GA Code § 15-11-321 (2021)
2021 Georgia Code|Title 15 - Courts|Chapter 11 - Juvenile Code|Article 4 - Termination of Parental Rights|Part 6 - Disposition|§ 15-11-321. (Effective Until January 1, 2022.) Custody of Child Following Termination Proceedings or Surrender of Parental Rights

  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or accepts a parent's voluntary surrender of parental rights, or a petition for termination of parental rights is withdrawn because a parent has executed an act of surrender in favor of the department, a placement may be made only if the court finds that such placement is in the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 enter findings of fact reflecting its consideration of the following:   Such child's need for a placement that offers the greatest degree of legal permanence and security;   The least disruptive placement for such child;   Such child's sense of attachment and need for continuity of relationships;   The value of biological and familial connections; and   Any other factors the court deems relevant to its determination.     A guardian or legal custodian shall submit to the jurisdiction of the court for purposes of placement.   A placement effected under the provisions of this Code section shall be conditioned upon the person who is given custody or who is granted an adoption of a child whose parents have had their parental rights terminated or surrendered agreeing to abide by the terms and conditions of the order of the court.   In addition to its rights as a legal custodian, the department has the authority to consent to the adoption of a child whose parents have had their parental rights terminated or surrendered.     (Code 1981, §15-11-321, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2016, p. 134, § 1-4/HB 887; Ga. L. 2019, p. 456, § 4/SB 167.)   Cross references.   - Time limitations upon orders of disposition - commitment to Division of Youth Services, Uniform Rules for the Juvenile Courts of Georgia, Rule 15.2.   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under pre-2000 Code Sections 15-11-54 and 15-11-90, and pre-2014 Code Section 15-11-103, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.   Jurisdiction to award custody to Department Human Resources.    - Juvenile court had jurisdiction to award custody of a child to the Department of Human Resources and properly entered the court's order of disposition awarding permanent custody to the Department because the mother and father had no rights to surrender to the great-grandparents when the termination order reflected the juvenile court's intent to record a previously unrecorded action actually taken or judgment actually rendered; the juvenile court rendered a judgment terminating the child's parental rights at the conclusion of the hearing on September 3, 2008, and although the court's oral ruling was not memorialized in a written order until September 9, 2008, and not filed until September 17, 2008, such order clearly stated that the order was nunc pro tunc to September 3, 2008, the date of the termination hearing. In re D.C.H., 300 Ga. App. 827, 686 S.E.2d 434 (2009) (decided under former O.C.G.A. § 15-11-103).    Superior court properly declined jurisdiction in a custody action brought by grandparents because, once a juvenile court took jurisdiction of a deprivation action concerning the child and, later, a termination action of parental rights, the court took jurisdiction of the entire case of the minor child including the issues of disposition and custody under former O.C.G.A. §§ 15-11-58 and15-11-103 (see now O.C.G.A. §§ 15-11-2,15-11-134,15-11-201 et seq., and15-11-320 et seq.). Segars v. State, 309 Ga. App. 732, 710 S.E.2d 916 (2011) (decided under former O.C.G.A. § 15-11-103).    In determining whether or not there is a parent having parental rights, the court will look not only to the biological or "legal" father and mother, but also at third persons who stand in loco parentis, whom the court has equated with parents, and when there is a person standing in loco parentis who has taken a voluntarily relinquished child into its family and cared for the child, it is not the legislative intent that the child be automatically removed from that home and placed with a state or county agency just because there is no biological or "legal" father or mother with parental rights. In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985) (decided under former O.C.G.A. § 15-11-54).   Failure to consider statutory factors.    - Juvenile court's order placing the child with the intervenors had to be vacated because the juvenile court did not apply the proper statute, O.C.G.A. § 15-11-321, or fully consider the five factors therein. In the Interest of A. H., 348 Ga. App. 817, 824 S.E.2d 688 (Feb. 26, 2019).    Court should seek to place custody first with the Department of Human Resources, then with a licensed child-placing agency, then in a foster home, and lastly in some other undesignated receiver. Department of Human Resources v. Ledbetter, 153 Ga. App. 416, 265 S.E.2d 337 (1980) (decided under former O.C.G.A. § 15-11-54).   Placement with relative of putative father.    - Trial court was not required to place a child with the putative father's mother or uncle, who testified that they would be willing to accept custody during the termination hearing since: (1) although the putative father's mother and uncle knew of the child's birth and subsequent removal from her mother's custody, neither one contacted DFACS or took any action to seek custody or to support the child prior to the termination hearing; and (2) the putative father was never married to the child's mother, and he provided no evidence that he was in fact her biological father. In re S.B., 237 Ga. App. 692, 515 S.E.2d 209 (1999) (decided under former O.C.G.A. § 15-11-90).    Evidence supported termination of a father's parental rights since the child was deprived; the court properly refused to consider placing the child with either the father's parents or his sister after terminating the father's parental rights. In the Interest of M.D.B., 262 Ga. App. 796, 586 S.E.2d 700 (2003) (decided under former O.C.G.A. § 15-11-103).    Juvenile court erred in denying an aunt and an uncle's motion to intervene in a termination of parental rights proceeding on the ground that the putative father had not legitimated the child as under former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321), the juvenile court had to attempt to place the child first with a family member; if the aunt and uncle were family members, they had to be considered as a possible placement for the child. In the Interest of J.M.T., 275 Ga. App. 526, 621 S.E.2d 535 (2005) (decided under former O.C.G.A. § 15-11-103).    Court cannot invest itself with authority to choose an adopting family, relying upon the provisions dealing with "other suitable measures for the care and welfare of the child." Department of Human Resources v. Ledbetter, 153 Ga. App. 416, 265 S.E.2d 337 (1980) (decided under former O.C.G.A. § 15-11-54).   Consent of placement agency necessary for adoption.    - Former statute, which provided for the placing of children with an agency upon termination of parental rights, also mandated that consent of the agency was necessary for adoption. Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 449, 228 S.E.2d 839 (1976), cert. denied, 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977) (decided under former O.C.G.A. § 15-11-54).   Placement of child with foster family.    - It was not an abuse of discretion to find that relative placement was not in the best interest of a child as: (1) the child had been in the foster parents' care for over 10 months, had bonded with the foster parents, and referred to them as "mommy" and "daddy"; (2) an aunt and uncle had not bonded with the child in 12 supervised visits; (3) the foster parents wanted to adopt the child; and (4) the child's strong bond with a sibling was accorded less weight than other factors militating for the child's placement with the foster family. In the Interest of S.V., 281 Ga. App. 331, 636 S.E.2d 80 (2006) (decided under former O.C.G.A. § 15-11-103).    Trial court terminated parents' rights to four dependent children based on the parents' failure to comply with their case plan. As the children were thriving in foster care, and no relatives could be found who were suitable custodians, the trial court did not abuse the court's discretion or violate former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) by not placing the children with family members. In the Interest of A.G., 293 Ga. App. 493, 667 S.E.2d 662 (2008) (decided under former O.C.G.A. § 15-11-103).    Although former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) encouraged relative placement, it was not an absolute requirement. Because the child's established bond with a foster family authorized the juvenile court finding that the child's best interest was served by remaining with the foster family over being placed with a relative, the juvenile court did not abuse the court's discretion in the court's determination of the child's best interest. In the Interest of C.B., 300 Ga. App. 278, 684 S.E.2d 401 (2009) (decided under former O.C.G.A. § 15-11-103).   No preference for placement with family member.    - Former O.C.G.A. § 15-11-103(a) (see now O.C.G.A. § 15-11-321) did not require a trial court to give preference to family members in making a placement of a child following termination of parental rights. In the Interest of B.R.W., 242 Ga. App. 232, 530 S.E.2d 5 (2000) (decided under former O.C.G.A. § 15-11-103).    Permanent custody of a child was properly granted to a county department of family and children services, rather than to the maternal grandmother, since: (1) the grandmother exhibited distorted and delusional thoughts and symptoms associated with schizophrenia; (2) on at least one occasion, the child's mother had physically assaulted the grandmother; (3) the child's mother had accused the grandfather of raping her, and the grandmother said that the grandfather had taken and failed a polygraph test in connection with the alleged rape; and (4) the mother had a history of violent and aggressive behavior and would have access to the child if the child were placed in the grandmother's home, and the grandmother lacked the ability to protect the child from the mother. In the Interest of L.M.J., 247 Ga. App. 756, 545 S.E.2d 127 (2001) (decided under former O.C.G.A. § 15-11-103).    