FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 10, 2012
In the Court of Appeals of Georgia A12A1769. IN THE INTEREST OF T. H., a child.
ELLINGTON, Chief Judge.
The mother of six-year-old T. H. appeals from an order of the Juvenile Court
of Fulton County in which the court ruled that the child was deprived. The mother
contends that there was insufficient clear and convincing evidence to support the
court’s conclusion. It is unnecessary to reach the merits of this issue, however,
because we conclude that it has been rendered moot by subsequent, unappealed
deprivation and custody judgments in this case in the juvenile court, as explained
below. Accordingly, this appeal is dismissed.
The record shows the following, undisputed facts. In March 2007, the
Department of Health Services’ Division of Children and Family Services (“the
Department”) obtained temporary custody of five-month-old T. H., whose sixteen- year-old mother (the appellant herein) was already in the Department’s custody and
living in foster care. T. H. remained in the Department’s custody through February
10, 2011, when the Department filed a deprivation petition in which it asserted that
T. H. was still deprived. The juvenile court conducted a deprivation hearing in June
2011, and, on July 18, 2011, it issued an adjudication order in which it found T. H.
deprived, extended the Department’s temporary custody, and ordered that the
Department continue reunification efforts. The order stated that it would expire on
February 16, 2012, unless the court terminated it sooner. The mother filed a timely
notice of appeal from this adjudication order on July 21, 2011.1 However, this Court
did not docket the appeal (hereinafter, “the instant appeal”) until May 7, 2012. By that
date, the February 2011 expiration date of the order had passed.
Significantly, in the time period between the issuance of the July 2011 order
and the May 2012 docketing of this appeal, the juvenile court conducted various,
standard proceedings in this ongoing deprivation and custody case. On July 19, 2011,
two days before the mother filed the instant appeal from the adjudication order, the
1 The putative father of T. H. failed to legitimate or provide for the child and is not a party to this appeal.
2 juvenile court conducted a disposition hearing.2 On August 16, 2011, it issued a
disposition order in which it reaffirmed its finding of T. H.’s deprivation and its grant
of temporary custody to the Department. The disposition order stated that it would
expire on February 16, 2012, unless the court terminated it sooner. The mother did
not appeal from the disposition order.3
On January 4, 2012, in anticipation of the upcoming expiration of the July 2011
order at issue in this case, the Department filed a motion to extend its temporary
custody of T. H. In the motion, the Department asserted that the conditions of
deprivation previously found by the court “have not been alleviated [because] the
mother is without independent housing or sufficient income,” “is unable to
independently care for the child,” and is unable to provide the child with adequate
care, control, supervision, home, or support, and, that as a result, T. H. is still in “need
of a parent or proper and legal guardian or custodian.” The court conducted a motion
hearing on January 12, 2012, during which it accepted evidence on the issue of
2 The July 2011 disposition hearing was not transcribed. 3 In addition, in September and November 2011, the juvenile court conducted review hearings, and, on October 24 and December 9, 2011, it issued review orders extending the Department’s custody of T. H. Each order stated that it would expire on February 16, 2012, unless the court terminated it sooner. The mother did not appeal from either order.
3 whether T. H. was deprived.4 In its February 7, 2012 permanency order finding that
T. H. was still deprived and extending the Department’s custody of her,5 the court
stated that, during the hearing, “[t]he mother stipulated to the [Department’s] Motion
to Extend as amended and acknowledged that the allegations therein are true.”6
(Emphasis supplied.) The mother did not appeal from this order.
Turning to whether the mother’s challenge to the July 2011 deprivation order
in the instant appeal has been rendered moot by the subsequent judgments in the
juvenile court, we are guided by the following principles:
Consistent with its requirement that appellate courts address only those rulings that “may affect the proceedings below,” OCGA § 5-6-34 (d) expressly provides that “[n]othing in this subsection shall require the appellate court to pass upon questions which are rendered moot.” [Thus, the] general rule is that appellate courts do not consider moot questions. Mootness is a question of court policy based on the theory that courts do
4 The mother did not file a transcript of the January 2012 hearing in the juvenile court, nor did she request that one be included in the appellate record. 5 This order stated that it would expire on February 15, 2013, unless the court terminated it sooner. 6 See In the Interest of M. O., 233 Ga. App. 125, 128 (1) (503 SE2d 362) (1998) (Such a stipulation is an admission in judicio that “is conclusive and binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true.”) (citations and punctuation omitted).
4 not give opinions on abstract propositions of law that do not involve an actual controversy between parties.
(Citation and punctuation omitted.) In the Interest of I. S., 278 Ga. 859, 861 (607
SE2d 546) (2005). See also OCGA § 5-6-48 (b) (3) (“No appeal shall be dismissed
or its validity affected for any cause nor shall consideration of any enumerated error
be refused, except . . . [w]here the questions presented have become moot.”). Among
the exceptions to the “mootness rule” are when a ruling addresses an issue of
significant public concern; involves an alleged error that is capable of repetition in
future proceedings, yet evades appellate review; or creates collateral consequences
that will continue to plague the affected party. In the Interest of I. S., 278 Ga. at 862;
In the Interest of J. R. P., 287 Ga. App. 621, 623 (1) (652 SE2d 206) (2007). The first
of these exceptions does not appear to apply in this case.
