Blackburn v. Blackburn

• Decision Date: 29 June 1982
• Docket Number: No. 38561,38561
• Citation: 249 Ga. 689,292 S.E.2d 821
• Parties: Kathleen BLACKBURN v. Nancy BLACKBURN.
• Court: Georgia Supreme Court

Page 821

292 S.E.2d 821

249 Ga. 689

Kathleen BLACKBURN v. Nancy BLACKBURN.

No. 38561.

Supreme Court of Georgia.

June 29, 1982.

Rehearing Denied July 21, 1982.

Ozell Hudson, Augusta, Mary Carden, Gainesville, William J. Cobb, John L. Cromartie, Jr., Atlanta, for appellant.

Robert Sims Lanier, Statesboro, for appellee.

GREGORY, Justice.

This case involves a dispute for custody of a minor child between the child's natural mother and his paternal grandmother.

Appellant was divorced from appellee's son in July, 1979. Under the terms of the separation agreement, appellant received custody of the only child of the marriage, Nicholas Evans Blackburn. In May, 1981 appellant gave birth to an illegitimate daughter. On June 25, 1981 appellee filed a petition for change of custody ¹ in Jenkins Superior Court, seeking legal custody of Nicholas Blackburn on the grounds that appellant had failed to provide necessities for the child; that appellant "frequently" left the child unattended; and that appellant "has been a lewed person" who "has given birth to an illegitimate, racially mixed child" since she was granted custody of Nicholas Blackburn. On the same day the trial court issued an ex parte order giving appellee temporary custody of Nicholas Blackburn. On November 2, 1981 following a hearing and the submission of briefs by the parties, the trial court awarded permanent custody of the child to appellee, finding by "clear and convincing evidence [that appellant] has surrendered her right to custody of the child." In its order the trial court found that appellant "has failed to provide adequate supervision, moral guidance and medical attention as are necessary for the child's well-being and the [appellant] has given birth to an illegitimate female child while in custody of ... Nicholas Evans Blackburn has become an unfit custodian of Nicholas Evans Blackburn." In an addendum to this order, filed February 15, 1982, the trial court specified that its original finding of appellant's unfitness was based on the following facts: (1) appellant had sexual intercourse with a man to whom she was not married; from this relationship was born an illegitimate daughter; (2) appellant "took the child out in her car at 1:00 or 2:00 in the morning"; (3) when appellant worked in a hospital cafeteria the child was left to play on the floor; and (4) "the child was not growing or increasing in weight."

Appellant's application for discretionary appeal was denied by the Court of Appeals. We granted certiorari to consider "whether there was clear and convincing evidence (exclusive of the issue of race) of the natural mother's unfitness as a parent, which authorized the termination of her custody of her legitimate child."

(1) At the hearing on the petition for change of custody, appellee testified that on one occasion she had visited Nicholas while he was in appellant's custody, and found him playing with other children in the parking lot of appellant's apartment building; appellee testified that the child was not under adult supervision and that appellant was "about 300 feet" away from the child. Appellee also testified that on one occasion appellant fed Nicholas a bottle of milk which had been unrefrigerated for nine hours; as a result the child developed diarrhea. Appellee was permitted to state her opinion that appellant is an immoral person because she has given birth to an illegitimate daughter. Appellee also testified that on occasion when she visited appellant's apartment she found it to be dirty, that sometimes Nicholas's diapers needed changing and that the child was frequently sick.

The child's physician, Dr. Abreu, testified he had treated Nicholas once for an ear infection in June, 1979; for respiratory infections in November, 1979, February, 1981 and August, 1981; and for a gastrointestinal disorder in June, 1981. This witness testified that respiratory disorders are "normal ... in children... [T]hey develop some kind of respiratory condition frequently, mainly during the winter time." Dr. Abreu opined, however, that "the patient wasn't growing according to normal" as he had gained only two pounds between February, 1981 and August, 1981. Dr. Abreu testified that a six pound gain would be "normal" for this time frame. ² The physician stated his belief that it was an unwise practice to allow the child to play in the hospital cafeteria while appellant worked there, as "a high degree of contamination" exists in the hospital cafeteria. When asked whether he had any reason to believe appellant was not meeting the child's needs, Dr. Abreu responded, "I cannot say too much because I see the child only when the child was sick. It's true that the mother was with the child always when I saw the child in the emergency room or in the hospital or in my office."

