In re R. B.

• Decision Date: 25 June 2018
• Docket Number: A18A0263
• Citation: 346 Ga.App. 564,816 S.E.2d 706
• Court: Georgia Court of Appeals
• Parties: IN the INTEREST OF R. B. et al., children.

346 Ga.App. 564

816 S.E.2d 706

IN the INTEREST OF R. B. et al., children.

A18A0263

Court of Appeals of Georgia.

June 25, 2018

Altman Law Firm, Carolyn J. Altman, for appellant.

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Shalen S. Nelson, Calandra A. Harps, Senior Assistant Attorneys General, Kristin W. Jahn, Assistant Attorney General, for appellee.

Mercier, Judge.

C. M. ("the mother") appeals from the order entered April 4, 2017, nunc pro tunc to December 9, 2016, by the Juvenile Court of Douglas County finding her minor children R. B. and T. B. dependent and granting temporary custody of the children to their maternal grandmother. The mother contends that the juvenile court erred by: (1) ordering the removal of the children from her custody without following statutory guidelines for changing custody and without making the requisite findings under OCGA § 15-11-134 ; (2) failing to dismiss the petition for dependency without prejudice when hearings were not held within the statutorily-mandated time frames and the mother did not receive proper notice of the proceedings; and (3) adjudicating the children dependent when there was not clear and convincing evidence of dependency. For the following reasons, we vacate the judgment in part, reverse it in part, and remand the case with direction.

1. The mother contends that the juvenile court erred by removing R. B. and T. B. from her custody and from the children's home without following the statutory guidelines set out in OCGA § 15-11-133, without making the findings required by OCGA § 15-11-134, and without holding a preliminary protective hearing within 72 hours of the children's removal as required by OCGA § 15-11-145 (a).

OCGA § 15-11-133 (a) provides that "[a] child may be removed from ... her home, without the consent of ... her parents, guardian, or legal custodian: (1) [p]ursuant to an order of the court under this article[.]" "Any order authorizing the removal of a child from ... her home shall be based on a finding by the court that continuation in ... her home would be contrary to ... her welfare." OCGA § 15-11-134 (a). "Any order continuing a child's placement outside of the physical custody of ... her parent, guardian, or legal custodian shall be based on a finding by the court that return of such child to such custody would be contrary to ... her welfare." OCGA § 15-11-134 (b).

"Findings under this Code section shall be made on an individualized case-by-case basis and shall be documented in the court's written order." OCGA § 15-11-134 (c).

"Foster care" is defined as "placement in foster family homes, child care institutions, or another substitute care setting approved by the department." OCGA § 15-11-2 (34). "A child taken into custody shall not be placed in foster care prior to the hearing on a petition for dependency unless: ... [f]oster care is required to protect the child; ... or ... [a]n order for the child's foster care has been made by the court." OCGA § 15-11-135 (a). Pursuant to OCGA § 15-11-135 (c) (3), "[a]n alleged dependent child may be placed in foster care" in the home of a relative. "If an alleged dependent child is removed from ... her home and is not returned home, the preliminary protective hearing shall be held promptly and not later than 72 hours after such child is placed in foster care[.]" OCGA § 15-11-145 (a). "Reasonable oral or written notice of the preliminary protective hearing ... shall be given to ... [the child's] parent [if such person can be found]." OCGA § 15-11-145 (b).

As explained below, the mother is correct that the statutory requirements for removal of custody were not followed here, specifically those requiring a preliminary protective hearing within 72 hours after the children were placed in foster care, reasonable notice of the hearing to the parent, and an order that included certain written findings regarding the children's welfare.

On September 2, 2016, the Douglas County Department of Family and Children Services (the "Department") filed a non-emergency petition for dependency and complaint, which stated that the children resided with their maternal grandmother, that "the Department placed the minor children with the maternal grandmother through a Safety Plan agreement[,]" and that the children were not taken into custody under the provisions of OCGA § 15-11-132.¹ A hearing on the petition was scheduled for September 26, 2016. On that date the mother was not present in court. Counsel for the Department stated, "we don't have proof of service back from the sheriff, so I do not know if ... [the mother has] been served."

