JEWELL v. MCGINNIS Et Al.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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

May 15, 2018

In the Court of Appeals of Georgia
A18A0575. JEWELL v. MCGINNIS et al.

MCMILLIAN, Judge.

This long-running custody case between the mother and the child’s paternal

grandparents is now before this Court for the third time. In Jewell v. McGinnis, 333

Ga. App. 108 (775 SE2d 539) (2015) (“Jewell I”), this Court vacated and remanded

the trial court’s order granting joint legal custody of C. M. to her mother and

grandparents and directed the trial court to make the factual findings required under

OCGA § 19-7-1 (b.1). On remand, the trial court entered a new order that contained

factual findings and again granted joint legal custody to the mother and grandparents.

The mother again appealed, and in Jewell v. McGinnis, 341 Ga. App. 896 (802 SE2d

306) (2017) (“Jewell II”), this Court reversed and remanded the trial court’s order

pursuant to our Supreme Court’s opinion in Stone v. Stone, 297 Ga. 451, 455 (774
SE2d 681) (2015), which held that Georgia statutory law only permits joint legal

custody arrangements between parents.

On remand, the trial court issued a new custody order, awarding sole legal and

physical custody of C. M. to her grandparents (the “Third Final Order”). The mother

once more appeals, asserting that the trial court erred in (1) considering evidence not

before the Court; (2) awarding custody to non-parent third parties where the evidence

was insufficient to conclude that parental custody would cause physical or long-term

emotional harm to C. M.; (3) failing to make specific factual findings as to parental

fitness or unfitness in its final order; and (4) failing to incorporate a permanent

parenting plan pursuant to OCGA § 19-9-1. For the reasons that follow, we reverse.1

Viewing the evidence in the light most favorable to the trial court’s decision,

Strickland v. Strickland, 298 Ga. 630, 633-34 (1) (783 SE2d 606) (2016), the record

shows that C. M.’s parents divorced in 2013 when she was five years old. Her mother

and father were awarded joint legal custody, with the father awarded primary physical

1
Although the grandparents allege that this Court lacks jurisdiction over this
appeal because the mother’s motion for contempt remains pending below, under
OCGA § 5-6-34 (a) (11), “[a]ll judgments or orders in child custody cases awarding,
refusing to change, or modifying child custody” are directly appealable. See
Froehlich v. Froehlich, 297 Ga. 551, 554 (2) (775 SE2d 534) (2015) (OCGA § 5-6-34
(a) (11) authorizes immediate appeal without requiring compliance with interlocutory
appeal procedures).

2
custody. In April 2014, the mother filed a complaint for emergency relief in the

Superior Court of Newton County seeking modification of C. M.’s physical custody

due to the father’s incarceration on felony charges. That same day, C. M.’s paternal

grandparents filed an emergency motion for custody. The trial court consolidated the

two cases and, following a hearing, entered an order granting temporary custody of

C. M. to the grandparents until the end of the school year, with custody alternating

between the mother and grandparents on a weekly basis after the school year ended.2

In July 2014, the parties appeared for a final custody hearing. In August 2014,

the trial court entered its first final order awarding primary physical custody of C. M.

to the grandparents and joint legal custody to the mother and grandparents with

specific visitation rights for the mother. In Jewel I, this Court remanded the case with

direction to the trial court to make the required findings of fact and incorporated

permanent parenting plan. On remand, the trial court issued its second final order,

dated July 18, 2016, nunc pro tunc to its first final order issued on August 1, 2014,

this time with factual findings and again granting joint legal custody of C. M. to the

mother and grandparents with primary physical custody awarded to the grandparents.3

2
The father was barred from any contact with C. M.
3
The mother was also awarded visitation pursuant to the parenting plan.

3
 In support of its order, the trial court focused on four areas of concern. First,

it credited the testimony of Kelly Dodson, an associate professional counselor, who

testified that C. M. has a strong bond with her grandparents and loves staying with

them but exhibited apprehension when asked about her mother. Based on her

observations, Dodson opined that C. M. was “struggling” with the alternating weeks

between her grandparents and her mother and that it would not be good for C. M. to

be removed from her school in the grandparents’ school district. The trial court also

noted that Dodson would not be able to continue her counseling with C. M. if she

were moved from her grandparents’ home.

Second, the grandparents presented evidence that the mother had posed for

“sexually provocative” photographs of herself with various firearms to be used as

advertising for her husband’s business and that the mother lived with her husband for

years before they were married. Third, the grandmother testified that one time C. M.

returned to her home with cuts and bruises, which C. M. told her happened when she

got pulled down while trying to find the owner of a lost dog in her mother’s

neighborhood. And finally, the grandmother complained that C. M. had gained 15 to

20 pounds since the time of the previous hearing.

