GA Child Attorney Trial Notebook:: A Brief Guide to Appellate Practice and Philosophy For Guardians Ad Litem

a. When the juvenile court appoints a guardian pursuant to OCGA §§ 15-11-9 or 15-11-98, the guardian ad litem has standing to bring an appeal of the Court's order. Miller v. Reiser, 213 Ga. App. 683 (526 SE2d 76) (1999).

b. An appeal must be from a written order signed by the judge and filed with the clerk. Titelman v. Stedman, 277 Ga. 460, 461 (2003).

c. "In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded except in the discretion of the judge; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court." O.C.G.A. § 15-11-3.

Q: How does OCGA § 15-11-3 statute interact with OGCA §§ 5-6-34 (a) (1) ("All final judgments are directly appealable") and 5-6-35 (a) (2) (appeals in child custody cases require an application for discretionary appeal)?

1. Court of Appeals certainly takes direct appeals on cases involving termination of parental rights.

Deprivation and placement of temporary custody with DFCS with non-reunification case plan.

"Because deprivation cases are neither child custody nor domestic relations cases within the purview of O.C.G.A. § 5-6-35 (a) (2), we hold that a right of direct appeal lies from such orders."

See "Appealability of Interlocutory or Pendente Lite Order for Temporary Child Custody," 82 ALR 5^th 389.

II. When Should the GAL Appeal? Questions to Ask Yourself to Determine What's in the Child's Best Interests.

Q: In In the Int. of J. E. E., 235 Ga. App. 247 (1998), the guardian ad litem -- on the four-year-old child's behalf -- appealed the court's order denying termination of the parents' rights. In a footnote, the Court stated: "In the circumstances of this case, particularly in light of J. E. E.'s tender years, it is difficult to imagine that his desires are reflected in the decision to appeal the trial court's order." What, if anything, strikes you as odd about that footnote?

a. Consider the standard of review. Quite often, appellate courts will defer to the factfinding done in the trial court, so no matter how incredible the witnesses may have been, the Court may not be willing to disturb the trial judge's findings of fact. For example:

"On appeal of a juvenile court's order terminating a parent's rights in his or her child, we do not weigh the evidence or determine witness credibility, and we view the evidence in a light most favorable to the juvenile court's order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent's rights should have been terminated." (Citation and punctuation omitted.) In the Interest of G. B., 263 Ga. App. 577 (1) (588 SE2d 779) (2003).

"On appeal from a finding that a child is deprived, "we review the evidence in the light most favorable to the juvenile court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the (child was) deprived. ... This Court neither weighs evidence [*467] nor determines the credibility of witnesses; rather, we defer to the trial court's fact-finding and affirm unless the appellate standard is not met." In the Int. of A. B., 263 Ga. App. 697 (2003).

b. Consider the peculiar deference appellate courts often give to bench trials. While improper testimony heard before a jury may cause reversible error, appellate courts often assume that judges presiding over a bench trial receive and consider only the "good" evidence and throw out the bad in making their decision. For example:

"Although a portion of Brown's testimony was hearsay, the juvenile court indicated that it would not place probative value on hearsay testimony. "The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff." (Citation and punctuation omitted.) In the Interest of C. M., 258 Ga. App. 387, 388 (2) (574 SE2d 433) (2002). Furthermore, Brown's hearsay testimony was duplicative of Davis's testimony as to S. A. B.'s initial educational problems and eventual improvement. Even if the juvenile court had improperly considered the hearsay evidence, such consideration will not constitute reversible error where "the evidence introduced at the hearing, not considering the [inadmissible hearsay], was sufficient to support the findings and conclusions of the juvenile court judge." In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979). As shown below, the evidence was sufficient to support the juvenile court's findings absent Brown's hearsay testimony." In the Interest of S. A. B., 2004 Ga. App. LEXIS 1269, 8-9 (Ga. Ct. App., 2004)

c. Consider the Three W's of Appellate Practice: "Waiver," "Whatever," and "Who Cares?" The timeworn truth is that to obtain reversal, an appellant must show not only error but also harm. Thanks to this truth, good appellate practice really begins at the trial level, and even error-laden cases should probably not be appealed unless the error caused harm. The "no harm, no foul" rules primarily exhibit themselves three ways:

1. Waiver: Where the party complaining of the error failed to raise it in the trial court and give the trial judge an opportunity to correct, he or she cannot complain on appeal.

