In the Interest of C. H., Children
805 S.E.2d 637
| Ga. Ct. App. | 2017Background
- DFCS filed a dependency petition after reports (2015) of parental substance abuse and a 911 incident; children were adjudicated dependent but initially remained in parents’ custody conditioned on compliance with services and negative drug/alcohol screens.
- Through several judicial reviews the court continued custody with conditions; parents had counsel until December 2015. On January 12–14, 2016 prior counsel moved to withdraw; parents told the court they had retained new counsel who sought a continuance for the January 20, 2016 review.
- At the January 20, 2016 hearing the court did not swear witnesses or admit evidence; a long discussion occurred among the court, DFCS counsel, and the guardian ad litem; parents’ prior counsel did not participate after asserting a conflict.
- The juvenile court transferred temporary custody of the children to DFCS at that hearing, relying on hearsay and prior orders; written orders followed January 20–21, 2016. Parents were later charged with interstate interference with custody after leaving with the children.
- Parents moved to set aside the January 2016 custody orders claiming deprivation of due process, including denial of the statutory right to counsel, lack of sworn testimony/evidence, and inadequate notice that custody was at issue; the juvenile court denied the motion. The Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the January 20–21, 2016 custody orders are void for denial of right to counsel | Parents: juvenile court deprived them of statutory and constitutional right to counsel by not allowing meaningful opportunity to secure counsel, failing to inquire about indigence, and not obtaining an on-the-record waiver | DFCS: parents had taken steps to secure counsel and/or waived counsel; prior counsel’s withdrawal and lack of entry of appearance justified proceeding | Held: Orders are void — court failed to comply with OCGA §15-11-103(g); no adequate opportunity to obtain counsel, no waiver on record, so due process violated |
| Whether juvenile court may modify prior orders without complying with due process | Parents: court cannot alter custody absent compliance with statutory and constitutional procedural safeguards | DFCS: court has authority under OCGA §15-11-32(b) to modify orders when children’s safety requires it | Held: Court can modify orders but must do so consistent with due process, including protecting right to counsel; modification here violated due process |
| Whether absence of sworn witnesses/evidence invalidates custody transfer | Parents: removal was unsupported by sworn testimony or admissible evidence at hearing — violation of evidentiary and confrontation rights | DFCS: relied on prior findings and concerns about children’s safety and hearsay presented at hearing | Held: Procedural rules require sworn testimony and admissible evidence; lack of any sworn witnesses/evidence at the hearing is a serious procedural defect and militates toward voiding the orders (but primary ground was denial of counsel) |
| Whether collateral consequences (criminal convictions) render appeal moot | Parents: convictions stemmed from void juvenile orders, so appeal is not moot | DFCS: argued appeal moot | Held: Not moot — collateral consequences (felony convictions) mean appeal is live |
Key Cases Cited
- Sanchez v. Walker County Dept. of Family & Children Svcs., 237 Ga. 406 (Ga. 1976) (courts must observe stringent procedural safeguards when removing children from parents)
- McBurrough v. Dept. of Human Resources, 150 Ga. App. 130 (Ga. Ct. App. 1979) (juvenile due process violations can render judgments void)
- In the Interest of A. J., 269 Ga. App. 580 (Ga. Ct. App. 2004) (parents are parties entitled to counsel under Juvenile Code)
- In the Interest of J. M. B., 296 Ga. App. 786 (Ga. Ct. App. 2009) (waiver of counsel must be knowing, intelligent, and voluntary on the record)
- A. M. A. v. State, 270 Ga. App. 769 (Ga. Ct. App. 2004) (trial judge must delay proceedings to allow non-indigent defendant reasonable diligence to obtain counsel)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parents have a fundamental liberty interest in care and custody of children)
- Brawner v. Miller, 334 Ga. App. 214 (Ga. Ct. App. 2015) (requirements for removing a child from parental custody and need for clear evidentiary support)