Belliveau v. Floyd
| Decision Date | 18 May 2021 |
| Docket Number | A21A0505 |
| Court | Georgia Court of Appeals |
| Parties | BELLIVEAU et al. v. FLOYD. |
Michael Eric Manely, Marietta, David Benton Purvis, Gainesville, for Appellant.
Judson Frank Smith Jr., Jennifer Nicole Brownell Brownell, for Appellee.
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 delegitimate 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 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 legitimate a child. Instead, they concern mothers seeking to delegitimate the child's legal father.9 In any event, to the extent those cases are in conflict with OCGA § 19-7-22 (h), they have been abrogated by that statute. Suffice it to say, if the words of a statute are "plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words."10 We are bound, then, to follow the plain language of OCGA § 19-7-22 (h), which permitted the court to order genetic testing in determining whether Floyd, rather than Daniel, was the child's biological father.
2. The Belliveaus also argue that the trial court erred by delegitimizing Daniel and granting Floyd's legitimation petition based solely on initial pleadings, unproven allegations in briefs, and the GAL's written report. We agree.
Needless to say, when a statute (like this one) is in derogation of the common law, it "must be strictly construed."12 Indeed, if the words of a statute are "plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words."13
And here, there is nothing ambiguous about OCGA § 19-7-22 (d) (1) ’s requirement that a trial court may only declare a biological father's relationship with a child to be legitimate after a hearing for which notice was provided to all interested parties. And although the trial court mentions a hearing, in passing, at the outset of its order, it is undisputed that no evidentiary hearing was held regarding Floyd's legitimation petition. To the contrary, later in the court's order, it notes:
A final hearing was scheduled, but prior to evidence being presented, counsel for [the Belliveaus] requested the opportunity to brief the issue of terminating [Daniel's] parental rights and delegitimation of the minor child. As both sides have fully briefed the issue, the matter is now ripe for ruling."14
The trial court also specified that—in ruling on Floyd's legitimation petition—it had "take[n] into consideration the [GAL's] report that was filed in this case, as well as affidavits submitted by the parties ...." And the court's order does not say that it considered any testimony or evidence presented at a hearing.15 As a result, the court erred in granting Floyd's legitimation petition without first holding an evidentiary hearing.
Furthermore, Georgia Uniform Superior Court Rule ("USCR") 24.9 (6) sets forth the requirements for the admissibility of the GAL's report at a trial, and in relevant part, it states "the recommendations of the GAL are not a substitute for the court's independent discretion and judgment, nor is the report a substitute for the GAL's attendance and testimony at the final hearing , unless all parties otherwise agree."16 And because the trial court did not hold an evidentiary hearing, the GAL report served as a substitute for hearing testimony in violation of this rule. Also, contrary to USCR 24.9 (6), the Belliveaus were unable to use the GAL report for "direct evidence, impeachment evidence, or for any other purposes" at trial. Thus, the trial court erred by relying on the GAL's written report without holding a hearing, which the GAL could attend, testify, and be subject to cross-examination.
Lastly, it is unclear from the trial court's order that it applied the correct legal standard in determining whether legitimation is warranted. As recently explained by our Supreme Court, "unwed fathers possess an opportunity interest to develop a relationship with their children that is protected by due process of law."17 This opportunity interest "begins at conception and endures probably throughout the minority of the child[,] [b]ut it is not indestructible."18 Some factors which may support a finding of abandonment include, without limitation, "a biological father's inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child."19 And if the trial court concludes that the biological father has not abandoned this opportunity interest, it must also determine whether legitimation is in the best interests of the child.20
Here, the trial court's order states that "[t]he issue of abandonment is not before the [c]ourt at this time[,]" and it also found that, if it was, Floyd had not abandoned his right to seek legitimation of the child. But as detailed supra , the issue of whether a biological father has abandoned his opportunity interest in developing a relationship with his child is at issue in every case. Such a determination must be made, then, before the court considers whether legitimation is in the child's best interests. So, while the evidence might ultimately support the trial court's conclusion that Floyd has not...
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...350, 812 S.E.2d 270, 272 (2018)).56. 347 Ga. App. 861, 819 S.E.2d 535 (2018). 57. Brumbelow, 358 Ga. App. at 405, 855 S.E.2d at 425.58. 359 Ga. App. 475, 858 S.E.2d 763 (2021).59. Id. at 475, 858 S.E.2d at 764.60. Id.61. Id. at 475, 858 S.E.2d at 764 (citing Baker v. Baker, 276 Ga. 778, 779......