In the Interest Of: A. B., a Child (Mother)

THIRD DIVISION DILLARD, P. J., GOBEIL and PIPKIN, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules November 2, 2026 In the Court of Appeals of Georgia A26A1356. IN THE INTEREST OF: A. B., A CHILD (MOTHER). GOBEIL, Judge. In this case, the Juvenile Court of Hall County terminated Brittany Bowie’s (the Mother) parental rights to her child, A. B., and later denied her motion for new trial. The Mother appeals, arguing that the trial court erred in: (1) finding that she waived her right to object to improper service of the petition; (2) finding harmless the court’s failure to inquire about the child’s status as the member of an Indian tribe; and (3) finding that she did not receive ineffective assistance of counsel. For the reasons set forth below, we affirm the juvenile court’s judgment. Typically, in a termination of parental rights case, we apply a deferential standard of review, viewing “the evidence in the light most favorable to the juvenile court’s disposition to determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s parental rights should have been terminated.” In the Interest of D.M., 339 Ga. App. 46, 46 (793 SE2d 422) (2016). We also keep in mind the gravity of the judicial determination at issue because “[t]he right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” Id. Our review of the record in this case, however, is tailored to the Mother’s claims of error, which concern primarily legal issues such as service of process, the juvenile court’s compliance with the Indian Child Welfare Act (“ICWA”), and assistance of counsel. Accordingly, because she has not contested them, we summarize the findings from the juvenile court’s order terminating the Mother’s parental rights to A. B. merely to provide context for her enumerations of error. See In the Interest of B.R.F, 299 Ga. 294, 296 n. 6 (788 SE2d 416) (2016) (noting that facts concerning the merits of the underlying termination action were irrelevant given the issues presented on appeal). The record shows that A. B. was removed from the Mother’s home on August 30, 2023, and was taken into protective custody. Following the Mother’s failure to 2 remedy the cause of the child’s dependency, the Georgia Department of Human Services (the “Department”) filed a petition to terminate the Mother’s rights to A. B. on April 30, 2024. After a hearing conducted on July 29, 2024, the juvenile court entered its order terminating the Mother’s rights. The juvenile court explained that the Department removed A. B., then ten years old, from the Mother’s care in 2023 following an outcry of sexual abuse by the Mother’s friend. A. B. had been the subject of a prior dependency action in 2019. The court recounted occurrences when the mother left A. B. alone in a homeless shelter or in a hotel room overnight while she worked as an Uber driver. There was also evidence that the child was being sexualized or exposed to inappropriate sexual content given her age. After summarizing evidence presented at hearings concerning the petition, the court found that the child was dependent due to the Mother’s untreated mental health issues which caused a failure to parent and supervise the child, the Mother’s persistent substance abuse, her failure to maintain appropriate housing, and her failure to protect the child from inappropriate sexual situations. The Mother had failed to cooperate with the Department or address these issues in any meaningful way. Thus, the court concluded that the statutory grounds for termination were met, and it was in the child’s best 3 interest to terminate the Mother’s rights. The termination order issued February 26, 2025. The Mother filed a motion for new trial, which she amended, but ultimately presented argument on only the issues she now raises on appeal. The juvenile court denied her motion after a three-part hearing. We granted the Mother’s application for discretionary review, Case No. A26D0285, and this appeal followed. 1. (a) The Mother first argues that the trial court erred in finding that she had waived her right to object to improper service. We disagree. Concerning service on the Mother, the record shows that the juvenile court found in its termination order that she was personally served with process on April 30, 2024. The Mother did not appear at the July 29, 2024 final hearing on the termination petition, but her counsel was present. Her counsel explained that she had expected the Mother to be present, but proceeded with the hearing, explaining that the Mother opposed termination during their most recent discussion. When the Department admitted its proof of service into the record at the hearing, counsel did not object. At the hearing on the motion for new trial, the Mother’s counsel explained that the Mother was actually served at the courthouse when she appeared for an 4 emergency hearing. Reviewing the entry of service and court records, the juvenile court determined that personal service was defective because the Mother was served at the courthouse when she attended an emergency hearing in an earlier dependency proceeding. See Steelman v. Fowler, 234 Ga. 706, 707(1) (217 SE2d 285) (1975) (A party or a witness in attendance upon the trial of any case in court “is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom.”). The court found, however, that the mother had waived the defect by failing to object at the first practicable opportunity, the termination hearing, when she was personally absent but was represented by counsel. As noted by the juvenile court, “[a] party can waive defects in service of process unless an objection is made at the first practicable opportunity.” In the Interest of D.R.W., 229 Ga. App. 571, 574(2) (494 SE2d 379) (1997) (quotation marks omitted). Here, the Mother did not object at the termination hearing, which is when the Department tendered its evidence of service, thus waiving her opportunity to do so. Id. The Mother argues that Interest of D. R. W. is