In the Interest of R. B., Children (Mother) , 816 S.E.2d 706 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 25, 2018
In the Court of Appeals of Georgia
A18A0263. IN THE INTEREST OF R. B. et al., children.
MERCIER, Judge.
C. M. (“the mother”) appeals from the order entered April 4, 2017, nunc pro
tunc to December 9, 2016, by the Juvenile Court of Douglas County finding her minor
children R. B. and T. B. dependent and granting temporary custody of the children to
their maternal grandmother. The mother contends that the juvenile court erred by: (1)
ordering the removal of the children from her custody without following statutory
guidelines for changing custody and without making the requisite findings under
OCGA § 15-11-134; (2) failing to dismiss the petition for dependency without
prejudice when hearings were not held within the statutorily-mandated time frames and
the mother did not receive proper notice of the proceedings; and (3) adjudicating the
children dependent when there was not clear and convincing evidence of dependency.
For the following reasons, we vacate the judgment in part, reverse it in part, and
remand the case with direction.
1. The mother contends that the juvenile court erred by removing R. B. and T.
B. from her custody and from the children’s home without following the statutory
guidelines set out in OCGA § 15-11-133, without making the findings required by
OCGA § 15-11-134, and without holding a preliminary protective hearing within 72
hours of the children’s removal as required by OCGA § 15-11-145 (a).
OCGA § 15-11-133 (a) provides that “[a] child may be removed from . . . her
home, without the consent of . . . her parents, guardian, or legal custodian: (1)
[p]ursuant to an order of the court under this article[.]” “Any order authorizing the
removal of a child from . . . her home shall be based on a finding by the court that
continuation in . . . her home would be contrary to . . . her welfare.” OCGA § 15-11-
134 (a). “Any order continuing a child’s placement outside of the physical custody of
. . . her parent, guardian, or legal custodian shall be based on a finding by the court
that return of such child to such custody would be contrary to . . . her welfare.”
OCGA § 15-11-134 (b). “Findings under this Code section shall be made on an
individualized case-by-case basis and shall be documented in the court’s written
order.” OCGA § 15-11-134 (c).
2
“Foster care” is defined as “placement in foster family homes, child care
institutions, or another substitute care setting approved by the department.” OCGA
§ 15-11-2 (34). “A child taken into custody shall not be placed in foster care prior to
the hearing on a petition for dependency unless: . . . [f]oster care is required to protect
the child; . . . or . . . [a]n order for the child’s foster care has been made by the court.”
OCGA § 15-11-135 (a). Pursuant to OCGA § 15-11-135 (c) (3), “[a]n alleged
dependent child may be placed in foster care” in the home of a relative. “If an alleged
dependent child is removed from . . . her home and is not returned home, the
preliminary protective hearing shall be held promptly and not later than 72 hours after
such child is placed in foster care[.]” OCGA § 15-11-145 (a). “Reasonable oral or
written notice of the preliminary protective hearing . . . shall be given to . . . [the
child’s] parent [if such person can be found].” OCGA § 15-11-145 (b).
As explained below, the mother is correct that the statutory requirements for
removal of custody were not followed here, specifically those requiring a preliminary
protective hearing within 72 hours after the children were placed in foster care,
reasonable notice of the hearing to the parent, and an order that included certain written
findings regarding the children’s welfare.
3
On September 2, 2016, the Douglas County Department of Family and Children
Services (the “Department”) filed a non-emergency petition for dependency and
complaint, which stated that the children resided with their maternal grandmother, that
“the Department placed the minor children with the maternal grandmother through a
Safety Plan agreement[,]” and that the children were not taken into custody under the
provisions of OCGA § 15-11-132.1 A hearing on the petition was scheduled for
September 26, 2016. On that date the mother was not present in court. Counsel for the
Department stated, “we don’t have proof of service back from the sheriff, so I do not
know if . . . [the mother has] been served.”
