INTEREST OF v. << (2025)

The Fulton County Department of Family and Children Services (“DFCS”) filed an emergency ex parte request and dependency petition to remove minor children D. B. and R. W. from their mother's custody one month after their sibling shot himself in the family's apartment. The juvenile court granted the emergency motion, and the children were removed. The mother moved to dismiss the petition, arguing that the ex parte procedure violated her due process rights and that she should have had a pre-removal hearing in the absence of any allegations by DFCS that her children were in any immediate danger. Following an evidentiary hearing, the juvenile court denied the mother's motion to dismiss on the ground that DFCS had followed applicable statutory procedures. However, the court dismissed the dependency petition on the merits, finding “absolutely no probable cause to believe the children are dependent.” The mother appeals, challenging the juvenile court's due process ruling. For reasons that follow, we affirm.

The record shows that on June 8, 2024, minor children D. B. and R. W. lived with their mother and three siblings, including their 13-year-old brother, S. W. At 1:00 a.m. that morning, S. W. shot himself in the head in the family's apartment. S. W. was taken to the hospital, where he died three days later.

On July 9, 2024 — a month after the shooting — DFCS filed a dependency complaint alleging that D. B., R. W., and their remaining two siblings were dependent because S. W. had “obtained a gun and shot himself” and “[t]he department ha[d] concerns regarding inadequate supervision” and the “lack of a caregiver to keep the children safe.” The complaint alleged that the mother had “p[re]vious history with the department for concerns of inadequate supervision, inadequate food, clothing/shelter, and educational neglect” and that the family “has had history each year from 2018 until 2024.”

Along with the dependency complaint, DFCS filed an emergency request for an ex parte order for protective custody of the children. This filing consisted of a pre-printed form with multiple check-boxes for DFCS to indicate its rationale for seeking immediate removal of the children from the mother's custody. DFCS checked boxes indicating that the children were not in immediate danger from their surroundings, that their placement in shelter care was not necessary to protect persons or property, that DFCS did not have a good faith belief that the children may abscond or be removed from the juvenile court's jurisdiction, and that the children were not without a parent or guardian to provide supervision and care. Nevertheless, DFCS claimed that it needed immediate custody of the children due to the mother's inability to keep them safe, based on her prior history with DFCS and her possession of an unsecured weapon in the home.

On July 10, 2024, the juvenile court denied the petition and ex parte removal request. In its written order, the court explained:

Under oath, case manager testified that the children were not in immediate harm or danger; 2 of the children are placed with a legal father; mother is cooperative and case has been referred to family preservation. 2 SAAGs advised caseworker not to request removal, but upper DFCS mgt wanted to request removal.

The next day, July 11, DFCS filed a second dependency petition and emergency request for an ex parte protective custody order permitting immediate removal of the children. This second petition included the same allegations as the first, but it additionally claimed:

The child, [S. W.], was able to gain access to an unsecured weapon in the home and shot himself in the head in front of his seven year old brother, [R. W.]. There are severe concerns regarding inadequate supervision in the home as the mother and sibling children were aware of the unsecure[d] weapon in the home and the child was able to gain access to it. The mother has demonstrated to the [sic] lack the parenting knowledge and skills to keep her children safe. There is a current law enforcement investigation in which the children will be required to complete forensic interviews regarding the incident.

Once again, DFCS indicated on the form's check-boxes that the children were not in immediate danger, their placement in shelter care was not necessary to protect persons or property, DFCS did not believe the children would abscond or be removed from the court's jurisdiction, and the children were not without the supervision of a parent or guardian.

The same juvenile court judge who denied DFCS's first emergency request granted the second one, entering an ex parte dependency removal order giving DFCS immediate custody of the children. This time, the court found that removal was necessary due to

inadequate supervision resulting in the death of sibling by an unsecured weapon in the home in front of the child [R. W.]; mother and sibling children were aware of the unsecured weapon; law enforcement investigation ongoing. Victim child [S. W.] shot himself in the head with the weapon resulting in his death; mother has ongoing history with the department.

