In re MCJ

• Citation: 523 S.E.2d 6,271 Ga. 546
• Decision Date: 18 October 1999
• Docket Number: No. S99G0742.,S99G0742.
• Parties: In re M.C.J. et al.
• Court: Supreme Court of Georgia

523 S.E.2d 6

271 Ga. 546

In re M.C.J. et al.

No. S99G0742.

Supreme Court of Georgia.

October 18, 1999.

McNally, Edwards, Bailey & Lander, Thomas F. McNally, Jr., Kenneth J. Lander, Monroe, for appellant.

Charles E. Day, Monroe, Ann N. Garner, Stone Mountain, James C. Bonner, Jr., Atlanta, for appellee.

BENHAM, Chief Justice.

This appeal concerns the proper forum for an action in which one parent seeks termination of the parental rights of the other parent by means of a deprivation petition. Appellant, the mother of two children, filed an action in juvenile court under OCGA § 15-11-80 et seq. to terminate the parental rights of the children's biological father, appellee, to whom she had never been married and who had never legitimated the children. The children have been in the sole physical custody of their mother since birth. She based her petition for termination of appellee's parental rights on an allegation that the children had been deprived because of misconduct or inability of the father who is currently serving a 40-year prison sentence. See OCGA § 15-11-81(b)(4)(A)(i). The juvenile court granted the petition and terminated appellee's parental rights. On appeal to the Court of Appeals, appellee and the guardian ad litem appointed to represent the interests of the children asserted that the juvenile court lacked subject matter jurisdiction over the petition. The Court of Appeals agreed, citing Lewis v. Winzenreid, 263 Ga. 459, 435 S.E.2d 602 (1993), for the proposition that juvenile courts do not have jurisdiction over deprivation proceedings brought between parents to obtain custody, and In the Interest of W.W.W., 213 Ga.App. 732, 445 S.E.2d 832 (1994), which holds that when a deprivation action is between parents, it is prima facie a custody matter. In the Interest of M.C.J., 236 Ga.App. 225(1), 511 S.E.2d 533 (1999). Accordingly, the Court of Appeals held that such cases must be filed in the superior court, which must then transfer the matter to juvenile court if it determines that the case is an actual deprivation case rather than a custody case. Id. We granted appellant's petition for certiorari to consider the correctness of the holdings stated above. Concluding that the Court of Appeals has misinterpreted this Court's holding in Lewis v. Winzenreid, supra, we reverse its judgment.

In Lewis, a non-custodial parent refused to return her child after a visit, and filed a deprivation petition in juvenile court seeking to have custody assigned to her. After the juvenile court found the child deprived and awarded custody to the petitioner, the original custodial parent filed a habeas corpus petition in superior court seeking return of the child. The superior court ordered the child returned to the original custodial parent, and this Court affirmed, holding that because the deprivation petition did not allege present deprivation, the action was not a true deprivation action, and the juvenile court therefore lacked subject matter jurisdiction. Since the lack of subject matter jurisdiction rendered the juvenile court's judgment void, this Court held that the superior court properly refused to give effect to that judgment. In the course of reaching that decision, the opinion in Lewis addressed the issue of using a deprivation petition to initiate a custody dispute. The conclusion reached in Lewis was aptly summarized in a footnote in a subsequent case as follows:

"[P]arental fight over custody of child that was brought as deprivation proceeding but did not make any valid allegations of deprivation as defined by [OCGA] § 15-11-2(8) was not a valid deprivation proceeding within the jurisdiction of the juvenile court, but was a custody dispute that fell within the jurisdiction of the superior court."

Watkins v. Watkins, 266 Ga. 269 (fn.7), 466 S.E.2d 860 (1996).

In the present case, the Court of Appeals stated in its opinion that this Court held in Lewis that "the juvenile courts of this state should not entertain deprivation proceedings brought between parents to obtain custody." In the Interest M.C.J. at 225, 511 S.E.2d 533. In fact, what this Court held in Lewis was that

[t]he juvenile courts of this state should not entertain deprivation proceedings brought by a non-custodial parent to obtain custody from a non-resident custodial parent, for there is a great likelihood in such a situation that the allegations of deprivation will be motivated less by concern for the child than by a desire to avoid the more stringent standard of proof applicable in a modification action in the superior court, wherein a non-custodial parent is required to establish a material change of circumstances substantially affecting the interest and welfare of the child arising since the original decree. [Cit.]

Lewis at 462-463, 435 S.E.2d 602. While we do not believe the "non-resident" status of the custodial parent was significant to the holding in Lewis, the fact that the parent bringing the action was a non-custodial parent was highly significant because the focus of the case was on the situation in which a non-custodial parent attempted to use a deprivation proceeding to wrest custody from the custodial parent. The parent who first brought a deprivation action in In the Interest of W.W.W., supra,

was also a non-custodial parent bringing a deprivation action for the purpose of obtaining custody, and the Court of Appeals correctly applied Lewis to hold that the juvenile court was without subject matter jurisdiction of the case.

However, the Court of Appeals went further in W.W.W. and held that "Lewis concluded the juvenile court `should not entertain' a deprivation petition filed by one parent against another. [Cit.] Lewis means that when the dispute is between parents, it is prima facie a custody matter." The quoted language is not an accurate reading of Lewis. Our holding in that case should not be extended beyond...