318 Ga. App. 772
Ga. Ct. App.2012Background
- Judgment concerns long-term custody of three-year-old twins with competing relatives and foster-family placements.
- DFACS initially placed twins with a foster family and later pursued non-reunification and a custody modification to relatives; the district court’s rehearing ultimately vacated its prior custody ruling.
- The mother consented to non-reunification at the November 18, 2010 hearing, while DFACS and the relatives pursued different custody paths.
- A rehearing court later held that termination and adoption were not in the children’s best interests and awarded custody to the relatives, prompting this appeal.
- This Court vacates the rehearing order due to an erroneous legal conclusion of a relative-placement preference and remands for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA 15-11-58(i)(1) creates a relative-placement preference | Twins argue a statutory preference exists for relative placement | The statute does not express a relative-placement priority | No statutory priority for relatives; error vacates custody order |
| Whether the children have standing to appeal via their attorney | Children have real interest and may appeal when no guardian ad litem is appointed | Unemancipated minors generally require guardian/next friend | Children may appeal through their attorney in these facts |
| Whether the rehearing nunc pro tunc order improperly supplied legal reasoning | Order dated Feb. 28, 2011 retroactively fixed the order | Nunc pro tunc entries correct clerical errors only | Nunc pro tunc entry improper; effective date is Oct. 21, 2011 |
| Whether the superior court lacked authority to terminate parental rights given juvenile court first filed | Termination should be decided by juvenile court | Superior court could exercise concurrent jurisdiction | Superior court lacked jurisdiction to terminate; remand for appropriate proceedings |
| Whether the rehearing court erred by treating a relative-placement preference as fact | Relatives were given de facto priority | No such preference existed in OCGA 15-11-58(i)(1) | Rehearing order vacated; no relative-placement priority; remand |
Key Cases Cited
- In the Interest of J. C. W. II, 315 Ga. App. 569 (Ga. App. 2012) (discusses remand for best-interests and lack of authority for termination in superior court first)
- In the Interest of J. C. W. I, 311 Ga. App. 895 (Ga. App. 2011) (vacated order for failure to address best interest referral for termination/adoption)
- In the Interest of D. C. H., 300 Ga. App. 827 (Ga. App. 2009) (nunc pro tunc correction of clerical error; proper use limited)
- Long v. Long, 303 Ga. App. 215 (Ga. App. 2010) (concurrent-jurisdiction principles in deprivation cases)
- In the Interest of W. L. H., 314 Ga. App. 185 (Ga. App. 2012) (standing of a child to appeal via counsel; guardian issues)
- Ertter v. Dunbar, 292 Ga. 103 (Ga. 2012) (supreme court on jurisdiction for permanent custody orders)