2. "Whatever." Where the appellant argues the trial court erred in basing its ruling on a certain finding or principle, but there is another, unchallenged reason for the ruling, the error will not cause reversal. These little nuggets often begin with the word "pretermitting," but the more modern (and juvenile) phrase "Whatever" fits just as well For example:

"On appeal, the father argues that the juvenile court erred in approving non-reunification because the evidence was insufficient to show that the reunification of the family would be detrimental to the three girls. Specifically, he argues that, contrary to the factual finding in the court's order, there was no evidence that he had a physical disability which rendered him incapable of caring for his children.

Pretermitting whether there is medically verifiable evidence of a debilitating physical disability, O.C.G.A. § 15-11-58 (h) presumes that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94; or (4) Any of the circumstances set out in paragraph (4) of subsection (a) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify.

In its order terminating reunification, the juvenile court found that although the father had completed many of the case plan goals, he failed and refused to obtain drug screens when requested by the Department. In its amended order terminating reunification and transferring permanent custody, the trial court found by clear and convincing evidence pursuant to O.C.G.A. § 15-11-94 (b) (4) (B) (ii), that the father has a history of chronic unrehabilitated abuse of intoxicating liquors or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the children."

Our review shows the finding of the juvenile court that the father has a history of unrehabilitated abuse of alcohol or drugs is supported by clear and convincing evidence. The father had several positive drug screenings, and five missed drug screenings, which, according to DFACS policy, are viewed as positive. The caseworker also testified that the father appeared to be intoxicated during several of his visits with the children. Finally, the father also admitted to the psychologist that he had in the past used alcohol and marijuana." In the Interest of S.A., 263 Ga. App. 610, 613-614 (Ga. Ct. App., 2003).

3. Who Cares? Even if there is error, there is no cause for reversal if the error caused no harm. Thus, where illegally admitted evidence was duplicative or cumulative of evidence already admitted, or where it related to an issue not central to the case, the Court may simply say it was harmless and disregard it.

d. Consider the fact that when it comes to juvenile cases, the Court of Appeals has a bit of an odd record. Often in recent years, the Court has reversed termination of parental rights cases based especially on the lack of a showing that the deprivation was likely to continue or likely to cause the child harm. In other cases, critics have charged that the Court has jumbled deprivation law and termination of parental rights law, or taken over the fact-finding role of the juvenile court judge. In many of these cases the Court quotes the basic principle that "While we are reluctant to reverse the juvenile court's determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship." In the Int. of A. A., 252 Ga. App. 167 (2001). For other examples:

2, 3. What Will the Child Gain by My Appeal, and What are the Possible Costs of Delay?

Guardians ad litem must remember that while the 9 to 12 months required to appeal a case isn't much compared to the delays seen in other states, it's a lifetime for a child. For example, if reunification seems the proper goal but the court orders otherwise, would it be better to appeal that decision or to work with the parents on completing their case plan even though they're not required to do so? If the juvenile court has refused to terminate the parents' rights, would it be better to appeal that case -- leaving the child to an uncertain future for the next year or two -- or try to work out a compromise that will make the child's life as fulfilling as it can be under the circumstances?

While the juvenile courts work hard to dispose of cases quickly, and while juvenile cases are expedited in our appellate courts, these matters still take time. Take for example a case presided over by a juvenile court judge in east central Georgia who will remain nameless: In July 2002, this judge terminated the rights of the parents of JBC and AHP. A party appealed, raising not the termination issue but only the issue of whether the children should have been placed with relatives. In April 2003, the Court of Appeals reversed the trial judge on that issue but did not ORDER him to place the children with the relatives; rather, he was required to reconsider his prior decision. That decision again denied the placement with relatives, and his order was again appealed. Finally, in September 2004, his original order placing the children for adoption was affirmed. In the interim, the children had gone two long years with no parents. See In the Int. of J.B.C., 261 Ga. App. 7 (2003); appeal following remand, (Case No. A04A1095 decided Sept. 10, 2004).

III. What Can I Do as a Guardian Ad Litem To Ensure Appeals Are Handled Properly?

a. Prevent Needless Delays in the Child's Case By Making Sure the Evidence at the Trial/Hearing Is Complete and Admissible and the Appellate Record is "Clean."