Further, we conclude that the second exception is inapplicable, also, because
the issue in the instant appeal (i.e., whether the juvenile court erred in finding that T.
H. was deprived in July 2011) will not be the subject of repeated inquiries or judicial
determinations in the future. It is axiomatic that each individual deprivation order
must be supported by clear and convincing evidence that the child at issue is
currently deprived, i.e., at the time of the hearing. See, e.g., In the Interest of R. C.
5 M., 284 Ga. App. 791, 798 (III) (1), n. 6 (645 SE2d 363) (2007) (A juvenile court
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FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 10, 2012
In the Court of Appeals of Georgia A12A1769. IN THE INTEREST OF T. H., a child.
ELLINGTON, Chief Judge.
The mother of six-year-old T. H. appeals from an order of the Juvenile Court
of Fulton County in which the court ruled that the child was deprived. The mother
contends that there was insufficient clear and convincing evidence to support the
court’s conclusion. It is unnecessary to reach the merits of this issue, however,
because we conclude that it has been rendered moot by subsequent, unappealed
deprivation and custody judgments in this case in the juvenile court, as explained
below. Accordingly, this appeal is dismissed.
The record shows the following, undisputed facts. In March 2007, the
Department of Health Services’ Division of Children and Family Services (“the
Department”) obtained temporary custody of five-month-old T. H., whose sixteen- year-old mother (the appellant herein) was already in the Department’s custody and
living in foster care. T. H. remained in the Department’s custody through February
10, 2011, when the Department filed a deprivation petition in which it asserted that
T. H. was still deprived. The juvenile court conducted a deprivation hearing in June
2011, and, on July 18, 2011, it issued an adjudication order in which it found T. H.
deprived, extended the Department’s temporary custody, and ordered that the
Department continue reunification efforts. The order stated that it would expire on
February 16, 2012, unless the court terminated it sooner. The mother filed a timely
notice of appeal from this adjudication order on July 21, 2011.1 However, this Court
did not docket the appeal (hereinafter, “the instant appeal”) until May 7, 2012. By that
date, the February 2011 expiration date of the order had passed.
Significantly, in the time period between the issuance of the July 2011 order
and the May 2012 docketing of this appeal, the juvenile court conducted various,
standard proceedings in this ongoing deprivation and custody case. On July 19, 2011,
two days before the mother filed the instant appeal from the adjudication order, the
1 The putative father of T. H. failed to legitimate or provide for the child and is not a party to this appeal.
2 juvenile court conducted a disposition hearing.2 On August 16, 2011, it issued a
disposition order in which it reaffirmed its finding of T. H.’s deprivation and its grant
of temporary custody to the Department. The disposition order stated that it would
expire on February 16, 2012, unless the court terminated it sooner. The mother did
not appeal from the disposition order.3
On January 4, 2012, in anticipation of the upcoming expiration of the July 2011
order at issue in this case, the Department filed a motion to extend its temporary
custody of T. H. In the motion, the Department asserted that the conditions of
deprivation previously found by the court “have not been alleviated [because] the
mother is without independent housing or sufficient income,” “is unable to
independently care for the child,” and is unable to provide the child with adequate
care, control, supervision, home, or support, and, that as a result, T. H. is still in “need
of a parent or proper and legal guardian or custodian.” The court conducted a motion
hearing on January 12, 2012, during which it accepted evidence on the issue of
2 The July 2011 disposition hearing was not transcribed. 3 In addition, in September and November 2011, the juvenile court conducted review hearings, and, on October 24 and December 9, 2011, it issued review orders extending the Department’s custody of T. H. Each order stated that it would expire on February 16, 2012, unless the court terminated it sooner. The mother did not appeal from either order.
3 whether T. H. was deprived.4 In its February 7, 2012 permanency order finding that
T. H. was still deprived and extending the Department’s custody of her,5 the court
stated that, during the hearing, “[t]he mother stipulated to the [Department’s] Motion
to Extend as amended and acknowledged that the allegations therein are true.”6
(Emphasis supplied.) The mother did not appeal from this order.
Turning to whether the mother’s challenge to the July 2011 deprivation order
in the instant appeal has been rendered moot by the subsequent judgments in the
juvenile court, we are guided by the following principles:
Consistent with its requirement that appellate courts address only those rulings that “may affect the proceedings below,” OCGA § 5-6-34 (d) expressly provides that “[n]othing in this subsection shall require the appellate court to pass upon questions which are rendered moot.” [Thus, the] general rule is that appellate courts do not consider moot questions. Mootness is a question of court policy based on the theory that courts do
4 The mother did not file a transcript of the January 2012 hearing in the juvenile court, nor did she request that one be included in the appellate record. 5 This order stated that it would expire on February 15, 2013, unless the court terminated it sooner. 6 See In the Interest of M. O., 233 Ga. App. 125, 128 (1) (503 SE2d 362) (1998) (Such a stipulation is an admission in judicio that “is conclusive and binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true.”) (citations and punctuation omitted).
