OCGA 15-11-40 Interpretation
The juvenile court's order denying the OCGA 15-11-40 (b) petition seeking modification based on changed circumstances in the best interest of the children was a final judgment directly appealable under OCGA 5-6-34 (a) (1) and 15-11-3.
In Rossi v. Price, 237 Ga. 651 (229 SE2d 429) (1976), the Supreme Court considered the juvenile court's denial of a petition brought under OCGA 15-11-40 (former Code Ann. 24A-2801) in a case where a juvenile adjudicated delinquent was committed to the custody of the Department of Juvenile Justice (formerly the Division of Children & Youth).
The petition sought pursuant to OCGA 15-11-40 (a) to vacate the commitment order on the basis of fraud and newly-discovered evidence. Id.
At issue was whether the superior court correctly denied the juvenile's subsequent petition for mandamus seeking to compel the juvenile court to hold a hearing on the OCGA 15-11-40 petition. Id. at 651-652.
The Supreme Court affirmed the superior court's denial of the petition for mandamus on the basis that the juvenile court's order denying the OCGA 15-11-40 petition to vacate the order committing the juvenile was a judicial order, subject to judicial review as provided by Code Ann. 24A-3801 currently codified at OCGA 15-11-3 (Ga. L. 1971, pp. 709, 755).
Where there is a right of judicial review of the act of a judicial officer, mandamus is not an available remedy to require him to perform his judicial function in a manner different from the way he has performed it. Id. at 652.