dissenting.
IBM Corp. v. Evans, 265 Ga. 215, 216 (1) (453 SE2d 706) (1995) holds that “government cannot cloak itself in the mantle of sovereign immunity when an injured party seeks to enjoin an illegal action.” Id. at 216. The type of “illegal action” that justifies piercing sovereign immunity is action that is “under color of office but without lawful authority and beyond the scope of official power. [Cits.]” Chilivis v. Nat. Distributing Co., 239 Ga. 651, 654 (1) (238 SE2d 431) (1977). The majority resolves the main issue in this appeal based on its limited analysis of IBM Corp., a case in which the injured party, IBM, sued the State to enjoin it from awarding a competitor a computer system contract, claiming the State had acted beyond its lawful authority in selecting the recipient of the contract. Claiming this case is “akin” to IBM Corp., the majority now authorizes a non-injured third party to sue a county Department of Family and Children Services for decisions that do not constitute “illegal acts” under Chilivis, supra. Because there are other, proper channels to achieve the result desired by the majority, I would affirm the trial court’s dismissal of GAO’s petition on the basis that the petition is barred by sovereign immunity.10
IBM Corp. and all the authorities cited therein involved plaintiffs bringing suit against the State to redress injuries that the particular plaintiff had or would incur as a result of the State’s illegal action. In this case, however, GAO is not an injured party. If there is an injured party, that party is A. V. B. GAO is not A. V. B.’s legal guardian, expressly does not seek custody of the child,11 and self-evidently is not related to the child by blood or marriage. GAO is a nonprofit corporation charged with implementing Federal legislation with the stated purposes of ensuring the protection of the rights of mentally ill persons and assisting states to establish and operate a protection and advocacy system for mentally ill persons. 42 USC § 10801 (b). As a result of GAO’s involvement in this matter, the injured party, A. V. B., voluntarily dismissed the administrative proceedings she had initiated while represented by her own legal counsel,12 in which she sought to challenge her placement in the mental *731health institution. As to OCGA § 15-11-24,131 strongly disagree with the majority’s position that the authorization to file a lawsuit controls the issue whether the State has waived its sovereign immunity. Parties are authorized to file suits seeking damages for personal injuries against government defendants, but that does not mean the sovereign immunity of such defendants has been waived. GAO’s reliance on OCGA § 15-11-24 is shrewd, but I reject the argument that the statute authorizes a third party to dictate and determine the manner in which a Georgia DFCS office lawfully carries out its statutory duty as custodian of children.
IBM Corp. addresses the filing of a suit by an injured party seeking to enjoin an “illegal action.” Id. at 216. Not only is GAO not an injured party, GAO cannot show that Dougherty DFCS has acted “illegally,” i.e., without lawful authority and beyond the scope of official power. Chilivis, supra at 654 (1). The main thrust of GAO’s petition is its position that Dougherty DFCS has placed a mentally healthy teenager in a mental health institution “solely to avoid the perceived difficulties in achieving appropriate placement in a foster home or group home.” The allegedly improper placement of A. V. B. is an important issue, but a deprivation proceeding is not the proper forum under Georgia law for resolving this issue. OCGA § 15-11-2 (8) sets forth the ways in which a child may be found to be a “deprived child” under Georgia law. Citing subsection (8) (C) of that statute, GAO claims A. V. B. has been “abandoned,” but then asserts the child is under such constant supervision that she is not allowed to choose matters ranging from her clothing and food to her activities, companions, and books. These assertions reflect the exact opposite of what constitutes illegal abandonment in Georgia. See, e.g., In re J. C. P., 167 Ga. App. 572, 573-574 (307 SE2d 1) (1983). GAO also claims A. V. B. is effectively without a parent, guardian or custodian under subsection (8) (D) of OCGA § 15-11-2, even though the assertions GAO raises reflect its position that A. V. B. is being too closely supervised, in a manner befitting a child with mental illness, which GAO claims is unjustified because A. V. B. is not mentally ill. Nothing in GAO’s petition raises the slightest inference that Dougherty DFCS has ceased carrying out its legal duty, with which it has been charged, see OCGA § 49-3-6, to care for A. V. B. as her legal custodian. Finally, GAO claims A. V. B. has been neglected, i.e., is without *732proper parental control and education under OCGA § 15-11-2 (8) (A). GAO asserts the education A. V. B. receives as a juvenile patient at a mental health institute