Belliveau v. Floyd

• Decision Date: 18 May 2021
• Docket Number: A21A0505
• Citation: 858 S.E.2d 763
• Parties: BELLIVEAU et al. v. FLOYD.
• Court: Georgia Court of Appeals

858 S.E.2d 763

BELLIVEAU et al.
v.
FLOYD.

A21A0505

Court of Appeals of Georgia.

May 18, 2021

Michael Eric Manely, Marietta, David Benton Purvis, Gainesville, for Appellant.

Judson Frank Smith Jr., Jennifer Nicole Brownell Brownell, for Appellee.

Dillard, Presiding Judge.

858 S.E.2d 764

Evelyn and Daniel Belliveau¹ appeal the trial court's order granting Wendell Floyd's petition to legitimate his biological child (who was born during the Belliveaus’ marriage) and terminating Daniel's parental rights. In doing so, the Belliveaus argue that (1) they have standing to argue that genetic testing is not in the best interests of the child; (2) more than a putative father's biological connection with the child should be required to deligitimate a legal father; and (3) the trial court erred by not holding an evidentiary hearing on the matter. Because we agree that the trial court erred by failing to hold an evidentiary hearing, we vacate the trial court's order and remand for further proceedings consistent with this opinion.

In 2016, the Belliveaus separated, and during that time, Evelyn had a romantic relationship with Floyd.² According to Floyd, Evelyn never told him that she was married. On November 17, 2016, as a result of their extramarital relationship, Floyd and Evelyn had a child together. Floyd was with Evelyn in the hospital when the child was born, and he was listed as the child's father on the birth certificate. The couple also executed a paternity acknowledgment, which was notarized. Floyd and Evelyn lived together with their child until he was six months old, but eventually, the Belliveaus reconciled and they have raised the child together since that time. And while Evelyn promised Floyd that she would not keep the child away from him or his family, Floyd has not been allowed to see the child since June 16, 2017. Additionally, at some point after she left Floyd, Evelyn filed a petition to change the child's last name to Belliveau, and it was granted. And because the child was born during the Belliveaus’ marriage, Daniel was the child's legal father.³

On November 6, 2017, Floyd filed a petition to legitimate the child in the superior court, and initially, the case was transferred to the juvenile court. While in that court, a guardian ad litem ("GAL") was appointed and genetic testing was performed. The GAL submitted a written report, and the testing confirmed that Floyd is indeed the child's biological father. Then, on November 13, 2018, the case was transferred back to the superior court, which, under " OCGA § 15-11-10 (3) (D), [has] ... exclusive jurisdiction to decide termination of parental rights issues in legitimation cases."⁴ And while a final hearing on the legitimation petition was scheduled, one was never held. Ultimately, the trial court granted Floyd's petition and terminated Daniel's parental rights in the same order. Subsequently, the Belliveaus filed a motion for reconsideration, and among other things, they argued that the court erred in failing to hold an evidentiary hearing prior to terminating Daniel's parental rights. But the trial court denied that motion.⁵ This appeal follows.

We review a trial court's ruling on a legitimation petition for abuse of discretion,"⁶ but the court's factual findings are "reviewed for clear error and will be sustained only if there is competent evidence to support

858 S.E.2d 765

them."⁷ With these guiding principles in mind, we will now consider the Belliveaus’ claims of error.

1. The Belliveaus argue that the trial court erred in ordering genetic testing without determining whether it was in the best interests of the child. We disagree.

In making this claim of error, the Belliveaus ignore the plain language of OCGA § 19-7-22 (h), which provides, in part, that "[i]n determining the best interests of the child, the court should ensure that the petitioning alleged biological father is, in fact, the biological father and may order the mother, the alleged biological father, and the child to submit to genetic testing in accordance with Code Section 19-7-45." Indeed, their opening brief does not even mention this statute, which plainly states that genetic testing should be considered in determining the best interests of the child. Thus, genetic testing was necessary to prove that Floyd was, in fact, the child's biological father before the trial court could consider whether legitimation was in the best interests of the child.

Even so, rather than addressing the mandate in OCGA § 19-7-22 (h), the Belliveaus rely on cases decided well before July 1, 2016—the statute's effective date.⁸ But those cases do not involve a biological father seeking to...