So often in recent years, the Court of Appeals has reversed neglect cases -- especially termination of parental rights cases -- on the basis that the evidence is insufficient to show all four factors of the OCGA 15-11-94:

(i) The child is a deprived child, as such term is defined in Code Section 15-11-2;

(ii) The lack of proper parental care or control by the parent in question is the cause of the child's status as deprived;

(iii) Such cause of deprivation is likely to continue or will not likely be remedied; and

(iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

Generally, the Court of Appeals has "hung up" on the final two factors. For example:

"The third criteria requires proof that the cause of the deprivation is likely to continue. "[E]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required." (Citations and punctuation omitted; emphasis in original.) In the Interest of K. M., 240 Ga. App. 677, 680 (523 S.E.2d 640) (1999). "But the trial court is entitled to consider evidence of the mother's past actions in determining whether the deprivation is likely to continue. It is not bound by mere promises to do better in the future." (Citations omitted.) In the Interest of A. M., 259 Ga. App. 537, 542 (578 S.E.2d 226) (2003).

We find the evidence of present unfitness to be problematic. Although Melissa has not taken any steps to stay in contact with the children, she was ordered not to have contact with them. Furthermore, there is no evidence that the children were deprived while in their mother's care prior to her marriage to Todd, and Todd, the primary cause of the original deprivation, is no longer in contact with Melissa or the children. See, e.g., In the Interest of V. E. H., 262 Ga. App. 192, 197 (2) (585 S.E.2d 154) (2003) (physical precedent only). Indeed, Melissa now lives in Florida, where she would like to take the children. But, Melissa's attitude about paying child support is irresponsible, and her failure to pay breaches her legal duty to do so. The fact that Melissa is living with her fiancée raises questions but no home study has been performed. Cf. In the Interest of K. J., 226 Ga. App. 303, 305 (1) (486 S.E.2d 899) (1997) (that mother lived with fiancée and had not set a date for marriage was not determinative). GA(1)(1) The daughter is clearly troubled but the Department did not present evidence that her condition was caused by Melissa.

Moreover, the record contains insufficient evidence to support the finding that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. There is very little testimony to support this finding with regard to J. H. and none with regard to P. H. See, e.g., In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 S.E.2d 533) (2001) (no testimony that the children would be seriously affected by the mother continuing to have a parental relationship with the child); In the Interest of K. J., 226 Ga. App. at 309 (2) (b) (neither caseworker testified that the children were likely ] to suffer serious harm if parental rights were not terminated, nor was there expert testimony on point). Essentially the only evidence presented was the suggestion that the fact that Melissa was living with a fiance would harm the child. Accordingly, clear and convincing evidence was not shown to support a finding that the children were likely to suffer serious physical, mental, moral, or emotional harm as a result of a continued relationship with their mother."

At a minimum, the guardian ad litem has a responsibility to ensure that the child has to go through only one termination of parental rights hearing. Therefore, when it comes to the sufficiency of the evidence, the guardian must either (1) ensure that the evidence presented proves all four factors of the test, or (2) argue strenuously to the juvenile court that the evidence presented does NOT prove the case and that the court, by ruling otherwise, runs the risk of having the case reversed and further prolonging the child's misery. In other words, the guardian ad litem needs to serve as another "check and balance" between the zealous advocacy of the SAAG and of the parents' defense counsel.

Because the guardian ad litem has a duty to prevent needless delays in the child's case, he or she must also serve as a check on the admissibility of evidence, raising the issue with the court whenever a party attempts to introduce inadmissible evidence, or arguing for the admissibility of evidence the court seems inclined to reject.

b. Raise Appellate Issues When Neither DFCS nor Defense Counsel Do So, and Take Time to Educate the Appellate Court on the Facts and the Law.

The guardian ad litem's position as the child's attorney puts him or her in a unique position to be heard by the appellate judges as a "neutral" advisor in the midst of two opposing advocates. In general, if one party files an appeal, the natural reaction of the opposing party is merely to react to those arguments. Occasionally, a broader view -- which the guardian ad litem can sometimes take in an appellate brief -- will help ensure a good appellate decision.

In In the Int. of A.B., 263 Ga. App. 697 (2003), the Court dealt with the issue of whether A.B. was deprived. But the Court of Appeals based its decision not on whether the child was "without proper parental care and control" but on the mother's argument that the State had failed to show the deprivation was likely to continue. In doing so, the Court appears to have confused the standards for proving deprivation with the standards for proving a termination of parental rights case. Might a good explanatory brief from a guardian have helped here?

c. Make Sure the Court's Order Is Correct and Completely Addresses All Necessary Elements of the Case.