4
 On remand from Jewell II, the grandparents moved to reopen the evidence, and

the mother objected to any further hearing or introduction of evidence. The trial court

set a hearing but refused to hear any new evidence. Following a hearing “to determine

the procedural posture of the case and to move forward with proceedings consistent

with the Court of Appeals’ opinion,” the trial court entered its Third Final Order,

awarding the grandparents both legal and primary physical custody of C. M., with the

mother to have visitation pursuant to the parenting plan set forth in its initial final

order entered in August 2014. This appeal followed.

1. We turn first to the mother’s assertion that there was insufficient evidence

to award custody of C. M. to the grandparents. At the outset, we emphasize that a

parent’s “right to the custody and control of one’s child is a fiercely guarded right that

should be infringed upon only under the most compelling circumstances.” (Citation

and punctuation omitted.) In the Interest of K. M., __ Ga. App. __ (1), Case No.

A17A1747, 2018 Ga. App. LEXIS 147, at *13 (1) (March 1, 2018). Custody disputes

between a parent and close third-party relatives, including grandparents, are governed

by OCGA § 19-7-1 (b.1). A mother may lose custody of her child to a grandparent

only “if the court hearing the issue of custody, in the exercise of its sound discretion

and taking into consideration all the circumstances of the case, determines that an

5
award of custody to such third party is for the best interest of the . . . child[] and will

best promote [her] welfare and happiness.” OCGA § 19-7-1 (b.1).

This finding must be supported by clear and convincing evidence, and under

Georgia law, the standard of clear and convincing evidence is “an intermediate

standard of proof which is greater than the preponderance of the evidence standard

ordinarily employed in civil proceedings, but less than the reasonable doubt standard

applicable in criminal proceedings.” (Citation and punctuation omitted.) In the

Interest of K. M., 2018 Ga. App. LEXIS 147, at *18-19 (2). A trial court’s “preference

that custody of a child remain with someone other than her natural parents is wholly

without consequence where the court lacks clear and convincing evidence to support

that decision.” (Citation and punctuation omitted.) Id.

When a third party, such as the grandparents in this case, challenges a natural

parent’s right to custody of his or her child, the challenging party must overcome

three constitutionally based presumptions in favor of parental custody: “(1) the parent

is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her

child, and (3) the child’s best interest is to be in the custody of a parent.” (Citation

and punctuation omitted.) In the Interest of K. M., 2018 Ga. App. LEXIS 147, at *14

(1). And the best interest of the child standard requires the third party to show that

6
parental custody would harm the child in order to rebut these presumptions in favor

of the parent. Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001). Harm in

this context has been defined as either physical or significant, long-term emotional

harm, not merely social or economic disadvantages. Brawner v. Miller, 334 Ga. App.

214, 217 (1) (778 SE2d 839) (2015). Thus, under Georgia law,

[t]he focus of such a determination of unfitness must be the parent’s
ability to provide for the children in a manner sufficient to preclude the
need for an entity of the government to intervene and separate the
children from the parent, and a court is not permitted to terminate a
parent’s natural right to custody merely because it believes that the
children might have better financial, educational, or moral advantages
elsewhere, that is, the parent’s ability to raise [her] children is not to be
compared to the fitness of a third person.

(Citation and punctuation omitted.) Floyd v. Gibson, 337 Ga. App. 474, 476-77 (1)

(788 SE2d 84) (2016). In addressing harm with respect to determining custody, the

trial court should consider a variety of factors, including:

(1) who are the past and present caretakers of the children; (2) with
whom have the children formed psychological bonds and how strong are
those bonds; (3) have the competing parties evidenced interest in, and
contact with, the children over time; (4) do the children have unique
medical or psychological needs that one party is better able to meet.

7
(Citations omitted.) Floyd, 337 Ga. App. at 477-78 (1).

We are mindful that “[i]n the appellate review of a bench trial, a trial court’s

factual findings must not be set aside unless they are clearly erroneous.” Strickland

v. Strickland, 298 Ga. 630, 633 (1) (783 SE2d 606) (2016). However, even accepting

each of the trial court’s factual findings as true, and although it is clear that the trial

court intended to act in the best interest of the child, the trial court was not authorized

to conclude that the grandparents had demonstrated by clear and convincing evidence

that an award of custody to the mother would cause either physical harm or

significant, long-term emotional harm to C. M. See Floyd, 337 Ga. App. at 478 (third

party required to show by clear and convincing evidence that the child will suffer

physical or emotional harm if custody were awarded to parent, not that harm may

result).

