THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 28, 2021
In the Court of Appeals of Georgia
A21A0483. BLACKWELDER v. SHUGARD et al.
REESE, Judge.
Ronald Blackwelder appeals from a Final Order and Decree of Legitimation
(“Final Order”) of the Superior Court of Burke County, which awarded sole custody
of three minor children to Appellee Debbie Dye, the children’s maternal grandmother.
Blackwelder argues that the trial court erred in awarding custody to a third party
absent clear and convincing evidence that the children would suffer physical or
emotional harm if awarded to him, the children’s biological father, and that the
custody determination was based on clearly erroneous factual findings. For the
reasons set forth infra, we disagree and affirm the Final Order.
The procedural history of this case spans more than five and a half years in the
court below. In June 2015, Blackwelder filed a petition for legitimation and custody
of two children, M. B. (born in 2011) and A. B. (born in 2013). In December 2015,
Appellee Krista Shugard gave birth to the parties’ third child, M. S.
In November 2017, Blackwelder filed a motion for an emergency hearing,
alleging that Shugard had allowed the children to excessively miss school; that she
appeared to be highly intoxicated, delusional, and incoherent when Blackwelder
would retrieve the children for visitation from her; and that her home was “filthy” and
appeared to be unsanitary and unsafe for the children. Following a hearing, the trial
court entered an Interim Order, awarding primary physical custody of the children to
Blackwelder.
The court found that Shugard had failed a hair follicle drug test after
intentionally falsifying a urine test to conceal her use of methamphetamines. Further,
the Division of Family and Children Services (“DFCS”) had intervened and
temporarily placed the children with Blackwelder.
Noting that Dye had appeared at the emergency hearing and asked for
grandparent visitation and/or custodial rights, the court added her as a second
defendant. The court found that the children had been continuously living in a mobile
home on Dye’s property, which was 200 feet away from where Dye lived. Upon
discovering Shugard’s illegal drug use, Dye had initiated dispossessory proceedings
2
to remove Shugard from the property. The court found that it would be harmful to the
children to prevent them from regular association with Dye and entered a parenting
plan allowing her visitation.
In June 2018, Dye filed a motion to modify and clarify the Interim Order and
for contempt, alleging that, since gaining custody of the children, Blackwelder had
shown himself to be an unfit parent, specifically with regard to a May 2018 incident
in which then-two-year-old M. S. had nearly drowned in a swimming pool and
regarding Blackwelder’s failure to communicate about the child’s injury, in violation
of the parenting plan. The court held a hearing and clarified the Interim Order but
deferred ruling on the contempt motion.
Shugard filed an amended verified answer and counterclaim, raising additional
allegations against Blackwelder and contending that she was drug-free and could
provide a stable home for the children. Following a hearing on February 14, 2019, the
court entered an order, awarding temporary custody to Dye as Blackwelder had failed
a drug test and was living with a woman to whom he was not married, contrary to the
best interests of the children.
The court held a status hearing six months later, and found that Blackwelder
had married and that he disputed the results of the February drug test. At the hearing,
3
the court instructed Blackwelder to bring in an expert witness to support his argument
that the positive result from the hair follicle drug screen was the result of
environmental exposure and not illegal drug use. The court also ordered the parties
to submit to another drug test that afternoon.
Following a final hearing held over three days in November and December
2019, the court entered its Final Order. The court found, inter alia:
[Blackwelder] has one other child, born prior to his relationship with
[Shugard]. He has no visitation rights with that child and no cognizable
relationship with him. He has a history of domestic violence against
those with whom he has shared a residence, including [Shugard]. While
drinking beer, and engaging in an angry barrage of text messages to
[Dye], he allowed the youngest child, [M. S.] (a toddler), to fall into a
pool within a few feet of him, and drown. When the other children
directed his attention to their drowned sister, he retrieved her from the
pool. Another adult administered CPR and to resuscitate [M. S.] and she
was hospitalized. [Blackwelder] then violated [the] Court’s prior order
requiring him to notify [Shugard] of any injury to, or hospitalization of,
any of the children.
The court made additional findings regarding, inter alia, Shugard’s unmanaged
significant mental health issues and her tumultuous episodes with her new husband.
The court found that the children had “spent significant periods of time in the home
4
of [Dye, who had] provided for their health and dental needs, as well as their
subsistence, education and nurturing.”
The court concluded that:
The procedural history of the case is reflective of the dynamics of the
lives of [Blackwelder] and [Shugard] which dynamics have directly
injured the children in controversy, presenting a real and present danger
of physical, emotional, psychological harm to the children if either of
said parties should be entrusted with unsupervised physical custody of
them. [Dye] is the only party who has shown that she offers the children
a continuously safe and healthful home environment.
Because the children “(have and) will suffer physical or emotional harm if custody
were awarded to either biological parent[,]” the court found that it was in the
children’s best interests to be placed in the sole custody of Dye. Blackwelder appeals
this order.
