In re W.L.H.

• Decision Date: 04 March 2013
• Docket Number: No. S12G1049.,S12G1049.
• Citation: 292 Ga. 521,739 S.E.2d 322
• Parties: In the Interest of W.L.H., a child.
• Court: Georgia Supreme Court

292 Ga. 521

739 S.E.2d 322

In the Interest of W.L.H., a child.

No. S12G1049.

Supreme Court of Georgia.

March 4, 2013.

Samuel S. Olens, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Shalen S. Nelson, Sr. Asst. Atty. Gen., Calandra A. Harps, Asst. Atty. Gen., Woodrow W. Ware III, Prior, Daniel & Wiltshire, Lee R. Moss, Fred R. White, for appellee.

Kilpatrick, Townsend & Stockton, Miles J. Alexander, Bondurant, Mixson & Elmore, Michael A. Caplan, Baker & McKenzie, J. Richard Hammett, Jane G. Okrasinski, Aimee E. Stowe, Nathan A. Hayes, Coy J. Johnson, Jr., Willie J. Lovett, Jr., Kirsten L. Widner, Melissa D. Carter, Angela T. Tyner, amici curae.

MELTON, Justice.

In this case, we granted an application for certiorari from the Court of Appeals' decision in In the Interest of W.L.H., 314 Ga.App. 185, 723 S.E.2d 478 (2012) to determine whether a child in a deprivation action has standing to appeal when the child is represented by counsel and the child's guardian ad litem chooses not to appeal. Because the guardian ad litem is the legal protector of a child's best interests in deprivation proceedings, we find that a child lacks standing to appeal a deprivation ruling except through a guardian ad litem.

As set forth by the Court of Appeals, the underlying facts in this case show that

[a]s of August 2010, [W.L.H.] had been in the custody of his legal guardians—first cousin Marian “Kathy” Helsinger and her husband John Helsinger (referred to herein as the “parents”)—since he was about 17 months old. His natural father is deceased, and his natural mother's whereabouts were unknown when the Walton County Department of Family and Children Services (DFACS) filed a complaint alleging the child did not have proper care. On August 9, 2010, the juvenile court entered a shelter care order based on information that the child needed protection because Mrs. Helsinger admitted that she had struck the child and left bruises even though a safety plan (based on prior allegations of physical abuse) was in effect that prohibited physical discipline. On the same day, the court appointed a “Guardian Ad Litem/CASA [Court Appointed Special Advocate]” for the child pursuant to OCGA § 15–11–9, and the guardian attended the 72-hour hearing on August 11. On August 16, DFACS filed a petition alleging deprivation based on physical abuse. On September 9, DFACS entered a case plan for the parents. On September 15, 2010, the court appointed an attorney to represent the child as his counsel. The CASA submitted monthly recommendations on the matter in September and October, and the court set a hearing for October 21, 2010.

The court held the first day of the hearing on October 21 and a second session on November 29. On the first day, the child's counsel, the parents' counsel, and the court engaged in colloquy about whether the 12-year-old child should be considered a party to the proceedings and whether he had a right to be present for the proceedings. The court eventually decided that the child would remain out of the courtroom for all of the evidence. The court also ruled that [it] would hear what the child had to say in chambers and that the other parties could question the child in the presence of his attorney. The child's attorney objected to excluding the child from the proceedings but did not object to the in-chambers testimony. Just prior to the second day of the hearing, the child filed a motion to allow him access to the proceedings. In the motion, the child asserted that failure to allow him to be an active participant in the matter denied him his due process rights under the Georgia and Federal Constitutions. The court denied the motion and excluded the child from the second day of the hearing, as well.

(Footnote omitted.) Id. at 185–186, 723 S.E.2d 478.¹ Subsequently, the juvenile court found W.L.H. to be deprived, and he appealed to the Court of Appeals with the assistance of his court-appointed trial counsel. Neither W.L.H.'s legal guardians nor his guardian ad litem appealed the deprivation finding. On appeal, W.L.H. has not questioned the merits of the juvenile court's decision, only the trial court's handling of his due process rights.

