In re JN

• Court: Georgia Court of Appeals
• Writing for the Court: ANDREWS, Presiding
• Citation: In re J.N., 302 Ga. App. 631, 691 S.E.2d 396 (Ga. App. 2010)
• Decision Date: 05 March 2010
• Docket Number: No. A09A1966.,A09A1966.
• Parties: In the Interest of J.N. et al., children.

691 S.E.2d 396

In the Interest of J.N. et al., children.

No. A09A1966.

Court of Appeals of Georgia.

March 5, 2010.

Kessler, Schwarz & Solomiany, Dennis G. Collard, for Appellant.

John S. Husser, Rome, for Appellee.

ANDREWS, Presiding Judge.

In deprivation proceedings brought by the Department of Family and Children Services (DFACS), the Haralson County Juvenile Court found that J.N. (born August 27, 2005) and A.N. (born March 2, 2004) were deprived children without proper care as a result of parental use of methamphetamine. The court removed the children from the parents' custody shortly after J.N.'s birth, and approved a case plan pursuant to OCGA § 15-11-58 for reunification of the children with the parents. Based on a subsequent finding that the parents refused to comply with the court-ordered reunification plan, the court entered an order on August 14, 2007, granting DFACS' motions pursuant to OCGA § 15-11-58(h) and (i) to terminate reunification services and to enter an order placing the deprived children in the custody of relatives until the children's eighteenth birthdays.¹ On April 17, 2008, Paul Neese, the children's biological father, filed a petition pursuant to OCGA § 15-11-40(b) seeking modification of the August 14, 2007 order terminating reunification services and placing the children in the custody of relatives.² The petition alleged that changed circumstances—evidence that Neese had stopped abusing unlawful substances and participated in parenting instruction—required in the best interest of the children that the order be modified by immediately transferring the children to his custody, or by ordering that he have regular visitation as part of a new plan to reunify him with the children. Neese filed the present direct appeal from the juvenile court's order denying his modification petition.

1. We first address the jurisdictional basis for this direct appeal. Under OCGA § 5-6-34(a)(11) the right to a direct appeal is established from "all judgments or orders

in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders." (Emphasis supplied.) Subsection (a)(11) is effective for "all child custody proceedings and modifications of child custody filed on or after January 1, 2008." Ga. L. 2007, 554, 569, § 8. Although Neese's motion sought modification of the juvenile court's custody order and was filed on April 17, 2008, we conclude that OCGA § 5-6-34(a)(11) did not give Neese the right to a direct appeal from the order entered in these child deprivation proceedings.

The right in OCGA § 5-6-34(a)(11) to a direct appeal from orders or judgments in "child custody cases" plainly includes "child custody proceedings" as set forth in Chapter 9 of Title 19 (Domestic Relations) of the Official Code of Georgia Annotated, where the custody of a child is directly at issue between the parents. It is unclear, however, whether the broad phrase "child custody cases" in subsection (a)(11) encompasses child deprivation proceedings in which the juvenile court enters a child custody order. See OCGA §§ 15-11-54 through 15-11-58.1. In construing OCGA § 5-6-34(a)(11) to determine which cases the legislature intended to include within the meaning of "child custody cases," we presume that the statute was enacted with full knowledge of and with reference to existing statutory and case law, and we construe the statute in harmony with the existing law. Higdon v. City of Senoia, 273 Ga. 83, 86, 538 S.E.2d 39 (2000); Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9, 178 S.E.2d 868 (1970). Child deprivation proceedings are brought on behalf of the child, focus on the needs of the child, and may include custody orders "best suited to the protection and physical, mental, and moral welfare of the child." OCGA § 15-11-55(a); In the Interest of J.P., 267 Ga. 492, 480 S.E.2d 8 (1997). Although child custody determinations may be necessary in a deprivation proceeding, "the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters." Id. at 492, 480 S.E.2d 8; In the Interest of I.S., 278 Ga. at 861, 607 S.E.2d 546 ("Issues of deprivation and custody are separate and distinct."); see In re M.C.J., 271 Ga. 546, 523 S.E.2d 6 (1999) (contrasting child custody proceedings between parents with child deprivation proceedings). In accordance with these distinctions, we find that "child custody cases" within the meaning of OCGA § 5-6-34(a)(11) does not include child deprivation proceedings in which a custody order was entered. This construction is consistent with the fact that the introductory paragraph of the General Assembly Act by which OCGA § 5-6-34(a)(11) was enacted to establish the right to direct appeals in "child custody cases" states that it was intended "to provide for direct appeals in certain domestic relations cases." Ga. L. 2007, p. 554. Child deprivation proceedings are not included within "domestic relations" cases under Title 19 of the Georgia Code.

