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O.C.G.A. § 15-11-6(b) makes clear, at the very least, that a child in a deprivation proceeding is entitled to counsel if his or her parent, guardian, or custodian does not attend. In addition, because a child in a deprivation proceeding is a "party" to the proceeding, the final sentence of the statute means that, even if the child's parent, guardian, or custodian does attend the proceeding, if there is a conflict between the child and the parent, guardian, or custodian, then the child is entitled to separate counsel.
A class action was brought on behalf of foster children in two counties against defendants including the two counties themselves for their alleged failure to provide foster children with adequate and effective legal representation in deprivation and termination-of-parental-rights (TPR) proceedings in violation of their due process rights under the Georgia Constitution and O.C.G.A. § 15-11-98(a). Specifically, plaintiffs alleged that the inadequate number of child advocate attorney positions funded by the counties resulted in extremely high caseloads for the attorneys, making effective representation of foster children structurally impossible. The counties filed motions for summary judgment.
Were the defendant counties entitled to summary judgment?
The court denied both defendant counties' motions for summary judgment. The court held that there was no conflict created by construing O.C.G.A. § 15-11-6(b) to require the appointment of separate counsel for the child in conflict-of-interest situations simply because O.C.G.A. § 15-11-9(b) requires appointment of a guardian ad litem in the same situations. The court concluded that foster children had a right to counsel in deprivation and TPR proceedings under the Due Process Clause of the Georgia Constitution, Ga. Const. art. I., § I, para. I. Furthermore plaintiffs presented evidence that created a genuine issue of material fact as to whether they are receiving, or faced a substantial risk of receiving, ineffective assistance of counsel. Contrary to the counties' argument, filing a complaint with the State Bar was not an adequate legal remedy. The court concluded that declaratory relief was appropriate because there was an actual controversy regarding the right to legal counsel in deprivation cases.