In re A.N., S06A1147.

• Decision Date: 04 October 2006
• Docket Number: No. S06A1147.,S06A1147.
• Citation: 636 S.E.2d 496,281 Ga. 58
• Parties: In the Interest of A.N., et al., children.
• Court: Georgia Supreme Court

281 Ga. 58

636 S.E.2d 496

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

No. S06A1147.

Supreme Court of Georgia.

October 4, 2006.

Thurbert E. Baker, Atty. Gen., Charissa Ann Ruel, Asst. Atty. Gen., Billie Jean Crane, Cedartown, for appellant.

Mitchell Drew White, Dallas, Mary Evelyn Cobbs, McManus and Smith, LLP, Tucker, Helen Hein, Cedartown, Kimberly Danette Puckett, Dallas, Roy E. Barnes, The Barnes Law Group, L.L.C, Marietta, for appellee.

MELTON, Justice.

Following a deprivation hearing concerning A.N. and M.N., the juvenile court found both children to be deprived, and it awarded legal custody of the children to the Department of Family and Children Services (DFACS). The juvenile court then ordered, however, that physical custody be given to the maternal grandparents. DFACS filed a motion for reconsideration of this ruling, arguing, among other things, that the juvenile court was statutorily prohibited from placing legal custody in DFACS and physical custody in another party of the court's choosing. The juvenile court denied DFACS' motion, finding that it had the statutory authority to place conditions and limitations on DFACS' legal custody, including a limitation that physical custody of the child be placed in accordance with the court's mandate. In the alternative, the juvenile court found that, even if OCGA §§ 15-11-58 and 15-11-55 prevented it from dividing custody of a deprived child in this manner, these statutory provisions violated the Equal Protection Clause of the United States Constitution. DFACS now appeals the juvenile court's rulings.

It is a longstanding rule that a trial court may not order that legal and physical custody of a deprived child be divided between DFACS and some other party unilaterally chosen by the court. See, e.g., In the Interest of Tidwell, 279 Ga.App. 734(2), 632 S.E.2d 690 (2006); In the Interest of C.A.C., 239 Ga.App. 725(2), 522 S.E.2d 236 (1999); In the Interest of J.N.T., 212 Ga.App. 498, 441 S.E.2d 918 (1994); In the Interest of A.V.B., 267 Ga. 728(2), 482 S.E.2d 275 (1997); In the Interest of A.S., 185 Ga.App. 11(2), 363 S.E.2d 325 (1987). Once legal custody of a deprived child has been granted to DFACS, any effort by the court to dictate placement of physical custody is "merely exhortatory and not binding." (Punctuation omitted.) In the Interest of R.D., 141 Ga.App. 843, 844, 234 S.E.2d 680 (1977). Despite the consistency of this case law, the juvenile court found that amendments made to OCGA § 15-11-55 in 2003 altered this well-settled precept. A review of the language of these statutes, including the 2003 revisions, construed in pari materia with OCGA § 49-5-3(12)(A) does not support this finding.

OCGA § 49-5-3(12)(A) and (D) state that the term "legal custody" encompasses the "right to have the physical possession of the child or youth" and the "right to determine where and with whom [the child] shall live." It is well-settled that this definition of legal custody must be read in pari materia with those provisions of the Georgia Code relating to juvenile proceedings and the placement of deprived children. In the Interest of R.D., supra, 141 Ga.App. At 843, 234 S.E.2d 680. Therefore, unless some provision in the juvenile code explicitly and expressly alters the nature of legal custody as expressed in OCGA § 49-5-3(12), the concept of legal custody must be interpreted to include the "right to determine where and with whom [the child] shall live." OCGA § 49-5-3(12)(D).

With this in mind, the juvenile court found that OCGA § 15-11-55(a)(2) is not controlled by this accepted definition of legal custody. This Code section provides:

Subject to conditions and limitations as the court prescribes, [the court may] transfer temporary legal custody to any of the persons or entities described in this paragraph. Without limiting the generality of the foregoing, such conditions and limitations shall include a provision that the court shall approve or direct the retransfer of the physical custody of the child back to the parents, guardian, or other custodian either upon the occurrence of specified circumstances or in the discretion of the court. Any such retransfer of physical custody may be made subject to such further conditions and limitations as the court prescribes, including supervision for the protection of the child.

Contrary to the trial court's interpretation, nothing in this provision allows any redefinition of legal custody as set forth in OCGA § 49-5-3(12). To the contrary, the language of the statute supports the standard definition of legal custody.

The juvenile court nonetheless opined that one of the "conditions and limitations" that it could place on legal custody is the condition that physical custody of a deprived child be given to a party chosen by the court, not DFACS. As an initial matter, the many cases interpreting this statute, as listed above, have consistently found that a juvenile court cannot grant legal custody to DFACS and then mandate the placement of physical custody in a party of the court's choosing. The juvenile court has no authority to ignore this case law. Moreover, the explicit language of OCGA § 15-11-55(a)(2) makes the juvenile court's interpretation of the statute untenable. The general rules of construction require that a statute should be analyzed "to make all [of] its parts harmonize and to give a sensible and intelligent effect to each part[, as i]t is not presumed that the legislature intended that any part be without meaning." (Citation omitted.) Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203, 219 S.E.2d 115 (1975). The statute mandates that any transfer of legal custody to DFACS must include a condition "that the court shall approve or direct the retransfer of physical custody back to the parents, guardian, or other custodian." If, as the juvenile court contends, it has inherent power to determine physical custody of a deprived child from the outset, the placement of a mandatory condition on DFACS' legal custody regarding the retransfer of physical custody becomes a superfluous and meaningless statement of authority already vested in the juvenile court. If, on the other hand, the statute follows both longstanding statutory and legal precedent such that the grant of legal custody to DFACS includes the right to determine physical custody, the imposition of a mandatory condition regarding retransfer of physical custody makes sense, as it is necessary to convey to the trial court authority that it would not otherwise have over the placement of physical custody.

Furthermore, nothing in the 2003 amendment to OCGA § 15-11-55 supports the juvenile court's finding that the legislature intended to reject the definition of legal custody set forth in OCGA 167; 49-5-3. This revision added the requirement that, before transferring temporary custody in an order of disposition, "a reasonably diligent search for a parent or relative of the child or other persons who have demonstrated an ongoing commitment to the child" be conducted within 90 days from the date the child is removed from his or her home. OCGA § 15-11-55(a)(2)(D). This language simply does not address the standard definition of legal custody in any way, either explicitly or implicitly. Therefore, it does not follow that this amendment provides any grounds to circumvent the applicable case law directly on point.

In support of its conclusions, the juvenile court also held that OCGA § 15-11-55(c) supported its holding that it could grant legal custody to DFACS and place physical custody elsewhere. This Code section provides:

Notwithstanding any...