Dep't of Human Servs. v. Wyttenbach

348 Ga.App. 810

824 S.E.2d 680

DEPARTMENT OF HUMAN SERVICES

v.WYTTENBACH et al.

A18A1914

Court of Appeals of Georgia.

February 26, 2019

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Lori A. Cheatham, Assistant Attorney General, for appellant.

Hester Outman, James B. Outman ; Josie Redwine, for appellees.

Rickman, Judge.

The Georgia Department of Human Services (the Department) appeals the Cobb County Superior Court's February 8, 2018 "Order on Termination of Parental Rights and Custody," which terminated the parental rights of the mother, legal father, and biological father of two minor children and placed the children in the temporary physical custody of their foster parents, pending formal completion of an application for adoption assistance. The Department contends that the superior court's order is void because it did not have jurisdiction over this matter and that, even if it did have jurisdiction, the superior court erred in splitting custody between the Department and the foster parents. For reasons that follow, we vacate and remand.

The minor children involved in this case were the subject of several proceedings in the juvenile court and the superior court in Cobb County. The juvenile court proceedings included a dependency action, a termination of parental rights action, and a legitimation action.¹ The superior court proceedings included a legitimation action and an adoption action.²

At some point prior to March 8, 2016, a petition for dependency was filed with respect to the minor children in the Juvenile Court of Cobb County. In September 2016, the two minor children were adjudicated dependent, and temporary custody and control of the children was awarded to the Department, acting through the Cobb County Department of Family and Children Services (DFACS). The juvenile court found that the mother had used illegal drugs, engaged in prostitution in a motel room where the children were located, left the children unattended in a motel room, failed to provide the children with proper clothing and shoes, and ultimately allowed people she met on social media to take the children to reside in their home. The children were placed in the custody of the foster parents in August 2016 and have remained in their care.

In August 2016, the Department filed a petition in juvenile court seeking to terminate the parental rights of the mother and biological father. In its petition, the Department noted that it had placed the children in a foster placement approved by Cobb County DFACS.

In March 2016, in the Superior Court of Cobb County, the biological father filed a legitimation petition, which was dismissed without prejudice for lack of prosecution. The biological father filed another legitimation petition in superior court in October 2017, as a renewal action of the previously-filed action. In the interim, in July 2017, the biological father filed a legitimation petition in juvenile court.

On August 28, 2017, the foster parents filed a petition in superior court to adopt the minor children. The mother intervened in the adoption action the next day. In their adoption petition, the foster parents sought to terminate the rights of the mother and legal father based on voluntary relinquishments of their rights, to terminate the rights of the biological father, and to adopt the minor children. The legal father executed a surrender of his parental rights and release for independent adoption on August 23, 2017. The mother executed a surrender of her parental rights and release for independent adoption on August 29, 2017.³ The mother also executed an affidavit in which she averred that, during her relationship with the biological father of her children, he did not have a job and did not contribute to their living expenses; he left Georgia for Iowa when they were evicted from their residence, while she was pregnant with their third child;⁴ and after he left, she had no money and nowhere to live, requiring her to beg for money to obtain motel rooms.

Given the numerous actions pending in both courts, the superior court judge and the juvenile court judge conferred about the best course of action, and on December 7, 2017, the juvenile court issued an order staying the matters pending in the juvenile court until final resolution of the matters pending in the superior court, noting that resolution of matters pending in superior court would resolve or significantly impact matters pending in juvenile court. One of the stated goals of the stay was to achieve judicial economy and avoid the possibility of inconsistent judgments in different courts.

Following a January 11, 2018 hearing on the biological father's legitimation petition, the superior court made the following findings with respect to the biological father: during his relationship with the mother, the biological father had been convicted of 11 charges, mostly family violence against the mother, and spent 484 days incarcerated; he never provided adequate support for the children, requiring the mother to resort to prostitution to support the family; he moved to Iowa when the mother and his children were homeless and destitute and the mother was pregnant with his child; he failed to support the children in any way since he left Georgia; and he has had minimal contact with the children. The court further found that the juvenile court had conducted a hearing in October 2017 and declined to place the children with the biological father in Iowa. The court also found that one of the children has experienced "escalating aggressive behavior" at school since his contact with the biological father. The superior court concluded that the biological father had abandoned his opportunity interest in the children and that he was an unfit parent; consequently, the court denied his petition to legitimate the children.⁵

Following an evidentiary hearing in the adoption action, in a February 8, 2018 order, the superior court terminated the parental rights of the mother and legal father based on their voluntary relinquishment of those rights, which both parents reaffirmed at the hearing.⁶ The court also terminated the biological father's rights based on the findings and conclusions in its order denying the legitimation petition.⁷ The court found the children were bonded to the foster parents, who were "excellent parents" and provided the best care for the children, but determined that an order of adoption could not be entered prior to the completion of an application for adoption assistance without causing a lapse in the significant benefits being received for the "special needs" of the children, and that the Department's assistance was needed to complete the application process. As a result, the court awarded the foster parents temporary physical custody of the children, pending completion of an application for adoption assistance, with temporary legal custody remaining with the Department pending a final decree of adoption.

A portion of the superior court's February 8, 2018 order enjoins the Department from certain activities and provides that

[t]he Juvenile Court has issued a stay of the [dependency] proceed[ing]s concerning these children until this matter is completed, including any appeal[;] therefore, The Department is ENJOINED from interfering in any way in the physical placement of the children with Petitioners. The Department is ENJOINED from arranging any contact or visitation between the children and [the biological father] or any of his relatives.

The Department appeals from that order, contending that the superior court lacked jurisdiction to enter it and that the superior court erred by ordering that legal and physical custody be split between the Department and the foster parents.

1. The foster parents moved to dismiss the appeal on three grounds. First, the foster parents contend the appeal must be dismissed because the Department was not a party to the adoption action.⁸ But because the superior court enjoined the Department from taking certain actions with respect to the minor children, the Department has standing to appeal the injunctive portion of the order. See BEA Systems v. WebMethods , 265 Ga. App. 503, 509 (1), 595 S.E.2d 87 (2004) ("when an injunction is entered affecting and restraining a nonparty, it has standing to appeal such injunction"). Second, the foster parents contend that the order is not appealable under OCGA § 5-6-34 (a) (1) because the action is still pending in the superior court. We have previously recognized that such an order is directly appealable under OCGA § 5-6-34 (a) (11). See Bowman v. Bowman , 345 Ga. App. 380, 381, n.4, 811 S.E.2d 103 (2018) (where issue on appeal involved the trial court's jurisdiction over the custody dispute and order awarding temporary custody, case could have been brought as a direct appeal). And third, the foster parents contend that dismissal is appropriate because the Department failed to have the record transmitted to this Court in a timely manner. This Court, however, cannot dismiss an appeal for "failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court[.]" OCGA § 5-6-48 (c). Accordingly, the foster parents’ motion to dismiss is denied.

2. The Department contends that the superior court lacked jurisdiction over this matter under the doctrine of priority jurisdiction. The Department argues that because the juvenile court took jurisdiction over the termination of parental rights issue first, the superior court order at issue is void.

"The doctrine of priority jurisdiction provides that where different tribunals have concurrent jurisdiction over a matter, the first court to exercise jurisdiction will retain it." Stanfield v. Alizota , 294 Ga. 813, 815, 756 S.E.2d 526 (2014). "Invocation of the doctrine requires both the existence of concurrent...