In the Interest of A. H., a child.
MILLER, P. J., BROWN and GOSS, JJ.
Department of Family and Children Services ("DFCS")
appeals an order of the Douglas County Juvenile Court
prohibiting DFCS from removing A. H., a dependent child, from
her current foster parents. DFCS asserts that the juvenile
court erred by infringing on DFCS's right to dictate
placement of A. H. as her legal custodian. For the reasons
that follow, we vacate the juvenile court's order and
remand the case with further instruction.
record shows that A. H. was placed in the care of DFCS on May
28, 2016 - the day after she was born - due to the biological
mother's positive drug screen at birth, as well as A.
H.'s positive drug screen and diagnosis of neonatal
abstinence syndrome. The juvenile court entered an order on
May 31, 2016, nunc pro tunc to May 28, 2016, adjudicating A.
H. as dependent and placing her in the temporary legal
custody of DFCS. After spending a period of time in the
hospital, A. H. was placed with the Suttons, the same family
fostering her four older half-siblings. At the time, the
Suttons were in the process of adopting the four older
children, but the adoption was delayed due to required
corrective actions after allegations arose that Mr. Sutton
utilized physical punishment and Mrs. Sutton had exhibited
aggressive behavior toward the children.
2017, DFCS discovered another potential adoptive placement
for A. H. and her younger brother with paternal relatives, the
Allens. The Suttons moved to intervene in the juvenile court
proceedings involving A. H. and her younger brother on
October 9, 2017. The Suttons also filed a motion for
disposition placement, requesting that the juvenile court
grant them temporary and/or permanent custody of both
children. On November 22, 2017, the juvenile court entered an
order terminating the biological mother and father's
parental rights to A. H. In December of 2017, the
Suttons' adoption of the four older children was
approved, and A. H.'s younger brother was placed with the
allowing the Suttons to intervene in the proceedings
involving A. H., the juvenile court held a hearing on March
6, 2018, to address the issue of A. H.'s placement. DFCS
sought to have A. H. placed with the Allens and her younger
brother due to the allegations previously raised against the
Suttons. Additionally, DFCS voiced concerns about the
Suttons' ability to manage A. H. in addition to the four
older half-siblings, all of whom had serious behavioral
problems and had been diagnosed with reactive attachment
disorder ("RAD"). The Suttons asserted that A. H.
should remain in their home.
the juvenile court "[did] not disagree that the [Allens]
are in a better position to meet the needs of [A. H.],"
the juvenile court nonetheless granted the Suttons'
motion for placement and prohibited the removal of A. H. from
their home, "finding that it is in the child's best
interests to remain in the only family she has ever
known." In its order, the court also found the
[T]he risk of causing Reactive Attachment Disorder [in A. H.]
is too great to ignore. This is, in fact, the diagnosis for
some of the [older] half[-]siblings and the bases[sic] for
the concerns about their high level of needs as some of the
[half-siblings] have been kicked out of daycare indicating
serious behavioral problems. In addition to behaviors at
school and in daycare, the half[-]siblings have issues with
physical aggression toward one another. The Court does not
agree with [DFCS]'s position that placement with a full
sibling is required as opposed to half[-]siblings with whom
she is bonded and attached despite their diagnoses and
response to DFCS's concern that placing a fifth child
with the Suttons could be too great of a burden considering
the needs of the four older children, the juvenile court
found that "[DFCS] knew the needs of the children at the
time of [A. H.'s initial] placement."
appeal, DFCS argues that the juvenile court erred by ordering
placement of A. H. with the Suttons when DFCS retains legal
custody of A. H. The Suttons contend that the juvenile court
had the authority to dictate placement and legal custody of
A. H. pursuant to OCGA § 15-11-212 (d) and that the
legal effect of the order is a change of custody from DFCS to
the Suttons. We need not reach either of these arguments
because we find that the juvenile court did not apply the
proper statute, OCGA § 15-11-321, which provides in
When a court enters an order terminating the parental rights
of a parent or accepts a parent's voluntary surrender of
parental rights, . . . a placement may be made only if the
court finds that such placement is in the best interests of
the child and in accordance with such child's court
approved permanency plan created pursuant to Code Sections
15-11-231 and 15-11-232. In determining which placement is in
a child's best interests, the court shall initially
attempt to place the child with an adult who is a relative or
fictive kin, if such individual is willing and found by the
court to be qualified to receive and care for such
child. In determining which placement is in a
child's best interests, the court shall enter
findings of fact reflecting its consideration of the
following: (1) Such child's need for a placement that
offers the greatest degree of legal permanence and security;
(2) The least disruptive placement for such child; (3) Such
child's sense of attachment and need for continuity of
relationships; (4) The value of biological and familial
connections; and (5) Any other factors the court deems
relevant to its determination.
(Emphasis supplied.) While the juvenile court does refer to
"the child's best interests" and make findings
in its order relevant to factors (2), (3), and (4), it does
not cite OCGA § 15-11-321 or fully consider all five of
the factors therein. Accordingly, we vacate the juvenile
court's order and remand the case with direction that the
juvenile court properly consider and address the factors set
forth in OCGA § 15-11-321. See, e.g., In
the Interest of S. P., 336 Ga.App. 488, 501-502 (3) (784
S.E.2d 846) (2016). See also In the Interest of
J. C. W., 311 Ga.App. 894 (717 S.E.2d 512) (2011)
(vacating order and remanding case to juvenile court because
order did not contain the prerequisite findings in support of
its custody ruling).
vacated and case remanded with direction.
Miller, P J, ...