SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, 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/
July 9, 2015
In the Court of Appeals of Georgia
A15A0295. IN THE INTEREST OF L. R. M., a child.
MILLER, Judge.
After the juvenile court found L. R. M. deprived, the paternal grandmother
filed a motion to intervene seeking custody of and visitation with the child. The
juvenile court denied the grandmother’s motion to intervene, and she appeals,
contending that the juvenile court erred in denying her motion because she had an
absolute right to intervene under OCGA § 19-7-3 (b) (1), the Grandparent Visitation
Statute. The grandmother also contends that the trial court erred in denying her
motion on the merits because it applied the wrong legal standard and failed to
consider the best interests of the child. For the reasons that follow, we affirm.
“On appeal, we review the evidence in the light most favorable to the juvenile
court’s order.” (Citation omitted.) In the Interest of S.K., 248 Ga. App. 122 (545 SE2d
674) (2001).
So viewed, the evidence shows that L. R. M. was born in June 2012 and lived
with his mother and father1 at the paternal grandmother’s house. In May 2013, after
the father was incarcerated for possession of methamphetamine and theft, L. R. M.
continued to live with his mother at the grandmother’s house. During this time, the
grandmother cared for the child and provided financial assistance to pay for the
child’s day care, diapers, and food.
In July 2013, the Division of Family and Children Services (“DFCS”) filed a
deprivation petition against the mother, who had an active case plan for drug use and
inadequate supervision, alleging that the mother had unresolved substance abuse
problems and was inadequately supervising her children, including L. R. M. In
August 2013, the juvenile court entered an emergency order authorizing DFCS to
remove the children from the grandmother’s home and granting temporary custody
1
At the time proceedings were commenced, the father was listed as the putative
father of L. R. M., but he legitimated the child in February 2014.
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to DFCS. DFCS then placed L. R. M. and his siblings in the home of a maternal
sister.
In October 2013, the juvenile court found that L. R. M. was deprived based on
the mother’s substance abuse problem and the mother’s and the incarcerated father’s
inability to provide adequate supervision, housing, and support for the child. The
juvenile court ordered DFCS to develop a case plan to reunite L. R. M. with the
mother. The mother’s case plan required her to, among other things, obtain a
substance abuse assessment, complete a drug treatment program, remain drug free for
six months, submit to random drug screens, obtain stable housing and income, pay
child support, and attend all scheduled visits.2
Following L. R. M.’s removal from her home, the grandmother was allowed
two hours of supervised visitation every other week. By February 2014, the
grandmother was allowed to have overnight visits, and she was aware that she was
not to allow the mother to have unsupervised visits with L. R. M. In April 2014,
however, DFCS terminated her unsupervised visits because of concerns that the
grandmother was allowing the mother to have unsupervised visits with L. R. M., and
2
As part of his case plan goals, the father was required to obtain stable housing
and attend visitation upon his release from confinement.
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because the mother had been arrested. Regarding the mother’s arrest, the evidence
showed that the mother was arrested on an outstanding bench warrant during a drug
bust while in the company of the grandmother’s other son, who had been recently
released from prison. The mother was in jail for approximately 15 days, and after her
release, she was arrested a second time for disorderly conduct.
Around that time, the grandmother filed the instant motion to intervene,
seeking visitation and custody of L. R. M. under OCGA § 19-7-3. The juvenile court
held a hearing on the grandmother’s motion. During the hearing, the mother testified
that she wanted the grandmother to have custody of L. R. M. until she could regain
custody, provided that she was able to visit the child. The mother admitted that since
her children were removed, she had not attended an inpatient drug treatment program
as recommended. The evidence also showed that the grandmother worked as a truck
driver, and that she took care of her disabled mother who lived with her. Although the
mother and grandmother both claimed that they had not lived together since August
2013, other evidence showed that the mother had been living with the grandmother.
The DFCS case manager testified that L. R. M. was doing well in his current
placement, and she did not want to separate him from his siblings. The case manager
also had concerns about L. R. M. living with the grandmother because she allowed
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her adult children and L. R. M.’s mother to have access to the house and the
grandmother’s children and the mother were not positive influences and might expose
L. R. M. to criminal activity. The case manager, however, was amenable to resuming
unsupervised visitations after a period of supervised visitation.
Following the hearing, the juvenile court denied the grandmother’s motion to
intervene, finding that OCGA § 19-7-3 does not provide an unconditional right to
intervene, allowing permissive intervention would prejudice the adjudication of the
case, and placing L. R. M. outside the custody of DFCS would impede the case plan
to reunify the children. The juvenile court also denied the grandmother’s request for
visitation because she had no right to visitation and she failed to establish that the
health or welfare of L. R. M. would be harmed unless visitation was granted or that
the child’s best interest would be served by visitation. The juvenile court provided,
however, that DFCS was authorized, but not required, to offer visitation to the
grandmother. This appeal followed.
1. Before addressing the merits of the grandmother’s enumerations of errors,
we must address whether we have jurisdiction to consider this direct appeal. See
Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 161 (701 SE2d 599) (2010)
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(“[A]n appellate court has a duty to raise the question of jurisdiction in all cases
where there may be doubt about its existence.”) (citations omitted).
Generally, the denial of a motion to intervene is not a final judgment and thus,
is reviewable under the interlocutory appeal procedure. See Davis v. Deutsche Bank
Nat. Trust Co., 285 Ga. 22, 23 (673 SE2d 221) (2009). Pleadings and motions,
however, are construed according to their substance and function and not merely by
nomenclature. See Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220
(633 SE2d 623) (2006).