The juvenile court stated that it understood that the maternal grandmother “ha[d]
been taking care of” the children, and announced that it was “go[ing] ahead and
enter[ing] an order placing the children temporarily in [the maternal grandmother’s]
custody.” The Department confirmed with the maternal grandmother that the address
that was provided to the sheriff’s office for service of the petition on the mother was
correct. The attorney for the children then informed the court that the children had not
“indicated that they want[ed] to go back with [the mother],” and the guardian ad litem
1
OCGA § 15-11-132 involves verbal custody orders.
4
informed the court that the children were “fearful” of the mother coming to their
school. The juvenile court stated, “I will enter an order that they cannot have any
contact with their mother until she appears before the [court][.]”
The juvenile court asked the Department’s counsel, “[s]o how much time do
you want to tag the parents?” The Department’s counsel replied, “it depends on what
we get back from the sheriff. I would say 60 days”; the court then stated that the
hearing would be continued until November 28, 2016. The court next instructed the
maternal grandmother: “[W]hat I want [the mother] to know is if she wants to have
contact with her children, if she will come up here and apply for an attorney, I can
move the court date up.”
On September 26, 2016, the juvenile court entered an “Interim Custody Order”
which stated, “[maternal grandmother] has . . . been awarded legal and physical
custody of the . . . children.” Then, on November 23, 2016, nunc pro tunc to
September 26, 2016, the court entered an order stating that the September 26, 2016
matter was being continued “for good cause” until November 28, 2016 “for an
adjudication,” that “temporary custody and control” of the children was awarded to
the maternal grandmother, and that the mother was prohibited from having contact with
5
the children “until such time as she appear[ed] before the [c]ourt.” Neither order
included the findings required by OCGA § 15-11-134.
The mother submitted a financial affidavit for appointment of counsel in the
dependency case on September 28, 2016, and an attorney was appointed to represent
her on September 29, 2016. At the November 28, 2016 adjudication hearing, the
mother appeared with counsel, acknowledged service of the petition, and requested
a “trial date.” Counsel for the mother stated, “I may be filing a motion to dismiss,” and
argued,
[the mother] has not been served until today when she’s acknowledging
service. She’s had no contact with the Department. They’ve
acknowledged that they had the wrong phone number for her and we’re
just now having a hearing. So . . . the 72-hour hearing, . . . the 10-day
hearing, none of that has taken place in this case. And she’s gone now
three months . . . having her due process rights violated by having her
children removed from her custody.
The juvenile court then set the case for the adjudication hearing to be held on
December 9, 2016.
At the December 9, 2016 adjudication hearing, the mother’s counsel argued that
the petition should be dismissed pursuant to OCGA § 15-11-133 and OCGA § 15-11-
6
145 because “there was never a . . . 72-hour hearing after . . . removal. [The mother]
did not have notice of the hearing. And the custody order does not set up a factual
basis as to why the children were being removed and placed in the custody of [the
maternal grandmother].” Counsel for the mother further argued, “the children were
effectively removed from [the mother’s] custody in September and as we sit here
today in December, she has not had an opportunity to contest the removal[.]” The
juvenile court found that the mother’s motion had not been filed and was not timely,
and denied it. After hearing evidence, the juvenile court found the children to be
dependent as to the mother.2 The court further noted, “this is not a case where the
children were removed by the State. The Department filed the petition following an
investigation, set it for a hearing. The mother was not served, apparently, for the
[September 26, 2016] hearing. The custody order was entered because the children
were with the grandmother without her having the ability to address things like medical,
dental care.” The juvenile court entered an order on April 4, 2017, nunc pro tunc to
2
The petition also alleged that the children were dependent as to their father, but
the December 9, 2016 hearing addressed the dependency of the children only as to the
mother. The father is not a party to this appeal.
7
December 9, 2016, finding the children dependent as to the mother and granting
temporary custody of the children to their maternal grandmother.
