                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                              RAY and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 12, 2018




In the Court of Appeals of Georgia
 A18A0701. ABRAHAM et al. v. BLACK.

      RICKMAN, Judge.

      Following the death of 23-year-old Jonathan Black (“the decedent”), his sister

and administratrix of his estate, Nicolette Black, filed suit against Hai Hong Trinh,

M. D.; James S. Abraham, M. D.; Lily Lan-Nhu Huyen Pham, M. D.; Jennifer Pruitt,

R. N.; Newton Medical Center; Newton Medical Group, LLC; Newton Medical

Family Practice, LLC; Newton Medical Properties, LLC; Georgia Emergency

Physicians, P. C.; Georgia Heart Specialists, LLC; John Does 1-5; and Jane Does 1-5

(collectively “the Defendants”) in state court for medical malpractice, wrongful death,

and related claims. The Defendants filed a motion to dismiss Black’s wrongful death

claim or, alternatively, a motion for partial summary judgment of that claim alleging
that Black lacked standing to bring a claim for wrongful death.1 The state court

denied the motion. The Defendants filed a motion to vacate the court’s order and

transfer the case to the superior court, which was also denied. Thereafter, we granted

the Defendants’ applications for interlocutory review of both orders. For the

following reasons, we affirm.

      “Under OCGA §§ 19-7-1 (c) and 51-4-4, when a child (either a minor or sui

juris) dies as the result of a homicide or negligence, and the child did not leave a

spouse or children, the child’s parents have the right to recover for the full value of

the child’s life.” Baker v. Sweat, 281 Ga. App. 863, 866 (1) (637 SE2d 474) (2006).

However, a parent shall lose parental power by:

      (1) Voluntary contract releasing the right to a third person; (2) Consent
      to the adoption of the child by a third person; (3) Failure to provide
      necessaries for the child or abandonment of the child; (4) Consent to the
      child’s receiving the proceeds of his own labor, which consent shall be
      revocable at any time; (5) Consent to the marriage of the child, who thus
      assumes inconsistent responsibilities; (6) Cruel treatment of the child;
      (7) A superior court order terminating parental rights in an adoption
      proceeding in accordance with Chapter 8 of this title; or (8) A superior
      court order terminating parental rights of the legal father or the


      1
        The complaint also includes a claim for pain and suffering on behalf of the
estate which is not the subject of this appeal.

                                          2
      biological father who is not the legal father of the child in a petition for
      legitimation, a petition to establish paternity, a divorce proceeding, or
      a custody proceeding. . . .


OCGA § 19-7-1 (b). “If it is established that a parent has lost his or her parental

power under OCGA § 19-7-1 (b), the parent’s right to share in the proceeds of a claim

for the wrongful death of his or her child is also forfeited.” Baker, 281 Ga. App. at

867 (1). If the parents lose their power to maintain an action then “the administrator

or executor of the decedent may bring an action for and may recover and hold the

amount recovered for the benefit of the next of kin.” OCGA § 51-4-5- (a); see OCGA

§ 19-7-1 (c) (3) (“The intent of this subsection is to provide a right of recovery in

every case of the homicide of a child who does not leave a spouse or child. If, in any

case, there is no right of action in a parent or parents under the above rules, the right

of recovery shall be determined by Code Section 51-4-5.”).

      Black’s complaint alleged that the decedent’s mother and father were deceased

and that Black was his surviving sibling. During discovery, Black provided the

Defendants with the decedent’s birth certificate, which listed his father’s name. In

their motion to dismiss/motion for partial summary judgment, the Defendants asserted

that once they obtained the decedent’s father’s name, they hired an investigator who


                                           3
found no evidence that the father was deceased. The Defendants argued that since the

decedent’s father was alive, he was the proper party under OCGA §§ 51-4-4 and 19-

7-1 to bring the wrongful death suit and, thus, Black lacked standing.

      Black filed a motion in response, alleging that the decedent’s father lost his

parental power pursuant to OCGA § 19-7-1 (b) (3), by failing to provide necessary

financial support and abandoning the decedent. Black attached to her motion

affidavits from the decedent’s maternal grandmother, maternal aunt, mother’s best

friend, older brother, and Black detailing the decedent’s father’s lack of relationship

with the decedent and failure to provide him with any financial support. Black argued

that since the decedent’s father lost his parental power, she was the proper party to

bring the suit under OCGA § 51-4-5.

      The state court agreed with Black, stating that based on uncontroverted

evidence the decedent’s father lost his power to bring the wrongful death suit because

he did not support or have a relationship with the decedent. Accordingly, the state

court found that Black was the proper party to bring the claim and denied the

Defendants’ motion to dismiss/motion for partial summary judgment.

