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provisions, decisions under pre-2000 Code Section 15-11-85, and pre-2014 Code Section 15-11-98, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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) (decided under former O.C.G.A. § 15-11-85).

Editor's notes.

- In light of the similarity of the statutory provisions, advisory opinions under former Code Section 15-11-98, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Conflict between child and attorney who is guardian ad litem.

- When it becomes clear that there is an irreconcilable conflict between the child's wishes and the attorney's considered opinion of the child's best interests in a parental termination procedure, the attorney must withdraw from his or her role as the child's guardian ad litem. Adv. Op. No. 10-2 (January 9, 2012).

Withdrawal when irreconcilable conflict between child and guardian ad litem.

- When it becomes clear that there is an irreconcilable conflict between the child's wishes and the attorney's considered opinion of the child's best interests, the attorney must withdraw from his or her role as the child's guardian ad litem. Adv. Op. No. 16-2 (June 4, 2016).

Withdrawal as guardian when conflict between child's wishes and best interest.

- When an attorney has been appointed to serve both as legal counsel and as guardian ad litem for a child under O.C.G.A. § 15-11-262 in a termination of parental rights case, if the attorney finds that the child's wishes and best interests are in conflict, the attorney must seek removal as guardian ad litem, considering Ga. St. Bar R. 4-102(d):1.6. (confidentiality) in the process of the removal. In re Formal Advisory Opinion No. 16-2, 302 Ga. 736, 808 S.E.2d 735 (2017).

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.