Following a deprivation hearing concerning A.N. and M.N., the juvenile court found both children to be deprived, and it awarded legal custody of the children to the Department of Family and Children Services DFACS. The juvenile court then ordered, however, that physical custody be given to the maternal grandparents. DFACS filed a motion for reconsideration of this ruling, arguing, among other things, that the juvenile court was statutorily prohibited from placing legal custody in DFACS and physical custody in another party of the court’s choosing. The juvenile court denied DFACS’ motion, finding that it had the statutory authority to place conditions and limitations on DFACS’ legal custody, including a limitation that physical custody of the child be placed in accordance with the court’s mandate. In the alternative, the juvenile court found that, even if OCGA § 15-11-58 and OCGA § 15-11-55 prevented it from dividing custody of a deprived child in this manner, these statutory provisions violated the Equal Protection Clause of the United States Constitution. DFACS now appeals the juvenile court’s rulings. It is a longstanding rule that a trial court may not order that legal and physical custody of a deprived child be divided between DFACS and some other party unilaterally chosen by the court. See, e. g., In the Interest of Tidwell , 279 Ga. App. 734 2 __SE2d__ 2006; In the Interest of C.A.C. , 239 Ga. App. 725 2 522 SE2d 236 1999; In the Interest of J.N.T. , 212 Ga. App. 498 441 SE2d 918 1994; In the Interest of A.V.B. , 267 Ga. 728 2 482 SE2d 275 1997; In the Interest of A.S. , 185 Ga. App. 11 2 363 SE2d 325 1987. Once legal custody of a deprived child has been granted to DFACS, any effort by the court to dictate placement of physical custody is “merely exhortatory and not binding.” Punctuation omitted. In the Interest of R.D. , 141 Ga. App. 843, 844 234 SE2d 680 1977. Despite the consistency of this case law, the juvenile court found that amendments made to OCGA § 15-11-55 in 2003 altered this well-settled precept. A review of the language of these statutes, including the 2003 revisions, construed in pari materia with OCGA § 49-5-3 12 A does not support this finding.
OCGA § 49-5-3 12 A and D state that the term “legal custody” encompasses the “right to have the physical possession of the child or youth” and the “right to determine where and with whom the child shall live.” It is well-settled that this definition of legal custody must be read in pari materia with those provisions of the Georgia Code relating to juvenile proceedings and the placement of deprived children. In the Interest of R.D. , supra, 141 Ga. App. At 843. Therefore, unless some provision in the juvenile code explicitly and expressly alters the nature of legal custody as expressed in OCGA § 49-5-3 12, the concept of legal custody must be interpreted to include the “right to determine where and with whom the child shall live.” OCGA § 49-5-3 12 D.