Prior to the completion of construction on the apartment in which appellant has resided for approximately two years, she lived in a Jenkins County motel. The night clerk at this motel testified that she sometimes saw appellant leave the motel with Nicholas as late as 2:00 in the morning. When asked if she observed visitors going to appellant's motel room, she responded, "Yes sir. Oh, I don't know, I couldn't see her motel or anything."

Appellant admitted that children from her apartment complex played in the complex parking lot as there was no play area available. She testified, however, that the mothers of these children took turns supervising the children while they played there. This testimony was corroborated by the testimony of another resident of the complex who stated that she frequently supervised the children herself. Appellant also testified that during the time she worked in the hospital cafeteria ³ she was forced to allow Nicholas to remain there with her from 7:00 a. m. to 8:00 a. m. as the child's babysitter would not accept him before 8:00 a. m. Appellant admitted that her relationship with the father of her illegitimate daughter is ongoing and that she has entertained him in her home. She maintained, however, that she had never had sexual relations with this man while Nicholas was present in the apartment.

Appellant also offered the testimony of a grocery store cashier that she had observed appellant buying "mostly fruits and vegetables ... several times a week" while Nicholas was in appellant's custody.

Pursuant to an agreement between the parties, the trial court ordered the Department of Family and Children's Services to evaluate the home life of both appellant and appellee. The caseworker who visited appellant noted in her report that the occasions when appellant left the motel with Nicholas in the early morning hours indicated "a lack of mature judgment." However, this report also states that appellant "has [presently] exhibited some maturity and good judgment in generally providing adequate housing and daycare for her [daughter] despite limited funds. ⁴ She has been resourceful in meeting [her daughter's] basic needs on a limited income.... [Appellant] presently has an adequate child care plan while she is working." The caseworker also noted that while appellant's apartment is "orderly" and "adequately furnished," there are "numerous cockroaches" in the kitchen.

(2) In an action for divorce where custody is an issue, the trial court exercises its discretion in awarding custody by determining "the best interests of the child." On appeal this court will affirm the award if there exists "any evidence" in the record to support the trial court's decision. Gazaway v. Brackett, 241 Ga. 127, 128, 244 S.E.2d 238 (1978). However, where a third party sues the custodial parent to obtain custody of a child and to terminate the parent's custodial rights in the child, we have required a stricter standard. In such a case, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under Code Ann. §§ 74-108, 74-109 or 74-110. ⁵ Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981); Shaddrix v. Womack, 231 Ga. 628(6), 203 S.E.2d 225 (1974). On review the award of custody to a third party will be affirmed only if there is "reasonable evidence" to support it. Wright v. Hanson, supra; Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981); Gazaway v. Brackett, supra; White v. Bryan, 236 Ga. 349, 350, 223 S.E.2d 710 (1976).

Acknowledging that "freedom of personal choice in matters of family life is a fundamental liberty interest" protected by the United States Constitution, the United States Supreme Court has recently held that the Due Process Clause of the Fourteenth Amendment demands that before a state may sever the rights of parents in their natural child, the state must support its allegations "by at least clear and convincing evidence." Santosky, et al. v. Kramer, Comm., Ulster County Dept. of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) [Emphasis supplied.].

Requiring that the trial court find "clear and convincing evidence" of a parent's unfitness prior to terminating the parent's rights in his child reflects the value society places on the "freedom of personal choice in matters of family life" and the judgment society makes "about how the risk of error should be distributed between the litigants." --- U.S. at ----, ----, 102 S.Ct. at 1394, 1395. Demanding that this high burden of proof be met furthers the State's legitimate interest in protecting the child, yet forestalls arbitrary State interference with the integrity of the family unit. It also reduces the "possible risk that a factfinder might decide to [deprive] an individual [of the rights to his child] based solely on a few isolated instances of unusual conduct [or]...