      The Defendants filed a motion to vacate the state court’s order and transfer the

case to the superior court. The Defendants argued, inter alia, that the finding that the

                                           4
decedent’s father lost his parental power to bring the wrongful death suit was akin to

the termination of his parental rights of an unwed father who failed to legitimate his

child, of which the superior court had exclusive jurisdiction. See OCGA § 15-11-10

(3) (D) (“[T]he superior court [has] exclusive jurisdiction to terminate the legal

parent-child relationship and the rights of a biological father who is not the legal

father of the child[.]”). The Defendants requested that the state court vacate its order

for lack of subject matter jurisdiction and transfer the case to the superior court. The

state court denied the motion, stating that its order was not a termination of the

decedent’s father’s parental rights; it was a determination as to who has standing to

bring a wrongful death claim on his behalf.

      Initially, we note that in their reply brief to this Court, the Defendants clarified

that, “whether the [state] court correctly decided if [the decedent’s father] abandoned

the decedent is not the subject of this appeal.” Instead, the Defendants contend that

the wrongful death suit should be dismissed because no court, state or superior, has

the authority to allow the wrongful death action to be brought by anyone other than

the decedent’s father or, alternatively, that the case should be transferred to the

superior court because the state court lacks jurisdiction to determine that the

decedent’s father lost his parental power to bring the suit. We disagree.

                                           5
      The state court did not terminate the decedent’s father’s parental rights. OCGA

§ 19-7-1 (b) lists eight ways that a parent shall lose his or her parental power, two of

which involve superior court orders. Superior court orders “terminating parental

rights in an adoption proceeding” or “terminating parental rights of . . . the biological

father who is not the legal father of the child in a petition for legitimation, a petition

to establish paternity, a divorce proceeding, or a custody proceeding” result in the

loss of parental power. OCGA § 19-7-1 (b) (7), (8) (emphasis supplied). This case did

not involve an adoption proceeding, petition for legitimation, petition to establish

paternity, divorce proceeding, or a custody proceeding. In this case, the state court

determined that, pursuant to OCGA § 19–7-1 (b) (3), the decedent’s father lost his

parental power to bring the wrongful death action, not due to the termination of his

parental rights by a superior court order, but because he failed to provide for and

abandoned the decedent.

      The state court made a determination under the statutory framework of OCGA

§§ 51-4-4 and 19-7-1 as to who had standing to bring the wrongful death suit on

behalf of the decedent. Since the decedent’s father lost his parental power, his mother

was deceased, and he had no spouse or children, the state court determined, under

OCGA § 51-4-5 (a), that his sister, as adminstrix of his estate, was the proper party

                                            6
to bring the suit. Because the state court had jurisdiction to determine who had

standing under the statutory framework of OCGA §§ 51-4-4, 19-7-1, and 51-4-5, it

did not err in denying the defendants’ motions to dismiss/motion for partial summary

judgment and to vacate and transfer the case to the superior court. See generally

Baker, 281 Ga. App. at 870 (1) (holding that “the trial court did not err in finding that

[the decedent’s father] lacked standing to pursue his wrongful death case” when the

decedent’s father lost parental power under OCGA § 19-7-1 (b) (3)); see also Auto

Doors, Inc. of Ga. v. Zivoluba, 277 Ga. App. 288, 289 (626 SE2d 256) (2006)

(reviewing a state court’s finding regarding who has standing to bring a wrongful

death action pursuant to the statutory framework).

         Judgment affirmed. McFadden, P. J., concurs and Ray, J., concurs in judgment

only.*



* “THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF
APPEALS RULE 33.2(a).”
In the Court of Appeals of Georgia
 A18A0701. ABRAHAM, et al v. BLACK.

      RAY, Judge, concurring in judgment only.

      As I do not agree with everything that is said in the majority’s opinion, but do

agree with the result, I join it in judgment only. As it relates to the parties before the

court and the facts present in the record, I do believe that the trial court has reached

an appropriate decision that the decedent’s sister, who is the administratrix of his

estate, can proceed with the wrongful death claim and that the Defendants should not

be able to use as a defense that the right to initiate such claim would normally belong

to the decedent’s father. At the same time, I note that the decedent’s father has

apparently not been served with legal process in this action, actual or constructive.

Thus, I do not believe these proceedings are binding on him should he ever resurface.

Caution would suggest that he should be made a party to this action in some manner

so that he would be bound by the result.




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