Dunbar v. Ertter

• Decision Date: 08 November 2011
• Docket Number: No. A11A0933.,A11A0933.
• Citation: 11 FCDR 3540,718 S.E.2d 350,312 Ga.App. 440
• Parties: DUNBAR v. ERTTER et al.
• Court: Georgia Court of Appeals

11 FCDR 3540

312 Ga.App. 440

718 S.E.2d 350

DUNBAR

v.ERTTER et al.

No. A11A0933.

Court of Appeals of Georgia.

Nov. 8, 2011.

Bruce Wayne Phillips, for appellant.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Marietta, Ronne G. Kaplan, Atlanta, Jean Miller Kutner, for appellees.

ANDREWS, Judge.

Denise Dunbar is the maternal grandmother of A.L., a minor child born in May 2006 whose parents are deceased. After the Juvenile Court of Coweta County found the child deprived and gave Dunbar long-term custody pursuant to OCGA § 15–11–58(i), the Superior Court of Cobb County entered an order on a petition for custody brought by Shannon and Michael Ertter,¹ the child's aunt and uncle, which granted permanent custody of the child to the Ertters. We agree with Dunbar that the superior court erred by giving custody of the child to the Ertters while the juvenile court's prior custody order in the deprivation proceeding was unchallenged and still in effect.

Pursuant to a deprivation proceeding commenced on June 27, 2008, the juvenile court found that the minor child's parents were deceased; ² gave temporary custody of the child to the Coweta County Department of Family and Children Services (DFACS) by order dated July 29, 2008; and on October 10, 2008, ordered that long-term custody of the child (subject to periodic review) be given to Dunbar until the child's eighteenth birthday pursuant to OCGA § 15–11–58(i). On August 5, 2008, while the deprivation proceeding was pending, the Ertters filed a petition in the Superior Court of Cobb County, the county where Dunbar resided, seeking permanent custody of the child. When they filed the superior court petition, the Ertters knew about the pending deprivation petition and knew the juvenile court had given temporary custody of the child to DFACS. According to Ms. Ertter, she contacted DFACS in early July; told the child's caseworker to consider her as a relative willing to take custody of the child in the deprivation proceeding; and was informed that her mother, Dunbar, had indicated a willingness to take custody and was being favorably considered. On September 17, 2008, the juvenile court held a hearing (at which the Ertters did not appear) to consider a DFACS motion to transfer custody of the child to Dunbar, and on October 10, 2008, the juvenile court entered an order granting the motion and giving Dunbar long-term custody until the child's eighteenth birthday. OCGA § 15–11–58(i). On December 16, 2009, the Ertters amended their superior court petition to seek a change of custody from Dunbar, and on June 17, 2010, the superior court ordered that permanent custody of the child be given to the Ertters based on the best interest of the child.

In the deprivation action, over which the juvenile court had exclusive original jurisdiction pursuant to OCGA § 15–11–28(a)(1)(C), the Court granted Dunbar long-term custody of the child until the child's eighteenth birthday subject to periodic review as set forth in OCGA § 15–11–58(i). Accordingly, the juvenile court's long-term custody order remained in effect when the superior court entered its permanent custody order. Compare OCGA § 15–11–58.1 (providing that “ [e]xcept as otherwise provided by law, an order of disposition in a proceeding involving deprivation, except an order involving the appointment of a guardian of the person or property of a child, continues in force for not more than two years”). Pursuant to the juvenile court order, Dunbar obtained long-term physical custody of the child, but not permanent custody. OCGA §§ 15–11–13; 15–11–58(i); Douglas v. Douglas, 285 Ga. 548, 549, 678 S.E.2d 904 (2009) (juvenile court does not have authority to award permanent custody absent a transfer order from the superior court; OCGA § 15–11–28(c)(1)). The Ertters brought their action seeking permanent custody in the Superior Court of Cobb County, the county where the physical custodian, Dunbar, resided with the child.³ See Gordon v. Gordon, 269 Ga.App. 224, 225, 603 S.E.2d 732 (2004). The superior court had original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents. See In re J.R.T., 233 Ga. 204, 205, 210 S.E.2d 684 (1974); In the Interest of K.R.S., 253 Ga.App. 678–679, 560 S.E.2d 292 (2002). Nevertheless, because the prior juvenile court order in this case giving long-term physical custody to Dunbar remained in effect, we find that the superior court erred by exercising jurisdiction in the custody dispute. West v. Cobb County Dept. of Family, etc., 243 Ga. 425, 254 S.E.2d 373 (1979); Segars v. State of Ga., 309 Ga.App. 732, 710 S.E.2d 916 (2011) (superior court correctly refused to exercise jurisdiction in custody dispute in light of prior existing juvenile court custody order in deprivation case); compare Wiepert v. Stover, 298 Ga.App. 683, 680 S.E.2d 707 (2009) (superior court properly exercised jurisdiction where a deprivation petition was “apparently pending” in juvenile court, but was not in the record; it was not clear why DFACS had custody of the child; DFACS moved in juvenile court to be divested of custody and dismiss the case; and juvenile court declined to exercise jurisdiction). “The statutory procedure by which [the Ertters] may seek relief is set out at [ OCGA § 15–11–40].” ⁴ West, 243 Ga. at 426, 254 S.E.2d 373.