Juvenile Court orders must contain explicit findings of fact and conclusions of law; otherwise, delay in the case may result from the appellate court's reversing the case and remanding for clearer findings. In the Int. of R. S., 255 Ga. App. 756, 761 (2002). If the Court makes an error in its order, or doesn't fully address an issue, the guardian ad litem can request a modification of the findings within 20 days of their entry. See OCGA § 9-11-52 (c).

1. Order silent on key issues: In In the Interest of M.D.F., 263 Ga. App. 50, 50-52 (2003), the juvenile judge entered a termination order that was silent as to some of the factors. The Court of Appeals reversed, not on the merits but with the requirement that the Court re-enter an order properly addressing each factor. "An order terminating parental rights upon a mere dry recitation of these criteria is insufficient," the Court wrote. The Court provided that the parents could again appeal from that revised order.

2. Mistakes of fact in orders: "The mother also contends that the trial court's order terminating her parental rights must be reversed because the order contains a misstatement of the guardian ad litem's recommendation concerning her parental rights. The guardian ad litem recommended that the parental rights of the children's fathers be terminated but recommended that the mother's parental rights not be terminated. The trial court's order stated that the guardian ad litem `recommended that the parental rights of the mother and the fathers be terminated as it is in the best interests of the minor children.'

"A party seeking a reversal must show not only error, but injury arising from the error alleged." In the Interest of D. S. R. A misstatement in a finding of fact is not reversible error unless the appellant can show that the misstatement was harmful. Id. The trial court's order terminating the mother's parental rights contained 28 findings of fact. The finding regarding the recommendation of the guardian ad litem is the only finding of fact challenged by the mother. The recommendations of the guardian ad litem, while only one factor, may be sufficient to influence the trial court's final ruling. Here, we do not know if the trial court based its ruling on this mistake in fact, or if this was simply a typographical error. Given the importance of the issue involved here, we must let the trial court address this fact. We therefore vacate the trial court's order and remand the case to the trial court for a review of its order and its reissuance, consistent with its findings based on the facts of this case. The mother is authorized to appeal from the new ruling within 30 days thereof.

Q: Does the GAL ever have to step aside because he or she has become "too much" of an advocate?

"The court's appointment in this case of an interested party as the child's guardian ad litem conflicts with this legislative aim of safeguarding a child's interests by providing the child with representation separate from any other interest in the litigation. The advocate for the termination is not a proper guardian ad litem."

b. Locker and Dorris, "A Child's Right to Legal Representation in Georgia Abuse and Neglect Proceedings," 10 Ga. Bar. J. 12 (May 2004),

c. "Appealability of Interlocutory or Pendente Lite Order for Temporary Child Custody," 82 ALR 5th 389.

In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded except in the discretion of the judge; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court.

(a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35;

(2) All judgments involving applications for discharge in bail trover and contempt cases;

(4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions;

(5) All judgments or orders granting or refusing applications for attachment against fraudulent debtors;

(5.1) Any ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-184;

(6) All judgments or orders granting or refusing to grant mandamus or any other extraordinary remedy, except with respect to temporary restraining orders;

(7) All judgments or orders refusing applications for dissolution of corporations created by the superior courts; and

(8) All judgments or orders sustaining motions to dismiss a caveat to the probate of a will.

(b) Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, but no certification of such copies by the clerk of the trial court shall be necessary. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case in the manner prescribed by Code Section 5-6-32, except that such service shall be perfected at or before the filing of the application. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment.

(c) In criminal cases involving a capital offense for which the death penalty is sought, a hearing shall be held as provided in Code Section 17-10-35.2 to determine if there shall be a review of pretrial proceedings by the Supreme Court prior to a trial before a jury. Review of pretrial proceedings, if ordered by the trial court, shall be exclusively as provided by Code Section 17-10-35.1 and no certificate of immediate review shall be necessary.

(d) Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous. Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.

(a) Appeals in the following cases shall be taken as provided in this Code section:

(1) Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers' Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de novo proceedings; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations;

(2) Appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony, awarding or refusing to change child custody, or holding or declining to hold persons in contempt of such alimony or child custody judgment or orders;

(3) Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less;

(4) Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34;

(6) Appeals in all actions for damages in which the judgment is $10,000.00 or less;

(7) Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;

(8) Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;

(10) Appeals from awards of attorney's fees or expenses of litigation under Code Section 9-15-14; and

(11) Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal.

(b) All appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.

(c) The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.

(d) The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.

(e) The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The response may point out that the decision of the trial court was not error, or that the enumeration of error cannot be considered on appeal for lack of a transcript of evidence or for other reasons.

(f) The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed.