The Department contends that the children were not in foster care. It also argues
that removal of the children from the mother’s custody is distinguishable from removal
of the children from their home and, in this case, the children were not removed from
their home inasmuch as prior to the dependency proceedings they had lived with their
grandmothers “for an extended period of time.” Therefore, the Department argues, the
juvenile court was not required to hold a preliminary protective hearing or comply with
the other statutory provisions related to removal of the children from their home.
In support of its argument that the children were not removed from their home,
the Department cites In the Interest of J. W. K., 276 Ga. 314 (578 SE2d 396) (2003).
In that case, the Court held that former OCGA § 15-11-58 (a) (2000) (which set forth
procedural requirements related to the removal of a child from the child’s home in
connection with a deprivation action) did not apply where the juvenile court granted
legal custody to a child’s aunt and uncle for two years because “the evidence [was]
irrefutable that the only home [the child] ha[d] known” for the preceding ten years was
the home of his aunt and uncle; the child’s mother had not provided a home for him
for ten years; the child’s aunt and uncle had cared and provided for the child for ten
8
years; the mother had seen the child infrequently; and the mother had “assumed
virtually no responsibility for . . . his well-being.” Id. at 315-316 (1).
The instant case is distinguishable from In the Interest of J. W. K., and we agree
with the mother that the children in this case were removed from their home and were
placed in foster care as contemplated by the dependency statutes. The evidence before
the juvenile court on December 9, 2016 showed that, prior to the Department’s
involvement, the children were residing with the paternal grandmother for the summer
(by agreement with the mother). The mother “was to pick [the children] up at the end
of the summer to go back to school.” When the paternal grandmother needed to travel
to Ohio to visit her ailing father, she contacted the mother to request that she pick up
the children. The mother replied that she could not get the children at that time because
she had plans to travel to Florida. The paternal grandmother told the mother that if she
did not come to pick up the children, the paternal grandmother would call the maternal
grandmother to see if she would get the children. The mother did not respond, and the
maternal grandmother picked up the children and kept them “all summer.”
A. M., an investigator for the Department, testified that in July 2016, the
Department received a telephone call in which someone expressed concerns regarding
how the children were being disciplined. A. M. began an investigation, and while the
9
mother was still out of town, A. M. interviewed the maternal grandmother and the
children. When A. M. later met with the mother in August 2016, the mother was angry
and said that A. M. could “send [the children] to foster care.” A. M. told the mother
that the Department was not going to take the children, “but [was going to] leave them
in [the maternal grandmother’s] custody.” The juvenile court thereafter entered the
September 26, 2016 order awarding temporary custody of the children to the maternal
grandmother, and prohibiting the children from having any contact with the mother
until she appeared before the court.
At the December 9, 2016 hearing, the mother testified as follows. She received
a telephone call from the Department on August 8, 2016, which was the children’s first
day of school. She had tried “to get [the children] for that weekend to make sure that
they were situated before school started.” She then called the maternal grandmother
“repeatedly” on August 8, 2016, “trying to figure out why [the Department] was calling
[the mother].” The maternal grandmother told the mother that the Department had
attempted to contact the mother “before”; the mother saw that she had one missed call
from the Department. The mother spoke with A. M. and with K. F., another
Department employee, and was “advised” that the Department was “going to do . . .
[an] investigation.” The mother assumed that the Department was going to contact her.
10
The mother spent time with R. B. and T. B. on their birthdays on August 13,
2016 and September 10, 2016. Later, the mother sent a text message to the maternal
grandmother and “asked her for the [children] [for the] weekend.” The maternal
grandmother sent the mother a text message informing her that the mother’s custody
of the children had been “removed,” that “[the maternal grandmother had] temporary
custody of [the children],” and that the mother had “missed a court date[.]”
There was no evidence before the juvenile court that, prior to the Department’s
involvement, the children’s residence with the maternal grandmother was anything
other than a temporary arrangement, which arrangement the mother could have ended
at any time. See generally In the Interest of M. F., 298 Ga. 138, 145 (2) (780 SE2d
291) (2015) (recognizing the fundamental right of parents to direct the upbringing of
their children, that parents have a fundamental liberty interest in the care, custody and
management of their children, and that unless and until that relationship is lawfully
terminated, parents retain parental rights). The evidence did not demonstrate that the
maternal grandmother’s home was the children’s home. Compare In the Interest of J.
