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In re I.L.M.

Supreme Court of Georgia

June 29, 2018

IN THE INTEREST OF I.L.M., et al., children.

          HINES, Chief Justice.

         This Court granted certiorari to the Court of Appeals in the case of In the Interest of E.G.M., 341 Ga.App. 33 (798 S.E.2d 639) (2017), [1] to determine whether the Court of Appeals erred in the manner in which it applied certain provisions of the Juvenile Code, OCGA § 15-11-1, et seq., pertaining to the juvenile court's decision to order a continuance of a dependency hearing. Finding that the Court of Appeals did err, we reverse the judgment of that Court.

         In July 2015, the Juvenile Court of Cherokee County terminated the parental rights of a father and a mother as to their three minor children, I.L.M., I.T.M., and B.M. On October 8, 2015, in a separate case, the Cherokee County Department of Family and Children Services ("DFCS") filed a petition alleging the parents' newly-born child E.G.M. to be dependent. See OCGA § 15-11-150 et seq.[2] That same day, the juvenile court entered a protective custody order and appointed a guardian ad litem for E.G.M.; an adjudication hearing on DFCS's petition was scheduled for October 22, 2015. At the hearing on that date, all parties announced that they were ready to proceed. However, the court, on its own motion and over the parents' objections, decided to continue the hearing until a later date, and set the adjudication hearing for November 18, 2015[3]; no written continuance order was entered at that time.

         On November 13, 2015, the parents filed a joint motion to dismiss the dependency petition, asserting that the juvenile court's decision to continue the originally scheduled hearing of October 22, 2015 contravened the scheduling provisions of OCGA §§ 15-11-110[4] and 15-11-181, [5] and that the court's order failed to meet OCGA § 15-11-110's requirements for granting a continuance. The juvenile court then, without request from any party, again continued the adjudication hearing, setting it for January 12, 2016[6]; again, no written order resetting the adjudication hearing was entered at that time. The adjudication hearing was, in fact, held on January 12, 2016.

         On January 22, 2016, the juvenile court executed a "Continuance Order," re-setting the October 22, 2015 hearing to November 18, 2015; the order was entered "nunc pro tunc for October 22, 2015." And on February 11, 2016, the court executed an "Order Denying Parents' Joint Motion to Dismiss," in which it stated that E.G.M.'s case was not called until 3:30 p.m. on October 22, 2015 and the November 18, 2015 date to which it was re-set was the next available court date, and concluded that "there was good cause to continue [the October 22, 2015 adjudication hearing] based upon the lengthy court docket, leaves of absence filed by attorneys, [7] and the Holiday schedule"[8]; this order was entered "nunc pro tunc for January 12, 2016." Also on February 11, 2016, the court executed an "Order of Adjudication and Disposition" placing E.G.M. in the temporary custody of DFCS and establishing a reunification plan for the parents; this order too was entered "nunc pro tunc for January 12, 2016." The Court of Appeals affirmed the judgment of the juvenile court, including its orders that continued the adjudication hearing on the petition regarding E.G.M. and that denied the parents' motion to dismiss. See E.G.M., supra at 59-61 (5).

         As to the entry of the written orders nunc pro tunc to an earlier date, generally, a trial court is authorized to do so. "A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date." Coleman v. Coleman, 240 Ga. 417, 418 (1) (240 S.E.2d 870) (1977) (Citations and punctuation omitted). Thus, the juvenile court is authorized to cause the written order to "relate back to . . . the date of the hearing and its oral ruling." Hinkle v. Woolever, 249 Ga.App. 249, 252 (n. 1) (547 S.E.2d 782) (2001). However, "[s]uch an entry can not be made to serve the office of supplying non-action on the part of the court." Coleman, supra. While a nunc pro tunc order may record that which occurred at the earlier date, it is not a device to be used to alter a judgment previously made, or to add additional matters not decided in the prior ruling. See Maples v. Maples, 289 Ga. 560, 561-562 (2) (713 S.E.2d 865) (2011). Rather,

the purpose of a nunc pro tunc entry is to record some previously unrecorded action actually taken or judgment actually rendered. It may not be used to supply an order not yet made by the court. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake. The general rule is that nunc pro tunc entries are proper to correct clerical errors but not judicial errors. A clerical error involves an error or mistake made by a clerk or other judicial or ministerial officer in writing or keeping records; it does not include an error made by the court itself. To be clerical in nature it must be one which is not the result of judicial reasoning or determination.