4 not give opinions on abstract propositions of law that do not involve an actual controversy between parties.
(Citation and punctuation omitted.) In the Interest of I. S., 278 Ga. 859, 861 (607
SE2d 546) (2005). See also OCGA § 5-6-48 (b) (3) (“No appeal shall be dismissed
or its validity affected for any cause nor shall consideration of any enumerated error
be refused, except . . . [w]here the questions presented have become moot.”). Among
the exceptions to the “mootness rule” are when a ruling addresses an issue of
significant public concern; involves an alleged error that is capable of repetition in
future proceedings, yet evades appellate review; or creates collateral consequences
that will continue to plague the affected party. In the Interest of I. S., 278 Ga. at 862;
In the Interest of J. R. P., 287 Ga. App. 621, 623 (1) (652 SE2d 206) (2007). The first
of these exceptions does not appear to apply in this case.
Further, we conclude that the second exception is inapplicable, also, because
the issue in the instant appeal (i.e., whether the juvenile court erred in finding that T.
H. was deprived in July 2011) will not be the subject of repeated inquiries or judicial
determinations in the future. It is axiomatic that each individual deprivation order
must be supported by clear and convincing evidence that the child at issue is
currently deprived, i.e., at the time of the hearing. See, e.g., In the Interest of R. C.
5 M., 284 Ga. App. 791, 798 (III) (1), n. 6 (645 SE2d 363) (2007) (A juvenile court
must determine whether a child is a deprived child at the time of the hearing, not
whether the child has ever been a deprived child.). Thus, although the juvenile court
may have taken judicial notice of its July 2011 deprivation order7 during the January
2012 deprivation hearing, its legal conclusion that T. H. was deprived in January
2012 had to be supported by additional evidence of such deprivation. See id.; see also
In the Interest of T. P., 291 Ga. App. 83, 85 (1) (661 SE2d 211) (2008) (concluding
that the question of whether the evidence was sufficient to support a finding of
deprivation was moot when the record showed that, a year after issuing the order on
appeal, the juvenile court had conducted another deprivation hearing and had found
the children deprived at that time based upon evidence received during that hearing).
And, given the lack of a transcript of the January 2012 hearing that shows what
evidence was presented therein, as well as her failure to appeal from the resulting
deprivation order, the mother is precluded from asserting in the instant appeal that
there was insufficient evidence to support the court’s finding that T. H. was deprived
at that time. See In the Interest of I. S., 278 Ga. at 861, n. 6 (When parents do not
7 “A court may take judicial notice of records in the same court.” (Punctuation and footnote omitted.) In the Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003).
6 appeal a deprivation order, they are bound by the juvenile court’s determination that
their children were deprived.); In the Interest of C. J., 279 Ga. App. 213, 216 (1) (630
SE2d 836) (2006) (Because the mother never appealed any of the juvenile court’s
orders finding that her child was deprived and extending custody, she is bound by the
juvenile court’s finding of deprivation.).8
Finally, the third mootness exception – that the ruling creates collateral
consequences that will continue to plague the affected party – is inapplicable here,
because there are numerous, subsequent, unappealed orders in the record in which the
juvenile court concluded that T. H. was deprived. Thus, even if this Court addressed
the merits of the instant appeal and concluded that the juvenile court erred in finding
that T. H. was deprived in July 2011, the mother would still be bound by the juvenile
court’s determinations that T. H. was deprived in the months thereafter. It follows that
the potentially detrimental effect of those unappealed orders will not change
regardless of an appellate ruling in the instant case. Consequently, we discern no
8 See also Self v. State, 232 Ga. App. 735, 737 (3) (503 SE2d 625) (1998) (“It is incumbent upon [the mother], as appellant, to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon [the Department’s] motion, and mere assertions of error in her brief do not suffice. In the absence of a sufficient record, we must assume that the trial court’s ruling was proper[.]”) (citations and punctuation omitted).
7 future collateral consequences to the mother that could arise solely from this Court’s
failure to consider the order on appeal. See, generally, In the Interest of I. S., 278 Ga.
at 862 (The Supreme Court acknowledged that, although a matter does not become
moot if adverse consequences continue to plague the affected party, the appellants
failed to show any such adverse consequences on the record, and the Court declined
to presume them under the circumstances presented. Thus, the Court concluded that
the collateral consequences exception to the mootness rule did not apply.); In the
Interest of J. R. P., 287 Ga. App. at 623 (1) (accord).
Accordingly, we dismiss this appeal as moot. OCGA § 5-6-48 (b) (3); In the
Interest of T. P., 291 Ga. App. at 85 (1).
Appeal dismissed. Phipps, P. J., and Dillard, J., concur.