Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 18, 2017
The Court of Appeals hereby passes the following order:
A17E0045. In the Interest of A. B., et al., children.
On April 18, 2017, Anita Wright filed an emergency motion pursuant to Court
of Appeals Rule 40 (b), seeking an extension of time to file an application for
discretionary appeal from the February 22, 2017 order of the Superior Court of Fulton
County terminating her parental rights. Wright concedes that her application was due
on March 24, 2017 and that she did not seek an extension of time with this Court to
file the application prior to its due date.
This Court’s Rule 40 (b) emergency powers are limited and intended to be used
sparingly. “ Generally, no order shall be made or direction given in an appeal until it
has been docketed in this Court.” Moreover, typically, we may only issue “such
orders or give direction to the trial court as may be necessary to preserve jurisdiction
of an appeal or to prevent the contested issue from becoming moot.” In this case,
Wright is not seeking to preserve a contested issue from becoming moot; rather, she
is attempting to revive an untimely application for a discretionary appeal.
A discretionary application seeking appellate review of an order terminating
parental rights must be filed with the clerk of the appellate court within 30 days of
entry of the termination order. OCGA § 5-6-35 (d). Pursuant to OCGA § 5-6-39 (a)
(5), this Court may grant an extension of time for filing an application for
discretionary appeal. Gable v. State, 290 Ga. 81, 84 (2) (a) (720 SE2d 170) (2011).
The request for an extension, however, “must be made before expiration of the period
for filing as originally prescribed or as extended by a permissible previous order.”
OCGA § 5-6-39 (d); see also Gable, 290 Ga. at. 84-85 (2) (a). Wright has not
satisfied either of these prerequisites.
Wright contends that her right to appeal was frustrated because the termination
order was not timely posted to the “JCATS filing system.” If this is true, her remedy
is to petition the trial court to vacate and re-enter the order as a means of correcting
the problem. As our Supreme Court explained in Cambron v. Canal Ins. Co., 246 Ga.
147 (269 SE2d 426) (1980), “if a trial judge fails to give the required notice of a
decision, a party aggrieved by the decision is entitled to have it set aside under OCGA
§ 9-11-60 (g).” (Citations omitted.) Tyliczka v. Chance, 313 Ga. App. 787, 788 (723
SE2d 27) (2012).
Because Wright has not carried her burden of demonstrating that she is entitled
to relief pursuant to Rule 40 (b), her emergency motion is hereby ordered DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/18/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.