In the Interest of M. S., a Child (Mother)
CourtCourt of Appeals of Georgia
Date FiledOctober 28, 2026
DocketA26A0918
StatusPublished
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Full Opinion
FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 28, 2026
In the Court of Appeals of Georgia
A26A0918. IN THE INTEREST OF M. S., a child.
MCFADDEN, Presiding Judge.
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 SE2d 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 SE2d 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
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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.
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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
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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 SE2d 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
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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 SE2d 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
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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 SE2d 425) (2020) (citation
modified). See also In the Interest of C. H., 343 Ga. App. 1, 10(1)(b) (805 SE2d 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 (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).
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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 SE2d 98) (2024).
Judgment vacated and case remanded. Watkins and Padgett, JJ., concur.
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