In re A. L. S.

350 Ga.App. 636

829 S.E.2d 900

In the INTEREST OF A. L. S., a child; two cases.

A19A0282, A19A0479

Court of Appeals of Georgia.

June 20, 2019

Carol A. Walker, David A. Webster, for appellant.

Brouse Law, Karen H. Brouse ; Michael H. Cummings II, for appellee.

Mercier, Judge.

Stacey Boling, the biological maternal grandmother of A. L. S., appeals two juvenile court orders entered in a dependency action she filed. In Case No. A19A0282, Boling appeals the dismissal of the dependency case. In Case No. A19A0479, she appeals a protective order requiring her to return all copies of certain court records to the juvenile court upon conclusion of the appeal in Case No. A19A0282. For the reasons that follow, we vacate both orders and remand the cases to the juvenile court with direction.

In April 2016, Boling filed in juvenile court a petition for dependency and for temporary custody of A. L. S. Boling alleged that A. L. S.’s mother, Cassandra Shaver, was abusing controlled substances and was facing heroin possession charges, and that one-year-old A. L. S. was in Boling's custody.¹ In May 2016, after a hearing, the juvenile court entered an adjudication of dependency, finding that A. L. S. was dependent as a result of Shaver's substance abuse; that removal from Shaver's home was in the child's best interest; and that Boling knows, cares for, has had a long-term relationship with, and acts in the best interest of A. L. S. The juvenile court awarded Boling temporary legal custody of A. L. S. until further order of the court. In July 2016, the juvenile court entered a disposition order awarding Boling (as the child's biological grandmother and "fictive kin") temporary legal and physical custody of the child, finding that such was in the child's best interest. The order required Shaver to undergo drug testing and enter either a 12-month residential treatment program or the family treatment dependency court program of the Accountability Court of the Mountain Judicial Circuit. The order provided that if Shaver elected to participate in the family treatment dependency court program, she was required to, inter alia, "execute a waiver and release so that the Family Treatment Dependency Court ... shall promptly provide to [Boling's attorney] and the Juvenile Court" the results of all drug screens and tests and evidence of all sanctions resulting from her participation in treatment. The disposition order pertinently provided that legal custody of A. L. S. would not be returned to Shaver until she successfully completed the substance abuse treatment and drug screens required therein.

In April 2017, Teresa Franklin (who had adopted Shaver as a child), and her husband, Phillip Franklin, moved to intervene in the juvenile court dependency action, seeking temporary custody of A. L. S. They alleged that Shaver was unable to care for the child due to her substance abuse, that they are the legal grandparents, that they have provided support for the child, and that they are fit to have custody. The juvenile court granted the motion to intervene in August 2017.

The dependency case underwent numerous judicial review hearings between August 2016 and October 2017. In the review hearing order entered on October 31, 2017, the juvenile court found that it was in the child's best interest to be returned to the temporary custody of Shaver, subject to certain requirements set out in that order, and provided for Boling and the Franklins to have visitation.

A few months earlier, in April 2017, while the dependency action was still pending in juvenile court, the Franklins filed an Amended Petition for Grandparent Custody in superior court, seeking temporary and permanent custody of A. L. S.² In the amended petition, they alleged that Shaver had a history of substance abuse and remained a threat to A. L. S.’s well-being; that they had cared for and supported A. L. S. throughout her life; that Boling formerly allowed the Franklins to have visitation with A. L. S, with whom they shared a bond; that they had a suitable home for A. L. S.; and that A. L. S. would suffer harm if not placed in their custody.

On January 5, 2018, Boling filed a "Motion for Order Enforcing Provisions of Review Hearing Order Dated October 31, 2017," alleging that Shaver had violated the drug provisions of that order and that the juvenile court should change custody pursuant to the terms of the order.

On January 24, 2018, without ruling on the motion to enforce the order, the juvenile court sua sponte dismissed Boling's dependency action. In its dismissal order, the juvenile court stated that Shaver and the Franklins had entered into a consent agreement in the superior court case in which Shaver gave full custody of the child to the Franklins; that there appeared to be no dependency issue as to the Franklins; that all parties to the juvenile court action were also parties to the superior court action; and that the juvenile court lacked jurisdiction because the custody dispute no longer involved dependency issues.

Boling filed a notice of appeal from the juvenile court's dismissal order and, on July 12, 2018, moved the juvenile court to correct the record by adding certain exhibits and three orders that had not been included in the appellate record. The court ruled that the three orders Boling sought to add should not have been in the juvenile court's record, but that the orders would be included in the record for consideration on appeal or other review. On the same date, the juvenile court issued a separate "Protective Order." The protective order stated that the three orders at issue in the motion for correction of record should not have been made available to Boling, that she could not disclose the orders in any manner except for consideration on appeal, and that upon the conclusion of the appeal, the parties would return all copies of the orders and certify that they had done so.

Case No. A19A0282

1. Boling contends that the juvenile court erred by sua sponte dismissing the dependency case. She asserts that the juvenile court failed to give the parties notice and a hearing before doing so, failed to make a determination as to the child's best interest, and apparently deferred to the superior court when the superior court had not made a custody determination. We agree that the juvenile court erred by dismissing the case.

This Court reviews a juvenile court's decisions on issues of law de novo. In the Interest of K. B ., 347 Ga. App. 694, 820 S.E.2d 732 (2018).

In its dismissal order, the juvenile court included the following findings: the Franklins filed a custody action in superior court; "it ... further appear[s] that the [Franklins] and the Mother of [A. L. S.] have entered into an Agreement in the Superior Court case giving the [Franklins] full legal and physical custody of [A. L. S.]"; "[i]t further appear[s] that [A. L. S.] is in the physical custody and control of the [Franklins] and that there appears to be no dependency as to the [Franklins]"; and all parties in the juvenile court action are also parties to the superior court action. Stating that custody disputes that do not also involve issues of dependency are not within the exclusive original jurisdiction of the juvenile court, the juvenile court concluded: "As this case appears to be a custody dispute that no longer involves issues of dependency, ... this case is dismissed for lack of jurisdiction." We hold that the juvenile court did not lack jurisdiction when it ordered the dismissal.

The juvenile court has exclusive original jurisdiction over juvenile matters of dependency and is the sole court for initiating actions concerning a child that is alleged to be a dependent child. OCGA § 15-11-10 (1) (C). "A court, having obtained jurisdiction, retains it until the final disposition of the cause." Owen v. Owen , 195 Ga. App. 545, 546 (394 S.E.2d 580) (1990) (citation and punctuation omitted). And while the juvenile court lacks jurisdiction over a petition for permanent custody of a child in the absence of a transfer order from a superior court, Ertter v. Dunbar , 292 Ga. 103, 105, (734 S.E.2d 403) (2012), Boling's dependency petition was not one for permanent custody. A dependency proceeding is brought to determine whether a child is dependent, and the juvenile court is authorized to assign temporary custody of a dependent child. Long v. Long , 303 Ga. App. 215, 218 (2), 692 S.E.2d 811 (2010). Even if the juvenile and superior courts had concurrent jurisdiction over the temporary custody issue, "whichever [court] first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity." Id. at 218–219 (2), 692 S.E.2d 811 (citation and punctuation omitted).

From April 2016 until the date of dismissal (January 24, 2018), the juvenile court considered whether A. L. S. was abused or neglected and in need of the court's protection, and the court continued to exercise its jurisdiction over the child in connection with those dependency issues. See OCGA § 15-11-2 (22) (A). Even when the juvenile court returned...