Nothing in former O.C.G.A. § 15-11-103 (see now O.C.G.A. §§ 15-11-320,15-11-321, and15-11-322) requires a trial court to give a preference to family members in making a placement of a child following termination of parental rights, and a placement should be made under the terms of former subsection (a) only if such a placement was in the best interests of the child. In the Interest of S.K., 248 Ga. App. 122, 545 S.E.2d 674 (2001) (decided under former O.C.G.A. § 15-11-103).   Court improperly failed to consider placement of child with relative.    - Juvenile court erred in placing a child in the department's permanent custody for purposes of adoption without considering placement of the child with a relative, notwithstanding that the father did not specifically identify any relatives to be considered, since he testified that he believed a suitable relative placement could be found and there was no evidence that the department investigated any relatives as possible suitable placement. In the Interest of J.J.W., 247 Ga. App. 804, 545 S.E.2d 21 (2001) (decided under former O.C.G.A. § 15-11-103).    According to the clear dictates of former O.C.G.A. § 15-11-103 (see now O.C.G.A. § 15-11-321), it was incumbent upon the court and the department of human resources to conduct a thorough search for a suitable family member with whom to place the child. In the Interest of Z.B., 252 Ga. App. 335, 556 S.E.2d 234 (2001) (decided under former O.C.G.A. § 15-11-103).    Although the juvenile court did not err in finding that placement of a child with a putative father's mother would not have been in the child's best interest, further investigation was needed to establish whether the father's father was, in fact, a blood relative to the child; if so, it would be necessary to consider placing the child with the grandfather. In the Interest of S.H., 251 Ga. App. 555, 553 S.E.2d 849 (2001) (decided under former O.C.G.A. § 15-11-103).    Trial court erred in failing to consider an appropriate relative placement for a putative father's minor child upon the trial court's determination to terminate the father's parental rights as the trial court and the county agency had a duty under former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) to conduct a thorough search for a suitable family member. In the Interest of T.A.M., 280 Ga. App. 494, 634 S.E.2d 456 (2006) (decided under former O.C.G.A. § 15-11-103).   Not in best interest to return children to paternal grandmother.    - Termination of the mother's parental rights was in the children's best interests and it was not in their best interest to return them to the custody of their paternal grandmother. In the Interest of S.K., 248 Ga. App. 122, 545 S.E.2d 674 (2001) (decided under former O.C.G.A. § 15-11-103).    Juvenile court did not abuse the court's discretion in rejecting a child's paternal grandmother as a suitable home for placement of a child after termination of the parents' parental rights since the best interests of the child would not have been served by placement with the grandmother. The grandmother did not request placement of the child with her, did not attempt to bond with the child while the child was in foster care, was of advanced age and limited financial resources, and had not noticed bruising on the then two month old child the day before the child was removed for abuse. Furthermore, the child's guardian ad litem presented evidence that removing the child from the foster home would be damaging as that was the only family the child knew, the child had bonded with that family, and the foster parents planned to adopt the child. In the Interest of S.S., 267 Ga. App. 601, 600 S.E.2d 679 (2004) (decided under former O.C.G.A. § 15-11-103).   Grandparent not appropriate placement.    - A 7-year-old autistic child's grandmother was not a suitable placement for the child because the grandmother's husband had a stroke, causing significant medical problems, which required constant care by the grandmother. In the Interest of T. B. R., 304 Ga. App. 773, 697 S.E.2d 878 (2010) (decided under former O.C.G.A. § 15-11-103).    Trial court did not abuse the court's discretion in refusing to place the children with the grandparents as there was concern about such placement since the grandmother knew the half-sibling was being neglected but did not attempt to protect the child and a counselor testified that the half-sibling was aggressive toward or withdrawn from the grandmother and displayed disruptive behaviors in the child's foster home following visits with the grandmother. In the Interest of D. L. T., 323 Ga. App. 719, 747 S.E.2d 880 (2013).   Search for other family members.    - After the court allowed a grandmother to participate fully in the hearing and to present evidence of her own fitness, she can not argue on appeal that DFCS should have conducted a broader search for other family members because she has not shown how she has the right to raise this issue on appeal since she is neither the parent nor the guardian of the child on whose behalf such search is to be conducted. In the Interest of B.R.W., 242 Ga. App. 232, 530 S.E.2d 5 (2000) (decided under former O.C.G.A. § 15-11-103).    In the termination of parental rights case, the appellate court rejected the mother's contention that the juvenile court committed reversible error in finding that the Georgia Department of Family and Children's Services had made a thorough search under former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) for a suitable relative with whom to place the child; the thorough search requirement imposed against the Department had been deleted from the statute, and there was evidence that the juvenile court attempted to place the child with a relative. In the Interest of L.L., 280 Ga. App. 804, 635 S.E.2d 216 (2006) (decided under former O.C.G.A. § 15-11-103).   Sufficient compliance with Code section.    - Although the search was conducted approximately two years before the termination hearing, evidence existed showing that the department complied with the dictate of former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) in attempting to find relatives to place the child with. In the Interest of G.B., 263 Ga. App. 577, 588 S.E.2d 779 (2003) (decided under former O.C.G.A. § 15-11-103).    As the evidence showed that the Department of Family and Children Services evaluated the maternal grandmother for placement, but that authorities did not approve her home for placement, and that the mother failed to provide any relatives' names to the court for placement, the Department did not fail to make a thorough and exhaustive search for a suitable family member with whom the child could be placed. In the Interest of A.M., 275 Ga. App. 630, 621 S.E.2d 567 (2005) (decided under former O.C.G.A. § 15-11-103).    Juvenile court did not violate the mandate of former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) by failing to search for a suitable family member for placement after deciding to terminate a mother's parental rights as the record showed that the relatives suggested by the mother and reported to the court were investigated and one was not approved and two others failed to respond. In the Interest of D.D., 273 Ga. App. 839, 616 S.E.2d 179 (2005) (decided under former O.C.G.A. § 15-11-103).    Evidence showed that a trial court complied with the requirement of former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) by placing the children with their maternal grandfather and step-grandmother who planned to adopt the children. In the Interest of A.H., 278 Ga. App. 192, 628 S.E.2d 626 (2006) (decided under former O.C.G.A. § 15-11-103).    Juvenile court's finding that a child services agency had made reasonable efforts to find suitable relative placement for a child, without success, was supported by evidence that an aunt and uncle had not obtained a larger living space until shortly before the termination of parental rights hearing and a child services representative's testimony that in 12 supervised visits, the aunt and uncle had not bonded with the child. In the Interest of S.V., 281 Ga. App. 331, 636 S.E.2d 80 (2006) (decided under former O.C.G.A. § 15-11-103).    Juvenile court did not err in failing to place two children with a relative as a child services agency investigated placement with a parent's sibling (who did not want the children), the grandparents (who were financially unstable and had a history of child abuse), and a great-grandparent (who was on disability and in poor health); on the other hand, the children had formed a bond with their foster parents, who were raising the children as their own. In the Interest of C.M., 282 Ga. App. 502, 639 S.E.2d 323 (2006) (decided under former O.C.G.A. § 15-11-103).    Post-termination placement with the foster parents was upheld on appeal, given sufficient evidence that the child's grandparent made little effort to connect with the child; had previously refused to take custody; had health problems; lacked complete knowledge of the child's special needs; and failed to fully disclose the family's financial circumstances during a home study. Moreover, the foster parents had custody of the child for the child's entire life; the child bonded with them and viewed them as parents; the child would likely suffer trauma if removed from their home, and progressed developmentally in their care. In the Interest of R.D.B., 289 Ga. App. 76, 656 S.E.2d 203 (2007) (decided under former O.C.G.A. § 15-11-103).    After terminating couple's parental rights, department of family and children services did not fail to make reasonable efforts to find a relative placement under former O.C.G.A. § 15-11-103 (see now O.C.G.A. § 15-11-321); there was evidence that removing children from their foster home would be emotionally harmful to them and that a couple related to the father was unsuitable, and the mother's lack of cooperation precluded the department's compliance with the Interstate Compact on the Placement of Children, which required her birth certificate for out-of-state placement. In the Interest of A.A., 290 Ga. App. 818, 660 S.E.2d 868 (2008) (decided under former O.C.G.A. § 15-11-103).   