The juvenile court scheduled a preliminary protective hearing for July 15. Based on the court's order, D. B. and R. W. were removed from the mother's custody and placed in foster care, and their siblings went to live with their legal father.

The mother obtained the assistance of an attorney, and the juvenile court appointed a lawyer to represent the children. At the request of the mother's attorney, the juvenile court continued the preliminary protective hearing until August 2. The court ordered D. B. and R. W. to remain in DFCS's custody pending the hearing, and it dismissed the dependency petition as to the two remaining siblings because they were with their legal father.

Through her attorney, the mother moved to dismiss the dependency petition without prejudice for “failure to follow procedural safeguards” when removing D. B. and R. W. from her custody. The mother alleged that she had a due process right to a hearing before DFCS removed the children from her custody because DFCS had not alleged that they were in any imminent danger. As a remedy for this alleged due process violation, the mother asked the court to dismiss the case without prejudice and “immediately return” D. B. and R. W. to her custody.

At the preliminary protective hearing, the juvenile court considered both the mother's motion to dismiss and the merits of DFCS's dependency petition. The DFCS caseworker testified that the family came to the attention of DFCS when S. W. shot himself. The shooting occurred while the mother was asleep and all five children were home. As far as the caseworker knew, the mother had behaved appropriately after the shooting — both at the home and at the hospital. Afterward, the mother and her other children moved in with family members. DFCS offered counseling and other services to the family, and the mother was “receptive.”

The caseworker testified that the gun S. W. used did not belong to the mother and that no other guns were found in the apartment.¹ R. W., who apparently witnessed the shooting, disclosed to authorities that he knew S. W. had a gun, but he was “keeping it secret from the mom and everyone.” According to the caseworker, R. W. thought S. W. had likely obtained the gun from “another kid in the community that the mom told her kid not to hang out with.” There is no evidence that the mother knew about the gun, and she was not charged with any crime in relation to S. W.’s shooting.

As for the mother's history with DFCS, the caseworker explained that DFCS had received prior reports of “educational neglect [and] concerns for inadequate food, clothing, [and] shelter,” but those reports were largely “unsubstantiated.” None of the past reports involved a firearm or a child attempting self-harm. The caseworker testified that there was no evidence that D. B. and R. W. were abused or neglected while they were with their mother, either before or after S. W.’s shooting, and the children wanted to be with her.

When asked about the basis for the removal petition, the caseworker responded that “upper leadership” at DFCS wanted the children removed, even though “upper leadership” had never met the family, visited their home, or talked to the children. The caseworker concluded her testimony by stating, “There's nothing saying [the mother] can't care for her kids.”

After the caseworker testified, the mother's attorney introduced the medical examiner's report on S. W.’s death. In the report, which was released the day before DFCS filed the first removal petition, the medical examiner ruled that S. W.’s death was a suicide. The report indicated that S. W. was “well developed and well nourished,” and it identified no signs of abuse beyond those associated with the gunshot. Finally, the children's attorney argued that DFCS had no basis for removing the children and that the dependency petition should be denied.

Following the hearing, the juvenile court denied the mother's motion to dismiss the dependency petition based on due process violations. The court ruled that in seeking the children's ex parte removal, DFCS “followed the appropriate due process procedures” of the Juvenile Code. Although the court expressed “concerns about the validity of the information” in DFCS's second petition that led to the emergency removal of the children, the court noted that “the procedures as outlined by the code were followed.”

Nonetheless, the juvenile court dismissed the dependency petition as meritless, finding “absolutely no probable cause to believe the children are dependent.” Further, the court scolded DFCS for taking the children away from their mother:

This is a tragic accident that the Department has compounded by removing the children from the home. The mother had previously worked with the Department and showed willingness to continue participating with services after her child's death. In taking these children away from the mother, the state has compounded the trauma on this family and may have destroyed the mother's ability to trust in the state in the future should she need assistance.

The court ordered DFCS to return the children to the mother immediately, and DFCS apparently complied.

