In the Interest of N. J., a Child , 335 Ga. App. 477 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J, and MERCIER, 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.
http://www.gaappeals.us/rules
January 13, 2016
In the Court of Appeals of Georgia
A15A2120. IN THE INTEREST OF N. J., a child. DO-104
DOYLE, Chief Judge.
N. J.’s mother appeals from an order issued by the Douglas County Juvenile
Court granting permanent guardianship of N. J. to her paternal grandmother (“the
grandmother”). The mother argues that the grandmother failed to comply with
mandatory notification procedures, there was insufficient evidence to support
permanent guardianship, and the juvenile court erred by failing to establish a specific
visitation schedule for the mother. Because the grandmother failed to comply with the
requirements of the statute, we reverse.
The record shows that in the latter part of 2013, when N. J. was three years old,
her father took her to the grandmother’s home to live. On November 10, 2014, the
grandmother filed a petition for permanent guardianship.1 The grandmother served
both the father and the mother with notice of the petition for guardianship, and the
juvenile court notified both parents of the final hearing date. After the final hearing,
which was held over two days and at which the father consented to the grandmother’s
petition, the court entered an order granting the grandmother’s petition for permanent
guardianship.2 This appeal followed.
1. The mother argues that the order granting permanent guardianship to the
grandmother should be reversed because the petition lacked information required by
OCGA § 15-11-241 (7). We agree.
OCGA § 15-11-240 (a) provides in relevant part that
[i]n addition to the jurisdiction to appoint guardians pursuant to Code
Section 15-11-13, the juvenile court shall be vested with jurisdiction to
appoint a permanent guardian for a child adjudicated as a dependent
child in accordance with this article. Prior to the entry of such an order,
the court shall:
1
The grandmother stated in the petition that the juvenile court entered an order
on March 10, 2014, granting temporary custody of N. J. to the grandmother.
2
The juvenile court noted in the final order that it had previously adjudicated
N. J. deprived in a separate action. We note that OCGA § 15-11-240 (a) vests the
juvenile courts “with jurisdiction to appoint a permanent guardian for a child
adjudicated as a dependent.” (emphasis supplied).
2
(1) Find that reasonable efforts to reunify such child with his or her
parents would be detrimental to such child or find that the living parents
of such child have consented to the permanent guardianship;
(2) Find that termination of parental rights and adoption is not in the
best interests of such child;
(3) Find that the proposed permanent guardian can provide a safe and
permanent home for such child; [and]
(4) Find that the appointment of a permanent guardian for such child is
in the best interests of such child and that the individual chosen as such
child’s permanent guardian is the individual most appropriate to be
such child’s permanent guardian taking into consideration the best
interests of the child. . . .3
OCGA § 15-11-241 provides that a “petition for the appointment of a
permanent guardian pursuant to this part shall set forth,”4 among other things,
[i]n addition to the petitioner and the nominated guardian and, if the
parent of such child has not consented to the permanent guardianship,
the names and addresses of the following relatives of such child whose
parents’ whereabouts are known: (A) The adult siblings of such child;
provided, however, that not more than three adult siblings need to be
3
(Emphasis supplied.)
4
(Emphasis supplied.)
3
listed; (B) If there is no adult sibling of such child, the grandparents of
such child; provided, however, that not more than three grandparents
need to be listed; or (C) If there is no grandparent of such child, any
three of the nearest adult relatives of such child determined according
to Code Section 53-2-1.5
OCGA § 15-11-241 (9) provides that a petition shall also set forth “[t]he reason for
any omission in the petition for appointment of a permanent guardian for such child
in the event full particulars are lacking.”6
Here, as the mother points out, the petition does not contain the names and
addresses of the relatives listed in OCGA § 15-11-241 (7), nor does it contain a
reason for the omission. Because the mother did not consent to the guardianship,
given the mandatory language of the statute and the juvenile court’s obligation to
determine whether the grandmother “is the individual most appropriate to be [N. J.’s]
permanent guardian ,”7 the court erred by granting the grandmother’s petition because
it lacked the information required by OCGA §§ 15-11-241 (7) and (9).8
5
OCGA § 15-11-241 (7).
6
OCGA § 15-11-241 (9).
7
OCGA § 15-11-240 (a) (4).
8
Cf. Johnson v. Jones, 214 Ga. App. 386, 387 (1) (448 SE2d 1) (1994) (“In the
absence of compliance with [the] notice provisions [of former OCGA § 29-5-6 (b) (2)
4
2. In light of our holding in Division 1, we need not address the mother’s
remaining enumerations of error.
Judgment reversed. Phipps, P. J., and Mercier, J., concur.
(C),] the probate court may lack jurisdiction to consider the petition for appointment
of a guardian [for an allegedly incapacitated adult].”).
5