In re Interest of G.R.B.
| Decision Date | 12 February 2015 |
| Docket Number | No. A14A2032.,A14A2032. |
| Citation | 769 S.E.2d 119,330 Ga.App. 693 |
| Parties | In the Interest of G.R.B., a child. |
| Court | Georgia Court of Appeals |
Meriwether & Tharp, Joann Brown–Williams, Alpharetta, for Appellant.
Mitchell & Mitchell, G. Gargandi Vaughn, Dalton, for Appellee.
Jesse Bowen, the father of G.R.B., appeals the Juvenile Court of Whitfield County's order finding his son to be deprived and granting permanent legal custody to the child's maternal grandparents. Because we agree with Bowen that the juvenile court lacked clear and convincing evidence upon which to base a finding of deprivation, we reverse.1
The record reflects that G.R.B. was born on December 8, 2012, to Bowen and the child's mother, who are not and never have been married to each other.2 On June 27, 2013, Bowen filed a petition for legitimation and custody in the Superior Court of Murray County. And on July 31, 2013, G.R.B.'s maternal grandparents, Greg and Ashley Welch (“the Welches”), filed a motion to intervene and a complaint for grandparent custody and visitation in that same court. Simultaneously, the Welches also filed an emergency private petition for deprivation in the Juvenile Court of Whitfield County, which resulted in an immediate grant of temporary custody to them by the juvenile court. Then, on August 8, 2013, the Welches filed a subsequent verified private petition to determine deprivation and an award of custody in the Juvenile Court of Whitfield County, and a guardian ad litem was appointed for the child.
On August 19, 2013, the Superior Court of Murray County issued an order consolidating all pending actions and transferring the matters to the Juvenile Court of Whitfield County. Thereafter, on August 29, 2013, the juvenile court declared Bowen to be G.R.B.'s legitimate father. In this same order, as to the Welches' petition for deprivation, custody, and visitation, the court found that (1) there was “a significant history of mental health problems” on the part of the mother; (2) the mother and the father had separated and reconciled many times; (3) the mother and the father had engaged in acts of domestic violence in G.R.B.'s presence with the mother pushing the child into his crib during a June 2013 incident; (4) the Welches and the maternal great-grandparents had both provided day-to-day care for G.R.B. for “a significant amount of the time” and had formed a “significant bond and relationship” with G.R.B.; and (5) both parents were gainfully employed and could provide “adequate housing and income for the child.”3 Nevertheless, the juvenile court was concerned with “the domestic violence, and the mother's maintaining her medication regime.” As such, the court continued the case for a three-month period, returned G.R.B. to the parents' custody, and directed that DFCS should open a family preservation case to ensure that the parents complied with orders to complete a parenting class, enroll in a marriage/relationship class, and complete anger-management courses.
On January 2, 2014, following a December 9, 2013 hearing,4 the juvenile court issued an order nunc pro tunc, making the following findings of fact: (1) an additional act of domestic violence had occurred on October 26, 2013, resulting in the mother's arrest; (2) the mother's initial bond conditions required that she have no contact with Bowen; and (3) the mother's bond conditions were modified in December 2013 with Bowen's consent to allow contact so long as the mother complied with certain requirements. Accordingly, the juvenile court again continued the matter for another three-month period, ordered DFCS to maintain the family preservation case to ensure the parents' compliance with the requirements of the August 29, 2013 order, and ordered the mother to immediately enroll in and complete anger-management courses. Nevertheless, the court allowed G.R.B. to remain in the parents' custody.