In the matter now before this Court, W.L.H. contends that, despite his status as a child, the decision to appeal the trial court's finding of deprivation is his alone, irrespective of his guardian ad litem's determination of his best interests. As a result, W.L.H. argues that he has standing to bring the present appeal through his attorney. We disagree.

Georgia's Legislature has recognized that children, because they are of “tender years,” are not generally competent to represent themselves in legal actions or to decide their own best interests. That is why our laws explicitly provide for representation of children by adults in civil matters. For example, OCGA § 9–11–17(c) states, as a general proposition:

Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person....

More specifically with regard to deprivation proceedings, OCGA § 15–11–9(b) provides:

The court at any stage of a proceeding under this article, on application of a party or on its own motion, shall appoint a guardian ad litem for a child who is a party to the proceeding if the child has no parent, guardian, or custodian appearing on the child's behalf or if the interests of the parent, guardian, or custodian appearing on the child's behalf conflict with the child's interests or in any other case in which the interests of the child require a guardian. A party to the proceeding or the employee or representative of a party to the proceeding shall not be appointed. In deprivation cases, a person appointed as a child's guardian ad litem must have received before the appointment training appropriate to the role that is administered or approved by the Office of the Child Advocate and may be an attorney or court appointed special advocate, or both....

Both of these provisions recognize that children, by their nature, are not the correct parties to determine what is in their own best interests in civil matters. For this determination, adult supervision is required.

The protector of a child's best interests is his guardian ad litem.² It has previously been held that, “[w]hen a court appoints a guardian ad litem to represent a minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. [Cits.]” (Emphasis supplied.) In the Interest of J.F., 310 Ga.App. 807, 808, n. 1, 714 S.E.2d 399 (2011). This is the appropriate result in a deprivation action, as this case exemplifies. Here, the trial court determined that the child was deprived. The child's legal guardians do not contest this result, and the child's guardian ad litem has opined that an appeal is not in the child's best interests. All of the adults who are legally entrusted with the child's best interests do not believe an appeal is necessary. It would be inappropriate, indeed unwise, to allow a child, especially one under the circumstances of deprivation, to override all other decisions regarding his best interests.

That, of course, is exactly the result that the dissent would allow under its scheme. Under the dissent's analysis, a child, from the moment he or she learns to speak, could mandate an appeal of a trial court's deprivation finding. This is a radical departure from the idea that a trial court may give weight to the opinions of teenagers 14 years or older in certain codified circumstances. See OCGA § 15–11–39(b). Even in these circumstances, however, the trial court and the proceedings are not controlled by the teenager. Entertaining an appeal brought directly by a baby, rather than a guardian entrusted with the baby's best interests, would be highly misguided. No law cited in the majority opinion supports such a circumstance.

Instead, the dissent's rubric ³ is built on unpersuasive secondary sources and distinguishable law. For example, even the parties recognize that the law regarding criminal prosecutions of juveniles does not govern how deprivation proceedings are handled. In addition, it simply is not true that guardians in deprivation actions will never be subject to review. If it is believed that the guardian is acting improperly, a motion can be made for that guardian's removal. See, e.g., OCGA § 15–11–9.1(j). This is fundamental. Furthermore, this case, itself, proves the fallacy of the dissent's position. W.L.H.'s legal guardians and his guardian ad litem did not want to appeal the deprivation finding, partly because W.L.H. was receiving much-needed treatment in the State's care.

Accordingly, we affirm the Court of Appeals' ruling that W.L.H., acting through his attorney and against the wishes of his guardian ad litem, lacked standing to appeal the trial court's finding of deprivation.

Judgment affirmed.

THOMPSON, P.J., BENHAM, HINES, and NAHMIAS, JJ., concur.

HUNSTEIN, C.J., and Judge DORIS L. DOWNS dissent.

BLACKWELL, J., disqualified.

HUNSTEIN, Chief Justice, dissenting.

In an opinion that disregards the child's express wishes, offers insufficient legal analysis, and fails to provide needed guidance for our juvenile courts, the majority opinion holds that a community volunteer serving as the guardian ad litem is the only person who can appeal on behalf of a child in a deprivation action, regardless of the child's age, the judgment of the child's attorney, or any...