ABRAHAM et al.
MCFADDEN, P. J., RAY and RICKMAN, JJ.
the death of 23-year-old Jonathan Black ("the
decedent"), his sister and administratrix of his estate,
Nicolette Black, filed suit against Hai Hong Trinh, M. D.;
James S. Abraham, M. D.; Lily Lan-Nhu Huyen Pham, M. D.;
Jennifer Pruitt, R. N.; Newton Medical Center; Newton Medical
Group, LLC; Newton Medical Family Practice, LLC; Newton
Medical Properties, LLC; Georgia Emergency Physicians, P. C.;
Georgia Heart Specialists, LLC; John Does 1-5; and Jane Does
1-5 (collectively "the Defendants") in state court
for medical malpractice, wrongful death, and related claims.
The Defendants filed a motion to dismiss Black's wrongful
death claim or, alternatively, a motion for partial summary
judgment of that claim alleging that Black lacked standing to
bring a claim for wrongful death. The state court denied the
motion. The Defendants filed a motion to vacate the
court's order and transfer the case to the superior
court, which was also denied. Thereafter, we granted the
Defendants' applications for interlocutory review of both
orders. For the following reasons, we affirm.
OCGA §§ 19-7-1 (c) and 51-4-4, when a child (either
a minor or sui juris) dies as the result of a homicide or
negligence, and the child did not leave a spouse or children,
the child's parents have the right to recover for the
full value of the child's life." Baker v.
Sweat, 281 Ga.App. 863, 866 (1) (637 S.E.2d 474) (2006).
However, a parent shall lose parental power by:
(1) Voluntary contract releasing the right to a third person;
(2) Consent to the adoption of the child by a third person;
(3) Failure to provide necessaries for the child or
abandonment of the child; (4) Consent to the child's
receiving the proceeds of his own labor, which consent shall
be revocable at any time; (5) Consent to the marriage of the
child, who thus assumes inconsistent responsibilities; (6)
Cruel treatment of the child; (7) A superior court order
terminating parental rights in an adoption proceeding in
accordance with Chapter 8 of this title; or (8) A superior
court order terminating parental rights of the legal father
or the biological father who is not the legal father of the
child in a petition for legitimation, a petition to establish
paternity, a divorce proceeding, or a custody proceeding. . .
OCGA § 19-7-1 (b). "If it is established that a
parent has lost his or her parental power under OCGA §
19-7-1 (b), the parent's right to share in the proceeds
of a claim for the wrongful death of his or her child is also
forfeited." Baker, 281 Ga.App. at 867 (1). If
the parents lose their power to maintain an action then
"the administrator or executor of the decedent may bring
an action for and may recover and hold the amount recovered
for the benefit of the next of kin." OCGA § 51-4-5-
(a); see OCGA § 19-7-1 (c) (3) ("The intent of this
subsection is to provide a right of recovery in every case of
the homicide of a child who does not leave a spouse or child.
If, in any case, there is no right of action in a parent or
parents under the above rules, the right of recovery shall be
determined by Code Section 51-4-5.").
complaint alleged that the decedent's mother and father
were deceased and that Black was his surviving sibling.
During discovery, Black provided the Defendants with the
decedent's birth certificate, which listed his
father's name. In their motion to dismiss/motion for
partial summary judgment, the Defendants asserted that once
they obtained the decedent's father's name, they
hired an investigator who found no evidence that the father
was deceased. The Defendants argued that since the
decedent's father was alive, he was the proper party
under OCGA §§ 51-4-4 and 19-7-1 to bring the
wrongful death suit and, thus, Black lacked standing.
filed a motion in response, alleging that the decedent's
father lost his parental power pursuant to OCGA § 19-7-1
(b) (3), by failing to provide necessary financial support
and abandoning the decedent. Black attached to her motion
affidavits from the decedent's maternal grandmother,
maternal aunt, mother's best friend, older brother, and
Black detailing the decedent's father's lack of
relationship with the decedent and failure to provide him
with any financial support. Black argued that since the
decedent's father lost his parental power, she was the
proper party to bring the suit under OCGA § 51-4-5.
state court agreed with Black, stating that based on
uncontroverted evidence the decedent's father lost his
power to bring the wrongful death suit because he did not
support or have a relationship with the decedent.
Accordingly, the state court found that Black was the proper
party to bring the claim and denied the Defendants'
motion to dismiss/motion for partial summary judgment.
Defendants filed a motion to vacate the state court's
order and transfer the case to the superior court. The
Defendants argued, inter alia, that the finding that the
decedent's father lost his parental power to bring the
wrongful death suit was akin to the termination of his
parental rights of an unwed father who failed to legitimate
his child, of which the superior court had exclusive
jurisdiction. See OCGA § 15-11-10 (3) (D) ("[T]he
superior court [has] exclusive jurisdiction to terminate the
legal parent-child relationship and the rights of a
biological father who is not the legal father of the
child[.]"). The Defendants requested that the state
court vacate its order for lack of subject matter
jurisdiction and transfer the case to the superior court. The
state court denied the motion, stating that its order was not
a termination of the decedent's father's parental
rights; it was a determination as to who has standing to
bring a wrongful death claim on his behalf.
we note that in their reply brief to this Court, the
Defendants clarified that, "whether the [state] court
correctly decided if [the decedent's father] abandoned
the decedent is not the subject of this appeal."
Instead, the Defendants contend that the wrongful death suit
should be dismissed because no court, state or superior, has
the authority to allow the wrongful death action to be
brought by anyone other than the decedent's father or,
alternatively, that the case should be transferred to the
superior court because the state court lacks jurisdiction to
determine that the decedent's father lost his parental
power to bring the suit. We disagree.
state court did not terminate the decedent's father's
parental rights. OCGA § 19-7-1 (b) lists eight ways that
a parent shall lose his or her parental power, two of which
involve superior court orders. Superior court orders
"terminating parental rights in an adoption
proceeding" or "terminating parental rights of
. . . the biological father who is not the legal father of
the child in a petition for legitimation, a petition to
establish paternity, a divorce proceeding, or a custody
proceeding" result in the loss of parental power.
OCGA § 19-7-1 (b) (7), (8) (emphasis supplied). This
case did not involve an adoption proceeding, petition for
legitimation, petition to establish paternity, divorce
proceeding, or a custody proceeding. In this case, the state
court determined that, pursuant to OCGA § 19-7-1 (b)
(3), the decedent's father lost his parental power to
bring the wrongful death action, not due to the termination
of his parental rights by a superior court order, but because
he failed to provide for and abandoned the decedent.
state court made a determination under the statutory
framework of OCGA §§ 51-4-4 and 19-7-1 as to who
had standing to bring the wrongful death suit on behalf of
the decedent. Since the decedent's father lost his
parental power, his mother was deceased, and he had no spouse
or children, the state court determined, under OCGA §
51-4-5 (a), that his sister, as adminstrix of his estate, was
the proper party to bring the suit. Because the state court
had jurisdiction to determine who had standing under the
statutory framework of OCGA §§ 51-4-4, 19-7-1, and
51-4-5, it did not err in denying the defendants' motions
to dismiss/motion for partial summary judgment and to vacate
and transfer the case to the superior court. See generally
Baker, 281 Ga.App. at 870 (1) (holding that
"the trial court did not err in finding that [the
decedent's father] lacked standing to pursue his wrongful
death case" when the decedent's father lost parental
power under ...