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In re K. G.

Court of Appeals of Georgia, Fifth Division

October 24, 2017

IN THE INTEREST OF K. G., a child.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         The mother of K. G. appeals the juvenile court order granting a petition for permanent guardianship of the child. The mother argues that the juvenile court erroneously failed to consider certain required factors when determining whether reasonable efforts to reunify her with the child would be detrimental to the child. But the court is no longer required to consider those factors. And construed in favor of the juvenile court's ruling, the record demonstrates that the juvenile court could have found by clear and convincing evidence that reunification services would be detrimental to the child. The mother has abandoned her argument that the juvenile court erred in finding the guardianship to be in the child's best interests. So we affirm.

          1.Background.

         K. G. was born with Down syndrome and a heart condition, and has special needs. The guardian, who is the mother's half sister, took the child when the mother went to the hospital for treatment of her asthma and had no one else to look after the child. The guardian did not return the child when the mother was released from the hospital, instead seeking custody based upon the child's dependency. The juvenile court entered an order finding the child to be dependent, and about two years later, granted the guardian's petition for permanent guardianship, awarding the mother visitation. The mother filed this appeal.

         2.Efforts to reunify.

         (i) Failure to consider certain factors.

         The mother argues that the juvenile court failed to consider certain required factors before awarding permanent guardianship of the child. However, the new Juvenile Code, which governs this case, see In the Interest of M. F., 298 Ga. 138, 140 (1), n. 4 (780 S.E.2d 291) (2015), does not require consideration of those factors. So we disagree.

         Citing In the Interest of L. B., 319 Ga.App. 173 (735 S.E.2d 162) (2012), the mother argues that, before determining whether reasonable efforts to reunify the mother and child would be detrimental to the child under OCGA § 15-11-240 (a) (1), the juvenile court was required to consider four factors:

(1) [whether the mother] unjustifiably failed to complete a previously ordered reunification plan, (2) [whether] the child had been removed from the home on at least two previous occasions, (3) [whether] any of the grounds for terminating parental rights set forth in [former] OCGA § 15-11-94 (b) exist, or (4) [whether] reasonable efforts to reunify are deemed unnecessary under [former] OCGA § 15-11-58 (a) (4).

In the Interest of L. B., 319 Ga.App. at 176 (2). But in In the Interest of L. B., we addressed the former version of the guardianship statute, OCGA § 15-11-30.1, which mandated consideration of the four factors by referencing the statute that contained them.

         Specifically, that former version of the statute stated that before a juvenile court could appoint a permanent guardian of a child, it had to "[f]ind that reasonable efforts to reunify the child with his or her parent would be detrimental to the child in accordance with subsection (h) of [former] Code Section 15-11-58 [which set forth those four factors] or find that the living parents or parent of the child have consented to the permanent guardianship[.]" Former OCGA § 15-11-31.1 (a) (2) (A) (i). The new version of the guardianship statute, OCGA § 15-11-240, states in pertinent part that before a juvenile court may appoint a permanent guardian of a child, it must "[f]ind 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[.]" OCGA § 15-11-240 (a) (1). The new statute omits reference to the four factors or to any statute referencing them. We must presume that the General Assembly's omission was a matter of considered choice. See generally Inland Paperboard &c v. Ga. Dept. of Revenue, 274 Ga.App. 101, 104 (616 S.E.2d 873) (2005). Consequently, the fact that the juvenile court did not explicitly consider the four factors set forth in our former Juvenile Code and discussed in In the Interest of L. B., supra, does not entitle the mother to reversal.

         (ii) Evidence supports the juvenile court's decision.

         As noted above, under the applicable statute, the juvenile court was required to find that reasonable efforts to reunify K. G. with her mother would be detrimental to K. G. OCGA § 15-11-240 (a) (1). The juvenile court made this finding, essentially determining that the mother's behavior at K. G.'s medical and ...


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