W. K., supra. The juvenile court’s order of September 26, 2016 constituted a removal
of the children from their home with the mother and a removal of custody of the
children from the mother. In these circumstances, the juvenile court was required to
11
hold a preliminary protective hearing within 72 hours of the court’s grant of custody
to the maternal grandmother, with reasonable notice given to the mother, see OCGA
§ 15-11-145, and to make the findings required by OCGA § 15-11-134 (a), (c). The
court erred by not holding the hearing within the required time period, by not giving
the mother proper notice of the hearing, and by not making the required written
findings.
2. The mother contends that because the statutory time frame for the hearing
was not followed and she did not receive proper notice of the proceedings, the trial
court erred by not dismissing the dependency petition (without prejudice). We agree.
The notice and hearing requirements of the juvenile code are mandatory, and if
the procedural safeguards are not followed, “dismissal of the petition would be
without prejudice. Another petition can be filed without delay if there is reason to
believe the child[ren are] being neglected or abused.” Sanchez v. Walker County Dept.
of Family & Children Services, 237 Ga. 406, 407, 411 (229 SE2d 66) (1976) (holding
that the notice and hearing requirements of former Ga. Code §§ 24A-1402 (a) and
24A-1404 (c) (requiring prompt notice to parents when a child is taken into custody,
and an informal detention hearing within 72 hours after a child is placed in detention,
with reasonable notice to the parents) are mandatory); see In the Interest of E. C., 291
12
Ga. App. 440, 441 (662 SE2d 252) (2008) (applying Sanchez in the context of former
OCGA § 15-11-49 (e), which required the filing of a petition within five days of a
detention hearing if an allegedly deprived child was not released from shelter care at
such hearing).
“We applaud the important function performed by the Department . . . in
protecting children who are mistreated by their parents. However, wresting a child
away from the care and custody of [his or her] parents is of serious consequence. It
is so drastic that it should be attended only by the most stringent procedural
safeguards.” Sanchez, supra at 411 (citation omitted). Because the statutory
requirements were not followed here, we vacate the September 26, 2016 order granting
temporary custody to the maternal grandmother, reverse the juvenile court’s denial of
the mother’s December 9, 2016 motion to dismiss the petition as to the mother, vacate
the juvenile court’s December 9, 2016 order finding the children dependent as to the
mother and continuing the maternal grandmother’s temporary custody of the children,
and remand the case with instruction that the dependency petition be dismissed
without prejudice as to the mother.
3. Given our holding in Divisions 1 and 2, we need not address the mother’s
remaining contention.
13
Judgment reversed in part and vacated in part and remanded with direction.
Doyle, P. J., concurs, Dillard, C. J., concurring fully and specially.
14
A18A0263. IN THE INTEREST OF R. B. et al., children.
DILLARD, Chief Judge, concurring fully and specially.
The liberty interest of parents to direct the upbringing, education, and care of
their children is the most ancient of the fundamental rights we hold as a people.1 This
most cherished right derives from the natural order, preexists government, and may not
be interfered with by the State except in the most compelling circumstances. And even
then, both the federal and Georgia constitutions require that parents be afforded due
process. Unfortunately, this case presents yet another troubling example of a parent’s
right of familial relations being interfered with by our government without such
procedural protections. I write separately, then, to express my grave concerns about
the trial court’s failure to recognize and safeguard the mother’s constitutional right to
familial relations with her children.
