In February 2022, the Georgia Court of Appeals released four custody-related opinions, and three other opinions relevant to family law.
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Custody-Related Cases Released in February 2022:
In the Interest of L-M. C. L., et al, Case No. A21A1474, Georgia Court of Appeals, February 7, 2022
The Mother’s four children were adjudicated dependent and placed in foster care due to Mother’s cocaine use and unsanitary home environment. Mother attempted to comply with the reunification plan, but she continued test positive for cocaine, and fail to provide for their support. Eventually, the Department filed a petition to terminate Mother’s parental rights. At trial, over the Mother’s objection, the court allowed her drug test results to be admitted into evidence under the business records exception. Following trial, the court entered an order terminating Mother’s parental rights. Mother appealed.
Affirmed. The trial court did not err by allowing the mother’s drug test results into evidence. Under O.C.G.A. §24-8-803(6), drug testing results found to be trustworthy are admissible if a person with personal knowledge and a business duty to report prepared the results at or near the time of the testing, and the testing and reported results are done in the regular course of, and as the regular practice of the business. It is not necessary for the person who prepared the document to testify regarding the foregoing. Rather, the business record may be tendered into evidence by the testimony of the custodian or other qualified witness, or by a written certification in compliance with O.C.G.A. §24-9-902(11) or (12).
If a parent’s substance abuse is the cause of the child’s dependency, O.C.G.A. §15-11-212(f), authorizes the trial court to require the parent to undergo treatment and provide negative drug screens for a twelve consecutive months before the child can be returned to the parent’s custody. Alternatively, the code section authorizes the trial court to require the parent to successfully complete a court sponsored treatment program. The weight to be given to evidence of Mother’s recent efforts to comply with some of the aspects of her case plan is for the trial court to decide, as it is best situated to judge her credibility and good intentions. Moreover, the trial court may consider Mother’s past chronic unrehabilitated cocaine use and other conduct in determining whether the causes of deprivation are likely to continue.
In the Interest of K.L., a child, Case No. A21A1233, Georgia Court of Appeals, February 11, 2022.
After K.L. and his half siblings were adjudicated dependent, they were ultimately placed in the custody of the half-siblings’ paternal relatives, the Stathams. The children’s Mother also signed a Consent Agreement placing the children in the Stathams’ temporary custody, but retaining certain parental rights. Eventually, the trial court granted custody of the half-siblings to the Stathams pursuant O.C.G.A. §19-7-1(b.1), noting that the statute did not authorize awarding custody of K.L. to a non-relative. Almost two years later, the Mother petitioned to have K.L. returned to her custody. The Stathams responded by petitioning for custody under O.C.G.A. §19-7-3.1, the equitable caregivers statute. The trial court found that it never had jurisdiction over K.L. in the dependency action, and thus, Mother legally had custody of K.L. The court also denied the Stathams’ petition seeking standing as an equitable caretaker. The Stathams appealed.
Affirmed. Subsection (d)(3) of O.C.G.A.§19-7-3.1, the equitable caregiver statute, required the Stathams to show, by clear and convincing evidence, that Mother “fostered or supported” their relationship with K.L., and she “understood, acknowledged or accepted that or behaved as though [the Stathams are parents] of the child.” The Stathams were unable to carry that burden. Rather, the consent agreement that Mother signed years earlier was only temporary, and provided for Mother regaining custody. Moreover, the evidence was that Mother was upset when the Stathams usurped her role as the parent. Additionally, the Stathams and Mother always made sure that K.L. knew that Mother is his parent. Accordingly, the trial court did not err in declining to find that the Stathams had standing to seek custody as equitable caregivers.
For background and recent Court of Appeals opinions regarding the Equitable Caregiver Statute, click here.
PRACTICE NOTE: Equitable caregiver cases can be difficult. Working through all of the detail can be stressful. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see what I can do to provide support and assistance in navigating through the difficulties, and obtaining a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
In the Interest of M.B., et al., children, Case No. A21A1348, Georgia Court of Appeals, February 11, 2022.
The trial court ordered the Mother of children who were adjudicated dependent to undergo a psychological evaluation. The evaluator testified that Mother had a consistent pattern of finding physical, psychological and academic problems with the children that were not corroborated by the professionals. The children were frequently absent from school. Additionally, one child was hospitalized 15 times. The expert concluded that Mother has Factitious Disorder Imposed on Another (FDIA), previously known as Munchausen Syndrome by Proxy. The trial court found that Mother’s condition has adversely affected the best interests of the children. Accordingly, the court placed the children in the temporary custody of DFCS, with Mother having supervised visitation. This appeal followed.
