

compliance with jurisdictional requirements is not warranted. Accordingly, it is

hereby ordered that the motion for change of filing date is DENIED, and this

discretionary application is DISMISSED.

The mother is advised, however, that an indigent parent may be entitled to file

an out-of-time appeal to remedy any ineffective assistance of counsel if that parent

was entitled to appointment of counsel as a matter of due process pursuant to Lassiter

v. Dept. of Social Svcs., 452 U. S. 18 (101 SCt 2153, 68 LE2d 640) (1981). To pursue

such relief, the mother must first direct her request to the juvenile court, which is

tasked with initially determining the mother’s rights. Similarly, any argument based

on statutory ineffective assistance of counsel must first be addressed to the juvenile

court. If the juvenile court grants a request to file an out-of-time appeal, the mother

will have 30 days from the entry of that order to file a notice of appeal. If the juvenile

court denies the request, the mother will have 30 days to file a notice of appeal from

that decision. See In the Interest of B. R. F., 338 Ga. App. at 762-763.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

1 Again, although the mother filed an application for discretionary review of

the juvenile court’s March 8, 2021 order, the order is subject to direct appeal.

05/05/2021