In the Interest of A. N.

636 S.E.2d 496, 281 Ga. 58
CourtSupreme Court of Georgia
DecidedOctober 4, 2006
DocketS06A1147
StatusPublished
Cited by17 cases

This text of 636 S.E.2d 496 (In the Interest of A. N.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A. N., 636 S.E.2d 496, 281 Ga. 58 (Ga. 2006).

Opinion

Melton, Justice.

Following a deprivation hearing concerning A. N. and M. N., the juvenile court found both children to be deprived, and it awarded legal custody of the children to the Department of Family and Children Services (DFACS). The juvenile court then ordered, however, that physical custody be given to the maternal grandparents. DFACS filed a motion for reconsideration of this ruling, arguing, among other things, that the juvenile court was statutorily prohibited from placing legal custody in DFACS and physical custody in another party of the court’s choosing. The juvenile court denied DFACS’ motion, finding that it had the statutory authority to place [59]*59conditions and limitations on DFACS’ legal custody, including a limitation that physical custody of the child be placed in accordance with the court’s mandate. In the alternative, the juvenile court found that, even if OCGA §§ 15-11-58 and 15-11-55 prevented it from dividing custody of a deprived child in this manner, these statutory provisions violated the Equal Protection Clause of the United States Constitution. DFACS now appeals the juvenile court’s rulings.

It is a longstanding rule that a trial court may not order that legal and physical custody of a deprived child be divided between DFACS and some other party unilaterally chosen by the court. See, e.g., In the Interest of Tidwell, 279 Ga. App. 734 (2) (632 SE2d 690) (2006); In the Interest of C. A. C., 239 Ga. App. 725 (2) (522 SE2d 236) (1999); In the Interest of J. N. T., 212 Ga. App. 498 (441 SE2d 918) (1994); In the Interest of A. V. B., 267 Ga. 728 (2) (482 SE2d 275) (1997); In the Interest of A. S., 185 Ga. App. 11 (2) (363 SE2d 325) (1987). Once legal custody of a deprived child has been granted to DFACS, any effort by the court to dictate placement of physical custody is “merely exhortatory and not binding.” (Punctuation omitted.) In the Interest of R. D., 141 Ga. App. 843, 844 (234 SE2d 680) (1977). Despite the consistency of this case law, the juvenile court found that amendments made to OCGA § 15-11-55 in 2003 altered this well-settled precept. A review of the language of these statutes, including the 2003 revisions, construed in pari materia with OCGA § 49-5-3 (12) (A) does not support this finding.

OCGA § 49-5-3 (12) (A) and (D) state that the term “legal custody” encompasses the “right to have the physical possession of the child or youth” and the “right to determine where and with whom [the child] shall live.” It is well-settled that this definition of legal custody must be read in pari materia with those provisions of the Georgia Code relating to juvenile proceedings and the placement of deprived children. In the Interest of R. D., supra, 141 Ga. App. 843. Therefore, unless some provision in the juvenile code explicitly and expressly alters the nature of legal custody as expressed in OCGA § 49-5-3 (12), the concept of legal custody must be interpreted to include the “right to determine where and with whom [the child] shall live.” OCGA § 49-5-3 (12) (D).

With this in mind, the juvenile court found that OCGA § 15-11-55 (a) (2) is not controlled by this accepted definition of legal custody. This Code section provides:

Subject to conditions and limitations as the court prescribes, [the court may] transfer temporary legal custody to any of the persons or entities described in this paragraph. Without limiting the generality of the foregoing, such conditions and limitations shall include a provision that the court shall [60]*60approve or direct the retransfer of the physical custody of the child back to the parents, guardian, or other custodian either upon the occurrence of specified circumstances or in the discretion of the court. Any such retransfer of physical custody may be made subject to such further conditions and limitations as the court prescribes, including supervision for the protection of the child.

Contrary to the trial court’s interpretation, nothing in this provision allows any redefinition of legal custody as set forth in OCGA § 49-5-3 (12). To the contrary, the language of the statute supports the standard definition of legal custody.

The juvenile court nonetheless opined that one of the “conditions and limitations” that it could place on legal custody is the condition that physical custody of a deprived child be given to a party chosen by the court, not DFACS. As an initial matter, the many cases interpreting this statute, as listed above, have consistently found that a juvenile court cannot grant legal custody to DFACS and then mandate the placement of physical custody in a party of the court’s choosing. The juvenile court has no authority to ignore this case law. Moreover, the explicit language of OCGA§ 15-11-55 (a) (2) makes the juvenile court’s interpretation of the statute untenable. The general rules of construction require that a statute should be analyzed “to make all [of] its parts harmonize and to give a sensible and intelligent effect to each part[, as i]t is not presumed that the legislature intended that any part be without meaning.” (Citation omitted.) Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975). The statute mandates that any transfer of legal custody to DFACS must include a condition “that the court shall approve or direct the retransfer of physical custody back to the parents, guardian, or other custodian.” If, as the juvenile court contends, it has inherent power to determine physical custody of a deprived child from the outset, the placement of a mandatory condition on DFACS’ legal custody regarding the retransfer of physical custody becomes a superfluous and meaningless statement of authority already vested in the juvenile court. If, on the other hand, the statute follows both longstanding statutory and legal precedent such that the grant of legal custody to DFACS includes the right to determine physical custody, the imposition of a mandatory condition regarding retransfer of physical custody makes sense, as it is necessary to convey to the trial court authority that it would not otherwise have over the placement of physical custody.

Furthermore, nothing in the 2003 amendment to OCGA § 15-11-55 supports the juvenile court’s finding that the legislature intended to reject the definition of legal custody set forth in OCGA [61]*61§ 49-5-3.

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Bluebook (online)
636 S.E.2d 496, 281 Ga. 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-a-n-ga-2006.