In the Interest Of: J.M.L. , a Child

784 S.E.2d 869, 336 Ga. App. 518
CourtCourt of Appeals of Georgia
DecidedMarch 29, 2016
DocketA15A2359
StatusPublished
Cited by2 cases

This text of 784 S.E.2d 869 (In the Interest Of: J.M.L. , a Child) is published on Counsel Stack Legal Research, covering Court of Appeals 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: J.M.L. , a Child, 784 S.E.2d 869, 336 Ga. App. 518 (Ga. Ct. App. 2016).

Opinions

MCFADDEN, Judge.

Lesli Huso, who wishes to adopt three-year-old J. M. L. appeals from the juvenile court’s order appointing the girl’s foster mother, Ava Deverger, as her permanent guardian. See former OCGA § 15-11-30.1.1 In an earlier appeal in this case, we affirmed an order in which the juvenile court determined that it was in J. M. L.’s best interest to award Deverger permanent guardianship. In the Interest of J. M. L., 330 Ga. App. XXIII (Case No. A15A0315) (January 28, 2015) (unpublished).

[519]*519In this appeal, Huso asks us to revisit two issues that we resolved against her in the earlier appeal: whether the juvenile court had jurisdiction to make the permanent guardianship ruling, and whether the juvenile court’s ruling met the statutory requirements for the appointment of a permanent guardian. Although we resolved the earlier appeal in this case in an unpublished decision without opinion pursuant to Court of Appeals Rule 36, our Supreme Court has made it clear that such decisions still establish the law of the case. Huso is not entitled to a second try at a more favorable appellate ruling on those issues.

Huso also argues that we should reverse the order on appeal because, instead of conducting a hearing and determining J. M. L.’s best interest after Deverger filed a guardianship petition, the juvenile court held the hearing and made the best interest determination before the guardianship petition was filed. Nevertheless, Huso was notified of and participated in the hearing, and we are not persuaded by her argument that the juvenile court’s failure to conduct a second hearing and make a second best interest determination after the filing of the petition is reversible error.

For these reasons, as detailed more fully below, we affirm the juvenile court’s order appointing Deverger as J. M. L.’s permanent guardian. We deny Deverger’s motions to dismiss this appeal and for sanctions.

1. Facts and procedural posture.

As an initial matter, we note that the appellate record in this case is limited. It is comprised mostly of court filings and orders, and the bulk of the facts in this case are set out in the first order, which we previously affirmed. Although several evidentiary hearings occurred before the juvenile court entered the order that was the subject of Huso’s first appeal, the parties chose not to include transcripts of those hearings in the appellate record. “In accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the [juvenile] court’s findings.” Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (citation and punctuation omitted).

Keeping these limitations in mind, the record shows that J. M. L. was born on April 17, 2012. At the time of J. M. L.’s birth, her mother was a residential patient in a substance abuse rehabilitation facility and her three older half-siblings (hereinafter, the siblings) were in the temporary legal custody of the Department of Family and Children Services (DFCS) and the physical custody of J. M. L.’s great [520]*520aunt. Because the mother was making progress on her case plan at the time, DFCS did not seek to have J. M. L. removed from her custody. Eventually, J. M. L. and her mother joined her siblings in the great aunt’s home.

In March 2013, the mother left the great aunt’s home with J. M. L. and was found at a motel about a week later. She had resumed using drugs. At that point, DFCS obtained legal custody of the girl and began proceedings in the juvenile court to have her adjudicated deprived. Initially DFCS sought to place J. M. L. in the physical custody of her great aunt, with her siblings, but the great aunt declined to take her. Consequently, in late March 2013, DFCS placed J. M. L. in foster care with Deverger. At that point, J. M. L. was approximately 11 months old. She has remained in Deverger’s physical custody since that time.

At a hearing in October 2013, a court-appointed guardian ad litem informed the juvenile court that Huso, a Florida resident who had become acquainted with the great aunt, sought to adopt all four children. The juvenile court instructed DFCS to investigate this possibility.

In January 2014, Huso filed a petition in superior court seeking an order confirming the termination of the biological parents’ parental rights to all four children so that she could begin proceedings in Florida to adopt them. In support of her petition, Huso presented the superior court with documents reflecting that the mother of the four children and the biological fathers of J. M. L.’s three siblings had surrendered their parental rights. She also presented evidence that J. M. L.’s biological father was unknown. However, she did not inform the superior court either that DFCS had legal custody of the children or that the children were the subject of a juvenile court proceeding.

In February 2014, Huso moved to intervene in the juvenile court proceeding and petitioned for that court to transfer custody of the four children to her so that she could take action in Florida to adopt them. At that time, Huso made the juvenile court aware of her pending petition in the superior court. After an April 3, 2014 hearing, the juvenile court granted Huso’s motion to intervene and entered a provisional order granting her temporary custody of J. M. L.’s siblings. As to J. M. L., however, the juvenile court scheduled a new hearing because Deverger had not been given notice of the first hearing.

In the meantime, still unaware of the juvenile court proceeding, the superior court entered an order on April 14,2014, terminating the parental rights of the four children’s mother and fathers.

[521]*521On April 17, 2014, Deverger moved to intervene in the juvenile court proceeding and filed a written objection to Huso’s petition for a change of custody. The juvenile court permitted her to intervene, over Huso’s objection.

On April 25, 2014, the juvenile court began the rescheduled hearing on Huso’s motion for custody of J. M. L. but suspended it after the child’s guardian ad litem could not continue to participate for medical reasons. The juvenile court resumed the hearing on June 27, 2014, with a new guardian ad litem. The juvenile court concluded the hearing on July 1, 2014. Huso participated in the hearing.

At around this time the juvenile court informed the superior court about the juvenile court proceeding, and on June 24, 2014, before the conclusion of the juvenile court hearing, the superior court issued an order setting aside his April 14 order terminating parental rights as to the four children. In the June 24 order, the superior court chided Huso for not notifying him of the juvenile court proceeding, which the superior court believed her counsel was obliged to do. The superior court stated that, consequently, he

was not informed of a fact necessary to enable [him] to make an informed decision. The pendency of another proceeding involving the minor children clearly is such a fact. If counsel for [Huso] had complied with his obligations as aforesaid, [the superior court] would not have entered the proposed order [counsel] presented to the [c]ourt ex parte before reviewing the pleadings and the evidence adduced in that [juvenile court] proceeding.

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Cite This Page — Counsel Stack

Bluebook (online)
784 S.E.2d 869, 336 Ga. App. 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jml-a-child-gactapp-2016.