(g) Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.

(h) The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.

(i) This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.

(j) When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.

Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal. The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; and, if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed. The appeal shall not be dismissed nor denied consideration because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court. In addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal. Approval by the court is not required as a condition to filing the notice. All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal in the manner prescribed by Code Section 5-6-32

(a) A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion. In civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal. The notice of cross appeal shall set forth the title and docket number of the case, the name of the appellee, the name and address of his attorney, and a designation of any portions of the record or transcript designated for omission by the appellant and which the appellee desires included and shall state that the appellee takes a cross appeal. In all cases where the notice of appeal did not specify that a transcript of evidence and proceedings was to be transmitted as a part of the record on appeal, the notice of cross appeal shall state whether such transcript is to be filed for inclusion in the record on appeal. A copy of the notice of cross appeal shall be served on other parties of record in the manner prescribed by Code Section 5-6-32.

(b) Where a cross appeal is filed, only one record and, where specified, only one transcript of evidence and proceedings need be prepared and transmitted to the appellate court; but the cross appellant may, at his election, require that such a separate record (and transcript, if required) be transmitted. Where a cross appeal is filed and only one record (and transcript, where required) is sent up, the court shall by order provide for the division of costs therefor between the parties if they are unable to do so by agreement.

(c) Notwithstanding subsection (a) of this Code section, where either the state or the defendant wishes to appeal any judgment, ruling, or order in the pretrial proceedings of a criminal case involving a capital offense for which the death penalty is sought, such appeal shall be brought as provided in Code Section 17-10-35.1.

(a) Within five days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court, together with his certificate as to the correctness of the record. Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed. The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter's original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal. The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record.

(b) Where the accused in a criminal case was convicted of a capital felony, the clerk shall likewise furnish the Attorney General with an exact copy of the record on appeal, for which the clerk shall receive a fee as required by paragraph (6) of subsection (h) of Code Section 15-6-77, to be paid out of funds appropriated to the Department of Law.

(c) Where a defendant in a criminal case is confined in jail pending appeal, it shall be the duty of the clerk to state that fact in his certificate; and it shall be the duty of the appellate court to expedite disposition of the case.

(d) Where a transcript of evidence and proceedings is already on file at the time the notice of appeal is filed, as where the transcript was previously filed in connection with a motion for new trial or for judgment notwithstanding the verdict, the clerk shall cause the record and transcript (where specified for inclusion) to be transmitted as provided in subsection (a) of this Code section within 20 days after the filing of the notice of appeal.

The following suggested forms are declared to be sufficient, but any other form substantially complying therewith shall also be sufficient:

(1) Notice of appeal -- Civil cases. IN THE __________ COURT OF __________ COUNTY STATE OF GEORGIA ______________) Plaintiffs)) v.) Civil action) File no. ______ ______________) Defendants) NOTICE OF APPEAL Notice is hereby given that _____________________ and _______________________, defendants above-named, hereby appeal to the ______________ (Court of Appeals or Supreme Court) from the ___________________________ (describe order or judgment) entered in this action on (date) , ____. Motion for new trial (or motion for judgment n.o.v., etc.) was filed and overruled (or granted, etc.) on (date) , ____. The clerk will please omit the following from the record on appeal: 1. 2. 3. Transcript of evidence and proceedings will/will not be filed for inclusion in the record on appeal. This court, rather than the (Court of Appeals or Supreme Court) has jurisdiction of this case on appeal for the reason that _______________________. Dated: _______________________. _______________________ Attorney for appellants _______________________ Address (CERTIFICATE OF SERVICE)

(2) Notice of appeal -- Criminal cases. IN THE __________ COURT OF __________ COUNTY STATE OF GEORGIA ______________) The State (etc.))) (Indictment) v.)

(Accusation)) No. ________ ______________) Defendant) NOTICE OF APPEAL Notice is hereby given that _______________________, defendant above-named, hereby appeals to the ______________ (Court of Appeals or Supreme Court) from the judgment of conviction and sentence entered herein on (date) , ____. The offense(s) for which defendant was convicted is (are) ______________, and the sentence(s) imposed is (are) as follows: _______________________. Motion for new trial (or motion in arrest of judgment, etc.) was filed and overruled on (date) , ____. The clerk will please omit the following from the record on appeal: 1. 2. 3. Transcript of evidence and proceedings will/will not be filed for inclusion in the record on appeal. This court, rather than the (Court of Appeals or Supreme Court) has jurisdiction of this case on appeal for the reason that _______________________. Dated: _______________________. _______________________ Attorney for appellant _______________________ Address (CERTIFICATE OF SERVICE)

