In re S. W.

363 Ga.App. 666

872 S.E.2d 316

In the INTEREST OF S. W., a child.

A22A0515

Court of Appeals of Georgia.

April 18, 2022

Calina Costa Plotky, Atlanta, for Appellant.

Christopher Michael Carr, Atlanta, Gary A. Glover, Augusta, Shalen S. Nelson, Atlanta, Emily Allen Harris, for Appellee.

Phipps, Senior Appellate Judge.

The mother of eight-year-old S. W. appeals the juvenile court's temporary order addressing visitation in this dependency case. For the following reasons, we vacate that order, as well as a previous custody order entered by the juvenile court, and remand the case to the juvenile court with direction.

The record shows that the Columbia County Department of Family & Children Services ("DFCS") received a report on May 1, 2019, regarding the death of S. W.’s two-year-old sibling. At that time, DFCS took S. W., who was then five years old, into custody and placed her with her father. DFCS also filed a complaint seeking to place primary sole custody of the child with her father. A 72-hour hearing was held, and all parties agreed that S. W. was dependent. DFCS subsequently filed a dependency/deprivation¹ petition claiming that S. W. was "deprived" due to allegations of inadequate supervision and "unexplained child injuries." At the 10-day hearing, the parties again agreed that S. W. was dependent.

On June 7, 2019, the juvenile court issued both a preliminary protective order and an order of adjudication and temporary disposition. In the preliminary protective order, the court found that (a) S. W. "ha[d] been abused or neglected[,]" (b) she was "in need of the protection of the Court," and (c) continuation in the present custody situation was in her best interest. In its order of adjudication and temporary disposition, the court found, by clear and convincing evidence, that S. W. was dependent and that "return to the [mother's] home [was] contrary to the welfare of the child." In both orders, the court noted that continued placement outside of the mother's home was necessary "to ensure the safety of the child due to the death of the child's sibling and the open investigation by law enforcement surrounding the circumstances and violent death of the child's sibling. " The protective order further noted that the mother was to have no visitation or contact with S. W.

The father filed a motion to intervene, which was granted by the juvenile court. On June 20, 2019, the father filed, in the juvenile court action, a document entitled "Complaint for Change of Custody." The filing requested that sole legal custody of S. W. be changed from DFCS to the father, noting that the father shared physical and legal custody with the mother and a change in circumstances materially affected the welfare of S. W. On June 21, 2019, the juvenile court held a disposition hearing during which the DFCS caseworker updated the court on the case. The court also heard argument on the father's request for change of custody. Following the hearing, the juvenile court entered a July 9, 2019 temporary order (a) awarding the father sole temporary custody of S. W. until further order of the court, (b) relieving DFCS of legal custody, (c) restraining the mother from communication and/or contact with S. W., (d) allowing the maternal grandparents supervised visitation with S. W., (e) noting that child support was not ordered, and (f) indicating that a guardian ad litem was being appointed to represent S. W.’s best interests (the "July 2019 temporary order"). The order did not include any findings of fact or conclusions of law supporting the juvenile court's decisions. The court subsequently held a status hearing² and, on September 30, 2019, issued an order essentially continuing its previous order.

Following a number of counsel substitutions and a request for continuance by the mother, the juvenile court held what is labeled as a "Final Hearing" on the front page of the September 8, 2020 hearing transcript. The record does not show that a final order of disposition has been entered; however, on April 5, 2021, the juvenile court issued a temporary order permitting the mother to have supervised telephone visitation with S. W. (the "April 2021 temporary order"). The order indicates that visitation "shall be conducted once a week for a period of thirty (30) minutes in duration" and that "[s]aid time will be at the discretion of the custodian." The mother filed a notice of appeal on May 5, 2021, purporting to appeal from "all judgments, rulings, orders, and decisions in this action that are adverse to [her], including, but not limited to, the Court's April 5, 2021 Temporary Order."³

1. Before addressing the merits of the mother's enumerations of error, we must determine whether this Court has jurisdiction to consider the mother's direct appeal. See Parham v. Stewart , 308 Ga. 170, 171 (1), 839 S.E.2d 605 (2020) (an appellate court has a duty to raise the question of its jurisdiction in all cases where there may be any doubt about its existence).