Discretion of court.    - After hearing evidence regarding the option of placing the child with the paternal grandmother, the court did not err in finding that it was in the best interest of the child to be permanently placed with the foster mother. In re C.L.R., 232 Ga. App. 134, 501 S.E.2d 296 (1998) (decided under former O.C.G.A. § 15-11-90).    Trial court did not abuse the court's discretion in failing to place a child with a family member upon termination of the mother's parental rights as the child would remain in a safe and stable foster home upon termination of the mother's parental rights and the foster mother intended to adopt the child. In the Interest of A.L.S.S., 264 Ga. App. 318, 590 S.E.2d 763 (2003) (decided under former O.C.G.A. § 15-11-103).    Juvenile court did not abuse the court's discretion in declining to place the two children with relatives after the juvenile court terminated the mother's parental rights; the only relatives available, the maternal grandparents and a brother, admitted that they could not adequately care for the children and, thus, placement with them was not in the best interests of the children. In the Interest of C.B.H., 262 Ga. App. 833, 586 S.E.2d 678 (2003) (decided under former O.C.G.A. § 15-11-103).   Denial of placement with maternal great aunt not error.    - Upon the termination of a parent's parental rights, the juvenile court's order rejecting placement of the two children at issue with a relative was upheld on appeal as: (1) that relative had previously relinquished custody of the older child; (2) sufficient evidence was presented that the children were in separate stable foster-care placements; (3) the respective foster parents expressed a willingness to adopt the children; and (4) the guardian ad litem agreed that placement with the foster families was in the best interest of both children. In the Interest of K.W., 283 Ga. App. 398, 641 S.E.2d 598 (2007) (decided under former O.C.G.A. § 15-11-103).   Denial of placement with aunt.    - In light of a maternal aunt's lack of a bond with a parent's children and the foster parents' strong bond with the children, the juvenile court was authorized to decline placing the children with the aunt, and did not abuse the court's discretion under former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321). In the Interest of N.S.E., 287 Ga. App. 186, 651 S.E.2d 123 (2007) (decided under former O.C.G.A. § 15-11-103).   Finding that no able or willing relative was available was not error.    - In a termination of parental rights case, trial court did not err in finding under former O.C.G.A. § 15-11-103 (see now O.C.G.A. § 15-11-321) that placement of children with a relative was not an option, having heard evidence that no relatives were willing or able to assume custody; moreover, the parent had waived appellate review of the issue by failing to raise the issue below. In the Interest of A.D.I., 291 Ga. App. 190, 661 S.E.2d 606 (2008) (decided under former O.C.G.A. § 15-11-103).   Placement with relative not in child's best interests.    - In a termination of parental rights case, the trial court did not err in finding that placement with a relative was not in the best interests of the child; a search by the department of family and children services did not reveal any interested relatives, and neither parent timely provided the names and addresses of additional relatives for consideration. In the Interest of B.W., 287 Ga. App. 54, 651 S.E.2d 332 (2007) (decided under former O.C.G.A. § 15-11-103).    Evidence supported the juvenile court's decision to terminate parental rights and to award permanent custody of a child to the Department of Human Resources, rather than the child's maternal great-grandparents, given the child's long-term placement with foster parents and the child's developing "crucial attachments" to them; finding that the child had resided in the foster parents' home for 18 of her 22 months of life and was attached to the foster parents, who were the only primary caregivers of which the child had any memory, the juvenile court concluded that placement with the Department was the most appropriate for and in the best interest of the child. In re D.C.H., 300 Ga. App. 827, 686 S.E.2d 434 (2009) (decided under former O.C.G.A. § 15-11-103).   Home study issue not ripe for review.    - In a termination of parental rights case, a mother's contention that a county department of family and children services (DFCS) violated former O.C.G.A. § 15-11-103(a)(1) (see now O.C.G.A. § 15-11-321) by failing to include in the record evidence that the department conducted a home study of the child's paternal grandmother was not ripe for review. The trial court awarded permanent custody to the DFCS for the purpose of adoption and expressly noted that the issue of whether the grandmother could serve as the permanent adoption placement would be addressed in later proceedings. In the Interest of U.G., 291 Ga. App. 404, 662 S.E.2d 190 (2008) (decided under former O.C.G.A. § 15-11-103).