We will address each of the trial court’s factual findings in turn. Although

Dodson, who had met with C. M. only four times for an hour each and did not meet

or speak with the mother or visit the mother’s home, “expressed great concern as to

what would happen if [C. M.] were to be removed from the [grandparents’] home,”

she offered no evidence that C. M. would experience physical or emotional harm in

the mother’s home. In fact, Dodson admitted that she is not sure whether C. M. would

8
exhibit the same signs of apprehension or anxiety if she were to live with her mother

full time and that she was not opining that the mother is an unfit parent. She also

conceded that she cannot say the mother is unable to provide stability for C. M., only

that she believed C. M. is “most stable” with her grandparents. However, this is

precisely the sort of comparison trap that trial courts are not permitted to fall into.

See, e.g., Floyd, 337 Ga. App. at 476-77 (1) (parent’s ability to raise her child is not

to be compared to the fitness of a third person).

With respect to C. M.’s counseling services, Dodson confirmed that her

employer does provide counseling in the county where the mother lives and that C.

M. could continue her counseling there, albeit with a different counselor. And at no

point did Dodson, or anyone else, testify that changing schools or counselors would

subject C. M. to physical or significant, long-term emotional harm. Our Supreme

Court has explained that, “a change in home and school will often be difficult for a

child, but some level of stress and discomfort may be warranted when the goal is

reunification of the child with the parent.” Clark, 273 Ga. at 598 (IV). See also Bell

v. Taylor, 334 Ga. App. 267, 269 (779 SE2d 42) (2015) (this type of harm falls within

level of stress and discomfort that is an acceptable price for reuniting a child with her

parent and insufficient to infringe fiercely guarded rights of a parent).

9
 Turning to the “provocative” photographs, in which the mother was clothed in

lingerie posing with various firearms, there is no evidence that C. M. had seen any of

the photographs or experienced any distress or harm related to the photographs.4 And

although the trial court’s order referenced “boastfully promiscuous” statements made

by the mother on social media, there was no evidence of any such statement admitted

at the hearing and no evidence that C. M. had read or been exposed to any

inappropriate statements.5 The trial court was also troubled by the fact that the mother

lived with her boyfriend in a “meretricious relationship” before they married in June

2014. Again, however, there is no evidence that C. M. had been negatively affected

by her mother’s relationship in any way. Under Georgia law, a parent’s cohabitation

with someone is not a basis for denying custody or visitation absent evidence that the

child was harmed or exposed to inappropriate conduct. See, e.g., Arnold v. Arnold,

275 Ga. 354, 354 (566 SE2d 679) (2002); Brandenburg v. Brandenburg, 274 Ga. 183,

184 (1) (551 SE2d 721) (2001).

4
The trial court speculated that some day C. M.’s peers might see the
photographs and tease her about them.
5
The only reference to such a statement was in a hypothetical question posed
to Dodson.

10
 In addressing C. M.’s “rapid weight gain,” the trial court acknowledged that

no witness could identify the cause. And there was no evidence presented as to the

child’s current height, weight, or whether the weight gain was physically or

emotionally causing her harm. And finally, the trial court found that C. M. had

sustained admittedly “relatively minor” cuts and bruises while trying to find a dog’s

owner in the neighborhood, “all while unsupervised.” However, there was no

evidence presented that C. M. was not being supervised at the time she received those

minor injuries. And there was no evidence that C. M. had experienced any other

injuries while in the mother’s care or that the mother otherwise left C. M.

unsupervised. The evidence presented at the hearing was wholly insufficient to

support a finding by clear and convincing evidence that awarding custody to the

mother would cause either physical or significant, long-term emotional harm to the

child. Accordingly, the trial court’s judgment is reversed and the case is remanded

with direction for the trial court to enter a custody award in favor of the mother. See

Bell, 334 Ga. App. at 269.

11
 2. Based on our holding in Division 1, the mother’s remaining enumerations

of error are moot.

Judgment reversed and case remanded. Barnes, P. J., and Reese, J., concurs

fully and specially.

12
 A18A0575. JEWELL v. MCGINNIS et al.

BARNES, Presiding Judge, concurring fully and specially.

I concur fully with the majority that the evidence fell short of satisfying the

applicable standard enunciated in Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001),

where our Supreme Court held that “the best interest standard in the parent-third party

custody statute [requires] the third party [to] prove by clear and convincing evidence

that the child will suffer physical or emotional harm if custody were awarded to the

biological parent.” Id. at 599 (V), construing OCGA § 19-7-1 (b.1). I write separately

only to emphasize that each case turns on its particular facts, and proper application

of that standard in future cases may appropriately place custody of children with third

parties. See, e. g., Strickland v. Strickland, 298 Ga. 630 (783 SE2d 606) (2016).

I am authorized to state that Reese, J., concurs in this special concurrence.