Ertter v. Dunbar

• Citation: 292 Ga. 103,734 S.E.2d 403
• Decision Date: 19 November 2012
• Docket Number: No. S12G0452.,S12G0452.
• Parties: ERTTER et al. v. DUNBAR.
• Court: Supreme Court of Georgia

292 Ga. 103

734 S.E.2d 403

ERTTER et al.

v.DUNBAR.

No. S12G0452.

Supreme Court of Georgia.

Nov. 19, 2012.

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

Bruce Wayne Phillips, Marietta, for appellee.

BENHAM, Justice.

The question posed by this appeal is whether a superior court is able to exercise its jurisdiction to award permanent custody of a child when a juvenile court previously found the child to be deprived and placed the child in the custody of a “willing and qualified” relative until the child turns eighteen years old. In Dunbar v. Ertter, 312 Ga.App. 440, 718 S.E.2d 350 (2011), the Court of Appeals, employing the principle of priority jurisdiction, answered the question in the negative; we granted the petition for a writ of certiorari and now answer the question in the affirmative. The case before us is not one in which the principle of priority jurisdiction can be invoked because only one court, the superior court, has jurisdiction to award permanent custody of a child. Accordingly, we reverse the judgment of the Court of Appeals.

On June 30, 2008, the Juvenile Court of Coweta County found a female child born in May 2006 to be deprived due to the June 2008 deaths of her parents, and the juvenile court placed the child in the temporary custody of her maternal grandmother, appellee Denise Dunbar, a resident of Cobb County. On October 10, 2008, the juvenile court gave Mrs. Dunbar custody of the child until she turns eighteen years of age. See OCGA § 15–11–58(i). Appellants Shannon and Michael Ertter, the child's aunt and uncle,¹ were not parties to the juvenile court deprivation proceeding. In August 2008, shortly after the deaths of the child's parents, the Ertters filed a petition for permanent custody of the child in the Superior Court of Cobb County. That petition was amended to seek a change of custody following the juvenile court's order giving Mrs. Dunbar long-term custody of the child. In June 2010, the Superior Court of Cobb County found it was in the child's best interests that permanent custody of the child be given to the Ertters. A divided Court of Appeals reversed the judgment of the Cobb County superior court by application of the doctrine of priority jurisdiction: where courts have concurrent jurisdiction in a matter, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed in the case. Id., at 441, 718 S.E.2d 350. After finding that both courts had jurisdiction to enter their respective orders, the Court of Appeals ruled that the existence of the juvenile court's order giving custody to the grandmother prevented the superior court from exercising its jurisdiction to award permanent custody of the child to the aunt and uncle. Id. We granted the petition for a writ of certiorari, asking the parties to address whether the Court of Appeals properly determined that the superior court erred in exercising jurisdiction in the custody matter.

The doctrine of priority jurisdiction, a version of which is embodied in OCGA § 23–1–5,² is invoked to determine which court with concurrent jurisdiction will retain that jurisdiction. The basic requirement for the invocation of priority jurisdiction is the existence of concurrent jurisdiction, that is, “[t]he jurisdiction of several different tribunals, each authorized to deal with the same subject-matter at the choice of the suitor.” BLACK'S Law Dictionary (5th ed.1979). See, e.g., Lincoln v. State, 138 Ga.App. 234, 235, 225 S.E.2d 708 (1976) (juvenile and superior courts have concurrent jurisdiction over a youthful offender alleged to be delinquent and under indictment); Long v. Long, 303 Ga.App. 215, 218, 692 S.E.2d 811 (2010) (juvenile and superior courts have concurrent jurisdiction over the temporary custody of children alleged to be deprived and whose parents' divorce action is pending). The principle of priority jurisdiction cannot be invoked in the case before us to prevent the superior court from exercising its jurisdiction because the juvenile court does not have jurisdiction over petitions for permanent custody of a child.

The Georgia Constitution bestows on superior courts “jurisdiction in all cases, except as otherwise provided in this Constitution....” 1983 Ga. Const., Art. VI, Sec. IV, Par. I; Brine v. Shipp, 291 Ga. 376, 377, 729 S.E.2d 393 (2012); Stone–Crosby v. Mickens–Cook, ––– Ga.App. ––––(1), 733 S.E.2d 842 (2012). Courts of limited jurisdiction, one of which is the juvenile court, “shall have uniform jurisdiction as provided by law.” 1983 Ga. Const., Art. VI, Sec. III, Par. I. A statute gives the juvenile court exclusive original jurisdiction over a deprivation action in which there is a bona fide allegation that the child is deprived. OCGA § 15–11–28(a)(1)(C). The juvenile court also has exclusive original jurisdictionfor the termination of parental rights in most cases; the superior court has concurrent jurisdiction to terminate parental rights when the termination is in connection with an adoption proceeding. OCGA § 15–11–28(a)(2)(C). A statute also provides the juvenile court with concurrent jurisdiction to hear any legitimation petition or issue of custody and support that is transferred to the juvenile court by proper order of the superior court. OCGA §§ 15–11–28(c)(1), (e)(1). In a deprivation hearing over which the juvenile court has exclusive jurisdiction, the juvenile court may award temporary custody of the child adjudicated to be deprived; however, it does not have authority to award permanent custody without a transfer order from a superior court....