(3) Notice of cross appeal. IN THE __________ COURT OF __________ COUNTY STATE OF GEORGIA ______________) Plaintiffs)) v.) Civil action) File no. ______ ______________) Defendants) NOTICE OF CROSS APPEAL Notice is hereby given that _______________________ one of the defendants above-named, hereby cross appeals to the ______________ (Court of Appeals or Supreme Court) from the ______________ (describe order or judgment) entered in this action on (date) , ____. Notice of appeal was heretofore filed on (date) , ____. The clerk will please include the following in the record on appeal, all of which were designated for omission by appellant: 1. 2. 3. Transcript of evidence and proceedings (will be filed) (will not be filed) (has already been designated to be filed by appellant) for inclusion in the record on appeal. Dated: ______________, 19__. _______________________ Attorney for cross appellant _______________________ Address (CERTIFICATE OF SERVICE)

(4) Enumeration of errors. ENUMERATION OF ERRORS 1. The court erred in charging the jury on gross negligence. 2. The court erred in admitting the testimony of witness Smith concerning his opinion as to how the collision happened. 3. The court erred in refusing to grant a mistrial because of the misconduct of plaintiff's attorney in oral argument. 4. The court erred in refusing to admit in evidence testimony of witness Jones concerning his estimate as to damages. 5. The court erred in denying defendant's motion for continuance.

(a) In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law. If an opinion or memorandum of decision is filed, it will be sufficient if the findings and conclusions appear therein. Findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

(b) This Code section shall not apply to actions involving uncontested divorce, alimony, and custody of minors, nor to motions except as provided in subsection (b) of Code Section 9-11-41. The requirements of subsection (a) of this Code section may be waived in writing or on the record by the parties.

(c) Upon motion made not later than 20 days after entry of judgment, the court may make or amend its findings or make additional findings and may amend the judgment accordingly. If the motion is made with a motion for new trial, both motions shall be made within 20 days after entry of judgment. The question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to findings or a motion for judgment. When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.

No appeal shall be docketed until the notice of appeal and a record, and transcript, if requested, are filed in the Clerk's office. Each notice of appeal will be docketed as a separate case.

Pursuant to OCGA § 5-6-40, the enumeration of errors, which shall be Part 2 of the appellant's brief, shall be filed within 20 days after the case is docketed. A separate enumeration of errors is not required.

The enumeration of errors shall contain a statement of jurisdiction as to why this Court, and not the Supreme Court, has jurisdiction.

(a) Appellant's brief, which shall contain as Part 2 an enumeration of errors shall be filed within 20 days after the appeal is docketed. Failure to file within that time, unless extended upon motion for good cause shown, may subject the appeal to dismissal, and may subject the offender to contempt. See Rule 7 and Rule 13.

Appellant's motion for extension of time to file brief and enumeration of errors must be filed prior to the date the documents are due or the Court may dismiss the appeal.

(b) Appellee's brief shall be filed within 40 days after the appeal is docketed or 20 days after the filing of appellant's brief, whichever is later. Failure to timely file may result in non-consideration of the brief and may subject counsel to contempt. See also Rule 13.

(a) An application for leave to appeal a final judgment in cases subject to appeal under OCGA § 5-6-35 will be granted only when:

(b) Applications for discretionary appeal pursuant to OCGA § 5-6-35 should have copies of all material from the record tabbed and indexed. If it is not tabbed and indexed, the petition is subject to dismissal. The material must be sufficient to apprise the Court of the appellate issues, in context, and support the arguments advanced. Applications are limited to 30 pages in civil cases and 50 pages in criminal cases, exclusive of attached exhibits and parts of the record, and should follow the general format of briefs as to margins.

(c) The clerk is prohibited from receiving the application without the $80.00 filing fee or sufficient pauper's affidavit.

(d) Discretionary appeals must contain a stamped "filed" copy of the trial court's order from which the appeal is sought.

(e) No extensions of time will be granted in filing discretionary applications or responses to discretionary applications.

(f) Responses are due within 10 days of docketing. No response is required, unless ordered by the Court.

(g) If the discretionary application is granted, appellant must file a notice of appeal in the trial court within 10 days of the date of the order granting the application

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GACC is an affiliate of the National Association of Counsel for Children	GACC Jane Okrasinski Executive Director Email: jane@gaccchildlaw.org