Alizota v. Stanfield

BOGGS, Judge,

concurring specially and in judgment only.

I concur in the judgment only and write separately to explain that the superior court lacked jurisdiction to terminate parental rights based upon the order issued by the juvenile court under OCGA § 15-11-58 (i). This Code section authorizes a juvenile court to “enter a custody order which shall remain in effect until the child’s eighteenth birthday” in cases in which “referral for termination of *259parental rights and adoption is not in the best interest of the child.” OCGA § 15-11-58 (i) (1).7 In this case, the juvenile court’s long-term custody order under OCGA § 15-11-58 (i) required the Fayette County Department of Family and Children Services to review the child’s placement every 36 months and provide a report to the juvenile court. The juvenile court therefore continued to exercise jurisdiction over the issue of termination of parental rights through its OCGA § 15-11-58 (i) order.

As the Supreme Court of Georgia recently explained, “[t]he doctrine of priority jurisdiction, a version of which is embodied in OCGA § 23-1-5, is invoked to determine which court with concurrent jurisdiction will retain that jurisdiction.” Ertter v. Dunbar, 292 Ga. 103 (734 SE2d 403) (2012). Juvenile courts and superior courts both have jurisdiction over petitions for termination of parental rights, but the superior court’s concurrent jurisdiction is limited to cases involving adoption proceedings. See OCGA § 15-11-28 (a) (2) (C). In this case, the juvenile court exercised its jurisdiction first and continues to exercise its jurisdiction through the periodic review of its order issued under OCGA § 15-11-58 (i). It therefore retains jurisdiction over the issue of termination of parental rights.8

I also take this opportunity to note what appears to be a trend of increasing litigation regarding the application of concurrent jurisdiction between juvenile and superior courts. See Ertter, supra; In the Interest of J. C. W., 318 Ga. App. 772 (734 SE2d 781) (2012); In the Interestof J. C. W., supra, 315 Ga. App. 566; Segars v. State of Ga., 309 Ga. App. 732 (710 SE2d 916) (2011); Long v. Long, 303 Ga. App. 215 (692 SE2d 811) (2010). For this reason, the General Assembly may desire to provide the bench and bar with additional guidance on the appropriate limits and application of each court’s concurrent jurisdiction.

*260Decided November 20, 2012 Reconsideration denied December 12, 2012 Justin B. Grubbs, for appellant. Stephen D. Ott, James B. Outman, for appellees. Lloyd W. Walker, amicus curiae.

This Code section also contains other prerequisites for entry of a long-term custody order.

As explained hy this Court in In the InterestofJ. C. W., 315 Ga. App. 566 (727 SE2d 127) (2012),

Our opinion in Snyder v. Carter, 276 Ga. App. 426-427 (623 SE2d 241) (2005), does not require a different result because in Snyder, the termination petition was filed in juvenile court after a petition for termination and adoption was filed in superior court. The issue before us in Snyder was whether a pending deprivation proceeding precluded a superior court from exercising jurisdiction over the adoption and termination petition. Additionally, the Snyder court relied upon a decision, Edgar v. Shave, 205 Ga. App. 337 (422 SE2d 234) (1992), issued at a time when the superior court had exclusive rather than concurrent jurisdiction over termination petitions filed in connection with adoption. Snyder, 276 Ga. App. at 427. Compare OCGA § 15-11-5 (a) (2) (C) (1992) with current OCGA § 15-11-28 (a) (2) (C).

(Emphasis in original.) Id. at 572 (1), n. 9.