FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules
September 18, 2026
In the Court of Appeals of Georgia
A26A1582. IN THE INTEREST OF M. R. S., a child.
BARNES, Presiding Judge.
The fourth appellate chapter in this long-running matter has its origin in the
Cobb County juvenile court’s June 2022 order terminating a mother’s parental rights
in her child. After the mother’s trial counsel filed a faulty direct appeal, we granted
two discretionary appeals, the first of which vacated the juvenile court’s denial of the
mother’s post-trial motions and the second of which affirmed that denial.1 The
Supreme Court of Georgia granted certiorari and later ordered this Court to vacate the
juvenile court’s order dismissing the mother’s motion for an out-of-time appeal and
to remand with direction that the juvenile court “consider the mother’s motion [for
1
See In the Interest of M. R. S., 373 Ga. App. 201 (907 SE2d 203) (2024) (“M. R. S. I”).
an out-of-time application for discretionary appeal] pursuant to the guidelines set
forth” in In the Interest of B. R. F., 299 Ga. 294 (788 SE2d 416) (2016).2 On remittitur
from the Supreme Court, we so ordered the juvenile court. In the Interest of M. R. S.,
376 Ga. App. 478, 480 (2) (918 SE2d 829) (2025) (“M. R. S. III”).
On remand from our decision in M. R. S. III, the juvenile court entered an order
granting the mother an out-of-time “appeal” based on ineffective assistance of
counsel, but without making the required preliminary finding as to whether she had
a right to counsel in the first place.3 We again granted the mother’s application for
discretionary review. The Department of Human Services moved to dismiss this
fourth appeal on the ground that we lack jurisdiction. We conclude that we have
jurisdiction, but we once again vacate the juvenile court’s judgment because it failed
to make the findings required by M. R. S. III.
2
In the Interest of M. R. S., 321 Ga. 521 (915 SE2d 630) (2025) (“M. R. S. II”).
3
See M. R. S. III at 479 (1), quoting B. R. F. at 299 (“‘the juvenile court must make the initial determination whether an indigent parent is entitled to file an out-oftime application for discretionary review to remedy ineffective assistance of counsel if that parent was entitled to appointment of counsel as a matter of due process’”) (emphasis added).
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1. The Department has moved to dismiss this appeal on the ground that after
the abolition of a judicially fashioned out-of-time appeal procedure by our Supreme
Court in Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), that Court’s decision in
B. R. F. is no longer good law, and that neither that decision nor our own previous
decisions provide us with jurisdiction over an out-of-time appeal in a termination
matter. But our Supreme Court, with full awareness of the history of and precedent
governing this case, including its own decisions in Cook and B. R. S., instructed this
Court to “consider the mother’s claims about the denial of her motion for an out-oftime appeal.” 321 Ga. at 522.
Under the law of the case doctrine, any issue that was raised and
resolved in an earlier appeal is the law of the case and is binding on this
Court. [S]ee also OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme
Court or the Court of Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the Supreme Court or
the Court of Appeals as the case may be.”). The law of the case doctrine
applies only when the same issue has been actually litigated and decided.
Hall v. Hill, 366 Ga. App. 285, 291-292(1)(b) (882 SE2d 34) (2022) (citation
modified).
3
Our Supreme Court required us to consider the mother’s argument that she
was entitled to an out-of-time appeal or application, and we did so, concluding that the
juvenile court was required to make a determination in the first instance whether the
mother was entitled to counsel on appeal. M. R. S. II, 321 Ga. at 522; M. R. S. III, 376
Ga. App. at 480 (2). We will not construe precedent for or against the establishment
of our own jurisdiction when we are following explicit Supreme Court instructions in
a matter now before us for the third time, when our decision implementing those
instructions has not been appealed or overruled, and when the evidentiary posture of
the case has not changed. See Choate Constr. Co. v. Auto-Owners Ins. Co., 335 Ga. App.
331, 338-339 (1) (779 SE2d 465) (2015) (law-of-the-case doctrine applied when the
evidentiary posture of a case had not changed on remand). The Department’s motion
to dismiss is denied.
2. As we have noted, on direction by our Supreme Court to consider the
mother’s argument that she was entitled to an out-of-time application or appeal, we
vacated the juvenile court’s order and directed the juvenile court to “consider the
mother’s motion [for an out-of-time application for discretionary appeal] pursuant to
the guidelines set forth” in In the Interest of B. R. F., 299 Ga. 294. See M. R. S. III, 376
4
Ga. App. at 480 (2). Instead, however, the juvenile court bypassed the preliminary
question whether the mother was entitled to counsel and reached the premature
conclusions that counsel had been ineffective and that she was entitled to an
application or appeal.4 We must therefore vacate the juvenile court’s order and
remand the case once again so that the juvenile court can make the required
preliminary finding as to whether the mother is entitled to counsel under the due
process requirements laid out in B. R. F. If it finds that the mother is so entitled, the
court may then proceed to the question whether counsel was ineffective.
4
The juvenile court found as follows:
In [In the Interest of B. R. F.], the court found that the juvenile court must
make the initial determination whether an indigent parent is entitled to
file an out-of-time application for discretionary review to remedy
ineffective assistance of counsel if that parent was entitled to appoinment
of counsel as a matter of due process.
At the hearing of November 7, 2025, this court heard evidence and
testimony requiring a FINDING that trial counsel for the mother was
ineffective in its efforts to file the appropriate appeal and that said
ineffectiveness was the sole reason for the inappropriate filing. Thus, this
court FINDS and ORDERS that the mother DOES HAVE the right to
file an out-of-time appeal. (Emphasis added.)
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2. In light of our holding above, we need not reach the mother’s contentions
concerning the underlying termination order.
Judgment vacated and case remanded with direction. Markle and Hodges, JJ.,
concur.
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