THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
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January 11, 2022
In the Court of Appeals of Georgia
A21A1751. IN THE INTEREST OF BABY GIRL N., a child.
DOYLE, Presiding Judge.
Following the grant of their discretionary application, Conzie Williams-Waller
and Michael Waller, the maternal grandmother and maternal step-grandfather of Baby
Girl N. (“the child”), appeal from a juvenile court order denying their request for
permanent custody and awarding permanent custody to Torrie and Chauncey Jackson,
the child’s foster parents, for purposes of adoption. The grandparents argue that the
juvenile court erred by (1) permitting the foster parents to intervene in this action, and
(2) applying OCGA § 15-11-321 (a) as amended on July 1, 2019. For the reasons that
follow, we affirm.
The facts in this case are undisputed.1 Shortly after the child was born in
December 2018, her biological mother surrendered her parental rights to the child to
the Georgia Department of Human Services (“the Department”) under the Safe Haven
law,2 indicating that she was unable to care for the child, wanted to give her up for
adoption, did not want any involvement with her going forward, and wished to remain
anonymous.3 Shortly thereafter, the Department placed the child with the Jacksons
and on March 13, 2019, filed a dependency petition in Newton County Juvenile
Court. On July 15, 2019, the child was adjudicated dependent, and on September 13,
2019, the juvenile court entered a final disposition, placing her in the custody of the
Department.
On October 16, 2019, the foster parents moved to intervene pursuant to OCGA
§ 9-11-24 (a) and (b). On October 17, 2019, the Department filed a termination
1
Neither the Department of Human Services (“the Department”) nor the foster
parents filed an appellate brief in this case.
2
OCGA § 19-10A-1 et seq.
3
The mother identified two potential fathers; a paternity test ruled out one, and
the other could not be located.
2
petition. On October 31, 2019, the grandmother moved to intervene, seeking custody.4
On November 18, 2019, the Department filed a reply brief to the foster parents’
intervention motion, arguing that they were not allowed to intervene either as of right
or via a permissive intervention. On November 19, 2019, both grandparents filed a
motion to intervene in the case.
The Department filed a notice of change of placement from the foster parents
to the grandparents, and on December 16, 2019, the Guardian Ad Litem (“GAL”)
previously appointed in the case filed an objection to the notice of change of
placement. On January 21, 2020, the juvenile court entered an order granting the
foster parents’ motion to intervene pursuant to OCGA § 9-11-24 (b), granting the
grandmother’s motion to intervene, and ordering that the child should remain in her
placement with the foster parents. On January 28, 2020, the juvenile court entered an
order terminating parental rights with regard to the child. On October 21, 2020, the
grandparents moved for custody for purposes of adoption.
4
According to the grandmother, she had been unaware of the mother’s
pregnancy or the child’s birth until shortly before filing the motion when the
Department located her as a potential relative placement. Though not at issue on
appeal, we note the incongruity of the protections and anonymity offered by the Safe
Haven law and the requirement that the Department attempt to locate and inform
relatives of the child as potential custodians.
3
At the final hearing, the foster parents, the grandparents, and psychologists
testified.5 Thereafter, the juvenile court entered a detailed order transferring
permanent custody of the child to the foster parents for purposes of adoption. add
details
1. The grandparents argue that the juvenile court erred by granting the foster
parents’ motion to intervene. We disagree.
The juvenile court granted the foster parents’ motion to intervene pursuant to
OCGA § 9-11-24 (b).6
Under the permissive intervention provisions of OCGA § 9-11-24 (b)
(2), anyone upon timely application may be permitted to intervene in an
action “[w]hen an applicant’s claim or defense and the main action have
a question of law or fact in common.” When the court exercises its
discretion as to permissive intervention, [Code] section 9-11-24 (b)
further provides that “the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the
original parties.”7
5
The GAL and counsel for the Department participated in the final hearing.
6
The grandparents did not object to the foster parents’ motion to intervene, but
they were not yet parties at that point. The juvenile court granted the grandparents’
motion to intervene under OCGA § 19-7-3.
7
Buckler v. DeKalb County, 290 Ga. App. 190, 193 (2) (659 SE2d 398) (2008).
4
“Whether permissive intervention is granted is addressed to the sound discretion of
the trial judge, and a decision on this issue will not be reversed unless there is an
abuse of discretion.”8
Here, we find no abuse of discretion in the juvenile court’s order granting the
permissive intervention of the foster parents. Although the child was in the custody
of the Department, she had been in the temporary custody of the foster parents since
birth, and their claims and the custody portion of the termination action have a
question of law in common – the best interest of the child.9 Accordingly, this
enumeration is without merit.
2. The grandparents contend that the juvenile court erred by retroactively
applying OCGA § 15-11-321 (a) as amended on July 1, 2019, to this case, which was
filed in March 2019. We find no basis for reversal.
Prior to the amendment, OCGA § 15-11-321 (a) provided:
8
(Punctuation omitted.) Henry County School Dist. v. Home Depot, U. S. A.,
Inc., 348 Ga. App. 723, 725 (824 SE2d 622) (2019), quoting Sloan v. Southern
Floridabanc Fed. Sav. & Loan Assn., 197 Ga. App. 601, 603 (2) (398 SE2d 720)
(1990). See In the Interest of J. C. W., 318 Ga. App. 772 , 782 (3) (734 SE2d 781)
(2012).
9
See, e.g., In the Interest of R. D. B., 289 Ga. App. 76, 77 (1), 80-81 (2) (656
SE2d 203) (2007) (affirming termination of mother’s parental rights and granting
permanent custody to the foster parents, who were permitted to intervene).
5
When a court enters an order terminating the parental rights of a parent
or accepts a parent’s voluntary surrender of parental rights, or a petition
for termination of parental rights is withdrawn because a parent has
executed an act of surrender in favor of the [D]epartment, 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.
6
The 2019 amendment, effective July 1, 2019, deleted the former second
sentence of subsection (a), which read: “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.”10
Here, the juvenile court specifically recognized the amendment, but aptly noted
that although former OCGA § 15-11-103 (a) (1), now codified at OCGA § 15-11-321,
encourages relative placement, it is not an absolute requirement. Thus,
a trial court is not required to give preference to family members in
making a placement of a child following termination of parental rights.
Instead, the court must place the child with the person or persons it
determines to be the most appropriate and in the child’s best interest.11
10
See Ga. L. 2019, p. 456, Section 4/SB 167.
11
(Footnotes and punctuation omitted.) In the Interest of C. B., 300 Ga. App.
278, 280 (2) (b) (684 SE2d 401) (2000), quoting In the Interest of R. D. B., 289 Ga.
App. at 80-81 (2), and citing In the Interest of A. G., 293 Ga. App. 493, 498 (4) (667
SE2d 662) (2008); In the Interest of A. A., 290 Ga. App. 818, 822 (660 SE2d 868)
(2008).
7
The juvenile court properly applied that standard, considering the factors set
forth in OCGA § 15-11-321 (a) as applicable to this case.12 Therefore, this
enumeration is without merit.
Judgment affirmed. Reese and Brown, JJ., concur.
12
The grandparents do not argue that the juvenile court erred by finding that
permanent custody with the foster parents for purposes of adoption was in the child’s
best interest.
8