INTEREST OF v. << (2026)

The mother of M. S. filed this appeal from two orders entered in guardianship proceedings. She appeals the order granting a petition for permanent guardianship of M. S. as well as the order terminating the permanent guardianship. We vacate the order terminating the guardianship and remand because the juvenile court conducted the hearing on the petition to terminate the guardianship while the mother was unrepresented by counsel. We do not reach the mother's challenge to the order granting the petition for guardianship because that challenge may be mooted by the resolution on remand.

1. Background

Viewed in the light most favorable to the juvenile court's decision, In the Interest of J. L., 352 Ga. App. 125, 125(1), 834 S.E.2d 141 (2019), the record shows that in 2023, the Paulding County Juvenile Court adjudicated M. S. to be dependent. See In the Interest of A. A., 379 Ga. App. 470, 470(1), 929 S.E.2d 510 (2026) (involving M. S. and her half brother, A. A.). Then, in June 2024, the Paulding County Division of Family and Children Services filed a petition for permanent guardianship, proposing fictive kin as M. S.’s permanent guardians. See OCGA § 15-11-2(33) (defining “fictive kin” as “a person who is not related to the child by blood, marriage, or adoption but who prior to his or her placement in foster care is known to the family, has a substantial and positive relationship with the child, and is willing and able to provide a suitable home for the child”). The court conducted a hearing on the petition on August 2, 2024, and entered an order granting a permanent guardianship of M. S. to the fictive kin.

In December 2024, the permanent guardians filed in the Paulding County Juvenile Court a petition to terminate the guardianship, alleging that M. S. had threatened to commit violence against their family, that M. S. had been evaluated at a hospital and temporarily admitted to a mental health facility, and that M. S. needed residential treatment. Eight days later, the juvenile court conducted a hearing and then entered an order finding that M. S. was at a mental health facility, that her treatment team recommended that she be placed in a residential treatment facility upon her release from the mental health facility, and that she was ready for discharge from the mental health facility. The court found that M. S. had remained at the mental health facility for weeks after her initial discharge date because the permanent guardians were unable to take her back into their home, due to the risk M. S. posed to their son, and that the permanent guardians (who, apparently, lived in Douglas County) had contacted the Douglas County Division of Family and Children Services, but were unsuccessful in getting assistance in finding an appropriate placement for M. S.

The Paulding County Juvenile Court held that there was probable cause to conclude that M. S. was dependent because the permanent guardians were unable to meet her high needs and because she had remained at the mental health facility for weeks after she was ready for discharge. So, the court found, it was appropriate under OCGA § 15-11-133.1 to order both the Paulding County and Douglas County Divisions of Family and Children Services to investigate the circumstances.

The court found that although venue and jurisdiction to resolve the petition to terminate the permanent guardianship were proper in the Paulding County Juvenile Court, where the guardianship had been entered, venue for a dependency proceeding might not be proper in Paulding County because none of the parties then resided in Paulding County. The court concluded that it would conduct a status hearing on the petition to terminate the guardianship on January 13, 2025.

The juvenile court conducted that hearing, and then entered an order finding that M. S. was in the custody of the Douglas County Division of Family and Children Services and terminating the guardianship. The mother filed this appeal from both the orders granting and terminating the permanent guardianship.

2. Analysis

As an initial matter, we reject the argument of the appellee, the Georgia Department of Human Services, that the mother's challenge to the order terminating the guardianship is moot. The department argues that the challenge is moot because once the Douglas County Division of Family and Children Services obtained custody of M. S., the Paulding County Juvenile Court no longer had jurisdiction over her and so the court lacked authority to grant the relief the mother sought, a return of custody to the mother. But the Paulding County Juvenile Court did have jurisdiction to terminate the guardianship under OCGA § 15-11-244(a), which provides that a court that has entered a guardianship “shall retain jurisdiction over a guardianship action ․ for the sole purpose of entering an order following the filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian.” And the termination of the guardianship affects the mother's lost parental power, regardless of whether the juvenile court could return custody to her. See generally In the Interest of M. F., 298 Ga. 138, 142-46(2), 780 S.E.2d 291 (2015) (explaining the rights and interests of a parent whose child has been placed in a permanent guardianship, including the opportunity to revisit the question of guardianship and potentially regain parental power). So we hold that the mother's challenge to the order terminating the permanent guardianship is not moot and we will address the merits.

As for the merits, the mother argues, among other things, that the juvenile court erred by conducting the hearing on the petition to terminate the guardianship while the mother was unrepresented by counsel. We agree.

In the order granting the petition for termination of the guardianship, the Paulding County Juvenile Court found that the mother believed that she was represented by the attorney who had represented her in earlier proceedings in that court and who was possibly representing her in Douglas County. But the court found that the attorney did not represent the mother during the termination-of-guardianship proceeding, which was a new proceeding. The court acknowledged that the mother had orally requested an attorney at the hearing.

The court found that he had instructed the clerk of court to send the mother the application for court-appointed counsel, but “no application was received by the [c]ourt.” The court held that because the mother had not applied for court-appointed counsel, he would treat her oral request for counsel as a request for a continuance to apply for counsel. The court then denied the request for a continuance, concluding that the mother “had ample opportunity to apply for counsel. ․”

A child and the parties have the right to an attorney at all stages of dependency proceedings, including guardianship proceedings. OCGA § 15-11-103(a); In the Interest of E. A. V., 380 Ga. App. 177, 179(2), 932 S.E.2d 440 (2026) (applying OCGA § 15-11-103 to guardianship proceedings involving child's dependency). A party other than a child

shall be informed of his or her right to an attorney prior to any hearing [and] shall be given an opportunity to: (1) [o]btain and employ an attorney of such party's own choice; (2) [o]btain a court appointed attorney if the court determines that such party is an indigent person; or (3) [w]aive the right to an attorney, provided that such waiver is made knowingly, voluntarily, and on the record.

OCGA § 15-11-103(g).

The record shows that the juvenile court failed to follow OCGA § 15-11-103(g).

Among other deficiencies, the record contains no colloquy in which the mother waived her right to counsel. As a result, the record conclusively demonstrates that the mother was denied her right to counsel at the hearing[ ]. In view of this violation of the mother's due process rights, the ․ order [terminating the permanent guardianship] is void.

In the Interest of J. B., 354 Ga. App. 704, 705-06, 841 S.E.2d 425 (2020) (citation modified). See also In the Interest of C. H., 343 Ga. App. 1, 10(1)(b), 805 S.E.2d 637 (2017). Moreover, the court's treating the mother's oral request for counsel as a motion for continuance did not cure the problem. See In the Interest of J. B., 354 Ga. App. at 705, 841 S.E.2d 425 (violation of OCGA § 15-11-103(g) rendered void juvenile court's order modifying guardianship, even though court had continued proceeding for almost three months to give mother the opportunity to obtain counsel).

Because the juvenile court did not follow OCGA § 15-11-103(g), we vacate the order terminating the guardianship and remand for further proceedings not inconsistent with this opinion. We do not reach the other arguments the mother raises to challenge the order terminating the guardianship. We also do not reach the mother's arguments regarding the order granting the petition for permanent guardianship, because depending on the resolution on remand, that challenge may be moot. Crary v. Clautice, 318 Ga. 573, 576(2), 899 S.E.2d 98 (2024).

Judgment vacated and case remanded.

McFadden, Presiding Judge.

Watkins and Padgett, JJ., concur.