K.B., In Interest of, 76520

• Decision Date: 06 September 1988
• Docket Number: No. 76520,76520
• Citation: 372 S.E.2d 476,188 Ga.App. 199
• Parties: In the Interest of K.B.
• Court: Georgia Court of Appeals

Page 476

372 S.E.2d 476

188 Ga.App. 199

In the Interest of K.B.

No. 76520.

Court of Appeals of Georgia.

Sept. 6, 1988.

Joel D. Burns, Milledgeville, for appellant.

Philip B. Spivey, Michael J. Bowers, Atty. Gen., Carol A. Cosgrove, Sr. Asst. Atty. Gen., for appellee.

BIRDSONG, Chief Judge.

This court granted appellant's application for discretionary appeal to determine the validity of the Baldwin County Juvenile Court's order denying the parents' petition for visitation privileges to see their child (K.B.), following the court's grant of temporary custody of K.B. to the Department of Family and Children Services (DFCS).

DFCS filed a petition with the juvenile court alleging that K.B., a female child, 14 years of age, was deprived. The parents and DFCS stipulated that the child was deprived and the court granted temporary custody to DFCS. Thereafter, because the order did not provide for visitation by the parents, the court was petitioned to grant them "visitation rights." The juvenile court held: "visitation relates to custody, and once the court commits the child to the custody of DHR it does not retain the authority to determine matters of custody and control of the child." At issue on appeal is: (1) whether the juvenile court has the authority to grant visitation rights to the parents of a child in an order granting temporary custody of a child to DFCS, and (2) if so, when such order is issued without a decision on visitation rights of the parents, does the juvenile court have the authority to amend its original order to provide for visitation by the parents? Held:

1. In acting upon a petition alleging deprivation of a child, the juvenile court is authorized to determine who will exercise custody over the child "subject to conditions and limitations as the court prescribes...." OCGA § 15-11-34(a)(1). The statute does not list the "conditions and limitations" which the courts may prescribe. But, we are instructed as to what rights and obligations are imposed upon DFCS. The legal custodian has the right to physical custody of the child, the right to determine the nature of the care and treatment, including education, ordinary medical care, discipline, etc., "subject to the conditions and limitations of the order and to the remaining rights and duties of the child's parents or guardian." (Emphasis supplied.) OCGA § 15-11-43. Again, we are not advised what "rights and duties" the parents retain. But, this code section reserves the right to a juvenile court to include retained parental rights in the temporary custody order.

A similar statute circumscribes the responsibilities of DFCS to physical possession of the child, the right and duty to protect, train and discipline the child, to provide food, clothing, shelter, education, and ordinary medical care, "provided that these rights and responsibilities shall be exercised subject to ... any residual parental rights and responsibilities." (Emphasis supplied.) OCGA § 49-5-3-(12). Our Supreme Court has held that mere placement of custody by a juvenile court "did not deprive the parents of all parental rights in the child." Jackson v. Anglin, 193 Ga. 737, 738, 19 S.E.2d 914. We find that visitation rights of a parent of a child in custody of DFCS is a residual "parental tie" which is not severed by the mere placement of the child in the temporary custody of DFCS, without a specific finding as to that right.

An appellate court will not infer severance of parental visitation rights from a silent record, because "[t]here must be compelling facts to establish the necessary lack of 'proper parental care or control' justifying the government's intrusion in cutting natural family ties." Nix v. Dept. of Human Resources, 236 Ga. 794, 795, 225 S.E.2d 306. "To sever parental ties absent such 'compelling facts' would be tantamount to child abuse." In re M.M.A., 166 Ga.App. 620, 624, 305 S.E.2d 139. The record before us does not contain such "compelling facts" as to demand severance of "visitation rights." The stipulated facts may support the finding of deprivation, but no finding was reached as to visitation. The legislative intent is made clear that the rights and responsibilities of the temporary custodian of the child, DFCS, are "subject to the conditions and limitations of the [juvenile court's] order and to the remaining ['residual'] rights and duties of the child's parents...." OCGA §§ 15-11-43; 49-5-3(12). One of those residual rights which is not severed by a grant of temporary custody to DFCS is visitation by the parents, absent specific findings.

2. Remaining for determination is whether the juvenile court may reconsider its earlier custody order in which it omitted any reference to visitation by the parents. The Code provides that "[a]n order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child" with an exception not here applicable. OCGA § 15-11-42(b). Although there is no indication of "changed circumstances" in the instant case, this code section shows the juvenile court does retain authority to change or modify its earlier orders. Here, the court decided it had no authority to change or modify its earlier order.

As to the general law regarding the authority of a judge to modify, revise, amend or revoke its orders and judgments, see C & S Nat. Bank v. Burden, 145 Ga.App. 402(1), 244 S.E.2d 244 and Union Circulation Co. v. Trust Co. Bank, 143 Ga.App. 715(1), 240 S.E.2d 100, Div. 2, rev'd 241 Ga. 343, 245 S.E.2d 297. " 'A trial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon his own motion, for the purpose of...