Aрpellees Joseph and Kara Jones filed a petition to adopt a minor child, J. J., in the Suрerior Court of Hart County. Appellant Adis Numanovic filed a petition for legitimation in that same action, which the trial court denied as untimely. Several months later, the trial court entered a final order granting the Joneses’ petition to adopt. Numanovic filed a direct appeal from that final adoption
The record shows that J. J. was born on July 6, 2011. The biological mother executed documents surrendering her parental rights to the Joneses, the prospective adoptive family. The mother also executed an affidavit identifying the biological father of the child as Numanovic. On July 18, 2011, the Joneses initiated a proceeding to adopt J. J. and served appellant with notice оf the petition via a certified process server on July 19, 2011. On August 15, 2011, Numanovic, pro se, filed a responsive pleading that did not include a petition for legitimation or a notice of filing such pеtition, but instead stated that he “would proceed” to file a petition for legitimation and that he objected to the adoption of J. J. Appellant then obtained counsel and, on October 5, 2011, filed a petition for legitimation within the same civil action proceeding as the Jonеses’ adoption petition. The trial court then denied appellant’s petition for legitimation and further ordered that appellant was “denied from objecting] to [the Joneses’] [p]еtition for [a]doption of the child.” The trial court further denied appellant’s motion for reсonsideration of that ruling. The trial court then entered a final order of adoption on January 13, 2012. Appellant filed the instant notice of appeal on January 18, 2012.
The Joneses moved tо dismiss this direct appeal, contending that this Court lacks jurisdiction because Numanovic failed to file a discretionary application as required by OCGA § 5-6-35 (a) (12) and because his appeal was untimely.
Two Code sections determine the method for pursuing appeals to this Court and to thе Supreme Court of Georgia. OCGA § 5-6-34 describes the trial court judgments and orders that may be appealed directly, including “[a]ll final judgments[,]” such as the trial court’s final adoption order in the present case. OCGA § 5-6-34 (a) (1). OCGA § 5-6-35 lists cases in which an application for appeal is required and includes “[аjppeals from orders terminating parental rights.” OCGA § 5-6-35 (a) (2), (a) (12). See also In the Interest of A. C.,
Both OCGA §§ 5-6-34 (a) and 5-6-35 (a) are invоlved when, as here, a trial court issues a judgment in a case covered by the direct apрeal statute, but where the subject matter may also be covered under the discretionary appeal statute. “Where both the direct and discretionary appeal statutes arе implicated, it is always the underlying subject matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-34 or [OCGA] § 5-6-35.” Ferguson v. Composite State Bd. of Medical Examiners,
We further note that Georgia law requires that a petition for legitimation be filed in a new civil proceeding with a separate сivil action number, and not within the same civil action number as the underlying adoption proceеding. See Brewton v. Poss,
Because the review of the trial court’s denial of Numanovic’s petition for legitimation must come by discretionary application and Numanovic failed to file an application, wе are without jurisdiction to hear the merits of his appeal.
Appeal dismissed.
Notes
Because our finding that Numanovic’s appeal is dismissed for failure to follow discretionary appeal procedures, we need not reach the issue of whether his appeal was timely filed.