The juvenile court stated that it understood that the maternal grandmother "ha[d] been taking care of" the children, and announced that it was "go[ing] ahead and enter[ing] an order placing the children temporarily in [the maternal grandmother's] custody." The Department confirmed with the maternal grandmother that the address that was provided to the sheriff's office for service of the petition on the mother was correct. The attorney for the children then informed the court that the children had not "indicated that they want[ed] to go back with [the mother]," and the guardian ad litem informed the court that the children were "fearful" of the mother coming to their school. The juvenile court stated, "I will enter an order that they cannot have any contact with their mother until she appears before the [c]ourt[.]"

The juvenile court asked the Department's counsel, "[s]o how much time do you want to tag the parents?" The Department's counsel replied, "it depends on what we get back from the sheriff. I would say 60 days"; the court then stated that the hearing would be continued until November 28, 2016. The court next instructed the maternal grandmother: "[W]hat I want [the mother] to know is if she wants to have contact with her children, if she will come up here and apply for an attorney, I can move the court date up."

On September 26, 2016, the juvenile court entered an "Interim Custody Order" which stated, "[maternal grandmother] has ... been awarded legal and physical custody of the ... children." Then, on November 23, 2016, nunc pro tunc to September 26, 2016, the court entered an order stating that the September 26, 2016 matter was being continued "for good cause" until November 28, 2016 "for an adjudication," that "temporary custody and control" of the children was awarded to the maternal grandmother, and that the mother was prohibited from having contact with the children "until such time as she appear[ed] before the [c]ourt." Neither order included the findings required by OCGA § 15-11-134.

The mother submitted a financial affidavit for appointment of counsel in the dependency case on September 28, 2016, and an attorney was appointed to represent her on September 29, 2016. At the November 28, 2016 adjudication hearing, the mother appeared with counsel, acknowledged service of the petition, and requested a "trial date." Counsel for the mother stated, "I may be filing a motion to dismiss," and argued:

[The mother] has not been served until today when she's acknowledging service. She's had no contact with the Department. They've acknowledged that they had the wrong phone number for her and we're just now having a hearing. So ... the 72-hour hearing, ... the 10-day hearing, none of that has taken place in this case. And she's gone now three months ... having her due process rights violated by having her children removed from her custody.

The juvenile court then set the case for the adjudication hearing to be held on December 9, 2016.

At the December 9, 2016 adjudication hearing, the mother's counsel argued that the petition should be dismissed pursuant to OCGA § 15-11-133 and OCGA § 15-11-145 because "there was never a ... 72-hour hearing after ... removal. [The mother] did not have notice of the hearing. And the custody order does not set up a factual basis as to why the children were being removed and placed in the custody of [the maternal grandmother]." Counsel for the mother further argued, "the children were effectively removed from [the mother's] custody in September and as we sit here today in December, she has not had an opportunity to contest the removal[.]" The juvenile court found that the mother's motion had not been filed and was not timely, and denied it. After hearing evidence, the juvenile court found the children to be dependent as to the mother.² The court further noted:

[T]his is not a case where the children were removed by the State. The Department filed the petition following an investigation, set it for a hearing. The mother was not served, apparently, for the [September 26, 2016] hearing. The custody order was entered because the children were with the grandmother without her having the ability to address things like medical, dental care.

The juvenile court entered an order on April 4, 2017, nunc pro tunc to December 9, 2016, finding the children dependent as to the mother and granting temporary custody of the children to their maternal grandmother.

The Department contends that the children were not in foster care. It also argues that removal of the children from the mother's custody is distinguishable from removal of the children from their home and, in this case, the children were not removed from their home inasmuch as prior to the dependency proceedings they had lived with their grandmothers "for an extended period of time." Therefore, the Department argues, the juvenile court was not required to hold a preliminary protective hearing or comply with the other statutory provisions related to removal of the children from their home.

In support of its argument that the children were not removed from their home, the Department cites In the Interest of J. W. K. , 276 Ga. 314, 578 S.E.2d 396 (2003). In that case, the Court held that former OCGA § 15-11-58 (a) (2000) (which set forth procedural requirements related to the removal of a...