GA Code § 15-11-262 (2021)
2021 Georgia Code|Title 15 - Courts|Chapter 11 - Juvenile Code|Article 4 - Termination of Parental Rights|Part 1 - General Provisions|§ 15-11-262. Right to Attorney and Appointment of Guardian Ad Litem

  A child and any other party to a proceeding under this article shall have the right to an attorney at all stages of the proceedings under this article.   The court shall appoint an attorney for a child in a termination of parental rights proceeding. The appointment shall be made as soon as practicable to ensure adequate representation of such child and, in any event, before the first court hearing that may substantially affect the interests of such child.   A child's attorney owes to a child the duties imposed by the law of this state in an attorney-client relationship.   The court shall appoint a guardian ad litem for a child in a termination proceeding; provided, however, that such guardian ad litem may be the same person as the child's attorney unless or until there is a conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem.   The court shall appoint a CASA to serve as guardian ad litem whenever possible, and a CASA may be appointed in addition to an attorney who is serving as a guardian ad litem.   The role of a guardian ad litem in a termination of parental rights proceeding shall be the same role as provided for in all dependency proceedings under Article 3 of this chapter.   If an attorney or guardian ad litem has been appointed to represent a child in a prior proceeding under this chapter, the court, when possible, shall appoint the same attorney to represent such child in any subsequent proceeding.   An attorney appointed to represent a child in a termination proceeding shall continue the representation in any subsequent appeals unless excused by the court.   Unless authorized by the court, neither a child or a representative of a child may waive the right to any attorney in a termination proceeding.   A party other than a child shall be informed of his or her right to an attorney prior to the adjudication hearing and prior to any other hearing at which a party could be subjected to the loss of residual parental rights. A party other than a child shall be given an opportunity to:   Obtain and employ an attorney of the party's own choice;   To obtain a court appointed attorney if the court determines that the party is an indigent person; or   Waive the right to an attorney.       (Code 1981, §15-11-262, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-16/SB 364.)   Cross references.   - Cases in which public defender representation required; timing of representation; juvenile divisions; contracts with local governments, O.C.G.A. § 17-12-23.   Law reviews.   - For article, "A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings," see 10 Ga. St. B. J. 12 (2004). For article addressing formal advisory opinion on attorney serving as guardian ad litem and legal counsel in a termination of parental rights proceeding, see 15 (No. 7) Ga. St. B. J. 88 (2010). For comment, "Seen But Not Heard: Advocating for the Legal Representation of a Child's Expressed Wish in Protection Proceedings and Recommendations for New Standards in Georgia," see 48 Emory L. J. 1431 (1999).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under pre-2000 Code Section 15-11-85, and pre-2014 Code Section 15-11-98, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.   Judgment vacated because no attorney appointed.    - In any case involving termination of parental rights in which no attorney was appointed by the trial court to represent the interests of the child, the judgment must be vacated and the case remanded to the juvenile court for retrial. In re J.D.H., 188 Ga. App. 466, 373 S.E.2d 279 (1988) (decided under former O.C.G.A. § 15-11-85).    When, in a termination of parental rights proceeding, indigent counsel appeared with the child's mother, but was unsure if the mother qualified for the counsel's services, it was error for the trial court to dismiss the indigent counsel and require the mother to proceed without an attorney without determining if the mother was indigent at the time of the hearing because the entire legislative scheme written into the pertinent provision of the Juvenile Code was intended to provide an indigent parent with effective representation at all stages of any proceeding involving the termination of parental rights under former O.C.G.A. § 15-11-98(b) (see now O.C.G.A. § 15-11-262). In the Interest of A.M.A., 270 Ga. App. 769, 607 S.E.2d 916 (2004) (decided under former O.C.G.A. § 15-11-98).    Court is not required to appoint an attorney in adoption proceedings since the adoption statutes did not require the appointing of an attorney for the child. Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989) (decided under former O.C.G.A. § 15-11-85).   