A.V.B., In Interest of

• Decision Date: 03 March 1997
• Docket Number: No. S96G1697,S96G1697
• Parties: , 97 FCDR 691 In the Interest of A.V.B.
• Court: Georgia Supreme Court

Page 275

482 S.E.2d 275

267 Ga. 728, 97 FCDR 691

In the Interest of A.V.B.

No. S96G1697.

Supreme Court of Georgia.

March 3, 1997.

Reconsideration Denied April 3, 1997.

Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Asst. Atty. Gen., Department of Law, Atlanta, for appellant.

Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, James Pettit, Atlanta, for Amicus Appellee.

FLETCHER, Presiding Justice.

The Georgia Advocacy Office filed a deprivation action alleging that A.V.B., a minor child, was deprived in the custody of the Dougherty County Department of Family and Children Services ("Dougherty DFCS"). The trial court dismissed the petition for failure to exhaust administrative remedies and the court of appeals reversed. ¹ We granted certiorari to consider whether GAO's petition was barred by sovereign immunity. We conclude that sovereign immunity does not bar the action since GAO alleges that Dougherty County acted illegally in its care of the minor child and GAO seeks no damages. Therefore, we affirm.

A.V.B. is a minor child whose mother is deceased and whose father is incarcerated, though his parental rights have not been terminated. Dougherty DFCS obtained temporary custody of A.V.B. in 1993. GAO is the non-profit agency authorized in this state to act under the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986. ² GAO's petition alleged that Dougherty DFCS has abused, neglected and abandoned A.V.B. and as a consequence, A.V.B. is a deprived child. GAO did not seek damages on behalf of A.V.B., but sought a transfer of legal custody away from Dougherty DFCS to another county.

1. The state Department of Human Resources raised for the first time in its motion for reconsideration in the court of appeals that the doctrine of sovereign immunity protects Dougherty DFCS from allegations that A.V.B. is being abused and deprived in its custody. Dougherty DFCS's position is that A.V.B. cannot be deprived in its custody because of sovereign immunity; it does not otherwise challenge the legal sufficiency of the allegations.

The doctrine of sovereign immunity shields the state from suits seeking to recover damages. Sovereign immunity does not protect the state when it acts illegally and a party seeks only injunctive relief. ³ The relief sought in this case is akin to injunctive relief in that GAO is seeking to remove Dougherty DFCS as A.V.B.'s custodian. Additionally, the primary purpose of sovereign immunity is to protect state coffers. ⁴ Because GAO is seeking no monetary relief, this public policy concern is not implicated here.

The relevant public policy concern in this case is the protection of children and the legislation regarding deprivation proceedings must be construed liberally to effectuate this policy. ⁵ To this end, the legislature has expanded traditional standing requirements such that "any person ... who has knowledge of the facts alleged or is informed and believes that they are true" may bring a petition alleging deprivation. ⁶ In this case, the petition alleged that Dougherty DFCS committed A.V.B. to a state-run psychiatric institution in spite of contrary medical and psychological evaluations and that it denied her of the care and education necessary for her physical, mental, and emotional health. These allegations are sufficient under O.C.G.A. § 15-11-15 to state a claim that A.V.B. is deprived. If GAO succeeds in proving that A.V.B. is deprived, it would establish that Dougherty DFCS has acted contrary to the laws and public policy of this state with regard to the care of this child. Sovereign immunity will not shield the state from an attempt to redress Dougherty DFCS's continued deprivation of A.V.B in contravention of the strong public policy of protecting children.

2. The state also argues that the juvenile court is without jurisdiction to direct placement of A.V.B. once the court has given temporary custody of her to Dougherty DFCS. In evaluating GAO's claims, however, the juvenile court is not charged with determining whether there were better options for placement of A.V.B. Rather, the court must determine if there is clear and convincing evidence ⁷ that A.V.B. is a deprived child within the meaning of O.C.G.A. § 15-11-2(8). Well-established standards exist to help the trial court with this determination. ⁸ Therefore, the trial court is not impermissibly substituting its judgment for that of Dougherty DFCS regarding the care of A.V.B.

3. We granted certiorari on the additional question of whether the appeal from a deprivation order requires an application for appeal. This court's recent decision in In Interest of J.P. ⁹ controls this question. In that case we held that appeals from final orders in deprivation cases are directly appealable and are not subject to the discretionary appeal procedure because deprivation cases under Title 15 are neither child custody cases nor domestic relations cases under O.C.G.A. § 5-6-35.