is “meager” in comparison to that received by a typical, mentally healthy teenager in public school. While the education A. W B. receives during her current placement may not be comparable to a public school education, that does not mean she is not receiving “education as required by law,” id., nor does the location of her current placement alone reflect that A. V. B. is “without proper parental care or control.” Id. GAO may not like where A. V. B. is placed, but that placement does not constitute an “illegal” neglect of this child under the legal standard for deprivation set forth in OCGA § 15-11-2 (8) (A). While Georgia law recognizes a broad definition of “deprived child,” e.g., Moss v. Moss, 135 Ga. App. 401 (6) (218 SE2d 93) (1975), even the majority acknowledges that there are well-established quantifiable standards applicable to a determination whether a child is deprived, Majority opinion at (2), citing In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982), and it is clear from the record in this appeal that none of those standards apply here to support even an inference that A. V. B. is a “deprived child.”14
The best interests of A. V. B. must be a primary concern in this matter. The trial court recognized that and did not conclude its inquiry into the matter after dismissing GAO’s petition. Instead, the trial court ruled that it was exercising its authority under OCGA § 15-11-34 (c) to initiate sua sponte a judicial review of A. V. B.’s current placement plan. To effect that review, the trial court provided for a hearing to be held, appointed a guardian ad litem to represent A. V. B. at the hearing, ordered an in-camera inspection of A. V. B.’s DFCS file and records pursuant to OCGA § 49-5-41 (a) (2), and authorized a psychological evaluation of the child. Furthermore, the dismissal of GAO’s petition appears in no way to have impaired A. V. B.’s right to reinitiate the administrative proceedings she earlier abandoned in which she sought a determination of her need for continued hospitalization.
The best interests of A. V. B. are capable of being addressed by the parties most appropriate to raise and assert them. IBM Corp., the sole authority cited by the majority for its holding, is completely distinguishable because GAO is not an injured party and the acts allegedly committed by Dougherty DFCS are not “illegal.” Neverthe*733less, the majority in abbreviated fashion deems it appropriate to allow a third party to sue the State merely because the third party dislikes the way the State decides to carry out its lawful duties. It does A. V. B. and the citizens of this State a disservice to allow such an ill-advised encroachment on our State’s sovereignty. Accordingly, I must respectfully dissent. I concur fully in Division 3.
Decided March 3, 1997 Reconsideration denied April 3, 1997. Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, for appellant. Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, James E. Pettit, for appellee.I am authorized to state that Chief Justice Benham and Justice Thompson join this dissent.
The majority, in commenting that the State raised the sovereign immunity defense “for the first time in its motion for reconsideration,” has overlooked the fact that the State prevailed on other grounds in the juvenile court so it was not necessary to assert sovereign immunity until the Court of Appeals rendered its ruling reversing the juvenile court. The law is well established that sovereign immunity is not an affirmative defense and that the waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver. [Cit.]” Dept. of Human Resources v. Poss, 263 Ga. 347 (1) (434 SE2d 488) (1993).
In its memorandum of law in opposition to the State’s motion to dismiss the petition, GAO asserted that it “does not seek to be appointed guardian, and does not seek a particular placement of the child. GAO is not an agency competent to perform those functions.”
A. V. B. was represented by counsel from the Georgia Legal Services Program. GAO *731asserts legal representation, was provided pursuant to a regulation of the Department of Human Resources, which was promulgated as a result of Federal litigation over the State’s treatment of juveniles in State mental health institutions.
OCGA § 15-11-24 provides that a petition alleging delinquency, deprivation or unruliness of a child “may be made by any person ... who has knowledge of the facts alleged or is informed and believes that they are true.”
The majority also states GAO is claiming A. V. B. has been “abused,” although the assertions raised by GAO fall far short of the legal definition of abuse, either in the criminal or civil context. See, e.g., OCGA § 16-5-70 (cruelty to children); OCGA § 16-6-4 (child molestation); OCGA § 19-7-5 (b) (3) (defining child abuse for purposes of terminating parental rights). See also 42 USC § 10802 (1) (defining “abuse” for purposes of the Protection and Advocacy for Individuals with Mental Illness Act of 1986).