IN RE J.C.W. No. A11A2054.
727 S.E.2d 127 (2012)
315 Ga. App. 566
In the Interest of J.C.W. and J.C.W., Children et al.
Court of Appeals of Georgia.
Certiorari Denied June 11, 2012.
Janine Marie Carson , for Tina Wilson.
James B. Outman , Diana Rugh Johnson , for Frederick Williams.
A mother appeals from a superior court order granting the petition of foster parents to terminate her parental rights with regard to her two-year-old twins, after the juvenile court had already issued an order placing custody of the twins with their maternal aunt and uncle until their eighteenth birthdays.
Juvenile Court Proceedings
The complicated procedural history of this case begins with the twins' birth on February 10, 2009. Shortly after their birth, the twins, along with their 16-month-old brother, were placed in DFACS' temporary legal custody by the Juvenile Court of Fulton County. On March 22, 2009, the twins and their older brother were placed with the foster parents, who were not interested in adopting the children at that time. When the foster parents became overwhelmed by caring for three very young children, DFACS initially determined that it would move all three children to another home, but later decided to move only the older child to another home. The foster mother testified that the older child "had some disciplinary issues, you know, acting out."
During a hearing on June 3, 2009, the mother stipulated to the deprivation petition filed by DFACS. On July 9, 2009, the juvenile court issued an order finding the children deprived based upon findings that the mother did not have adequate housing for herself and the children, that she did not have adequate income to support herself and the children, that the mother "has mental health issues,"
In April of 2010, the maternal aunt and uncle learned that the twins were in DFACS custody
DFACS began scheduling visits between the twins and their aunt and uncle in August 2010. Beginning in October, the aunt and uncle had two-hour visits that progressed into all-day, overnight, and then weekend visits. On November 5, 2010, the twins' older brother was placed with them. The foster mother expressed to DFACS at some point during the visitations that she did not like the relatives and admitted being irritated that the mother was present during one of the twins' visits with the aunt and uncle.
On August 10, 2010, DFACS moved to terminate the parental rights of both parents. Following a hearing on September 23, 2010, the juvenile court noted that the mother had complied with the following portions of her reunification plan: "the mother has
On November 15, 2010, the foster parents moved to intervene in the juvenile court proceeding and sought custody of the twins based upon their intention to adopt following a termination of parental rights. On November 16, 2010, DFACS moved the juvenile court to cease all reunification efforts based upon a permanency plan to place all three children with the maternal aunt and uncle. In the motion, DFACS also took the position that "[t]ermination of parental rights is not in the best interest of the children" based upon the permanency plan to place all of the children with fit and willing relatives. On the same date, DFACS petitioned the court to modify custody and place all three siblings with the aunt and uncle until their eighteenth birthdays. Neither of these petitions references a stipulation of non-reunification by the mother.
At the beginning of the hearing, the child advocate attorney asked the associate juvenile judge sitting "pro hac vice" for a continuance "so that Judge Hodges can hear the termination," to which the associate judge responded "okay." Counsel for DFACS then asked the judge to rule on the pending motion for non-reunification and modification of custody to the uncle and aunt. DFACS' counsel declined to dismiss its pending petition to terminate parental rights, stating, "We'll make that determination once the [c]ourt has ruled on the motion for non-reunification and the petition to modify." Counsel for the mother stated that she had "no objection to the motion for non-reunification," and "stipulate[d] to the petition to modify custody" to the aunt and uncle.
Based on the mother's consent, the juvenile court orally granted DFACS' motion for nonreunification before ruling on the custody issues. The judge then declined to continue the custody issues until the juvenile judge who had been handling the case from the beginning could hear it. After hearing testimony from the foster mother and the maternal uncle on issues of custody only, the juvenile judge ruled from the bench and denied DFACS' motion to modify custody of the twins to the aunt and uncle and granted custody of the twins to the foster parents over the objection of the mother and DFACS.
In a written order entered the same day at 3:02 p.m., the judge found that "[t]he mother, through counsel, consented to the Motion [for non-reunification]. Based on the consent of mother through counsel, the Court finds that [the mother] of the ... children, has failed to achieve the goals in the case plan designed to enable her to be reunited with her children." After a recitation of facts concerning the mother's fitness and conduct stated in the motion, for which no evidence was introduced in the hearing, the juvenile judge concluded that parental misconduct existed within the meaning of OCGA § 15-11-94(b)(4)(A)(i)-(iv). It then concluded, that "non-reunification of these children with their parents is in their best interest. Therefore, reunification efforts by the Department shall cease, in accordance with OCGA § 15-11-58(h). Custody of the children remains with [DFACS]."
In In the Interest of J.C.W., 311 Ga.App. 894, 717 S.E.2d 512 (2011), we vacated the chief juvenile judge's February 28, 2011 order based upon her failure to make a finding that "referral for termination of parental rights and adoption was not in the twins' best interest." See OCGA § 15-11-58(i). After the case was remanded, the chief juvenile judge issued an order on October 21, 2011, in which she found that termination of parental rights would not be in the best of the children. On October 31, 2011, the child advocate attorney filed a notice of appeal from this order, and that appeal is now pending in this court as Case No. A12A1341.
Superior Court Proceedings
On December 15, 2010, following the oral grant of their request for custody, the foster parents filed a petition for adoption in Fulton County Superior Court that also sought termination of the mother's parental rights.
On March 9, 2011, the foster parents sought termination of parental rights through a summary judgment motion relying upon certified copies of petitions and orders filed in the juvenile court.
1. In this appeal, the mother asserts that the superior court lacked jurisdiction to rule
OCGA § 15-11-28(a)(2)(C) provides that juvenile courts
In cases involving issues of concurrent jurisdiction between juvenile courts and superior courts, Georgia courts have repeatedly held that "the first court taking jurisdiction will retain it." Segars v. State, 309 Ga.App. 732, 735, 710 S.E.2d 916 (2011). See also Breeden v. Breeden, 202 Ga. 740, 741(6), 44 S.E.2d 667 (1947); Dunbar v. Ertter, 312 Ga.App. 440, 441, 718 S.E.2d 350 (2011), cert. granted (Case No. S12C0452, March 5, 2012); Long v. Long, 303 Ga.App. 215, 218-219, 692 S.E.2d 811 (2010). The policy behind this rule "is to keep down litigation and avoid a multiplicity of suits." Hood v. Cooledge, 39 Ga.App. 476, 480, 147 S.E. 426 (1929).
The competing orders issued concerning the mother's parental rights regarding the twins demonstrate the wisdom of this rule. The juvenile court has issued an order concluding that termination of the mother's parental rights is not in the best interest of the children, and the superior court has entered an order reaching the opposite conclusion. Because it is undisputed that a termination petition was first filed in juvenile court, we conclude the superior court erred by exercising jurisdiction over the issue of termination. See Dunbar, supra; Segars, supra; Long, supra.
2. The remaining enumerations of error are rendered moot by our holding in Division 1.
MIKELL, P.J. and DILLARD, J., concur.
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