Chastain v. Smith , 243 Ga. 262 ( 1979 )

243 Ga. 262 (1979) 253 S.E.2d 560

CHASTAIN
v.
SMITH.

34557.

Supreme Court of Georgia.

Submitted February 9, 1979. Decided March 6, 1979.

Scott McLarty, Brenda G. Holbert, for appellant.

James W. Studdard, for appellee.

JORDAN, Justice.

This is an appeal from an order of the trial court denying the appellant-father's habeas corpus petition seeking custody of his minor child.

The minor child was removed from his mother's custody in 1973 by the Fulton County Department of Family and Children Services and placed in the custody of the appellee-grandmother. Two years later the child was returned to the mother but continued to spend periods of time with the appellee. In March 1978, the mother was murdered. The appellee then filed a petition in the Juvenile Court of Clayton County seeking to terminate the father's parental rights. Service was made on the father by publication and on April 4, 1978, the juvenile court, by an ex parte order, awarded temporary custody to the appellee.

On April 6, 1978, the appellant filed a petition for habeas corpus in the Superior Court of Clayton County alleging that the child was being illegally detained by the appellee grandmother. The juvenile court then stayed the proceedings to sever parental rights pending the outcome of the habeas petition.

The habeas court, after a hearing, made findings of fact and concluded that the appellee herein "is holding the child under a valid court order of the Juvenile Court which has yet to be challenged, and that the remedy of habeas corpus does not lie." We affirm.

Where the petition in the juvenile court alleges deprivation of the child and if the service of summons is made by publication, the Juvenile Court is authorized to enter an interlocutory order of disposition. Code Ann. § 24A-1901. Any challenge to the service or to the temporary order must be made by the appellant in the juvenile court where the proceedings are still pending.

Judgment affirmed. All the Justices concur.