Juvenile courts must be mindful in every case that, regardless of any perceived
authority given to them by Georgia’s Juvenile Code to interfere with a natural parent’s
custodial relationship with his or her child, such authority is only authorized if it
comports with the long-standing, fundamental principle that “[p]arents have a
constitutional right under the United States and Georgia Constitutions to the care and
1
I concur fully in the majority’s thoughtful and well-reasoned opinion. As a
result, it may be cited as binding precedent. See Court of Appeals Rule 33.2 (a) (1).
custody of their children.”2 In this respect, the Supreme Court of the United States has
acknowledged that “[t]he liberty interest . . . of parents in the care, custody, and
control of their children—is perhaps the oldest of the fundamental liberty interests . .
. .”3 Moreover, although a parent’s right to raise his or her children without state
2
Clark v. Wade, 273 Ga. 587, 596 (IV) (544 SE2d 99) (2001) (plurality
opinion); see Meyer v. Nebraska, 262 U.S. 390, 399 (43 SCt 625, 67 LEd 1042)
(1923) (noting that the “liberty interest guaranteed by the Fourteenth Amendment [to
the United States Constitution] includes freedom . . . to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home[,] and
bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized at common law as essential to
the orderly pursuit of happiness by free men” (emphasis supplied)); see also Prince v.
Massachusetts, 321 U. S. 158, 166 (64 SCt 438, 88 LEd 645) (1944) (noting that there is a “private
realm of family life which the state cannot enter”); Pierce v. Soc’y of the Sisters of the Holy
Names of Jesus & Mary, 268 U.S. 510, 535 (45 SCt 571, 69 LEd 1070) (1925) (“The
child is not the mere creature of the state; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for additional obligations.”); In the Interest of
M. F., 298 Ga. 138, 144-45 (2) (780 SE2d 291) (2015) (“The presumption that children ordinarily belong
in the care and custody of their parents is not merely a presumption of the statutory and common law, but
it has roots in the fundamental constitutional rights of parents. The Constitution secures the fundamental right
of parents to direct the upbringing of their children, and it protects a private realm of family life which the
state cannot enter without compelling justification.” (punctuation and citation omitted)); Brooks v.
Parkerson, 265 Ga. 189, 191 (2) (a) (454 SE2d 769) (1995) (“The U.S. Supreme Court has long
recognized a constitutionally protected interest of parents to raise their children without undue state
interference.”); see generally U.S. Const. amend. IX (“The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.”) (emphasis supplied);
U.S. Const. amend. XIV, § 1 (“. . . No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States . . . .”); Ga. Const. Art. 1, § 1, XXIX (“The
enumeration of rights herein contained as part of this Constitution shall not be construed to deny to the
people any inherent rights which they may have hitherto enjoyed.”) (emphasis supplied).
3
Troxel v. Granville, 530 U.S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000)
(plurality opinion); see id. at 68 (II) (noting the constitutional presumption that “fit
2
interference is largely expressed as a “liberty” interest, the Supreme Court of the
United States has also noted that this right derives from “privacy rights” inherent in the
text, structure, and history of the federal constitution.4
parents act in the best interests of their children”); Parham v. J. R., 442 U.S. 584, 602
(III) (b) (99 SCt 2493, 61 LE2d 101) (1979) (noting that the federal constitution’s
“concept of the family rests on a presumption that parents possess what a child lacks
in maturity, experience, and capacity for judgment required for making life’s difficult
decisions,” and that “natural bonds of affection lead parents to act in the best interest
of their children”); see also 2 ST. GEORGE T UCKER, BLACKSTONE’S COMMENTARIES
WITH NOTES OF REFERENCE TO THE C ONSTITUTION AND LAWS OF THE FEDERAL
GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA 446
(Birch & Small 1803) (“The duty of parents to provide for the maintenance of their
children is a principle of natural law.”); 2 JAMES KENT, COMMENTARIES ON AMERICAN
LAW 169 (O. Halsted 1827) (noting that “[t]he rights of parents result for their duties
[to their children],” and “the law has given them such authority”); JOHN LOCKE,
SECOND T REATISE OF GOVERNMENT, Ch. 6, § 71 (Hackett Publishing Co., Inc. 1980,
originally published in 1690) (“This shews the reason how it comes to pass, that
parents in societies, where they themselves are subjects, retain a power over their
children, and have as much right to their subjection, as those who are in the state of
nature.”).
