Fulton County Dept. of Family & Children Services v. Perkins

• Decision Date: 19 December 1978
• Docket Number: 34198,Nos. 34028,s. 34028
• Citation: 244 Ga. 237,259 S.E.2d 427
• Court: Georgia Supreme Court
• Parties: FULTON COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES et al. v. PERKINS et al. In the Interest of B. A., a Child.

Page 427

259 S.E.2d 427

244 Ga. 237

FULTON COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES et al. v. PERKINS et al.

In the Interest of B. A., a Child.

Nos. 34028, 34198.

Supreme Court of Georgia.

Argued Nov. 14, 1978.

Decided Dec. 5, 1978.

Rehearing Denied Dec. 19, 1978.

Arthur K. Bolton, Atty. Gen., R. Douglas Lackey, Asst. Atty. Gen., for appellants.

Mary Ann Oakley, Atlanta, for appellees in No. 34028.

Margie Pitts Hames, Arlene S. Kerman, Atlanta, for appellees in Nos. 34028 and 34198.

HILL, Justice.

The ultimate issue to be decided in this case is whether foster care parents may contest in court the decision of the Fulton County Department of Family & Children Services (FCDFCS) that a child be adopted by a couple other than the foster parents. However, neither the Fulton Superior Court nor the juvenile court has yet made that decision.

In 1974 this four-year-old child was placed by FCDFCS with the Perkinses for foster care after FCDFCS received temporary custody by an order of the juvenile court which found that the child and his sister were deprived. In October, 1977, the juvenile court terminated parental rights, and placed legal custody in FCDFCS. The child then became eligible for adoption with the consent of FCDFCS. Code Ann. § 74-403(a). That order of the juvenile court specifically retained jurisdiction pending adoption. ¹

The Perkinses were denied approval by FCDFCS to adopt the foster child then in their care and in February, 1978, the Perkinses were notified of the reasons for that decision. ² The Perkinses were informed that adoption by another couple had been approved and in March, 1978, the child was removed from the Perkins' home and placed with the approved adoptive couple.

The Perkinses filed a complaint in Fulton Superior Court which, as amended, asked: (1) that the court authorize the Perkinses to adopt the child; (2) that damages be awarded to the child based on injury arising from the child's removal from the Perkins' home; and (3) that a writ of habeas corpus issue to remove the child from the approved adoptive home so that he could be returned to the Perkins' home. FCDFCS moved to dismiss the action on the grounds that neither the Perkinses nor the child had a legal interest which the superior court could enforce and further that the superior court lacked jurisdiction.

The superior court dismissed all counts of the complaint with the exception of the application for writ of habeas corpus, which the court transferred to the juvenile court noting that the juvenile court had specifically retained jurisdiction in its October, 1977, order.

After hearing argument the juvenile court amended its 1977 order so as to vacate the retention of jurisdiction (see fn. 1) and transferred the case back to superior court. Code Ann. § 24A-302(b). FCDFCS has now appealed from both the superior court order transferring the case to the juvenile court and the juvenile court order transferring the case back to the superior court. As heretofore noted, the ultimate legal issue has not been decided.

The initial question for this court is whether the orders appealed from are final orders within the meaning of Code Ann. §§ 24A-3801 and 6-701. The FCDFCS contends that the transfer orders are "final" and thus appealable because once a transfer order is entered, then the case is no longer pending in that court; i. e., nothing remains to be done in the court entering the order which is appealed. J. T. M. v. State of Ga., 142 Ga.App. 635, 236 S.E.2d 764 (1977). The Perkinses argue that the appeal should be dismissed because the habeas petition has not been decided on its merits and hence it is still pending below. See Code Ann. §§ 24A-302(b), 6-701.

In order for this court to review the decision of another court, that court must have made a decision and that decision must be appealable under some provision of law, such as Code §§ 6-701, 24A-3801. FCDFCS's main complaint is that the courts below did not decide that foster parents may not contest in court the decision of FCDFCS that a child be adopted by another couple. See Drummond v. Fulton County Dept. of Family, etc., Services, 237 Ga. 449, 228 S.E.2d 839 (1976). However, there was no certificate of immediate review granted in this case by either court.

Although an argument can be advanced that a transfer order made pursuant to Code Ann. § 24A-302(b) is appealable, here there has been no decision (other than the transfers themselves which are clearly provided for by § 24A-302) adverse to appellant for this court to review.

J. T. M. v. State of Ga., 142 Ga.App. 635, 236 S.E.2d 764, supra, relied upon by FCDFCS, deals with the appealability of a transfer order in a criminal context which determines whether the defendant will be treated as a juvenile and tried for delinquency under the applicable juvenile provisions or whether he will be treated as an adult and prosecuted under the criminal laws of this state. See Code Ann. §§ 24A-301, 24A-2501(a); Carrindine v. Ricketts, 236 Ga. 283, 284-285, 223 S.E.2d 627 (1976); J. W. A. v. State of Ga., 233 Ga. 683, 212 S.E.2d 849 (1975); Brown v....