294 Ga, 813
FINAL COPY

                S13G0590. STANFIELD et al. v. ALIZOTA.

      THOMPSON, Chief Justice.

      We granted certiorari to consider whether the Court of Appeals properly

applied the principle of priority jurisdiction when it held that the Fayette County

Superior Court lacked the jurisdiction to terminate Emmanuel Alizota’s parental

rights and erred in granting Ryan and Melissa Stanfield’s petition for the

adoption of S. K.    Alizota v. Stanfield, 319 Ga. App. 256 (734 SE2d 497)

(2012). The Court of Appeals determined that because the juvenile court had

previously exercised jurisdiction over a deprivation proceeding involving

Alizota and S. K. and had entered a temporary long-term custody agreement, the

doctrine of priority jurisdiction deprived the superior court of jurisdiction over

the termination proceeding. Id. at 258. Based on this determination, the Court

of Appeals vacated the superior court’s order and declined to consider Alizota’s

appeal on the merits. This Court granted the Stanfields’ petition for certiorari

to consider the question of whether the Court of Appeals properly applied the

principle of priority jurisdiction in this case. See Ertter v. Dunbar, 292 Ga. 103

(734 SE2d 403) (2012). For the reasons that follow, we find the Court of
Appeals erred in holding the superior court lacked jurisdiction over the

termination proceeding.

      The record reflects that on December 3, 2010, the Stanfields filed a

petition in the superior court to adopt S. K., Melissa’s 18-month-old niece who

had been in their care for over a year after the Georgia Department of Family

and Children Services (DFACS) removed her from her mother’s custody and

initiated deprivation proceedings in juvenile court. The Stanfields’ petition for

adoption sought the involuntary termination of the parental rights of both

Alizota and S. K.’s biological mother.

      Previously, on January 22, 2010, the Juvenile Court of Fayette County

had adjudicated S. K. deprived as to her mother on the grounds of neglect, lack

of proper parental care and supervision, and drug use. Thereafter, Alizota, S.

K.’s biological father, filed a petition to legitimate her which the juvenile court

granted in March 2010. Subsequently, however, both Alizota and S. K.’s

mother consented to non-reunification, prompting DFACS to move for non-

reunification with relinquishment of custody before the juvenile court. See

OCGA § 15-11-58 ( i). Following a hearing, the juvenile court entered an order



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dated June 14, 2010, nunc pro tunc to April 15, 2010,1 finding, among other

things, that S.K. continued to be deprived and that Alizota had agreed to non-

reunification and to the relinquishment of custody to the Stanfields until S. K.

reached 18 years of age. Additionally, the order instructed DFACS to review

S. K.’s placement every 36 months as provided by OCGA § 15-11-58 (i) (2)

(A), and required Alizota to pay child support while allowing him supervised

visits with S. K. The order also provided Alizota the opportunity to obtain

unsupervised visits upon further order of the court.

      Evidence in the record shows Alizota completed parenting classes and,

between August 2010 and December 2010, participated in both supervised and

unsupervised visits with S. K. while remitting child support to the Stanfields.

Nonetheless, the Stanfields filed their petition for adoption seeking the

involuntary termination of his parental rights. Alizota answered the petition

challenging the Stanfields’ contentions that S. K. continued to be deprived as to

him and that termination of his parental rights was in S. K.’s best interest. He

asked that the petition for adoption be denied, and filed a counterclaim seeking

permanent custody of S. K. After a lengthy hearing, the superior court

      1
          This order was subsequently amended on August 18, 2010 to correct S. K.’s birthdate.

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terminated the parental rights of both biological parents and granted the

Stanfields’ petition for adoption. Alizota appealed, arguing that the evidence

was insufficient to support the trial court’s order.

       In its decision vacating the superior court’s order in this case, the Court

of Appeals correctly observed that in cases where the termination of parental

rights is sought in connection with a petition for adoption, superior courts have

concurrent jurisdiction with juvenile courts over termination proceedings.

OCGA § 15-11-28 (a) (2) ( C). See Alizota, 319 Ga. App. at 258.2 We disagree,

however, with the Court of Appeals’ conclusion that because the juvenile court

in this case previously had exercised jurisdiction over a deprivation action

involving Alizota and S. K. which culminated in the entry of a consent

agreement awarding temporary long-term custody to the Stanfields pursuant to


       2
          While the applicable statutory authority gives juvenile courts exclusive original
jurisdiction over deprivation actions and exclusive jurisdiction for the termination of parental
rights in most cases, superior courts have concurrent jurisdiction to terminate parental rights
when the termination is in connection with an adoption proceeding. See Ertter, 292 Ga. at 104-
105; OCGA § 15-11-28 (a) (2) ( C). We note, however, that under recent comprehensive
revisions to the Juvenile Code effective January 1, 2014, see Ga. L. 2013, p. 294, § 1/HB 242,
OCGA § 15-11-28 has been repealed, and the new statute addressing the juvenile court’s
jurisdiction, OCGA § 15-11-10 (2) (D), no longer refers to the superior court as having
concurrent jurisdiction in termination proceedings related to adoption, but provides instead that
the juvenile court’s exclusive original jurisdiction for the termination of parental rights “shall not
affect the superior court’s exclusive jurisdiction to terminate the legal parent-child relationship as
set forth in Chapters 6 through 9 of Title 19.” (Emphasis supplied.)