4
See Brooks, 265 Ga. at 191-92 (2) (a); see also Clark, 273 Ga. at 606(Thompson, J., dissenting) (“Under the Due Process Clause of the Fourteenth
Amendment, and our state constitution, parents have a fundamental liberty interest and
privacy right in raising their children without undue state influence.” (emphasis
supplied)); see, e. g., Prince, 321 U.S. at 165 (recognizing a parent’s authority over
rearing his or her children and the right of a parent to control over and training of her
child as “sacred private interests” that are “basic in a democracy”).
3
In Georgia, a parent’s natural right to familial relations is also recognized “under
our state constitutional protections of liberty and privacy rights.”5 Indeed, Georgia
courts have repeatedly recognized that “the constitutional right to raise one’s children
is a fiercely guarded right in our society and law, and a right that should be infringed
upon only under the most compelling circumstances.” 6 In fact, according to our
Supreme Court, “there can scarcely be imagined a more fundamental and fiercely
guarded right than the right of a natural parent to [his or her] offspring.”7 And the
“fundamental liberty interest of natural parents in the care, custody, and management
of their child does not evaporate simply because they have not been model parents.
5
Brooks, 265 Ga. at 192 (2) (a). Cf. Powell v. State, 270 Ga. 327, 330-31 (2)
(510 SE2d 18) (1998) (“[T]he ‘right to be let alone’ guaranteed by the Georgia
Constitution is far more extensive tha[n] the right of privacy protected by the U.S.
Constitution, which protects only those matters ‘deeply rooted in this Nation’s history
and tradition’ or which are ‘implicit in the concept of ordered liberty.’”).
6
In the Interest of D. M., 339 Ga. App. 46, 52 (793 SE2d 422) (2016)
(punctuation omitted); accord In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d
299) (1978); In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785)
(2015); In the Interest of J. V. J., 329 Ga. App. 421, 425 (765 SE2d 389) (2014); In
the Interest of C. J. V., 323 Ga. App. 283, 283 (746 SE2d 783) (2013); In the Interest
of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006).
7
In the Interest of M. F., 298 Ga. at 145 (2) (punctuation omitted); accord
Floyd v. Gibson, 337 Ga. App. 474, 479 (1) (788 SE2d 84) (2016).
4
. . .”8 Put another way, the focus of a determination of whether a parent is fit for the
purposes of custody
must be the parent’s ability to provide for the children in a manner
sufficient to preclude the need for an entity of the government to
intervene and separate the children from the parent, and a court is not
permitted to terminate a parent’s natural right to custody merely because
it believes that the children might have better financial, educational, or
moral advantages elsewhere, that is, the parent’s ability to raise his
children is not to be compared to the fitness of a third person.9
To be sure, parental rights are not absolute. But when this fundamental liberty interest
is at stake, the court must “give full, fair, and thoughtful consideration to the serious
matter at hand.”10
8
In the Interest of M. F., 298 Ga. at 145 (2); accord Santosky v. Kramer, 455
U.S. 745, 753 (II) (102 SCt 1388, 71 LE2d 599) (1982); In the Interest of S. O. C.,
332 Ga. App. at 746-47 (3).
9
Floyd, 337 Ga. App. at 476-77 (1) (punctuation omitted); accord Harris v.
Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011); Wade v. Wade, 272 Ga. 526,
527 (1) (531 SE2d 103) (2000).
10
Floyd, 337 Ga. App. at 479 (1); accord In the Interest of C. H., 343 Ga.
App. 1, 15 (805 SE2d 637) (2017) (Dillard, C. J., concurring fully and specially)
(Certiorari review granted by the Supreme Court of Georgia on June 18, 2018. See
S18C0322.)