Judgment reversed.

SMITH, P.J., PHIPPS, P.J., and DILLARD, J., concur.

BARNES, P.J., MIKELL and McFADDEN, JJ., dissent.

McFADDEN, Judge, dissenting.

Because I believe that the superior court did not err by exercising its jurisdiction over the Ertters' petition for permanent custody of A.L., I respectfully dissent.

As the majority recognizes, a superior court has jurisdiction over a petition for permanent custody of a child, and a juvenile court cannot grant permanent custody absent a transfer order from the superior court. See OCGA § 15–11–28(c)(1); Douglas v. Douglas, 285 Ga. 548, 549(1), 678 S.E.2d 904 (2009). In this case, the juvenile court in which the deprivation action was brought and the superior court in which the petition for permanent custody was brought are in two different circuits. Accordingly, this case does not involve a transfer order; and the juvenile court could not grant permanent custody. Nevertheless, the majority holds that the superior court could not exercise its jurisdiction over the case, either. Although the majority suggests that the Ertters could instead bring their claim under OCGA § 15–11–40, that Code section merely authorizes the juvenile court to modify its rulings; it does not allow the juvenile court to grant the permanent custody sought by the Ertters in this case.

The practical result of the majority opinion is that no court may exercise jurisdiction to consider and rule on a petition for permanent custody of A.L. during the duration of the order granting long-term temporary custody to Dunbar, an order not scheduled to expire until 2024, when the child turns 18. By its nature, an award of permanent custody provides more stability and permanency for a child. An award of permanent custody constitutes a final adjudication of the rights of the parties. Pace v. Pace, 287 Ga. 899, 900, 700 S.E.2d 571 (2010). In contrast, an award of long-term temporary custody is subject to periodic review and possible modification. See OCGA § 15–11–58(i)(2). See generally In the Interest of A.H., 278 Ga.App. 192, 197(5), 628 S.E.2d 626 (2006) (discussing instability inherent in long-term temporary custody arrangement).

A juvenile court's decision to enter a long-term temporary custody order pursuant to OCGA § 15–11–58(i) should not prevent a superior court from later granting permanent custody of the child to an appropriate person or persons. And the authority cited by the majority does not require such a prohibition.

In West v. Cobb County Dept. of Family, etc., 243 Ga. 425, 254 S.E.2d 373 (1979), the Supreme Court of Georgia held that the superior court lacked jurisdiction over the custody petition of a father, who had participated in a deprivation proceeding that had resulted in the juvenile court's ruling that his child was deprived, during the two-year pendency of an order placing the child in the temporary custody of the Department of Family and Children Services. The decision in West did not foreclose the future possibility that the father (or someone else) could later obtain permanent custody of the child. Instead, it prevented the father from essentially making an end-run around the juvenile court's deprivation proceeding, which presumedly had addressed whether the child should be placed in the father's custody.

Here, in contrast, the Ertters were not parties to the deprivation proceedings in the juvenile court. They were not afforded notice or opportunity to be heard in the juvenile court proceeding. See OCGA §§ 15–11–55.1 (listing persons, other than parties, entitled to notice of deprivation hearing); 15–11–78 (2008) (version of Code section in effect at time of A.L.'s deprivation proceeding; excluding public from deprivation hearings except in certain enumerated circumstances). Consequently, the juvenile court's order granting long-term temporary custody of the child to Dunbar did not address the central contention in the Ertters' petition for permanent custody: that granting permanent custody of A.L. to the Ertters would be in her best interest. Instead, the juvenile court determined, as required by OCGA § 15–11–58(i)(1), that referral for termination of parental rights and adoption was not in A.L.'s best interest, and it found that a placement with Dunbar would “provide a family home because ... [t]he child and mother lived with ... Dunbar prior to the mother's death and the child is familiar with ... Dunbar and doing well in her custody.” No findings or conclusions relating to the Ertters were reached. And because the parties to the juvenile...