distinguishable because in D. R. W., there was evidence from a witness that the mother knew about the hearing and 5 said she would attend but she failed to do so. Id. at 574(2). In contrast, the Mother contends that the evidence here showed that if she had been properly served with the termination petition and summons, “it could be assumed she would have appeared” at the termination hearing, “given the grave nature of a termination proceeding,” and because she had consistently appeared for earlier dependency hearings. However, “[t]he decision of the [M]other’s attorney to proceed instead on the merits of the case in her absence is binding on her,” and “[t]he fact that the [M]other was not actually present in court when the hearing occurred and knew nothing about her attorney’s decision until later is immaterial.” Id. at 575(2). Further, as noted by the juvenile court, there is “no constitutional entitlement mandating the mother’s right to appear personally at the termination hearing.” Id. Accordingly, we discern no error in the juvenile court’s finding on this issue. (b) The Mother also argues that she received ineffective assistance of counsel due to counsel’s failure to address the lack of proper personal service and to request a continuance when she failed to appear at the termination hearing. To prevail on a claim of ineffective assistance of counsel, in addition to showing that her counsel’s performance was deficient, the Mother must show that the deficient 6 performance was prejudicial to her defense, demonstrating that “there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.” In the Interest of C. S., 354 Ga. App. 133, 141-142(3) (840 SE2d 475) (2020). Failure to satisfy either prong of this test is fatal to an ineffective assistance claim, and we need not address the issue of deficient performance if appellant has not borne her burden of demonstrating prejudice. Finally, a juvenile court’s finding that a parent has been afforded effective assistance of counsel will be affirmed on appeal unless that finding is clearly erroneous. In the Interest of S.N.H., 300 Ga. App. 321, 330(5) (685 SE2d 290) (2009) (citations omitted). On this issue, the juvenile court found that “even if [counsel] had objected to the insufficiency of service, the outcome of the termination would not have been different. The outcome would have been delayed, but the statutory findings that supported termination of the mother’s parental rights would not have been affected in any significant way.” The Mother proposes no specific evidence or argument that she could have contributed with her physical presence at the final termination hearing that could not be accomplished through counsel. The juvenile court’s termination 7 determination was based on evidence taken at multiple hearings over years of proceedings, including prior testimony by the Mother. Accordingly, we do not find clearly erroneous the juvenile court’s assessment that the Mother was not prejudiced by counsel’s failure to object to service or seek a continuance. 2. (a) The Mother next argues that the court erred in failing to conduct the inquiry required under the ICWA and in finding that such failure was harmless. Again, we disagree. The ICWA was established in 1978 based on the policy of this Nation to protect the best interests of Indian children [and] ... to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. 25 USCA § 1902. Under 25 USCA § 1903(4), an “‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 8  The ICWA regulations require state courts to “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” 25 CFR § 23.107(a). This inquiry is to occur at the “commencement of the proceeding.” Id. If there is reason to know the child is an Indian child, but the state court does not have sufficient evidence to determine whether the child is an “Indian child” under federal law, the court must ensure that the agency or other party used due diligence to work with any tribe “of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership)[.]” 25 CFR § 23.107(b)(1). Pending determination, the state court should treat the child as an Indian child. 25 CFR § 23.107(b)(2). “When a court knows or has reason to know that the subject of an involuntary foster-care-placement or termination-of-parental-rights proceeding is an Indian child, the court must ensure[,]” inter alia, that specified notice of the proceedings be provided to each tribe “where the child may be a member (or eligible for membership if a biological parent is a member)[.]” 25 CFR § 23.111.1 1 By statute, Georgia defers to federal law in dependency and termination proceedings regarding Indian children. See OCGA §§ 15-11-260.1 (“A proceeding under 9  Here, there is no evidence that inquiries were made concerning the child’s status as an Indian child at any point during the underlying dependency action, nor in the original termination proceedings. The Mother raised the issue for the first time in her amended motion for new trial, asserting that the failure to make ICWA inquiries was reversible error. At the motion for new trial hearing, the Mother testified that she believed she was “capable of being part of the Blackfoot and/or Cherokee” Indian tribe from her mother’s side. She had not done extensive research on the issue, and she had not contacted either tribe, but her grandmother had told her years ago that the Mother’s great-grandparents were Indian. However, her grandmother had suffered from strokes and could no longer assist her on determining her eligibility for membership in any Indian tribe. The Mother testified later that she learned through investigation that her great-grandparents were not members of any Indian tribe, but she maintained that they “have actual Indian blood in them.” In its order on her motion for new trial, the juvenile court found that any failure to make ICWA inquiries was harmless because the child is not an Indian child under this article [concerning termination of parental rights] shall not be subject to this article to the extent that it is governed by the [ICWA]. In those circumstances, compliance with such federal law shall be required.”); 15-11-100.1 (corresponding provision for dependency proceedings). 