When reviewing an order in a child custody case, we view the
evidence in the light most favorable to the trial court’s decision. We will
not set aside the trial court’s factual findings if there is any evidence to
support them, and we defer to the trial court’s credibility determinations.
We review de novo, however, the legal conclusions the trial court draws
from the facts.1
1
Mashburn v. Mashburn, 353 Ga. App. 31, 32 (836 SE2d 131) (2019)
(citations and punctuation omitted).
5
With these guiding principles in mind, we turn now to Blackwelder’s claims of error.
1. Blackwelder argues that the trial court referred in the Final Order to the
meretricious relationship and the pool “incident,” but that there was no evidence that
any of the children had been harmed by his premarital cohabitation with his current
wife and the pool incident was an isolated event during the 17 months in which he
had custody. Blackwelder further argues that the trial court failed to make any
findings that his delay in notifying Shugard of the injury or his child support arrears
had caused the children any harm.
Custody disputes between a parent and close third-party relatives, including
grandparents, are governed by OCGA § 19-7-1 (b.1).2 A father may lose custody of
his 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 award of custody to such third party is for the best
interest of the . . . children and will best promote their welfare and happiness.”3 This
finding must be supported by clear and convincing evidence.4
2
Jewell v. McGinnis, 346 Ga. App. 733, 735 (1) (816 SE2d 683) (2018).
3
OCGA § 19-7-1 (b.1).
4
Jewell, 346 Ga. App. at 736 (1).
6
The “best-interest-of-the-child” standard of OCGA § 19-7-1 (b.1) “requir[es]
the third party to show that parental custody would harm the child to rebut the
statutory presumption in favor of the parent. Once this presumption is overcome, the
third party must show that an award of custody to him or her will best promote the
child’s health, welfare, and happiness.”5 Harm in this context means “either physical
harm or significant, long-term emotional harm[.]”6
Narrowly construing the statute, the Supreme Court of Georgia held in Clark
v. Wade:7
In considering the issues of harm and custody, trial courts should
consider a variety of factors that go beyond the parent’s biological
connection or present fitness to encompass the child’s own needs. These
factors should include: (1) who are the past and present caretakers of the
child; (2) with whom has the child formed psychological bonds and how
strong are those bonds; (3) have the competing parties evidenced interest
in, and contact with, the child over time; and (4) does the child have
unique medical or psychological needs that one party is better able to
meet. An analysis of these factors, keeping in mind the statutory
presumption of parental custody, will enable courts to award custody to
5
Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001).
6
Id.
7
273 Ga. at 587-588.
7
a third-party relative only when a real threat of harm would result from
parental custody.8
The trial court’s order explicitly addressed the Clark v. Wade factors.
Specifically, the court noted Blackwelder’s history of domestic violence and M. S.’s
near-drowning, which occurred while Blackwelder was engaged in an angry barrage
of text messages to Dye. The court concluded that, by clear and convincing evidence,
the children would suffer physical or emotional harm if custody were awarded to
either biological parent.
The record supports the trial court’s findings that Dye had provided significant
care for the children and that a real threat of harm would occur if custody were
awarded to Blackwelder. We find no clear error.9
2. Blackwelder also contends that there was no evidence to support the trial
court’s findings that he had habitually failed to keep doctors’ appointments for the
8
Id. at 598-599 (IV) (footnotes omitted); cf. Bell v. Taylor, 334 Ga. App. 267,
269 (779 SE2d 42) (2015) (reversing award of custody to grandmother because the
type of harm noted by the trial court fell “within that level of stress and discomfort
that is an acceptable price for reuniting a child with a parent, and is insufficient to
infringe the fiercely guarded right of a parent to have legal and physical custody of
his or her child”).
9
See Jewell, 346 Ga. App. at 737 (1).
8
children and that, after failing a drug test, he refused to submit to a subsequent, court-
ordered drug test.
In fact, there is some evidence to support these findings.10 Dye testified that
Blackwelder did not take M. S. for a scheduled follow-up appointment after her near-
drowning and overnight hospitalization. Further, there was evidence disputing
Blackwelder’s testimony that the lab was closed when he tried to get the court-
ordered drug test. We defer to the trial court’s credibility determinations.11
As discussed in Division 1, supra, the record supports the trial court’s findings
that there was clear and convincing evidence that the children would suffer physical
and emotional harm if placed with Blackwelder, and that an award of custody to Dye
would best promote the children’s welfare and happiness.12 Accordingly, we affirm
the Final Order.
Judgment affirmed. Doyle, P. J., and Brown, J., concur.
10
See Mashburn, 353 Ga. App. at 32.
11
See id.
12
See Harris v. Snelgrove, 290 Ga. 181, 182-183 (2) (718 SE2d 300) (2011).
9