Although OCGA § 5-6-34(a)(11) did not authorize a direct appeal in this case, we find that the juvenile court's order denying the OCGA § 15-11-40(b) petition seeking modification based on changed circumstances in the best interest of the children was a final judgment directly appealable under OCGA §§ 5-6-34(a)(1) and 15-11-3. In Rossi v. Price, 237 Ga. 651, 229 S.E.2d 429 (1976), the Supreme Court considered the juvenile court's denial of a petition brought under OCGA § 15-11-40 (former Code Ann. § 24A-2801) in a case where a juvenile adjudicated delinquent was committed to the custody of the Department of Juvenile Justice (formerly the Division of Children & Youth). The petition sought pursuant to OCGA § 15-11-40(a) to vacate the commitment order on the basis of fraud and newly-discovered evidence. Id. At issue was whether the superior court correctly denied the juvenile's subsequent petition for mandamus seeking to compel the juvenile court to hold a hearing on the OCGA § 15-11-40 petition. Id. at 651-652, 229 S.E.2d 429. The Supreme Court affirmed the superior court's denial of the petition for mandamus on the basis that

the juvenile court's order denying the OCGA § 15-11-40 petition to vacate the order committing the juvenile was a judicial order, subject to judicial review as provided by Code Ann. § 24A-3801 currently codified at OCGA § 15-11-3 (Ga. L. 1971, pp. 709, 755). Where there is a right of judicial review of the act of a judicial officer, mandamus is not an available remedy to require him to perform his judicial function in a manner different from the way he has performed it.

Id. at 652, 229 S.E.2d 429. Thus Rossi found that the juvenile court's denial of the petition brought pursuant to OCGA § 15-11-40 was subject to appeal under OCGA § 15-11-3, which provides that "in all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court." Under OCGA § 5-6-34(a)(1), appeals from a superior court judgment to the Supreme Court or the Court of Appeals are by direct appeal from "all final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 setting forth cases requiring an application for appeal." See Fulton County Dept. of Family, etc., Svcs. v. Perkins, 244 Ga. 237, 238, 259 S.E.2d 427 (1978) (equating "final orders" within the meaning of OCGA §§ 15-11-3 and 5-6-34(a)(1)). It is clear that the juvenile court order in the present deprivation proceeding placing the children in the long-term custody of relatives was considered a final order from which Neese could have taken a direct appeal pursuant to OCGA §§ 15-11-3 and 5-6-34(a)(1). In the Interest of I.S., 278 Ga. at 859, 607 S.E.2d 546; In the Interest of J.P., 267 Ga. at 492, 480 S.E.2d 8; Sanchez v. Walker County Dept. of Family, etc., Svcs., 235 Ga. 817, 221 S.E.2d 589 (1976). We conclude that the order denying Neese's OCGA § 15-11-40(b) petition to modify the final order in the deprivation proceeding was itself a final order from which Neese had the right to a direct appeal. See Rossi, 237 Ga. at 651, 229 S.E.2d 429.

To the extent our decision in In the Interest of B.S.H., 236 Ga.App. 879, 514 S.E.2d 70 (1999), holds otherwise, it is overruled. There we broadly stated, without explanation, that "no subsection of OCGA § 5-6-34(a) authorizes direct appeal of a § 15-11-42 redesignated as OCGA § 15-11-40 motion and therefore appeal may only be had by application." Id. at 882, 514 S.E.2d 70. As set forth above, the order denying Neese's petition under OCGA § 15-11-40(b) was a final judgment subject to direct appeal under OCGA § 5-6-34(a)(1). Moreover, nothing in OCGA § 5-6-35 (requiring applications for appeal in certain cases) applied to Neese's petition brought pursuant to OCGA § 15-11-40(b).

2. Neese contends that the juvenile court applied an incorrect standard of proof on his petition under OCGA § 15-11-40(b) to modify the court's prior order entered pursuant to OCGA § 15-11-58(h) and (i).

Prior to the petition to modify, the juvenile court entered orders finding that the children were deprived (as a result of methamphetamine use by both parents), removing the children from parental custody, and approving a DFACS plan for parental reunification with the children. OCGA §§ 15-11-54; 15-11-55; 15-11-58. In response to DFACS' motions, the court subsequently entered an order on August 14, 2007, pursuant to OCGA § 15-11-58(h) and (i) finding that, because the parents failed to comply with the reunification plan, reunification was inappropriate, and (without referral for termination of parental rights) placing each child in the long-term custody of a maternal aunt until each child's eighteenth birthday. Neese did not appeal from...