Watkins v. Watkins

• Decision Date: 19 February 1996
• Docket Number: No. S95A1595,S95A1595
• Parties: WATKINS v. WATKINS.
• Court: Georgia Supreme Court

Page 860

466 S.E.2d 860

266 Ga. 269

WATKINS v. WATKINS.

No. S95A1595.

Supreme Court of Georgia.

Feb. 19, 1996.

Stephens County Superior Trial Judge: Hon. Ernest H. Woods, III.

James T. Irvin, Toccoa, for James Dale Watkins.

Bonnie L. Loffredo, Gainesville, Vicky O. Kimbrell, Atlanta, Lisa J. Krisher, Atlanta Phyllis J. Holmen, Atlanta, Wendy J. Glasbrenner, Gainesville, for Rhonda Jane Watkins.

SEARS, Justice.

We granted an application for discretionary appeal in this case to consider whether, following a hearing on a parental custody dispute in the parties' divorce action, the trial court erred in awarding custody of the parties' minor children to the Department of Family and Children Services (DFCS) based upon findings that the children were deprived and the parents unfit. Because the appellant did not have notice that the trial court might award custody of her children to a third party based upon standards of deprivation, we reverse the trial court's judgment.

A final hearing in this divorce and custody action was held on April 4, 1995. In its final judgment and decree of divorce, the trial court determined that both parents were unfit, and awarded temporary custody of the children to the Stephens County DFCS, with disposition to be determined "based on the Georgia Juvenile Code." Thereafter, the superior court issued a supplemental order, without further hearing, incorporating a case plan submitted by the Stephens County DFCS. In the supplemental order, the court found that the children are deprived, and ruled that the court must find that the elements of the plan have been completed before the family can be reunited and that custody of the children would continue in Stephens County DFCS until further order of the court. ¹ The children are currently living with foster parents in Georgia.

1. The appellant, Rhonda Jane Watkins, contends that the trial court erred in numerous respects. In one of her contentions, she contends that the trial court's award of custody to DFCS violates due process in that she had no notice that the court might award custody to a third party based upon deprivation and parental unfitness standards. Because the trial court's ultimate disposition of the children was based upon the Juvenile Code and its standards of deprivation, we confine our analysis of the due process issue to the court's award of custody to a third party based upon its finding of deprivation. For the reasons that follow, we conclude that this issue requires that we reverse the trial court's judgment.

This Court has recognized that the " 'freedom of personal choice in matters of family life is a fundamental liberty interest,' protected by the United States Constitution," ² and that " '[t]he right to the custody and control of one's child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.' " ³ Further, in a case in which a petition to terminate parental rights was based upon allegations under OCGA § 15-11-81(b)(4)(A) ⁴ that the child was deprived, the Court of Appeals held that, to satisfy due process, the petition had to comply with OCGA § 15-11-25 by setting forth in ordinary and concise language the facts demonstrating the deprivation. ⁵ Without such notice, the Court of Appeals noted, the mother had insufficient information to enable her to defend against the petition. ⁶

In this case, Ms. Watkins had no notice of the facts allegedly demonstrating deprivation against which she would have to defend. That she was entitled to such notice under § 15-11-25 is beyond dispute. It is clear that the superior court turned this parental custody dispute into a deprivation proceeding, which is within the exclusive jurisdiction of the juvenile courts, by finding that the parties' children were deprived, by awarding custody to DFCS, and by ordering that the disposition of the children proceed under the provisions of the Juvenile Code. ⁷ In this regard, OCGA § 15-11-5(a)(1)(C) provides that juvenile courts "have exclusive ... jurisdiction" over matters "concerning any child ... [w]ho is alleged to be deprived." ⁸ Although the superior court judge in question also serves as a juvenile court judge in Stephens County, and thus arguably could simultaneously exercise the subject matter jurisdiction of superior and juvenile courts, ⁹ the judge must nevertheless when acting as a juvenile court judge follow the same procedures that bind other juvenile court judges. ¹⁰ Stated differently, the rules set forth by the General Assembly to govern juvenile court proceedings do not change merely because the judge exercising jurisdiction over juvenile matters also happens to serve as a superior court judge. Thus, here, Ms. Watkins was entitled under § 15-11-21 to pre-trial notice of the acts constituting deprivation. Further, as previously noted, the Court of Appeals in In the Interest of D.R.C., ¹¹ held that such notice was constitutionally required in a termination of parental rights action. We see no reason why that same requirement should not apply to a deprivation action, as a finding of deprivation is a significant intrusion into matters of family life and can ultimately lead to termination of parental rights. ¹²