Appointing counsel for child.    - It was not error, in a termination of parental rights proceeding, for the trial court not to appoint counsel for the child, under former O.C.G.A. § 15-11-98(a) (see now O.C.G.A. § 15-11-262), in addition to the child's guardian ad litem, as the trial court specifically found that the guardian ad litem discharged those duties as the child's counsel. In the Interest of A.M.A., 270 Ga. App. 769, 607 S.E.2d 916 (2004) (decided under former O.C.G.A. § 15-11-98).   Denial of continuance to obtain counsel.    - In a termination of parental rights case when the trial court denied one parent's motion for a continuance to obtain counsel because the parent had already been given six weeks' notice of the hearing and instructions on how to apply for appointed counsel, reversal was not required; even if the trial court erred in not continuing the hearing, the parent did not show what, if any, harm the parent suffered from the absence of counsel. In the Interest of J.A.S., 287 Ga. App. 125, 650 S.E.2d 788 (2007), overruled on other grounds, In re J.M.B., 296 Ga. App. 786, 676 S.E.2d 9 (2009) (decided under former O.C.G.A. § 15-11-98).   Dual appointment not improper.    - In a termination of parental rights case, there was no merit to a mother's argument that it was error to appoint the same person as the children's attorney and as their guardian ad litem (GAL) because the attorney's obligation to advocate for the children's desire to be returned to the mother conflicted with the requirement that the GAL advocate in the best interests of the children. Such a dual appointment had been expressly approved by the legislature in enacting former O.C.G.A. § 15-11-98(a) (see now O.C.G.A. § 15-11-262) and involved no conflict of interest because the fundamental duty of both a GAL and an attorney was to act in the best interests of the party represented; furthermore, as the mother's argument was an implicit admission that being returned to her was not in the children's best interests, even if a separate attorney had been appointed to represent the expressed desires of the children, the trial court would have been obligated by law to terminate the mother's parental rights. In the Interest of A.P., 291 Ga. App. 690, 662 S.E.2d 739 (2008), cert. dismissed, 2008 Ga. LEXIS 777 (Ga. 2008) (decided under former O.C.G.A. § 15-11-98).   Children adequately represented.    - Termination of the mother's parental rights was proper because the mother's contention that the children's interests were not adequately represented before the juvenile court since the children were not represented by an attorney was without merit. The children were represented by an appointed guardian ad litem, which was specifically provided for by the legislature in former O.C.G.A. § 15-11-98(a) (see now O.C.G.A. § 15-11-262). In the Interest of R. J., 308 Ga. App. 702, 708 S.E.2d 626 (2011) (decided under former O.C.G.A. § 15-11-98).   Putative father entitled to counsel.    - Putative father clearly fell within the general definition of a "party" for the purposes of the paternity hearing mandated by former O.C.G.A. § 15-11-83 (see now O.C.G.A. §§ 15-11-281,15-11-282, and15-11-283) and was therefore entitled to appointed counsel. Wilkins v. Georgia Dep't of Human Resources, 255 Ga. 230, 337 S.E.2d 20 (1985) (decided under former law).   No error in failure to advise mother of right to appointed counsel.    - Biological mother's contention that the mother was unaware of the option to request counsel as an indigent failed as the adoption statutes did not require the appointing of an attorney for the mother and, thus, the trial court did not err in failing to advise the biological mother as to any rights to be appointed an attorney. Steele v. Steele, 346 Ga. App. 196, 816 S.E.2d 327 (2018).   Right to counsel not waived.    - In a proceeding for termination of parental rights, an indigent parent did not waive the right to appointed counsel in a knowing, intelligent, and voluntary manner simply because the parent failed to request counsel prior to the hearing as directed by the court. The court's denial of the parent's request for counsel was reversible error. In re J. M. B., 296 Ga. App. 786, 676 S.E.2d 9 (2009) (decided under former O.C.G.A. § 15-11-98).   Right to appeal.    - In a child custody action, if the court appointed a guardian ad litem to represent the minor, the minor was in effect made a party to the action and had standing through the guardian ad litem to appeal. Miller v. Rieser, 213 Ga. App. 683, 446 S.E.2d 233 (1994) (decided under former O.C.G.A. § 15-11-85).    Cited in Dell v. Dell, 324 Ga. App. 297, 748 S.E.2d 703 (2013).   RESEARCH REFERENCES   ALR.   - Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.   Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 92 A.L.R.5th 379.