The mother appeals, challenging the juvenile court's denial of her motion to dismiss on due process grounds. She argues that, in the absence of any allegation of imminent danger to the children, she was entitled to a hearing on her parental fitness before her children were removed from her custody, not after. The mother argues that the Juvenile Code supplies DFCS with two avenues for seeking custody — an “ordinary” pathway in which a parent must be given notice and an opportunity to appear at an adjudication hearing to answer the allegations in the dependency petition; and an emergency pathway described in OCGA § 15-11-132 in which DFCS may seek ex parte removal only under “exceptional circumstances.” See OCGA § 15-11-132 (b). In cases of ex parte removal, a parent has no opportunity to be heard until the juvenile court holds a preliminary protective hearing, which generally must be scheduled within 72 hours of removal. See OCGA § 15-11-145 (a). Although the Juvenile Code does not define “exceptional circumstances,” the mother contends that we should interpret the term to mean that DFCS can seek ex parte removal only when it alleges an imminent or exigent threat to the children. The mother further contends that DFCS frequently abuses the ex parte procedure, as it did here, by seeking emergency removal without alleging any emergency.²

1. Although DFCS has not moved to dismiss this appeal, it argues in its appellate briefs that the appeal is moot.³ We do not agree.

OCGA § 5-6-48 (b) (3) requires the dismissal of an appeal “[w]here the questions presented have become moot.” See Crary v. Clautice, 318 Ga. 573, 576 (2), 899 S.E.2d 98 (2024) (“Mootness is an issue of jurisdiction and thus must be determined before a court addresses the merits of a claim.”) (citation and punctuation omitted). A case is moot “[w]hen the remedy sought in litigation no longer benefits the party seeking it[,]” McAlister v. Clifton, 313 Ga. 737, 738 (1), 873 S.E.2d 178 (2022) (citation and punctuation omitted), or when resolution of the case “would be tantamount to the determination of an abstract question not arising upon existing facts or rights.” (Citation and punctuation omitted.) In the Interest of M. F., 305 Ga. 820, 828 S.E.2d 350 (2019).

Applying these definitions here, DFCS contends that this case is moot because the mother has already won the relief she sought in her motion to dismiss — the return of her children — and nothing we do here can further benefit her. The mother, on the other hand, argues that this case is not moot because the due process issues it presents are capable of repetition yet evade review. We agree with the mother.

In Collins v. Lombard Corp., our Supreme Court held that cases involving issues that are capable of repetition yet evade review are not moot.⁴ The Court concluded that such cases “would be based on existing facts or rights which affect, if not the immediate parties, an existing class of sufferers.” (Citation and punctuation omitted.) 270 Ga. 120, 122 (1), 508 S.E.2d 653 (1998). In reaching this conclusion, the Court cited with approval our decision in In the Interest of I. B., 219 Ga. App. 268, 464 S.E.2d 865 (1995) (physical precedent only). In that case, we concluded that a case is not moot if there is “[i]ntrinsically insufficient time to obtain judicial review for a claim common to an existing class of sufferers[.]” Id. at 273, 464 S.E.2d 865. The Supreme Court held that this analysis was “correct.” Collins, 270 Ga. at 121 (1), 508 S.E.2d 653.

In In the Interest of I. B., a father was placed on DFCS's child abuse registry after his son alleged that the father had slapped and kicked him. 219 Ga. App. at 268, 464 S.E.2d 865. The father petitioned the juvenile court to expunge his name from the registry and challenged the constitutionality of the statute establishing the registry. Id. The juvenile court granted the expungement on the merits, finding no reasonable basis for placing the father on the registry. Id. In a later order, the court dismissed the father's constitutional challenge as moot. Id. The father appealed that ruling, but we affirmed,⁵ holding that the constitutional challenge was neither (1) capable of repetition nor (2) likely to evade review. Id. at 277, 464 S.E.2d 865.

As to the first question, the father argued that “there is a reasonable expectation of recurrence” because DFCS could place his name on the registry again. (Punctuation omitted.) In the Interest of I. B., 219 Ga. App. at 276, 464 S.E.2d 865. We rejected this possibility as “speculative,” concluding that the father's “own ‘live controversy’ lost its steam when the court granted his petition[,]” and he “does not represent, and has never represented, a class of persons whose petitions were denied.” Id. Regarding the second question, we reasoned that “the constitutionality of the statute does not inherently or eternally evade review, because anyone whose petition is denied can present it to the Supreme Court if it is properly raised and ruled on in the trial court.” Id. at 276, 464 S.E.2d 865.