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OCGA § 15-11-58 (i), the doctrine of priority jurisdiction prevented the superior

court from exercising jurisdiction over a termination of parental rights

proceeding in conjunction with the Stanfields’ adoption petition.

      The doctrine of priority jurisdiction provides that where different tribunals

have concurrent jurisdiction over a matter, the first court to exercise jurisdiction

will retain it. See OCGA § 23-1-5;3 Ertter, 292 Ga. at 104. Invocation of the

doctrine requires both the existence of concurrent subject matter jurisdiction by

different courts, and the actual exercise of jurisdiction by one of the tribunals.

Here, although the juvenile court was the first tribunal to take personal

jurisdiction over S. K. for the deprivation action, it never took subject matter

jurisdiction over the termination of S. K.’s parents’ parental rights because no

petition for termination was ever filed in the juvenile court. See In the Interest

of C. M., 258 Ga. App. 387 (574 SE2d 433) (2002) (holding deprivation

proceedings and termination of parental rights proceedings are separate and

distinct). Nor was the deprivation case turned into a termination case by entry


      3
        OCGA § 23-1-5 states:
              Where law and equity have concurrent jurisdiction, whichever first
      takes jurisdiction shall retain it, unless a good reason shall be given for the
      interference of equity.

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of the juvenile court’s long-term temporary custody order under OCGA § 15-11-

58 (i) (1).4 See OCGA §§ 15-11-54 to 15-11-58.1 (setting forth procedures and

rules governing deprivation proceedings); OCGA §§ 15-11-93 to 15-11-106

(setting forth procedures and rules governing termination proceedings). The

juvenile code treats deprivation actions and termination actions separately, and

the fact that a juvenile court is authorized to decide in a deprivation proceeding

whether a “referral for termination of parental rights and adoption is not in the

best interest of the child” as required by OCGA § 15-11-58 (i) (1) is not the

same as being authorized to decide that the actual termination of parental rights

is or is not in a child’s best interests. Such a referral is not equivalent to filing

a termination petition. See OCGA § 15-11-94.

      This Court’s recent decision in Ertter is instructive as to the proper

application of priority jurisdiction in this case. In that case, the juvenile court

presiding over a deprivation action entered a long-term temporary custody order


      4
        OCGA § 15-11-58 (i) (1) provides:
              If the court has entered an order finding that reasonable efforts to reunify a
      child with his or her family would be detrimental to the child in accordance with
      subsection (h) of this Code section and if the court finds that referral for
      termination of parental rights and adoption is not in the best interest of the child,
      the court may, upon proper petition, enter a custody order which shall remain in
      effect until the child’s eighteenth birthday.

                                                6
pursuant to OCGA § 15-11-58 (i) which named the child’s grandmother as

custodian and was to remain in force until the child’s eighteenth birthday subject

to triennial reviews by the juvenile court.       See Ertter, 292 Ga. at 103.

Subsequently, the child’s aunt and uncle petitioned the superior court for

permanent custody, which was granted. Id. Similar to its reasoning in this case,

the Court of Appeals determined on appeal that through entry of the long-term

temporary custody order, the juvenile court had taken jurisdiction of essentially

all custody issues throughout the child’s minority and the superior court lacked

jurisdiction to hear a separate permanent custody action. Id. at 104. This Court

reversed, however, holding that



      [s]ince the superior court and the juvenile court did not have

      concurrent jurisdiction over the issue of permanent custody of the

      child, it was error for the Court of Appeals to rely on the principle

      of priority jurisdiction to hold that the superior court could not

      exercise jurisdiction of the Ertters’ petition for permanent custody

      of the child.



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Id. at 105. Additionally, this Court observed,

      [t]he juvenile court’s authority to place a child in the custody of a

      “willing” and “qualified” relative is not authority to award

      permanent custody of the child, as the latter is determined by

      discerning the best interests of the child and not the willingness or

      the qualifications of a person to take temporary custody of the child.



Id.

      Here, unlike in Ertter, the juvenile court potentially had concurrent

jurisdiction with respect to the issue of termination of parental rights. Id. at 104-

105. However, it is undisputed that a petition for termination of parental rights

had never been filed in the juvenile court in this case. Compare In the Interest

of J. C. W., 315 Ga. App. 566, 572 (727 SE2d 127) (2012). Moreover, the

Stanfields were not parties to the deprivation proceedings in the juvenile court

and were required to file their adoption petition in the superior court. See

OCGA § 19-8-2 (a).5



      5
       OCGA § 19-8-2 (a) provides:
             The superior courts . . . shall have exclusive jurisdiction in all matters of
      adoption, except such jurisdiction as may be granted to the juvenile courts.

                                                8
      As we find that the issue of termination of Alizota’s parental rights was

raised for the first time in conjunction with the Stanfields’ adoption petition, we

hold the doctrine of priority jurisdiction did not deprive the superior court of

jurisdiction over the termination proceeding in this case. Accordingly, we

reverse the judgment of the Court of Appeals and remand this case to that court

for consideration of Alizota’s appeal on the merits.

      Judgment reversed and case remanded. All the Justices concur.



                           Decided March 17, 2014.

      Certiorari to the Court of Appeals of Georgia – 319 Ga. App. 256.

      James B. Outman, for appellants.

      Justin B. Grubbs, for appellee.

      Hester & Hester, Justin Y. Hester, Sherriann H. Hicks, Julie A. Wilkes

Wisotsky, Kazmarek, Geiger & Laseter, Richard A. Horder, amici curiae.




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