In the Interest of H.L.W., 244 Ga.App. 498, 498-499 (535 S.E.2d 834) (2000) (Citations and punctuation omitted.) Thus, if the juvenile court's ruling entered on January 22, 2016 nunc pro tunc to October 22, 2015, was based on matters not actually before the court and considered by it in deciding to continue the October 22, 2015 hearing, it would be an improper nunc pro tunc order.[9] Further, assuming that the order reflects a decision based on matters before the court at that hearing, that decision would nonetheless have to be made properly under the relevant statutes to authorize the Court of Appeals' affirmance of it.

         OCGA § 15-11-181 (a) sets out time limits in which an adjudication hearing on a dependency petition must occur, and the adjudication completed, [10]and OCGA § 15-11-110 governs the granting of a continuance of an adjudication hearing "beyond the time limit within which the hearing is otherwise required to be held." OCGA § 15-11-110 (a). A continuance is to be "granted only upon a showing of good cause [and] only for that period of time shown to be necessary by the evidence presented at the hearing on the motion." OCGA § 15-11-110 (b) (Emphasis supplied.) This shows a clear requirement that a departure from the statutory hearing schedule is to be ordered only for significant reasons, and only after considering evidence regarding the reasons that allegedly create the necessity.[11] That this mandate is to be strictly followed is also seen in OCGA § 15-11-110 (c)'s specifications that counsel stipulation and party inconvenience shall not be considered good cause, and that while a need for discovery may constitute good cause, a continuance may be granted only if there has been a failure to comply with a discovery order. Indeed, "a pending criminal prosecution or family law matter" may constitute good cause only after consideration of "judicial rules governing attorney conflict resolution," OCGA § 15-11-110 (c), and even with counsel consent to a continuance, the court must "decide whether to grant the continuance in accordance with subsection (a) of this Code section, "[12] and place upon the record "the facts proved which require the continuance." OCGA § 15-11-110 (b).[13] Thus, OCGA § 15-11-110's requirements significantly advance the purpose of "ensur[ing] that dependency proceedings are conducted expeditiously to avoid delays in permanency plans for children." OCGA § 15-11-100 (2).[14]

         In its order denying the parents' motion to dismiss, the juvenile court addressed its prior decision to continue the October 22, 2015 hearing, and stated that it had "fully considered all requirements set forth in O.C.G.A. § 15-11- 110."[15] The court also cited In the Interest of D.T., 284 Ga.App. 336 (643 S.E.2d 842) (2007), for the principle that the hearing could be continued for "good cause." However, In the Interest of D.T. was decided under a former version of the Juvenile Code and pertained to the treatment of a "deprived" child rather than a "dependent" child. In the 2013 enactment of the current Juvenile Code, the General Assembly set out "to substantially revise, supersede, and modernize provisions relating to juvenile proceedings and enact comprehensive juvenile justice reforms," Ga. L. 2013, p. 294, and a simple statutory change of definition from "deprived" to "dependent" was not the only alteration made. Indeed, at the time In the Interest of D.T. was decided, a juvenile court had statutory authority to grant a continuance in a deprivation hearing, see former OCGA § 15-11-56 (b), [16] but authority for the statement that it could do so for "good cause" arose not from statute, but from Uniform Juvenile Court Rule ("UJCR") 11.3, which states, as it did in 2007, that upon motion "the court may continue a hearing for a reasonable time upon good cause shown."[17] In the Interest of L.A.E., 265 Ga. 698, 700 (1) (462 S.E.2d 148) (1995); In the Interest of D.T., supra at 341 (3). And, in its 2013 enactment of OCGA § 15-11-110, the General Assembly not only incorporated "good cause" into the statute, but imposed specific requirements for the granting of continuances in dependency hearings.