This case, however, presents a different scenario. The mother asserts that her due process challenge is capable of repetition because DFCS routinely uses the ex parte removal procedure without alleging any immediate danger to the child or other exigent circumstances. DFCS does not deny doing so; instead, its position is that using the ex parte practice when there are no exigent circumstances does not violate a parent's due process rights. Thus, the possibility that this issue will recur does not seem speculative, and unlike the father in In the Interest of I. B., the mother in this case does represent “an existing class of sufferers.” Collins, 270 Ga. at 122 (1), 508 S.E.2d 653.

The mother also claims that the due process issue will continue to evade review given the fast-track nature of the ex parte proceeding. As noted, when DFCS executes an ex parte removal, a parent receives a hearing within 72 hours after the removal. That is a very short period of time — far too short for the adjudication of a legal challenge based on the denial of a pre-removal hearing. Yet it may be quite a long time for a child who is not in any imminent danger to be forcibly separated from his or her parents. Because this case presents an issue that is likely both to recur and to evade review, it is factually distinguishable from In the Interest of I. B.

In the wake of In the Interest of I. B., we have ruled that appeals from temporary protective orders may not be moot, even if the orders have expired. In Birchby v. Carboy, 311 Ga. App. 538, 716 S.E.2d 592 (2011), for example, Birchby appealed from a 12-month family violence protective order. Although the order had expired by the time the appeal reached us, we ruled that the case was not moot: “Given the time constraints of appellate courts, orders in effect for 12 months often expire before an appellate decision is issued. Accordingly, we must address whether the various issues are common to an existing class, yet tend to evade review.” (Citation and punctuation omitted.) Id. at 540 (2), 716 S.E.2d 592. We determined that most of Birchby's claims of error “involve issues that both affect an existing class of sufferers and tend to evade review,” and we therefore addressed them on the merits. (Citation and punctuation omitted.) Id. at 541 (2), 716 S.E.2d 592; see also Baca v. Baca, 256 Ga. App. 514, 516 (1), 568 S.E.2d 746 (2002) (holding that multiple issues raised in an appeal from an expired protective order were not moot because they were capable of repetition, yet evaded review).

Although the plaintiffs in Birchby and Baca lost at the trial court level, whereas the juvenile court ruled in favor of the mother on the merits in this case, that distinction does not affect our jurisdictional analysis. The fact that the juvenile court granted the father's requested relief in In the Interest of I. B. was not the deciding factor in the mootness inquiry. In other words, that case was moot not because the father won on the merits below, but because the alleged violation of his constitutional rights was not capable of repetition and did not evade review. As discussed above, that analysis is different here. As with Birchby and Baca, this case presents a similar “time constraints” problem, and therefore it is not moot.⁶

2. Turning to the merits of the mother's appeal, she argues that the juvenile court violated her due process rights when it granted, absent exceptional circumstances, DFCS's ex parte request to remove her children. We disagree.

(a) Due process. According to the Supreme Court of the United States, three elements must be evaluated in deciding what due process requires: “the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other[.]” Lassiter v. Dept. of Social Svcs. of Durham County, 452 U. S. 18, 27 (II) (B), 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Indeed, due process “emphasizes fairness between the State and the individual dealing with the State[.]” Evitts v. Lucey, 469 U. S. 387, 405 (III) (C), 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (citation and punctuation omitted). “[T]he phrase expresses the requirement of fundamental fairness.” (Punctuation omitted.) Lassiters, 452 U. S. at 24 (II), 101 S.Ct. 2153.

