In re Interest of L.R.M.

• Decision Date: 09 July 2015
• Docket Number: No. A15A0295.,A15A0295.
• Citation: 775 S.E.2d 254,333 Ga. App. 1
• Parties: In the Interest of L.R.M., a child.
• Court: Georgia Court of Appeals

333 Ga.App. 1

775 S.E.2d 254

In the Interest of L.R.M., a child.

No. A15A0295.

Court of Appeals of Georgia.

July 9, 2015.

Tracy Alan Brown, Jesup, for Appellant.

Jennifer Thompson McComas, Vidalia, Calandra Almond Harps, Asst. Attys.Gen., Samuel S. Olens, Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., for Appellee.

Opinion

MILLER, Judge.

After the juvenile court found L.R.M. deprived, the paternal grandmother filed a motion to intervene seeking custody of and visitation with the child.The juvenile court denied the grandmother's motion to intervene, and she appeals, contending that the juvenile court erred in denying her motion because she had an absolute right to intervene under OCGA § 19–7–3(b)(1), the Grandparent Visitation Statute.The grandmother also contends that the trial court erred in denying her motion on the merits because it applied the wrong legal standard and failed to consider the best interests of the child.For the reasons that follow, we affirm.

“On appeal, we review the evidence in the light most favorable to the juvenile court's order.”(Citation omitted.)In the Interest of S.K.,248 Ga.App. 122, 545 S.E.2d 674(2001).

So viewed, the evidence shows that L.R.M. was born in June 2012 and lived with his mother and father¹ at the paternal grandmother's house.In May 2013, after the father was incarcerated for possession of methamphetamine and theft, L.R.M. continued to live with his mother at the grandmother's house.During this time, the grandmother cared for the child and provided financial assistance to pay for the child's daycare, diapers, and food.

In July 2013, the Division of Family and Children Services(“DFCS”) filed a deprivation petition against the mother, who had an active case plan for drug use and inadequate supervision, alleging that the mother had unresolved substance abuse problems and was inadequately supervising her children, including L.R.M.In August 2013, the juvenile court entered an emergency order authorizing DFCS to remove the children from the grandmother's home and granting temporary custody to DFCS.DFCS then placed L.R.M. and his siblings in the home of a maternal sister.

In October 2013, the juvenile court found that L.R.M. was deprived based on the mother's substance abuse problem and the mother's and the incarcerated father's inability to provide adequate supervision, housing, and support for the child.The juvenile court ordered DFCS to develop a case plan to reunite L.R.M. with the mother.The mother's case plan required her to, among other things, obtain a substance abuse assessment, complete a drug treatment program, remain drug free for six months, submit to random drug screens, obtain stable housing and income, pay child support, and attend all scheduled visits.²

Following L.R.M.'s removal from her home, the grandmother was allowed two hours of supervised visitation every other week.By February 2014, the grandmother was allowed to have overnight visits, and she was aware that she was not to allow the mother to have unsupervised visits with L.R.M.In April 2014, however, DFCS terminated her unsupervised visits because of concerns that the grandmother was allowing the mother to have unsupervised visits with L.R.M., and because the mother had been arrested.Regarding the mother's arrest, the evidence showed that the mother was arrested on an outstanding bench warrant during a drug bust while in the company of the grandmother's other son, who had been recently released from prison.The mother was in jail for approximately 15 days, and after her release, she was arrested a second time for disorderly conduct.

Around that time, the grandmother filed the instant motion to intervene, seeking visitation and custody of L.R.M. under OCGA § 19–7–3.The juvenile court held a hearing on the grandmother's motion.During the hearing, the mother testified that she wanted the grandmother to have custody of L.R.M. until she could regain custody, provided that she was able to visit the child.The mother admitted that since her children were removed, she had not attended an inpatient drug treatment program as recommended.The evidence also showed that the grandmother worked as a truck driver, and that she took care of her disabled mother who lived with her.Although the mother and grandmother both claimed that they had not lived together since August 2013, other evidence showed that the mother had been living with the grandmother.

The DFCS case manager testified that L.R.M. was doing well in his current placement, and she did not want to separate him from his siblings.The case manager also had concerns about L.R.M. living with the grandmother because she allowed her adult children and L.R.M.'s mother to have access to the house and the grandmother's children and the mother were not positive influences and might expose L.R.M. to criminal activity.The case manager, however, was amenable to resuming unsupervised visitations after a period of supervised visitation.

Following the hearing, the juvenile court denied the grandmother's motion to intervene, finding that OCGA § 19–7–3 does not provide an unconditional right to intervene, allowing permissive intervention would prejudice the adjudication of the case, and placing L.R.M. outside the custody of DFCS would impede the case plan to reunify the children.The juvenile court also denied the grandmother's request for visitation because she had no right to visitation and she failed to establish that the health or welfare of L.R.M. would be harmed unless visitation was granted or that the child's best interest would be served by visitation.The juvenile court provided, however, that DFCS was authorized, but not required, to offer visitation to the grandmother.This appeal followed.

1.Before addressing the merits of the grandmother's enumerations of error, we must address whether we have jurisdiction to consider this direct appeal.SeeMauer v. Parker Fibernet, LLC,306 Ga.App. 160, 161, 701 S.E.2d 599(2010)(“[A]n appellate court has a duty to raise the question of jurisdiction in all cases where there may be doubt about its existence.”)(citations omitted).

Generally, the denial of a motion to intervene is not a final judgment and thus, is reviewable under the interlocutory appeal procedure.SeeDavis v. Deutsche Bank Nat. Trust Co.,285 Ga. 22, 23, 673 S.E.2d 221(2009).Pleadings and motions, however, are construed according to their substance and function and not merely by nomenclature.SeeForest City Gun Club v. Chatham County,280 Ga.App. 219, 220, 633 S.E.2d 623(2006).

In this case, the grandmother filed her motion to intervene seeking custody and visitation under OCGA § 19–7–3 after the juvenile court entered its deprivation order in which it gave DFCS temporary custody of L.R.M.Under OCGA § 5–6–34(a)(11), a direct appeal is authorized from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders[.]”This Court has held that orders resulting from petitions for grandparent visitation and custody are directly appealable under OCGA § 5–6–34(a)(11).See, e.g., Hargett v. Dickey,304 Ga.App. 387, 388(1), 696 S.E.2d 335(2010);see alsoIn the Interest of J.N.,302 Ga.App. 631, 634(1), 691 S.E.2d 396(2010)(a juvenile court's order denying a motion seeking a custody modification based on changed circumstances in a deprivation matter was a final directly appealable judgment under OCGA §§ 5–6–34(a)(1)and15–11–3).Since the trial court denied the grandmother's petition for custody and visitation, the denial of the grandmother's motion is directly appealable.

2.The grandmother contends that the trial court erred in ruling that she did not have an unconditional right to intervene under OCGA § 19–7–3(b).Pretermitting whether the juvenile court erred in ruling that the grandmother did not have a right to intervene, the...