Affirmed. The record supports the trial court’s finding that Mother has FDIA that adversely affects the children’s best interests. The expert testified that FDIA is a mental illness wherein a person, often a parent, acts as if the person for whom they are caring has a physical or mental illness that the victim does not really have. The family in this case has five of the seven basic criteria to diagnose Mother with FDIA: 1) a history of hospitalizations of the children; 2) parental reports of worsening symptoms not seen in hospital stays; 3) a mismatch between reported conditions, symptoms and test results; 4) unusual illnesses or deaths of children; and 5) symptoms improve in the hospital, but re-occur at home. The remaining two criteria, not present here, are: 6) blood in lab samples not matching the child’s blood; and 7) chemicals in the child’s blood, stool or urine.
As in the instant case, a parent’s diagnosis of FDIA is harmful to the child, who is subjected to unnecessary medical procedures, hospitalization, hunger, potential malnutrition and psychological abuse. O.C.G.A. §15-11-32(b) provides that a juvenile court disposition may be changed, modified or vacated based on changed circumstances if, as in this case, it is in the best interests of the child.
Beckman v. Beckman, Case No. A21A1575, Georgia Court of Appeals, February 23, 2022.
After the Mother learned of Father’s extra-marital affair with Mother’s sister-in-law, the parties divorced. Their parenting plan provided for joint legal custody of their child, with Mother having primary physical custody, and Father having visitation rights. The parties also agreed to restrict the sister-in-law from having unsupervised contact with the child. After the divorce, Father resumed his relationship with the sister-in-law. They eventually married, and had a baby. Mother petitioned to expand the restriction to prohibit all contact between Father’s now-wife and the child. Father counterclaimed, seeking to remove the restriction, and allow unsupervised contact between his wife and the child. The trial court found that Father and his wife exhibited a lack of insight, poor judgment and character flaws by continuing their relationship despite the potential effects to the children. As such, the trial court granted Mother’s petition, and denied Father’s counterclaim. Father appealed.
Vacated and remanded with instruction. The evidence did not suggest that contact between Father’s wife and the child would harm or have adverse consequences for the child. Nor did the evidence indicate that Father and his wife engaged in inappropriate behaviors in the child’s presence. Instead, the evidence was that Mother had no concerns about contact between the child and Father’s wife before the extramarital affair, and Father’s wife has shared custody of her own daughters, with no restrictions. Moreover, the trial court cannot restrict the visitation based on mere speculative concerns about the potential effects of their relationship. Finally, it is the express policy of this State to encourage shared parenting rights and responsibilities. Accordingly, the trial court abused its discretion by placing unnecessarily burdensome limitations on Father’s visitation.
Related Family Law Cases Released in February, 2022:
Criminal Contributing to Dependency of a Minor
Bell v. State, Case No. A21A1215, Georgia Court of Appeals, February 18, 2022.
O.C.G.A. §16-12-1(b)(3) criminalizes contributing to the dependency of a minor when a defendant willfully acts, or fails to act, in a negligent manner that would cause a child to be adjudicated dependent and in need of the court’s protection, as defined by O.C.G.A. §15-11-2. Moreover, it is a felony if the violation resulted in the serious injury or death of the child. It is not a defense that the child has not actually been adjudicated dependent.
Parental Negligence vel non
Sowell et al. v. Solomon et al., Case No. A21A1720, Georgia Court of Appeals, February 22, 2022.
As a general rule, parents are not liable in damages for their minor children’s torts. Yet, a parent may be directly liable for their own negligence if s/he fails to properly supervise or control the child in activities that pose an unreasonable risk of harm to others. The test of parental negligence vel non is whether the parent, in the exercise of ordinary care, should have anticipated that harm would result from the child’s unsupervised activity. If so, the parent may be directly liable if s/he did not exercise proper care to guard against the harm.
Magnum Contracting, LLC, et al. v. Century Communities of Georgia, LLC, Case No. A21A1643, Georgia Court of Appeals, February 23, 2022.
The Arbitration Code, at O.C.G.A. §9-9-13(b), provides five grounds for setting aside an arbitration award. If none of the statutory grounds exist, the trial court is bound to confirm the award. Subsection (3) of the code section allows for setting aside an award if the arbitrator imperfectly executes its authority by significantly failing to fully address the issues. The arbitrator has some latitude in making an award as long as it is consistent with, and reflects the essence of the underlying contract. See also, King v. King, 354 Ga. App. 19 (2020). Indeed, an arbitrator may issue an award that a court otherwise could not. Moreover, an arbitration award may be set aside under Subsection (5) if the arbitrator intentionally and knowingly ignores the law. An arbitrator’s incorrect interpretation of the law, however, is not such a manifest disregard of the law that would justify setting aside the award.