“Substantive due process requires that [a] statute not be unreasonable, arbitrary or capricious, and that the means have a real and substantial relation to the object sought to be obtained. The law must rationally relate to a legitimate end of government.” Hayward v. Ramick, 248 Ga. 841, 843 (1), 285 S.E.2d 697 (1982). Procedural due process, on the other hand, requires a fair procedure. See generally Dave v. State, 365 Ga. App. 1, 8 (3), 876 S.E.2d 882 (2022) (finding that due process required that a court hearing comport with principles of fundamental fairness). The fundamental idea of due process is notice and an opportunity to be heard. In the Interest of I. P., 371 Ga. App. 790, 793 (1), 903 S.E.2d 184 (2024). As relevant in this case, “[o]rders prepared ex parte do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.” (Citation and punctuation omitted.) Fuller v. Fuller, 279 Ga. 805, 806 (1), 621 S.E.2d 419 (2005).

(b) The Juvenile Code. The Juvenile Code's purpose is clear: “[T]his chapter shall be liberally construed to reflect that the paramount child welfare policy of this state is to determine and ensure the best interests of its children.” OCGA § 15-11-1. The intent of the General Assembly in passing the Juvenile Code was to “preserve and strengthen family relationships, countenancing the removal of a child from his or her home only when state intervention is essential to protect such child and enable him or her to live in security and stability.” Id. The Juvenile Code further “seeks to guarantee due process of law, as required by the Constitutions of the United States and the State of Georgia, through which every child and his or her parent and all other interested parties are assured fair hearings at which legal rights are recognized and enforced.” Id. In short, the Code provides a streamlined process that protects the welfare of children while safeguarding the rights of parents. Id.

The Juvenile Code outlines the process for issuing ex parte removal orders. Pursuant to OCGA § 15-11-133 (a) (1), “[a] child may be removed from his or her home, without the consent of his or her parents, guardian, or legal custodian ․ [p]ursuant to an order of the court under this Article[.]” Such an order “shall be based upon a finding that: (1) [c]ontinuation in his or her home would be contrary to such child's welfare; or (2) [r]emoval is in such child's best interests.” OCGA § 15-11-146 (c); see also OCGA § 15-11-134 (noting that a court order removing a child from his or her home “shall be based on a finding by the court that continuation in [the child's] home would be contrary to his or her welfare”). After the child is removed from his home, the duly authorized officer of the court shall, inter alia, “[p]romptly give notice to the court and such child's parents, guardian, or legal custodian that such child is in protective custody, together with a statement of the reasons for taking such child into protective custody.” OCGA § 15-11-133 (b) (3). The juvenile court then “shall immediately determine if a child should be released, remain in protective custody, or be brought before the court upon being contacted by a law enforcement officer, duly authorized officer of the court, or DFCS that a child has been taken into protective custody.” OCGA § 15-11-133 (f).

Specifically, if the court issues an ex parte order removing the child from his or her home, the parents are entitled to a preliminary protective hearing to contest the removal within 72 hours after the child is removed. OCGA § 15-11-145 (a). Notice of the preliminary protective hearing must be given to the parents. OCGA § 15-11-145 (b). At such hearing, the parents are informed of their “due process rights, including the parties’ right to an attorney and to an appointed attorney if they are indigent persons, the right to call witnesses and to cross-examine all witnesses, the right to present evidence, and the right to a trial by the court on the allegations in the complaint or petition.” OCGA § 15-11-145 (f) (3). “If a child is not released at the preliminary protective hearing, a petition for dependency shall be made and presented to the court within five days of such hearing.” OCGA § 15-11-145 (g).

(c) Analysis. First, we conclude that the ex parte removal procedure in the Juvenile Code does not violate any substantive due process concerns. The statute, designed to protect the State's children by immediately removing them from their home upon a finding that continuation in the home would be contrary to the child's welfare or removal is in the child's best interests, is neither unreasonable, arbitrary, nor capricious. See OCGA § 15-11-133; Hayward, 248 Ga. at 843 (1), 285 S.E.2d 697. While “[t]he right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances[,]” In the Interest of B. R. J., 344 Ga. App. 465, 810 S.E.2d 630 (2018) (citation omitted), the State has a legitimate interest in the subject (protecting children) and there is a rational relationship between the means used (immediate ex parte removal) and this object. Hayward, 248 Ga. at 843 (1), 285 S.E.2d 697.