Compounding the due process problem in this case is the fact that, not only did Ms. Watkins not have notice of the facts allegedly demonstrating deprivation, she had no notice that deprivation, as defined in our Juvenile Code, ¹³ would even be a subject of inquiry in the custody dispute with her husband at their divorce trial. As explained above, by rendering a finding of deprivation based upon the Juvenile Code, the superior court judge hearing Ms. Watkins's divorce action was exercising jurisdiction specifically reserved to juvenile courts. Yet, the judge did not notify Ms. Watkins before trial that he intended to do so and likewise did not notify her during trial that he was doing so.

Further, although we recognize that a trial court has discretion in a divorce case to award custody to a third party based upon standards of parental unfitness, ¹⁴ and that the fitness of a party seeking custody of a child is a proper subject of inquiry, ¹⁵ this authority puts a litigant on notice only of the powers that a superior court judge might exercise in her trial and does not put a litigant on notice of the possibility that a superior court judge will invoke the exclusive jurisdiction of the juvenile court during a divorce trial. We thus conclude that Ms. Watkins cannot be said to have been on notice that the superior court judge hearing her divorce trial would, at some unknown and unstated point in the trial, invoke the exclusive jurisdiction of the juvenile court; begin sitting as both a superior court and juvenile court judge; initiate deprivation proceedings; and make a finding thereon. That is to say, Ms. Watkins did not know when she went into superior court to litigate the issue of custody of her children that she would end up in juvenile court.

Because the court's award to DFCS in this case is effective for 18 months, ¹⁶ there can be no doubt that the award is a significant interference with the " 'freedom of personal choice in matters of family life,' " ¹⁷ and because the record establishes that Ms. Watkins had no notice of either the facts that might support a deprivation finding or of the possibility that the trial court might award custody of her children to a third party based upon standards of deprivation, we hold that the trial court's award of custody to DFCS violates due process and must be reversed.

2. The foregoing holding makes it unnecessary for us to decide whether due process is satisfied merely if applicable statutes and case law put a party in a divorce trial on notice of the sheer possibility that a superior court might award custody to a third party based upon standards of parental fitness and deprivation, or whether due process requires that the party actually be notified in advance that such issues will be litigated. We note, however, that the standards for deciding custody disputes between parents ¹⁸ vary significantly from the standards that apply when custody might be awarded to a third party based upon deprivation ¹⁹ or parental unfitness. ²⁰ Moreover, if a parent knew in advance of trial of the possibility of an award to a third party, the parent's trial tactics might vary significantly from those used in a typical custody dispute between parents and could include the parents' introduction of evidence regarding whether the third party to whom the trial court was contemplating awarding the children was fit or was the best possible party to have custody. These factors raise significant concerns about the constitutionality of awarding custody of a child to a third party in a divorce case without specific notice to the parents that the trial court was considering doing so. Two courts in other states have reached this issue, and have held that due process requires that parents receive advance notice of that possibility. ²¹ Although we need not pass on this issue in the present case, we caution superior courts to carefully guard parents' due process rights when considering awarding their child to a third party.

3. Finally, we emphasize that the due process concerns expressed in this opinion do not diminish a trial court's power to protect children coming before it. For instance, in juvenile court, a child may be taken into custody before a hearing on a petition alleging deprivation if certain emergency circumstances are present. See OCGA § 15-11-17(a)(4); § 15-11-18; § 15-11-20(f); § 15-11-21. If the child is detained before the hearing, the parents must be notified of the allegations of deprivations, OCGA § 15-11-25, and the hearing on the deprivation petition must occur within certain deadlines, OCGA § 15-11-26. A superior court clearly has similar emergency avenues to take care of...