5
In construing our Juvenile Code to comport with these constitutional
safeguards, we have explained that there are three constitutionally based presumptions
in making a custody determination: “(1) the parent is a fit person entitled to custody,
(2) a fit parent acts in the best interest of his or her child, and (3) the child’s best
interest is to be in the custody of a parent.”11 Furthermore, we have also emphasized
that “[t]o authorize even a temporary loss of custody by a child’s parent, the
[dependency12] must be shown to have resulted from unfitness on the part of the
11
Brawner v. Miller, 334 Ga. App. 214, 216 (778 SE2d 839) (2015)
(punctuation omitted); accord Clark, 273 Ga. at 593 (II); Trotter v. Ayres, 315 Ga.
App. 7, 8-9 (2) (726 SE2d 424) (2012); Galtieri v. O’Dell, 295 Ga. App. 797, 798
(673 SE2d 300) (2009).
12
Our old Juvenile Code was substantially revised in 2013, and the new Juvenile
Code applies to this case because it was initiated in 2015, after the revisions were
enacted. See In the Interest of M. F., 298 Ga. at 138 n.1; Ga. L. 2013, p. 294, § 5-1
(providing that the Juvenile Code became effective on January 1, 2014). And “[t]oday,
the law no longer speaks of a ‘deprived child,’ but instead refers to a ‘dependent
child.’” In the Interest of M. F., 298 Ga. at 138 n.1. Although this case was decided
under the new Juvenile Code, several of the cases relied upon in this concurrence
regarding the requirements to justify the removal of a child from his or her parent’s
custody or the termination of parental rights were decided under the old Code and use
the terms “deprived” and “deprivation,” rather than “dependent” and “dependency.”
Nevertheless, given the similarities between the definitions of these terms, Georgia
courts have repeatedly indicated that, to the extent that there is any meaningful
distinction between a “deprived child” under the old Code and a “dependent child”
under the new Code, it is an unimportant one in cases involving child custody or
termination of parental rights. See id. at 144 (2) (explaining that the reappearance of a
fit parent is a material change in circumstances that can render a child no longer
6
parent, that is, either intentional or unintentional misconduct resulting in the abuse or
neglect of the child or by what is tantamount to physical or mental incapability to care
for the child.”13 Significantly, an order temporarily transferring custody of a child
based on alleged dependency “must be grounded upon a finding that the child is at the
present time a [dependent] child, and a finding of parental unfitness is essential to
support an adjudication of present [dependency].”14 And, of course, the child’s
“deprived” or “dependent” for purposes of a custody determination); In the Interest
of C. J. V., 333 Ga. App. 844, 847-48 (2) (777 SE2d 692) (2015) (noting the
similarities between the statutory definitions of “deprived” and “dependent” and
rejecting a mother’s argument that there was insufficient evidence to support the
termination of her parental rights merely because the juvenile court, in a case in which
the new Code applied, found her child “deprived” rather than “dependent”); In the
Interest of G. R. B., 330 Ga. App. 693, 693 n.1 (769 SE2d 119) (2015) (setting forth
the similarities in the statutory definitions of “deprived” and “dependent,” and noting
that, even though the juvenile court improperly used “dependent” in its order, this
Court would use “deprived” instead because the old Juvenile Code applied at the time
the petitions were filed). For purposes of consistency and because the new Code
applies, I am only using the terms “dependent” and “dependency” in this separate
opinion.
13
In the Interest of E. N. R., 323 Ga. App. 815, 816 (748 SE2d 293) (2013)
(punctuation omitted; emphasis omitted); accord In the Interest of G. R. B., 330 Ga.
App. at 700-01; In the Interest of S. D., 316 Ga. App. 86, 86 (728 SE2d 749) (2012);
In the Interest of J. H., 310 Ga. App. 401, 402 (713 SE2d 472) (2011).