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., and HUNSTEIN and THOMPSON, JJ., who dissent.

HUNSTEIN, Justice, dissenting.

IBM Corp. v. Evans, 265 Ga. 215, 216(1), 453 S.E.2d 706 (1995) holds that "government cannot cloak itself in the mantle of sovereign immunity when an injured party seeks to enjoin an illegal action." Id. at 216, 453 S.E.2d 706. The type of "illegal action" that justifies piercing sovereign immunity is action that is "under color of office but without lawful authority and beyond the scope of official power. [Cits.]" Chilivis v. Nat. Distributing Co., 239 Ga. 651, 654(1), 238 S.E.2d 431 (1977). The majority resolves the main issue in this appeal based on its limited analysis of IBM Corp., a case in which the injured party, IBM, sued the State to enjoin it from awarding a competitor a computer system contract, claiming the State had acted beyond its lawful authority in selecting the recipient of the contract. Claiming this case is "akin" to IBM Corp., the majority now authorizes a noninjured third party to sue a county Department of Family and Children Services for decisions that do not constitute "illegal acts" under Chilivis, supra. Because there are other, proper channels to achieve the result desired by the majority, I would affirm the trial court's dismissal of GAO's petition on the basis that the petition is barred by sovereign immunity. ¹⁰

IBM Corp. and all the authorities cited therein involved plaintiffs bringing suit against the State to redress injuries that the particular plaintiff had or would incur as a result of the State's illegal action. In this case, however, GAO is not an injured party. If there is an injured party, that party is A.V.B. GAO is not A.V.B.'s legal guardian, expressly does not seek custody of the child, ¹¹ and self-evidently is not related to the child by blood or marriage. GAO is a non-profit corporation charged with implementing Federal legislation with the stated purposes of ensuring the protection of the rights of mentally ill persons and assisting states to establish and operate a protection and advocacy system for mentally ill persons. 42 U.S.C. § 10801(b). As a result of GAO's involvement in this matter, the injured party, A.V.B., voluntarily dismissed the administrative proceedings she had initiated while represented by her own legal counsel, ¹² in which she sought to challenge her placement in the mental health institution. As to OCGA § 15-11-24, ¹³ I strongly disagree with the majority's position that the authorization to file a law suit controls the issue whether the State has waived its sovereign immunity. Parties are authorized to file suits seeking damages for personal injuries against government defendants, but that does not mean the sovereign immunity of such defendants has been waived. GAO's reliance on OCGA § 15-11-24 is shrewd, but I reject the argument that the statute authorizes a third party to dictate and determine the manner in which a Georgia DFCS office lawfully carries out its statutory duty as custodian of children.

IBM Corp. addresses the filing of a suit by an injured party seeking to enjoin an "illegal action." Id. at 216, 453 S.E.2d 706. Not only is GAO not an injured party, GAO cannot show that Dougherty DFCS has acted "illegally," i.e., without lawful authority and beyond the scope of official power. Chilivis, supra, at 654(1), 238 S.E.2d 431. The main thrust of GAO's petition is its position that Dougherty DFCS has placed a mentally healthy teenager in a mental health institution "solely to avoid the perceived difficulties in achieving appropriate placement in a foster home or group home." The allegedly improper placement of A.V.B. is an important issue, but a deprivation proceeding is not the proper forum under Georgia law for resolving this issue. OCGA § 15-11-2(8) sets forth the ways in which a child may be found to be a "deprived child" under Georgia law. Citing subsection (8)(C) of that statute, GAO claims A.V.B. has been "abandoned," but then asserts the child is under such constant supervision that she is not allowed to choose matters ranging from her clothing and food to her activities, companions, and books. These assertions reflect the exact opposite of what constitutes illegal abandonment in Georgia. See, e.g., In re J.C.P., 167 Ga.App. 572, 573-574, 307 S.E.2d 1 (1983). GAO also claims A.V.B. is effectively without a parent, guardian or custodian under subsection (8)(D) of OCGA § 15-11-2, even though the assertions GAO raises reflect its position that A.V.B. is being too closely supervised, in a manner befitting a child with mental illness, which GAO claims is unjustified because A.V.B. is not mentally ill. Nothing in GAO's petition raises the slightest inference that Dougherty DFCS has ceased carrying out its legal duty, with which it has been charged, see OCGA § 49-3-6, to care for A.V.B. as her...