This Court has held that custody orders entered by juvenile courts in dependency proceedings are directly appealable. See In the Interest of J. N. , 302 Ga. App. 631, 631, 633-634 (1), 691 S.E.2d 396 (2010) (denial of petition to modify order terminating reunification services and placing children in the custody of relatives was subject to direct appeal as a final judgment under OCGA § 5-6-34 (a) (1) ). This includes temporary or interlocutory custody orders issued in dependency proceedings. See In the Interest of S. J. , 270 Ga. App. 598, 608 (1) (a), 607 S.E.2d 225 (2004) ("An order within a [dependency] proceeding deciding temporary custody of the child is a ‘final order,’ within the meaning of [ OCGA §] 5-6-34 (a) (1), from which a direct appeal lies."). "Under Georgia law, visitation rights are a part of custody." Vines v. Vines , 292 Ga. 550, 551 (2), 739 S.E.2d 374 (2013). Accordingly, the juvenile court's April 2021 temporary order addressing the mother's visitation rights is directly appealable.

The father argues that the mother cannot challenge the juvenile court's July 2019 temporary order or any other orders issued more than 30 days before the date she filed her notice of appeal. We disagree. Generally a notice of appeal must be filed within 30 days after entry of an appealable decision or judgment. OCGA § 5-6-38 (a). However, where, as here, a direct appeal is proper, "all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court." OCGA § 5-6-34 (b). This applies to earlier, unappealed orders issued in the dependency proceeding:

Although the juvenile court made its [dependency] finding well over 30 days before [the appellant] filed her notice of appeal, a party may challenge the propriety of an earlier, unappealed [dependency] order in the course of a timely direct appeal from a subsequent order arising out of the [dependency] proceeding. This is true even if the party's enumerated errors relate solely to the earlier [dependency] finding and do not address the subsequent order supporting the timely direct appeal.

In the Interest of J. R. P. , 287 Ga. App. 621, 622 (1), n. 2, 652 S.E.2d 206 (2007) (citations and punctuation omitted). See also In the Interest of S. J. , 270 Ga. App. at 608 (1) (b), 607 S.E.2d 225 (dependency order relied upon by the juvenile court in deciding a custody issue was reviewable during direct appeal of the custody order in a dependency proceeding).

Parties are foreclosed from subsequently challenging the conclusive effect of a [dependency] order only when the order has been reviewed on appeal and the challenged portion of the order either was or could have been considered by the appellate court or where the [dependency] order is used in unrelated proceedings, such as a proceeding to terminate parental rights.⁴

In the Interest of I. S. , 278 Ga. 859, 860-861, 607 S.E.2d 546 (2005) (citations omitted). Accordingly, the mother may challenge the propriety of any earlier, unappealed orders in the course of her timely direct appeal taken from the April 2021 temporary order arising out of the dependency proceeding.

2. We must also consider for purposes of this appeal what type of case is before us. The father argues that this case began as a dependency proceeding, but morphed into a custody modification proceeding when the juvenile court relieved DFCS of legal custody. This is incorrect.

Child dependency proceedings are brought on behalf of the child, focus on the needs of the child, and may include custody orders "best suited to the protection and physical, emotional, mental, and moral welfare of a child adjudicated as a dependent child." OCGA § 15-11-212 (a) (2) ; In the Interest of J. N. , 302 Ga. App. at 632 (1), 691 S.E.2d 396. "Although child custody determinations may be necessary in a [dependency] proceeding, the proceeding itself is to determine whether the child is [dependent] and is not an action brought to decide custody matters." In the Interest of J. N. , 302 Ga. App. at 632 (1), 691 S.E.2d 396 (citation and punctuation omitted); accord In the Interest of J. P. , 267 Ga. 492, 492, 480 S.E.2d 8 (1997). We find that temporarily awarding legal custody of the child to her biological father and relieving DFCS of further responsibility for the child merely turned this action into a private dependency action. See generally In the Interest of C. A. J. , 331 Ga. App. 788, 771 S.E.2d 457 (2015) (private dependency action brought by the child's grandmother); In the Interest of G. R. B. , 330 Ga. App. 693, 769 S.E.2d 119 (2015) (private dependency action brought by grandparents). This is true for at least two reasons.

First, the juvenile court is authorized under the dependency proceeding statutes to order a change in its award of temporary legal custody of a dependent child and relieve DFCS of further responsibility for the child:

After transferring temporary

...