Second, we conclude that the ex parte removal procedure in the Juvenile Code, as applied in this case, is consistent with the requirements of fair procedure and does not violate any procedural due process concerns. It is evident that the legislature understood the impact of immediately removing a child from his or her home and, accordingly, instituted stringent procedural safeguards, including a requirement that a preliminary hearing to contest the removal occur within 72 hours of the child's removal. OCGA § 15-11-145 (a). At this preliminary hearing, the parents are entitled to an attorney, the right to call witnesses and to cross-examine all witnesses, the right to present evidence, and the right to a trial by the court on the allegations in the complaint or petition. OCGA § 15-11-145 (f) (3).

Balancing “the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions[,]” see Lassiter, 452 U. S. at 27 (II) (B), 101 S.Ct. 2153, we conclude that the ex parte removal system designed by the legislature comports with the requirements of fair procedure and does not violate a parent's due process rights if properly followed.

Here, DFCS followed the statutory procedure governing the removal of children from their home, and the juvenile court applied the appropriate safeguards when DFCS sought and obtained an ex parte order for the removal of the children from their home. At the time DFCS requested the removal of the mother's children from her home, it provided a detailed explanation of the circumstances justifying the removal. Specifically, the July 11, 2024 emergency request for an ex parte order for protective custody contained an affidavit detailing the facts surrounding DFCS's request and opining that “[t]he mother has demonstrated ․ the lack of parenting knowledge and skills to keep her children safe.” According to this document, “two of the mother's remaining children stated the gun was retrieved from a closet in the home and [the mother] was aware of the weapon being there.” The request indicated that removal was “the only and necessary solution” because the mother “lacks the capacity to keep the children safe as the family has had history each year from 2018 until 2024 with concern of inadequate food, clothing/shelter, supervision, and educational neglect.” (Emphasis in original.)

Likewise, the dependency complaint noted that one of the mother's children had gained access to an unsecured gun in the home and shot himself in the head in front of his seven-year-old brother. According to the complaint, “[t]he department ha[d] concerns regarding inadequate supervision as [the mother] ha[d] p[re]vious history with the department for concerns of inadequate supervision, inadequate food, clothing/shelter, and educational neglect.” In fact, the family “had history [with DFCS] each year from 2018 until 2024.” DFCS requested removal “due to there being concerns for lack of a caregiver to keep the children safe.” The complaint stated that a law enforcement investigation regarding the shooting was pending.

Based on these documents, the juvenile court issued a July 11, 2024 written ex parte order authorizing the removal to safeguard the children's welfare due to “inadequate supervision[.]” The order concluded that continuation in the home was contrary to the children's welfare and that removal was in the children's best interests.

Following the children's removal from their home, the mother was afforded all procedural safeguards required by the Juvenile Code, including a prompt preliminary protective hearing. The preliminary protective hearing was originally scheduled within the 72-hour statutorily mandated time frame, though the parties agreed to a continuance of the originally scheduled hearing. At the hearing, the mother was given the opportunity to contest the removal by presenting evidence and examining witnesses. Ultimately, the juvenile court determined that the children were not dependent and ordered their return to the mother. The mother does not raise any argument challenging the preliminary hearing procedures.

Instead, the mother argues that she was deprived of due process when the juvenile court issued the ex parte removal order because DFCS failed to show the existence of any “exceptional circumstances” justifying the children's removal. According to the mother, Georgia's Juvenile Code limits ex parte removals to those where exceptional circumstances are demonstrated. She relies on OCGA § 15-11-132 to support her argument. However, OCGA § 15-11-132 only applies to verbal custody orders:

(a) The facts supporting the issuance of an order of removal may be relayed orally, including telephonically, to the judge or a designated juvenile court intake officer, and the order directing that a child be taken into custody may be issued orally or electronically.

