dissenting.
I would hold that Georgia courts have the authority to grant permission to file out-of-time discretionary applications to appeal from orders terminating parental rights. I therefore respectfully dissent.
I agree with the majority that, to the extent the father sought an extension of time, under OCGA § 5-6-39, to file his discretionary application, his request was ineffective, because it was neither timely filed nor filed in the appellate court. Gable v. State, 290 Ga. 81, 85 (2) (a) (720 SE2d 170) (2011). But the trial court treated his request as for an out-of-time appeal and granted that relief. I would uphold the trial court’s decision to grant that relief and hold that the grant of such relief entitles a parent to pursue a motion for new trial and all other remedies normally available after the entry of an order terminating parental rights. See Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d *129922) (1991) (the grant of an out-of-time appeal “should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal”).
“[W] resting a child away from the care and custody of its parents is ... so drastic that it should be attended only by the most stringent procedural safeguards.” Sanchez v. Walker County Dept. of Family &c., 237 Ga. 406, 411 (229 SE2d 66) (1976).
The General Assembly wisely acknowledged the serious and often devastating consequences involved in terminating parental rights when it adopted the Juvenile Code . . . [which] provides that a parent is entitled to have counsel appointed to represent that parent in the proceeding if counsel cannot be employed without undue financial hardship.
Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976). We have repeatedly emphasized that state intervention to terminate the relationship between a parent and child implicates fundamental liberty interests, that the procedures the state employs in an action to terminate those rights must reflect their fundamental importance, and that parents facing termination are therefore afforded some of the protections afforded criminal defendants:
[N]o judicial determination has more drastic significance than permanently severing a parent-child relationship. The United States Supreme Court has held that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment and that state intervention to terminate the relationship between a parent and child must consequently be accompanied by procedures meeting the requisites of the due-process clause. As a result, trial courts apply a heightened standard of proof, the clear and convincing evidence standard, and a parent facing termination of parental rights is afforded some of the protections to which criminal defendants are entitled.
(Citations and punctuation omitted.) In the Interest of A. R. A. S., 278 Ga. App. 608, 609 (629 SE2d 822) (2006). Among the protections to which criminal defendants are constitutionally entitled, and which parents facing termination are afforded by statute, is the right to effective assistance of counsel. Id. An established corollary of that right, for criminal defendants, is the remedy of an out-of-time appeal.
*130It is true, as the majority holds, that “[n]o state or federal constitutional right to counsel is involved because a parental termination action is a civil matter, not a criminal proceeding.” (Citations omitted.) In the Interest of A. M. R., 230 Ga. App. 133, 136 (2) (495 SE2d 615) (1998). See also Lassiter v. Dept. of Social Svcs., 452 U. S. 18 (101 SC 2153, 68 LE2d 640) (1981) (United States Constitution does not require the appointment of counsel for indigent parents in every proceeding for the termination of parental rights).
Nevertheless it is a violation of a parent’s right to due process of law to dismiss an application to appeal the state’s termination of parental rights because of ineffective assistance of counsel. See Santosky v. Kramer, 455 U. S. 745, 753 (II) (102 SC 1388, 71 LE2d 599) (1982) (imposing a “clear and convincing evidence” standard of proof in proceedings to terminate parental rights because “state intervention to terminate the relationship between a parent and the child must be accomplished by procedures meeting the requisites of the Due Process Clause”) (citations omitted); Rowland v. State, 264 Ga. 872, 873 (1) (452 SE2d 756) (1995) (“[A] state court’s dismissal of a criminal defendant’s appeal of right due to the ineffective assistance of appellate counsel may violate the defendant’s right to due process of law” but is remedied by granting out-of-time appeal.).
In order “to avoid . . . [this] constitutional violation concerning the appeal,” Gable, 290 Ga. at 85 (2) (b), I would hold that Georgia courts may excuse compliance with OCGA § 5-6-35 (d)’s time requirement by granting permission to file out-of-time discretionary applications to challenge orders terminating parental rights.
Citing Gable, the majority limits this authority to appellate courts. But Gable does not so hold. It is true — as to extensions of time to file applications for discretionary appeal — that Gable limits the authority to grant that remedy to the appellate courts. But as to out-of time appeals, Gable holds, “Georgia courts may excuse compliance with a statutory requirement for appeal... where necessary to avoid or remedy a constitutional violation concerning the appeal.” (Emphasis supplied.) Gable, 290 Ga. at 85 (2) (b). Similarly, the majority’s decision to confine the remedy of out-of-time appeals to cases subject to direct appeal is in conflict with our Supreme Court’s decision in Gable.
Nor is the majority view supported by our Supreme Court’s decision in Stephens v. State, 291 Ga. 837 (733 SE2d 266) (2012). It is true that Stephens identifies as a precondition to an out-of-time appeal that the would-be appellant “must necessarily have had the right to file a direct appeal.” Id. at 838 (2). But that reference to a “direct” appeal is descriptive rather than limiting. William Stephens sought to appeal, nine years after the fact, from his conviction on a *131plea. The threshold question before our Supreme Court was “whether the issues that [Stephens] raised in his motion for out-of-time appeal and has pursued in this appeal can be determined on the existing record,” id. at 839 (3), because “if the issues that a defendant who pled guilty seeks to appeal cannot be resolved using the existing record, he would have had no right to file even a timely appeal and therefore is also not entitled to an out-of-time appeal.” Id. at 838 (3).
Decided November 30, 2012 Blanton C. Lingold, for appellant. Cansino, Petty & Stribling, Amanda S. Petty, for appellee.When the General Assembly enacted OCGA § 5-6-35 (a) (12), which changed the procedure for appeals from orders terminating parental rights from direct to discretionary, its purpose was not to degrade the appellate review afforded parents facing termination. Rather it was to advance the state’s
legitimate interest in not permitting children determined to be deprived to languish in temporary care, but instead, to leave this situation for permanent stable homes as expeditiously as possible. The discretionary appeal process provided in OCGA § 5-6-35 (a) (12) helps accomplish this goal by offering effective appellate review in an expedited manner, yet permitting a full appeal of the termination of parental rights if that is shown to be warranted.
(Citation omitted.) In the Interest of A. C., 285 Ga. 829, 834 (2) (686 SE2d 635) (2009) (rejecting the argument of a father facing termination that OCGA § 5-6-35 (a) (12) “denies him due process, and is violative of equal protection”).
I am authorized to state that Judge Adams joins in this dissent.