In the Interest of J. D. H., Jr., a Child (Father) ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and MARKLE, JJ.
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.
https://www.gaappeals.us/rules
August 9, 2022
In the Court of Appeals of Georgia
A22A0871. IN THE INTEREST OF J. D. H., JR., a child.
MERCIER, Judge.
Following the termination of his parental rights, the putative father of J. D. H.,
Jr. (“Father”) appeals, contending, among other things, that the juvenile court erred
by denying his motion for new trial without a hearing. We agree, and, accordingly,
we must reverse the juvenile court’s order denying Father’s motion for new trial and
remand this case with direction that a hearing be conducted before any new judgment
is entered.
In relevant part, the record indicates that the juvenile court determined that
Father had abandoned J. D. H., Jr. and that the termination of Father’s parental rights
would be in J. D. H., Jr.’s best interests. See OCGA § 15-11-310 (setting forth
grounds for termination of parental rights) and OCGA § 15-11-2 (1) (defining
“abandonment”). Thereafter, Father filed a motion for new trial in which he argued
both that the juvenile court lacked subject matter jurisdiction and that the evidence
was insufficient to support the termination of parental rights. Father also requested
a hearing on his claims. A little over a week later, the juvenile court denied Father’s
motion for new trial without holding a hearing, and it addressed only Father’s
contention that subject matter jurisdiction was lacking. This was reversible error.
We have previously explained:
“A movant for a new trial is entitled to a hearing on his or her motion.
This right is grounded both in OCGA § 5-5-40 . . . and in constitutional
requirements for procedural due process.” In the Interest of A. F., 343
Ga. App. 415, 416 (806 SE2d 838) (2017) (citations and punctuation
omitted). See Peyton v. Peyton, 236 Ga. 119, 120 (1), (2) (223 SE2d 96)
(1976) (“in consonance with constitutional requirements of procedural
due process,” a movant for a new trial is entitled to a hearing on his or
her motion, but may waive or abandon that right); Shockley v. State, 230
Ga. 869 (199 SE2d 791) (1973) (same). . . . Although there is not a
specific uniform rule requiring a juvenile court to conduct a hearing on
a motion for new trial, this Court recently decided that a mother who
challenged the effectiveness of trial counsel in her motion for new trial
in a parental rights termination proceeding in juvenile court was entitled
to a hearing on her motion. In the Interest of A. F., 343 Ga. App. at 416.
In the Interest of M. I., 344 Ga. App. 172, 172 (809 SE2d 540) (2017) (footnote
omitted). See also Triola v. Triola, 292 Ga. 808, 808 (741 SE2d 650) (2013) (“[I]f the
trial court denies a motion for new trial in a civil case . . . without holding the
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mandatory hearing, the error will not be deemed harmless on appeal; instead, the
order denying the motion must be reversed and the case remanded with direction that
the trial court” hold a hearing. (citation and punctuation omitted).
Here, Father properly challenged the sufficiency of the evidence supporting the
juvenile court’s decision, and “[a] motion for a new trial is a proper means of seeking
a retrial or reexamination, in the same court, of an issue of fact, or of some part or
portion thereof, after decision by a jury or a decision by the court thereon.” Kuriatnyk
v. Kuriatnyk, 286 Ga. 589, 591 (2) (690 SE2d 397) (2010) (citation and punctuation
omitted). Also, Father expressly requested a hearing on his motion, and there is no
evidence that he thereafter waived that right. Accordingly, Father was entitled to a
hearing, and the juvenile court’s order denying Father’s motion for new trial must be
reversed and this case must be remanded with direction that the hearing be conducted.
In the Interest of M. I., supra. We also note that, although Father argues the merits of
his contentions regarding jurisdiction and sufficiency of the evidence in this appeal,
the case must be returned to the juvenile court “for a hearing and disposition of the
motion before the merits of the remaining claims of error are addressed.” In the
Interest of A. F., supra at 416 (citation and punctuation omitted); accord Triola, supra
at 809.
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Judgment reversed and case remanded with direction. Dillard, P. J., and
Markle, J., concur.
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