A Father's Right to Counsel in Georgia Juvenile Court Legitimation Proceedings: Closing the Due Process Loophole

Publication year2013

A Father's Right to Counsel in Georgia Juvenile Court Legitimation Proceedings: Closing the Due Process Loophole

Meg Buice

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Meg Buice*


A parent's right to the care and custody of his or her child has been universally regarded as fundamental and deserving of protection.1 Recognizing the significance of this "fiercely guarded" right,2 when the State seeks to terminate parental rights in juvenile court, Georgia law accords parents an array of procedural safeguards designed to protect that interest3 —among them, the right to an attorney in a termination proceeding.4 By the time a deprivation case reaches the

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termination phase, the juvenile court has already found that the parent in question has subjected his or her child to abuse or neglect so severe that the child could not have remained in the parent's home without seriously jeopardizing the child's welfare.5 Nonetheless, the parent retains his or her right to an attorney because severing an individual's relationship with his or her child is considered "a tearing of the flesh" only to be done by the courts "under the most carefully controlled and regulated circumstances."6

However, under current Georgia law, this right does not extend to biological fathers of children born out of wedlock who have not rendered their relationships with their children "legitimate" through applicable statutory procedures.7 Unlike biological mothers and fathers of children born in wedlock, biological fathers who have not

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legitimated their children have no right to court-appointed counsel in juvenile court termination proceedings.8 Moreover, these fathers are denied all rights to challenge these proceedings on any basis.9

To obtain standing to contest a termination petition, a father must legitimate his child.10 When a child is in DFCS custody, a father typically begins this process by filing a petition for legitimation in the juvenile court where the deprivation action is pending.11 In the legitimation proceeding that follows, the father has the burden of proof to establish both biological paternity and that he has demonstrated the necessary level of commitment to the child.12 Because a denial of the legitimation petition eliminates the father's right to contest a later termination of his parental rights,13 the significance of this decision is extraordinary. Yet, while a legal parent's right to counsel in termination of parental rights proceedings is undisputed,14 in Georgia, a biological father has no established

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right to counsel in legitimation proceedings despite the gravity of the interest at stake.15 In essence, denying putative fathers the right to counsel in legitimation proceedings provides a mechanism by which juvenile courts may deprive them of their fundamental liberty interest in parenting their children without due process.

In re J.S. illustrates the issue.16 In J.S., a child's biological father filed a petition to legitimate his son in the Juvenile Court of Spalding County, where a termination action was pending.17 The legitimation proceeding was scheduled to take place in conjunction with the termination hearing, and after informing the court that he was indigent, the father requested the court appoint counsel to represent him in both matters.18 Acknowledging concern over conducting the termination hearing without appointing counsel for the father, the court elected to postpone the termination and proceeded only on the legitimation hearing, denying the father's request for counsel in that hearing.19 Despite the mother's consent to the legitimation, the court denied the petition and entered an order terminating the father's parental rights without a hearing, finding that the denial of the legitimation petition deprived him of standing to contest the termination.20 Thus, in denying the legitimation petition, the court was able to avoid even holding a termination proceeding as to the

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father, where he would have been entitled to court-appointed counsel.21

This Note examines whether denying a putative father22 the right to counsel in the context of juvenile court legitimation proceedings amounts to a violation of his Fourteenth Amendment right to due process because of the state's direct role in depriving him of a fundamental liberty interest in the care and custody of his children. Part I examines the procedure by which a father of a child born out of wedlock may legitimate his child under Georgia law and describes parents' right to counsel in juvenile court termination proceedings.23 Part II explores the current state of the law regarding a putative father's right to counsel in these proceedings.24 Part II also considers the constitutionality of denying a biological father the right to counsel in contested legitimation proceedings in light of Georgia and United States Supreme Court precedent on the issues of standards of proof in legitimation actions and due process requirements accorded to parents in termination proceedings.25 Part III proposes that the Georgia General Assembly amend the Georgia Juvenile Code to require appointment of counsel to putative fathers in contested legitimation proceedings.26

I. Legitimation And Termination Of Parental Rights In Georgia

A. Legitimation Procedure In Juvenile Court Deprivation Cases

Under Georgia law, a child born out of wedlock is not the legal child of his or her biological father.27 Unless the biological father

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subsequently marries the child's mother, he must either administratively legitimate the child or petition a court of competent jurisdiction to become the child's legal father.28 Although the administrative legitimation procedure provides putative fathers the opportunity to establish legal fatherhood by signing a voluntary acknowledgement of legitimation with the written consent of the child's mother, the acknowledgement has no legal consequence unless it is executed during the first year of a child's life.29 Additionally, contrary to the belief of many Georgians (and unlike in many other states),30 being listed as the father on the child's birth

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certificate or obtaining a court order establishing paternity does not establish legal fatherhood.31

The question of a putative father's legal standing typically arises either in the context of custody disputes between the biological father and the mother or other relative of the child, or in juvenile court deprivation proceedings.32 In deprivation proceedings,33 juvenile courts generally require that putative fathers of children born out of wedlock establish paternity and legitimate the child as part of a court-ordered case plan for reunification.34 This requirement is important

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for two reasons. First, in the context of reunification proceedings35 — without serious legal acrobatics—a juvenile court cannot give legal custody of a child to a biological father who has not legitimated.36 Second, as previously stated, a putative father who has not legitimated his child has no standing to object to a termination of his parental rights.37

B. Evaluating Legitimation Claims Based On Fathers' Asserted Relationship Interest

While a child's biological mother is automatically his or her legal mother unless her rights are terminated or surrendered, a biological father must prove more than genetic paternity to establish legal fatherhood.38 As a threshold question, a court must determine whether the biological father has abandoned his opportunity interest

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in developing a relationship with the child.39 If it determines that he has, the court may end the inquiry and deny the petition.40 If the court finds the father has not abandoned his opportunity interest, in actions where the state has interfered with the parent-child relationship, the court applies the parental fitness standard to determine whether the father should be permitted to legitimate the child.41

The parental fitness standard considers whether the putative father is fit to have custody of his child, regardless of whether available alternatives—such as allowing the child to be adopted by another party—would better serve the child's interest.42 If the court determines the father is fit, it is required to grant the legitimation.43 If the state is not involved, the court considers the totality of the circumstances to determine whether to apply a parental fitness or best interests of the child standard.44 Under the best interests standard, the court has discretionary authority to decide whether granting the petition would be in the child's best interests, regardless of whether the putative father is fit to have custody.45 Although many have

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questioned the fundamental fairness of imposing heightened proof requirements on fathers,46 the practice has stood up to constitutional challenges in both the United States and Georgia Supreme Courts.47

C. Right To Counsel In Termination Of Parental Rights Proceedings

While the United States Supreme Court has recognized that termination of parental rights proceedings implicate a fundamental liberty interest that requires protection by clear procedural safeguards,48 it has not found that due process requires the appointment of counsel to indigent parents in every termination case.49 Nonetheless, given the fundamental nature of parents' right to the care and custody of their children, the Supreme Court has expressed doubts as to whether terminating a parent's rights without a showing of parental unfitness would be constitutional.50

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Recognizing the gravity of an order of termination, almost every state accords indigent parents a statutory right to court-appointed counsel in these proceedings.51 Georgia is no exception.52 Moreover, Georgia courts have consistently held that failure to provide counsel for an indigent parent in a termination proceeding...

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