10 the statute, and thus the statute did not apply. Further, the court found that counsel was not ineffective on this issue because the Mother failed to show she was prejudiced by the lack of ICWA inquiries. Specifically, even if the court had inquired about the child’s Indian status, the child would have been found to not qualify as an Indian child. On appeal, the Mother argues that the ICWA requires its inquiries to take place at specified points in a termination proceeding (such as the commencement of the proceeding), and the juvenile court “cannot retroactively cure this defect” by conducting the inquiries later. She argues that persuasive authority suggests that the failure to conduct ICWA inquiries at the specific time cannot be considered harmless, as it is “impossible to ascertain” prejudice because it is unknown what evidence would have existed at the time the court was supposed to conduct the inquiries. This argument is not persuasive. The parties agree that Georgia courts have never ruled on the specific issue of whether a failure to comply with the ICWA can be deemed harmless in a termination proceeding, and they cite persuasive authority on the issue. Compare Matter of E. J. B., 375 NC 95, 106(III) (846 SE2d 472) (2020) (reversing termination order where 11 juvenile court failed to notify tribe of proceedings concerning children who were associated with the tribe; court’s attempt to rectify failure to make proper inquiries did not cure harm), with In re Dezi C., 553 P3d 829, 852(III) (Cal. 2024) (reversing termination decision where court failed to make proper ICWA inquiries but instructing that if, on remand, the juvenile court finds that the ICWA does not apply, “the court shall reinstate the order terminating parental rights”). However, even the cases relied upon by the Mother do not hold that a failure to make ICWA inquiries at the outset of a termination proceeding cannot be found harmless under the circumstances of the Mother’s case. In two of the cases she cites, the juvenile court undoubtedly had reason to know the ICWA was implicated, but failed to comply with its notice requirements. In Interest of E. J. B., a father facing termination of his parental rights reported being a member of the Cherokee Indian tribe, but the tribe was not properly notified of the proceeding and its rights to intervene. 375 NC at 96(1), 102(3). There, although the termination order was reversed, the case was remanded so that the tribe could receive sufficient notice, and if, after receiving proper notice, the tribe “indicates that the children are not Indian children pursuant to the Act, the trial court shall reaffirm the order terminating 12 respondent-father’s parental rights.” Id. at 106(IV). Next, in In the Interest of H. D., parents facing termination of parental rights sought transfer of termination proceeding to tribal court at its outset and juvenile court refused and did not provide notice to the affected tribes. 11 Kan App 2d 531, 533–34 (729 P2d 1234) (1986). In that case, the termination order was reversed, again based on the error of failure to provide notice to the affected tribe, but the case was remanded “for further proceedings” without any comment on whether the error could be cured by properly notifying the affected tribe. Id. at 539. In both of these cases relied upon by the Mother, the juvenile court had reason to know the children at issue might be Indian children, and it was the failure to properly notify the affected tribe that served as the error reversing the termination order. And even then, the failure of the court to comply with the ICWA was not found to preclude the termination of parental rights, but rather, the cases had to return to the trial court to ensure the tribe received notice under the statute. To the contrary, in the this case, there is no question that there is no tribe due notice under the ICWA, as A. B. is not a member of an Indian tribe, nor is the Mother, thereby excluding A. B. from the statutory definition of an Indian child. 25 USCA § 1903(4). 13  The instant situation is more similar to the third case relied upon by the Mother, In re Dezi, which supports our affirmance of the juvenile court’s order in this case. In In re Dezi, the juvenile court made general ICWA inquiries at the outset of the termination proceeding, which resulted in no reason to believe the children at issue were Indian children, but the child welfare agency failed to make additional necessary inquiries while investigating the case.2 553 P3d at 834(I). Ultimately, the California Supreme Court “conditionally reversed” the termination order to provide the trial court with an opportunity to conduct the required inquiry and notify the affected tribe if necessary. Id. at 841–42(2)(E). Here, although the juvenile court may have similarly failed to make proper ICWA inquiries during the underlying proceedings, there is no need to even conditionally reverse the disposition order, as the juvenile court already conducted an investigation into the ICWA’s applicability, and correctly determined that it did not apply. Accordingly, the Mother has not shown a reason to reverse the juvenile court’s determination that any error to strictly comply with ICWA in her case was harmless. 2 California has heightened inquiry requirements for the ICWA under state law. See id. at 837–38(2)(B). 14  (b) For the same reasons stated above, the Mother cannot show that she received ineffective assistance of counsel on this issue — even if counsel had pushed the subject, there is no evidence that the outcome of the proceeding would have been different. Accordingly, we affirm the juvenile court’s order on the Mother’s motion for new trial. Judgment affirmed. Pipkin, J., concurs and Dillard, P. J., concurs in judgment only. 15