14
In the Interest of E. N. R., 323 Ga. App. at 816 (punctuation omitted and
emphasis supplied); accord In the Interest of D. H. D., 289 Ga. App. 32, 35 (656
SE2d 183) (2007)
7
present dependency must always be proved in court by clear and convincing
evidence.15
As explained by the majority, the mother in this case was deprived of several
constitutional and statutory rights, including her right to a hearing within 72 hours of
the court’s grant of custody to the maternal grandmother, her right to reasonable
notice of that hearing, and her right to written factual findings by the juvenile court to
support its ruling. But perhaps the most troubling aspect of this case is that the
mother’s constitutional right to the custody, care, and control over her own children
was almost entirely ignored when the court granted temporary custody to the maternal
grandmother without any evidence that the children were presently dependent—i.e.,
no showing had been made by the State that the children were dependent as a result
of their mother’s unfitness to care for them.16 Indeed, at the time of the initial
September 2016 hearing, the children had not been in their mother’s physical custody
for several months. Nevertheless, the State contends that the mother’s rights were not
15
See, e.g., Brawner, 334 Ga. App. at 216; In the Interest of G. R. B., 330 Ga.
App. at 700; In the Interest of E. N. R., 323 Ga. App. at 816; In the Interest of S. D.,
316 Ga. App. at 86. Here, the sole basis for the juvenile court’s custody decision
appears to be educational neglect. But, again, no witness testimony or other evidence
was presented to support the court’s finding.
16
See supra notes 14-15 & accompanying text.
8
violated because it did not take the children into custody or place them in foster care.
This is utter nonsense. As the majority rightly notes, a parent does not surrender her
custodial rights to a relative merely because she allows her children to temporarily visit
that relative for the summer.
The State also argues that any error committed by the trial court in the
September 26, 2016 interim custody order—i.e., the order issued before the mother
had notice of the proceeding and prior to her appearance in court—was harmless
because the mother ultimately had a full and fair opportunity to contest the order. But
given the gravity of the constitutional rights at stake and the length of time the mother
involuntarily spent away from her children, I find this argument as offensive as it is
unavailing.17
In sum, I take this opportunity, yet again,18 to remind our juvenile courts and the
State that, in making any decision or taking any action that interferes with a parent-child
17
See e.g., In the Interest of J. M. B., 296 Ga. App. 786, 790-91 (676 SE2d 9)
(2009) (holding, in a termination case involving a parent’s “fundamental and fiercely
guarded right to his or her child,” that the total and erroneous denial of appointed
counsel during the termination hearing was presumptively harmful because it called into
question the very structural integrity of the fact-finding process).
18
See, e.g., In Interest of R. S. T., 345 Ga. App. 300, 314-21 (812 SE2d 614)
(2018) (Dillard, C. J., concurring fully and specially); In the Interest of C. H., 343 Ga.
App. at 13-19 (Dillard, C. J., concurring fully and specially).
9
relationship, our Juvenile Code is subordinate to and must be construed in light of the
fundamental rights recognized by the federal and Georgia constitutions. As this Court
has rightly recognized, “[t]he constitutional right of familial relations is not provided
by government; it preexists government.”19 Indeed, this “cherished and sacrosanct
right is not a gift from the sovereign; it is our natural birthright. Fixed. Innate.
Unalienable.”20 Thus, regardless of a court’s (or any other state actor’s) personal
feelings or perception of a parent’s fitness to care for or retain custody of his or her
child, careful consideration of these bedrock constitutional principles and safeguards
must remain central to each case without exception. And when this fails to occur, we
will not hesitate to remind our juvenile courts and the State of the solemn obligation
our government has to safeguard the parental rights of the citizens it serves.
19
In Interest of E. G. L. B., 342 Ga. App. at 848; accord In the Interest of C.
H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and specially); see In Interest
of R. S. T., 345 Ga. App. 300, 315-16 (Dillard, C. J., concurring fully and specially)
(“The liberty interest parents have in familial relations with their children is a natural-law
right that has been enshrined in our positive law. It is a right that preexists government
and one that we retain as a people separate and apart from any statute or constitution.”
(footnotes and punctuation omitted)).
20
In Interest of E. G. L. B., 342 Ga. App. at 848 (punctuation omitted); accord
In the Interest of C. H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and
specially).
10