In the Interest of N. W.

710 S.E.2d 832, 309 Ga. App. 617, 2011 Fulton County D. Rep. 1554, 2011 Ga. App. LEXIS 412
CourtCourt of Appeals of Georgia
DecidedMay 17, 2011
DocketA11A0693, A11A0932
StatusPublished
Cited by1 cases

This text of 710 S.E.2d 832 (In the Interest of N. W.) 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 N. W., 710 S.E.2d 832, 309 Ga. App. 617, 2011 Fulton County D. Rep. 1554, 2011 Ga. App. LEXIS 412 (Ga. Ct. App. 2011).

Opinion

Adams, Judge.

In the three days immediately following a hearing on the permanency plan of a deprived child, the child advocate filed motions that contested the oral pronouncement of the juvenile court, even though the court had yet to issue a written order. The advocate also sought an emergency hearing on placement of the child. The juvenile court dismissed the three motions in part on the ground that they were premature. The child advocate appeals several aspects of these dismissals.

The record shows that N. W tested positive for cocaine at birth on Monday, August 10, 2009. That Friday, the child was placed in shelter care with a foster family. In the following days and weeks, the Fulton County Department of Family and Children Services (DFACS) filed a deprivation complaint, a deprivation petition, and an amended petition. In the amended petition, DFACS alleged, among other things, that the mother also tested positive for cocaine at the time of N. W.’s birth; that she used drugs, was without resources, and was unable to care for the child; that she had failed at drug treatment and failed to remain drug free; that the father failed to prevent the child from being exposed to drugs; that the paternal grandparents were unwilling to take N. W. because they already had custody of a sibling and the mother was verbally aggressive toward them; that no other relatives had come forward; and that the permanency plan was termination of parental rights followed by adoption. The juvenile court conducted a hearing on the deprivation petition, to which the parents had stipulated, and found the child to be deprived. The child remained with the foster family.

Despite DFACS’s plan for adoption, the child advocate filed a motion for nonreunification, to which the parents stipulated, and the court held a hearing. In an order dated October 30, 2009, the court determined that reunification was not appropriate, hut the court noted that the paternal grandparents had “changed their minds about having the child placed with them,” and they were “now being evaluated by the Department as a possible placement option for the child.” On February 15, 2010, a judicial citizen review panel conducted a hearing and recommended placement with a fit relative. On February 16, however, the child advocate objected to the panel’s plan and asked for another hearing.

A judge pro tempore of the juvenile court held a hearing on March 8, 2010, but no transcript is in the record. According to the briefs and colloquy at a later hearing, the judge pro tempore announced in open court that he would adopt the recommendation of [618]*618the panel and order placement with a fit and willing relative. DFACS moved the child from the foster parents to the grandparents the next day. Nevertheless, the judge pro tempore did not issue a written order until March 25.

In the meantime, on March 9, 10 and 11, without waiting for a written order, the child advocate filed the following three motions:

1. “Motion for Emergency Reconsideration on Notice of Objection and Motion for Hearing on Citizens Panel’s Review Proposed Permanency Plan and DNA Test”;

2. “Motion for Emergency Transfer of Custody”; and

3. Motion for an “Emergency Review Hearing.”

In these motions, respectively, the child advocate contested the father’s paternity — suggesting that the paternal grandparents might not really occupy that status, and argued that, therefore, the foster parents should also be considered in the plan for the child; he argued that custody should be restored to the foster parents immediately because of the paternity issue; and he argued that DFACS failed to give five days notice of a change in placement of the child in accordance with OCGA § 15-11-55 (d). DFACS responded to each motion.

On March 18, assigned Judge Bradley Boyd held a hearing regarding the child advocate’s motions. On the same day, Judge Boyd dismissed Motion No. 1 (for reconsideration) and No. 3 (for an emergency hearing) as premature, given that no written order had been entered following the March 8 hearing. Judge Boyd also dismissed Motion No. 2 (for transfer of custody) because the motion failed to state a relevant reason for a change in custody or “for abandoning the planning, recommending, and review process set out in the Juvenile Court Code.” The order was filed on March 24. In a second order, filed March 25, the court reiterated that Motion No. 1 was premature and added that given the legal father was not contesting paternity, and that no other person was claiming paternity, it would not be in the best interest of the child “to order a test for the purpose of delegitimating the child.” It is these two orders issued by Judge Boyd that are now on appeal.1 These cases are consolidated for the purposes of appeal.

After the child advocate filed notices of appeal, the judge pro tempore finally filed a written order nunc pro tunc March 8, 2010, on the child advocate’s objection to the recommendation of the citizen review panel, in which the judge adopted the panel’s recommenda[619]*619tion over the child advocate’s objection and ordered the child placed with a fit and willing relative. This order is not before us, nor is the effect of the order given that notices of appeal had been filed before the order was filed.

1. The child advocate contends the court erred by dismissing Motion No. 1 (for reconsideration) on the ground that it was premature. We disagree. Only one day after the March 8, 2010 hearing, the child advocate sought reconsideration of the juvenile court’s oral pronouncement at the hearing.

Entry of a judgment occurs when it is filed with the clerk “and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same, as provided in this subsection.” OCGA § 9-11-58 (b). See also Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003); Shirley v. Abshire, 288 Ga. App. 819, 820 (655 SE2d 694) (2007). The child advocate has not shown that the juvenile court otherwise directed that its oral pronouncement was effective on that day. Thus, the motion to reconsider was premature.

As a consequence, in this appeal, the child advocate cannot complain about the issues addressed at the March 8 hearing. These include, at a minimum, the propriety of the permanency plan approved by the citizen review panel and placement of the child with a fit and willing relative. Other topics may have been addressed, but there is no transcript in the appellate record of the March 8 hearing.

2. The child advocate contends the court erred by dismissing Motion No. 3 (for emergency review) filed under OCGA § 15-11-55 (d). He contends he never received notice that the child was going to be moved from the foster parents to the grandparents on March 9, 2010, and that he properly requested a hearing to address the child’s permanency plan.

In this setting, DFACS is required to give the child advocate five days advance notice of any placement change:

Not less than five days in advance of any placement change, the division shall notify the court. . .

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Related

In Re Nw
710 S.E.2d 832 (Court of Appeals of Georgia, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
710 S.E.2d 832, 309 Ga. App. 617, 2011 Fulton County D. Rep. 1554, 2011 Ga. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-n-w-gactapp-2011.