Then, on March 6, 2014, nunc pro tunc to February 24, 2014, the juvenile court entered an emergency order following an emergency hearing conducted on February 24, 2014. The order transferred temporary custody of G.R.B. to the Welches, granted visitation to the mother, and ordered Bowen to immediately submit to urine and hair-follicle drug tests, with visitation dependent upon negative results. The order also directed that a DFCS safety plan issued on February 18, 2014, remain in effect.5
The transcript from the February 24, 2014 hearing shows that, according to the Welches' counsel, it was held in response to both a recent physical altercation between Bowen and the mother's then-boyfriend in the mother's presence, and to a request by DFCS that Bowen submit to drug testing. A representative for DFCS volunteered that Bowen had “shown a little bit more stability than the mother” but that Bowen had apparently failed to submit to a requested drug test. Counsel for the mother then interjected his belief that the parties were all appearing “on kind of an emergency scenario kind ... of situation rather than a full-blown hearing” based upon allegations that Bowen had recently engaged in the physical altercation and had indicated to the mother that he was “back on meth,” which led to DFCS requesting that Bowen submit to a drug test. And according to the mother's counsel, DFCS instructed the Welches to not return G.R.B. to Bowen's custody until he submitted to a test, which the DFCS representative confirmed. Bowen's counsel then indicated his belief that his client was entitled to a 72–hour hearing as to whether there existed probable cause to deprive Bowen of custody.
Following an additional explanation that the allegations of drug use were made in the wake of an alleged physical altercation between Bowen and the mother's new boyfriend after the mother moved out of the couple's residence (that incident having apparently been the initial reason for seeking an emergency hearing),6 the juvenile court asked why Bowen went to see the mother. When Bowen's counsel responded that “the two of them have an attraction to each other that is not healthy for either one of them,” the court expressed frustration with the situation as follows:
Ultimately, as reflected in the nunc pro tunc order, the juvenile court ordered Bowen to undergo drug testing and for G.R.B. to remain in the Welches' custody.8
Following the February 24, 2014 hearing, on February 26, 2014, Bowen's parents—G.R.B.'s paternal grandparents—filed their own motion to intervene in the proceedings in the juvenile court, alleging that the child was deprived and seeking custody or, in the alternative, grandparent-visitation rights.
The juvenile court conducted its promised final hearing on April 9, 2014. And on April 14, 2014, the juvenile court issued a “final order on all pending matters.” In that order, the court noted that G.R.B.'s mother had consented to placing the child in the Welches' custody, and found, as to Bowen specifically, that he had completed the required parenting class, relationship class, and anger-management program, but that he had engaged in a physical altercation with another man in the mother's presence “while under the influence of alcohol and methamphetamine” and brandished a gun during the incident. The court also found that “[t]he father now admits he uses methamphetamine every day and has for the past five years,” although the court also acknowledged that Bowen had started treatment within the last month. The court further found that the parents “have a relationship that has been fraught with domestic violence and instability” and that both were “unsure whether they intend to remain in their current state of separation.”
Having made the foregoing findings, and after noting that the guardian ad litem had recommended that custody of the child be placed with the Welches, the juvenile court determined that, no matter whether an order was entered as to the deprivation petition or the “matter transferred from the Superior Court,” the custody determination would “be considered permanent until modified by subsequent order of the court.” The court further found that G.R.B. “would be in danger of harm if placed with the father” because, notwithstanding his completion of the required classes, he had recently engaged in the “potentially deadly, violent incident fueled by alcohol and methamphetamine” and had “only recently begun treatment for his admitted five year addiction of daily methamphetamine use.” Additionally, the court was troubled by the parents' perceived inability “to recognize the problematic nature of their continuing to have a relationship.” The court also noted testimony from a DFCS case manager that the Department would have “major concerns” if G.R.B. were placed with Bowen prior to the completion of substance-abuse treatment and without addressing the “pattern of domestic violence” between the parents.
Thus, the juvenile court ordered that permanent legal custody of G.R.B. be placed with the Welches, that the parents pay child support, and that the parents be granted visitation. Finally, the court indicated that for the parents to “be considered for a return of custody,” they would need to complete certain requirements. Bowen now appeals from the juvenile court's determination that G.R.B. was deprived and its grant of permanent legal custody to the Welches, contending that the court lacked clear and convincing...
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