(b) When a child is taken into custody under exceptional circumstances, an affidavit or sworn complaint containing the information previously relayed orally, including telephonically, shall be filed with the clerk of the court the next business day, and a written order shall be issued if not previously issued. Only when a child is taken into custody under exceptional circumstances can an affidavit or sworn complaint be filed. The written order shall include the court's findings of fact supporting the necessity for such child's removal from the custody of his or her parent, guardian, or legal custodian in order to safeguard such child's welfare and shall designate a child's legal custodian.

(c) The affidavit or sworn complaint filed after a child has been placed shall indicate whether the child was released to such child's parent, guardian, or legal custodian or remains removed.

(d) DFCS shall promptly notify the parent, guardian, or legal custodian of the nature of the allegations forming the basis for taking a child into custody and, if such child is not released, of the time and place of the preliminary protective hearing.

The Juvenile Code is clear that children may not be removed from their homes based on verbal requests and verbal court orders absent exceptional circumstances. OCGA § 15-11-132. That, however, is not what occurred in this case, and OCGA § 15-11-132 does not apply here.

While the mother asserts that this Court should mandate that juvenile courts make a preliminary determination of probable cause that a child's health and welfare are at “imminent risk of harm” before authorizing ex parte removal, and that such a reading would be consistent with “every other federal circuit court that had held, absent an emergency, both notice and opportunity to be heard are due to a parent before a State removes their children[,]” this interpretation of Georgia's Juvenile Code imposes a stricter requirement not included in the ex parte order statutory text and not required by due process. The Georgia Juvenile Code clearly outlines the process for ex parte removal and does not require a finding of exceptional circumstances prior to the court issuing an ex parte removal order. See OCGA §§ 15-11-133 (a), (b) (removal of child from the home); 15-11-134 (required findings justifying removal from the home); 15-11-145 (preliminary protective hearing requirements); 15-11-146 (preliminary protective hearing findings). In fact, the statutes at issue in this case, cited above, do not mention exceptional circumstances, place a requirement for exceptional circumstances on DFCS or the court, or refer to the statute addressing exceptional circumstances in the context of verbal removal requests and orders.

What the statutes do include are stringent safeguards to protect a parent's due process rights if children are removed from their homes as a result of an ex parte order. The court's discretion is not unbridled when presented with a request for an ex parte protective custody order. As mentioned above, the statute addressing ex parte removal orders explicitly requires that the ex parte court order must be “based upon a finding that: (1) [c]ontinuation in his or her home would be contrary to such child's welfare; or (2) [r]emoval is in such child's best interests.” OCGA § 15-11-146 (c); see also OCGA § 15-11-134. And procedural safeguards mandating a prompt, post-removal hearing following the issuance of an ex parte removal order ensure that parents have a quick, fair opportunity to challenge the removal allegations. See Fuller, 279 Ga. at 806 (1), 621 S.E.2d 419 (holding that ex parte orders do not violate due process “unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair”) (citation and punctuation omitted). In this case, DFCS and the juvenile court adhered to the procedural safeguards established by the legislature for the issuance of ex parte orders, and the procedures provided the mother notice and an opportunity to be promptly heard. As such, the mother's due process rights were not violated. Compare In the Interest of R. B., 346 Ga. App. 564, 566, 569-570 (1), 816 S.E.2d 706 (2018) (finding mother's due process rights were violated where trial court failed to hold a preliminary hearing within 72 hours after the children were removed, give the mother proper notice of the hearing, and make required written findings as to the children's welfare).

Judgment affirmed.

I fully concur in Division 1 of the majority opinion; this case is not moot. But I dissent to Division 2. DFCS takes the position that the legislature has provided parents a “post-removal process” that provides “a fair opportunity to challenge the allegations without unnecessarily burdening the initial removal decision with additional prongs or requirements. In Division 2, the majority agrees with that position, holding that it “does not violate any substantive due process concerns.”

I disagree. So does the Supreme Court of the United States. “[P]arents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.” Stanley v. Illinois, 405 U.S. 645, 658 (III), 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (emphasis added). “[O]ur Juvenile Code is subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions.” In the Interest of R. B., 346 Ga. App. 564, 575, 816 S.E.2d 706 (2018) (Dillard, C.J., concurring). I would construe Georgia's Juvenile Code to be in accord with Stanley.