In this case, the grandmother filed her motion to intervene seeking custody and
visitation under OCGA § 19-7-3 after the juvenile court entered its deprivation order
in which it gave DFCS temporary custody of L. R. M. Under OCGA § 5-6-34 (a)
(11), a direct appeal is authorized from”[a]ll judgments or orders in child custody
cases awarding, refusing to change, or modifying child custody or holding or
declining to hold persons in contempt of such child custody judgment or orders[.]”
This Court has held that orders resulting from petitions for grandparent visitation and
custody are directly appealable under OCGA § 5-6-34 (a) (11). See, e.g., Hargett v.
Dickey, 304 Ga. App. 387, 388 (1) (696 SE2d 335) (2010); see also In the Interest of
J.N., 302 Ga. App. 631, 634 (1) (691 SE2d 396) (2010) (a juvenile court’s order
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denying a motion seeking a custody modification based on changed circumstances in
a deprivation matter was a final directly appealable judgment under OCGA §§ 5-6-34
(a) (1) and 15-11-3). Since the trial court denied the grandmother’s petition for
custody and visitation, the denial of the grandmother’s motion is directly appealable.
2. The grandmother contends that the trial court erred in ruling that she did not
have an unconditional right to intervene under OCGA § 19-7-3 (b). Pretermitting
whether the juvenile court erred in ruling that the grandmother did not have a right
to intervene, the grandmother has failed to establish reversible error. Notably,
although the juvenile court technically denied her motion to intervene, the juvenile
court held a hearing in which the grandmother was allowed to present evidence in
support of her request for visitation and custody, and it fully considered the merits of
her claims before denying her motion. See O’Neal v. Oxendine, 237 Ga. App. 171,
177 (3) (514 SE2d 908) (1999) (no reversible error shown even though trial court
denied petitioner’s motion to intervene, because petitioner was nevertheless allowed
to participate in hearing).
As to the merits of her motion, the grandmother has failed to show that the trial
court erred in denying her request for visitation and custody. The grandmother
contends that the trial court erred because, in determining that the health and welfare
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of L. R. M. would not be harmed by the lack of visitation under OCGA § 19-7-3 (c),
the trial court failed to consider the fact that L. R. M. lived with the grandmother, the
grandmother provided financial support, and the grandmother established a pattern
of regular care and visitation with the child. The grandmother also contends that the
trial court ignored provisions of OCGA § 19-7-3 (c) and (d) requiring the trial court
to give deference to the parents’ wishes that the grandmother have visitation.
The decision to grant or deny a grandparent’s petition for visitation is within
the discretion of the trial court, and we will affirm the court’s decision absent an
abuse of that discretion. See Srader v. Midkiff, 303 Ga. App. 514, 516 (1) (693 SE2d
856) (2010). Where there is any evidence to support the trial court’s ruling, we cannot
say there was an abuse of discretion. See Vines v. Vines, 292 Ga. 550, 552 (2) (739
SE2d 374) (2013).
Under OCGA § 19-7-3 (c), a trial court may grant visitation rights to a
grandparent if the court finds that the health and welfare of the child would be
harmed unless visitation is granted,3 and if the best interests of the child would be
3
In considering whether the health or welfare of the child would be
harmed without such visitation, the court shall consider and may find
that harm to the child is reasonably likely to result where, prior to the
original action or intervention:
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served by such visitation. Although the grandmother argues that subsection (c)
applies, the more pertinent standard governing this case is set forth in subsection (d)
because the father was incarcerated.
Under OCGA § 19-7-3 (d),
if one of the parents of a minor child dies, is incapacitated, or is
incarcerated, the court may award the parent of the deceased,
incapacitated, or incarcerated parent of such minor child reasonable
visitation to such child during his or her minority if the court in its
discretion finds that such visitation would be in the best interests of the
child. The custodial parent’s judgment as to the best interests of the
child regarding visitation shall be given deference by the court but shall
not be conclusive.
OCGA § 19-7-3 (d).
(A) The minor child resided with the grandparent for six months or
more;
(B) The grandparent provided financial support for the basic needs of
the child for at least one year;
(C) There was an established pattern of regular visitation or child care
by the grandparent with the child; or
(D) Any other circumstance exists indicating that emotional or physical
harm would be reasonably likely to result if such visitation is not granted.
OCGA § 19-7-3 (c).
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In this case, although the trial court was required to give some deference to the
mother’s desire to let the grandmother have custody and visitation, the mother’s
judgment about the best interests of L. R. M. was not conclusive, and the trial court’s
rejection of the mother’s request was supported by the evidence presented at the
hearing. That evidence showed that DFCS took L. R. M. into custody while the child
was living with the grandmother and mother, and there is some evidence that the
mother continues to live with the grandmother despite their protestations otherwise.
The conditions precipitating DFCS’s involvement have remained, as the mother has
not made any progress with her DFCS case plan, continues to use drugs, and has
failed to attend a drug treatment program. Additionally, the grandmother knew that
the mother was not allowed to have unsupervised visitation with L. R. M., yet the
grandmother ignored this restriction and allowed the mother to have such visitation
while L. R. M. was in the grandmother’s care. Finally, the DFCS case manager was
concerned about having L. R. M., who was doing well in his current placement, live
with the grandmother because the grandmother allowed the mother, who had
unrehabilitated substance abuse issues, to have access to her house. In light of these
circumstances, there was no abuse of discretion in denying the grandmother’s request
for custody and visitation.
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Judgment affirmed. Andrews, P. J., and Branch, J., concur.
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