IN THE INTEREST OF M. I., a child.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
December 19, 2016, the DeKalb County Department of Family and
Children Services ("DFCS") filed a dependency
petition alleging that the infant child M. I. was dependent
and needed to be taken into protective custody because of
alleged abuse he suffered while in his parents' care.
Following a preliminary protective hearing, the juvenile
court found that there was not probable cause to believe the
child was dependent. M. I., through his child advocate
attorney and guardian ad litem, filed a motion for new trial.
Although M. I. requested a hearing on the motion, the court
denied the motion for new trial without conducting a hearing.
M. I. appeals, arguing that the court erred in failing to
hold a hearing. We agree and therefore vacate the judgment
and remand the case for further proceedings consistent with
"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." (Citations and punctuation
omitted.) In the Interest of A. F., Case No.
A17A1171, 2017 WL 4837146, at *1 (Ga. Ct. App., Oct. 26,
2017). 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). See also OCGA § 15-11-145 (f) (3) (at a
preliminary protective hearing, the parties' due process
rights include "the right to a trial by the court on the
allegations in the complaint or petition"). Under
Uniform Superior Court Rule 6.3, a trial court is required to
conduct a hearing on a motion for new trial. 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., 2017 WL 4837146, at *1.
we likewise conclude that the juvenile court was required to
conduct a hearing. The statutory and constitutional bases of
a movant's entitlement to a hearing on his or her motion
for new trial are well-established, and in the present case,
M. I.'s motion attacked the juvenile court's
evidentiary findings, which is a proper claim of error in
such a motion. See Kuriatnyk v. Kuriatnyk, 286 Ga.
589, 591 (2) (690 SE2d 397) (2010) ("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.") (citation and
punctuation omitted); compare In the Interest of M.
O., 233 Ga. App. 125, 128 (2) (a) (503 SE2d 362) (1998)
(affirming juvenile court's deprivation order, even
though court did not hold hearing on father's motion for
new trial, where on appeal father failed to state proper
grounds for new trial).
addition, M. I. requested a hearing on the motion for new
trial, and there is nothing in the record suggesting M. I.
later waived the right to that hearing. "Absent a
waiver, a movant for new trial is entitled to a hearing on
the motion in the trial court before a ruling is made
thereon; and if the movant's right to such a hearing has
been denied, we must return the case to the trial court for a
hearing and disposition of the motion before the merits of
the remaining claims of error are addressed." (Citations
and punctuation omitted.) In the Interest of A. F,
2017 WL 4837146, at *1. See Sidhu v. Ga. Macon
Contractors & Equip., 263 Ga. App. 100, 100 (587
SE2d 252) (2003) (vacating denial of motion for new trial and
remanding for hearing on motion, where trial court failed to
hold hearing); Wright v. Barnes, 240 Ga. App. 684,
684 (524 SE2d 758) (1999) (same). Accordingly, we do not
reach M. I.'s enumerations addressing the merits of the
juvenile court's ruling on the motion for new trial, as
the issues raised thereby must be asserted in the juvenile
court on remand. See In the Interest of A. F., 2017
WL 4837146, at *1.
we are unpersuaded by M. I.'s mother's argument that
remand for a hearing on the motion for new trial is
unwarranted because the juvenile court must make a finding of
present dependency in order to remove the child from the
home. See In the Interest of T. V., 302 Ga. App.
124, 127 (1) (690 SE2d 457) (2010) (an order temporarily
transferring custody of a child based on alleged dependency
must be grounded upon a finding that the child is at the
present time a dependent child). Juvenile courts are
permitted to make findings of present dependency based on
past abuse. See In the Interest of K. J., 268 Ga.
App. 843, 844-845 (1) (a) (602 SE2d 861) (2004) (mother's
beating of child supported finding that child was deprived,
although beating occurred five months prior to hearing on
deprivation petition). Moreover, if we were to accept the
mother's argument, we would be unable to remand for
further proceedings and re-examination of issues in many
appeals involving dependency orders.
vacated and case remanded with direction.
McMillian and Mercier, JJ, concur
 DFCS has filed a brief in support of
M. I.'s appeal.
 OCGA § 5-5-40, which establishes
procedures for motions for new trial, makes several
references to the hearing on the motion. OCGA § 5-5-1
(a) gives juvenile courts the power to grant new trials, and
OCGA § 5-5-44 provides that "[i]n all motions for a
new trial the opposite party shall be served ...