In Georgia, subject to certain specified exceptions, judges may “not initiate, permit, or consider ex parte communications.” Ga. Code of Judicial Conduct (“CJC”) Rule 2.9 (A). The relevant exception provides that they may “when authorized by law to do so, such as when issuing temporary protective orders, arrest warrants, or search warrants, or when serving on therapeutic, problem-solving, or accountability courts, including drugs courts, mental health courts, and veterans’ courts.” CJC Rule 2.9 (A) (5) (emphasis in original). So, for example, courts presented with family violence petitions may “may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from violence.” OCGA § 19-13-3 (b).

Certainly ex parte relief is necessary to protect minor children in some dependency cases. In fact the Juvenile Code authorizes children to be taken into custody by a law enforcement officer or officer of the court without an order of the court in some cases — but only in a tightly restricted set of cases that involve “imminent danger of abuse or neglect” or “trafficking for labor or sexual servitude․” OCGA § 15-11-133 (a) (2) (B).

The Juvenile Code provision that authorizes ex parte orders of removal is applicable “under exceptional circumstances[.]” OCGA § 15-11-132 (b). The majority errs in authorizing ex parte proceedings in the mill run of dependency cases and in construing “exceptional circumstances”to be meaningless.

So construed, that provision does not raise the constitutional issues the majority addresses. So we need not address those issues or the antecedent question whether we are authorized to address them.⁷

As the majority's accurate summary of the facts makes clear, this case is exceptional only in the extent to which DFACS compounded a tragedy. I would vacate the initial removal decision, hold that the juvenile court erred in granting ex parte relief in this case and in denying the mother's motion to dismiss, and hold that before granting ex parte relief, juvenile courts must consider whether extraordinary circumstances exist.

FOOTNOTES

1.   The caseworker testified that the mother had once stored a gun in a closet in the residence, but she had told the children to stay away from it, and it was no longer present.

2.   DFCS, on the other hand, takes the position that the Juvenile Code allows it to seek removal of a child through the ex parte procedure in any dependency case, whether or not an imminent or exigent threat is alleged or shown.

3.   We granted oral argument in this case and directed the parties to brief the issue of mootness.

4.   The Court noted that such cases have often been described as an “exception” to the mootness doctrine. Collins, 270 Ga. at 121 (1), 508 S.E.2d 653. However, the Court reasoned, if appellate courts must dismiss moot cases, then logically there can be no exceptions to the mootness doctrine. Id. The Court avoided this contradiction by declaring that cases presenting issues capable of repetition yet evading review are not exceptions; rather, they are not moot in the first place. Id. at 121-122 (1), 508 S.E.2d 653.

5.   The father appealed to the Supreme Court, which transferred the case to this Court upon finding that its jurisdiction over constitutional questions was not invoked because the trial court had not ruled on that issue. In the Interest of I. B., 219 Ga. App. at 268, 464 S.E.2d 865.

6.   The mother also argues that her appeal is not moot, even though she got the substantive relief she sought in the juvenile court, because she faces collateral consequences from the removal order and denial of her motion to dismiss. We are sympathetic to this argument. See In the Interest of K. P., 365 Ga. App. 38, 41-42, 877 S.E.2d 289 (2022) (holding that juvenile court's preliminary protective order was not moot, even though DFCS dismissed underlying dependency action, because the mother could face negative collateral consequences from the order). However, we need not address the mother's collateral consequences argument in light of our conclusion that her appeal is not moot because the due process issue is capable of repetition yet evades review.

7.   See Ga. Const. of 1983, Art. VI, Sec. 6, Par. II (1) (granting our Supreme Court exclusive appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question); Lucas v. Lucas, 273 Ga. 240, 242 (3), 539 S.E.2d 807 (2000) (holding that appellate courts “will not rule on a challenge to the constitutionality of a statute unless the issue has been raised and ruled on in the trial court”).

Hodges, Judge.

Pipkin, J., concurs; and McFadden, P. J., concurs as to Division One and Dissents as to Division Two.