COA Denies Appeal Because Parent Raised Same Challenge in Prior Appeal From Different Order

In re Green involved placement of children in a juvenile guardianship. What I found striking about the decision is that the COA held in this appeal by right that the issue was barred by the COA’s previous denial of a delayed application from a different order relating to the juvenile guardianship. In the delayed application, the parent challenged a Nov 2012 Order (following a dispositional review hearing and maintaining the juvenile guardianship placement) on the grounds that the guardianship violated the parent’s due process rights and resulted in a de facto termination absent clear and convincing evidence.

There were other issues raised as well. The COA denied leave "on the merits." This is the standard language used in almost every order denying leave to the Court of Appeals. In the appeal by right, the parent challenged a July 2013 order, which formally established the juvenile guardianship. According to the COA, respondent raised the “very same arguments that she proffered in her application for leave, which were rejected on the merits by this Court.” Based on this, the COA applied the law of the case and affirmed the trial court’s decision. It seems that if the parent is appealing a different order, it should not matter that the parent is raising the same substantive issue, as it pertains to that new order. Indeed, in the Green case, there was more factual development, and other things had changed. The problem arises from giving res judicata effect to a leave denial when the COA does not give full consideration to the case in the first place.