          Considerations of docket congestion may, in fact, constitute "good cause" justifying a continuance under OCGA § 15-11-110. The court's continuance order noted that the matter was not called on October 22, 2015 until "approximately 3:30 p.m. [and that the court had begun] its calendar at 8:30 a.m. with approximately twenty-three (23) cases on the calendar," recited that the court heard a lengthy detention hearing earlier on the calendar, and concluded that there was not sufficient time to complete the hearing that day. The court recognized that OCGA § 15-11-181 (a) required the hearing to be held within ten days of the filing of the petition, and set the new hearing date for November 18, 2015, well beyond the statutorily required date; in doing so, the court stated that the statutory date could not be met because of "numerous matters scheduled for hearings," and described November 18, 2015 as "the next available court date."[18] Although the facts recited in the court's continuance order may well have authorized a continuance to a date within the period set by the statute for a hearing, the only justification the court gave for continuing the hearing almost four weeks in the future was that the reset date was the "next available court date." But, OCGA § 15-11-110 requires more from a court than this; a continuance under OCGA § 15-11-110 is to be granted "only for that period of time shown to be necessary." OCGA § 15-11-110 (b) (Emphasis supplied.) Thus, a court must evaluate what other matters are competing for the court's attention such that the dependency hearing must be continued to the date chosen, including a determination of why those other matters must be afforded a priority over that given the dependency hearing by virtue of OCGA § 15-11-110, and the court must place upon the record those facts justifying the continuance, as found at the time the continuance was granted.[19] However, the court did not, in any written or recorded order, put forth any showing regarding the other cases on the docket sufficient to show why this matter, despite its priority, was reset to November 18, 2015. As such, the order failed to meet the stringent requirements of OCGA § 15-11-110 (b) for ordering a continuance beyond the statutory period.[20]

         OCGA § 15-11-181 (a) states that "[i]f adjudication is not completed within 60 days from the date such child was taken into protective custody, the petition alleging dependency may be dismissed without prejudice." E.G.M. was taken into protective custody on October 8, 2015, adjudication did not occur until January12, 2016, which was 96 days later, and the time limit set forth in OCGA § 15-11-181 (a) was not met. In rejecting the parents' arguments in favor of dismissing without prejudice the dependency petition, the juvenile court relied upon the fact that it had continued the dependency hearing on October 22, 2015. But, that continuance order did not meet the requirements of OCGA § 15-11-110, and it was that flawed continuance order that caused the failure to meet the adjudication time limit of OCGA § 15-11-118 (a). The General Assembly has stated that dependency proceedings are to be completed expeditiously, OCGA § 15-11-100 (2), dismissal of a petition without prejudice furthers that goal by imposing a consequence for a failure to meet the statutory time requirements, see In the Interest of M.D.H., 300 Ga. 46, 57 (6) (793 S.E.2d 49) (2016), and in the circumstances of this case, we must conclude that the juvenile court abused the discretion afforded it under OCGA § 15-11-181 (a) to dismiss the petition without prejudice. Accordingly, the judgment of the Court of Appeals is reversed.

         Judgment reversed. Melton,

          P.J., Benham, Hunstein, Nahmias, Blackwell, Boggs, Peterson, JJ., and Judge Aaron B. Mason concur. Grant, J., disqualified.



[1] As presented to the Court of Appeals, this case involved two separate cases from the Juvenile Court of Cherokee County, both involving children of the same parents; case number A16A1768 pertained only to the child E.G.M., and case number A16A2046 pertained to three children, I.L.M., I.T.M., and B.M. Only the case pertaining to E.G.M. is encompassed in this Court's granted writ of certiorari.

[2] OCGA § 15-11-150 reads:

A DFCS employee, a law enforcement officer, or any person who has actual knowledge of the abuse, neglect, or abandonment of a child or is informed of the abuse, neglect, or abandonment of a child that he or she believes to be truthful may make a petition alleging dependency. Such petition shall not be accepted for filing unless the court or a person authorized by the court has determined and endorsed on the ...

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