Miller v. Rieser
| Decision Date | 28 June 1994 |
| Docket Number | Nos. A94A0566,A94A0567,s. A94A0566 |
| Citation | 213 Ga.App. 683,446 S.E.2d 233 |
| Parties | MILLER et al. v. RIESER et al. RIESER et al. v. MILLER. |
| Court | Georgia Court of Appeals |
Bernard Knight, Randy J. Comins, for appellants.
Susan G. Bueter, Patricia B. Ball, Julian A. Mack, for appellees.
Joscelyn Rieser was born on June 21, 1982, of Mary and Ray Rieser. Since 1987, when she reached age five, Joscelyn has lived in Atlanta with her maternal grandmother Rosalind Miller. The Riesers are divorced, and Mary resides in California. In August 1991, Mary came to Atlanta and announced she was taking nine-year-old Joscelyn back to California.
Course of the litigation
On August 19, 1991, the grandmother filed a petition against the parents, seeking permanent custody of the child and asking that the parents be temporarily restrained and enjoined from removing her from the custody of the grandmother or the jurisdiction of the court. She alleged that the parents are unfit custodians; that they failed to meet the child's physical, mental, and emotional needs; and that they lost parental power under OCGA § 19-7-1(b)(3) and (b)(6) by their failure to provide necessaries, by abandonment, and by cruel treatment. The court granted the temporary restraining order. The grandmother later amended her petition by adding a request that she be granted visitation for an extended period each year if the court declined to give her custody.
A guardian ad litem was appointed to represent the child's interests, on the father's motion, and the parents moved for summary judgment based on the evidence of record. The court denied the parents' motion on the issue of whether parental control had been lost under OCGA § 19-7-1 but granted it on the issue of parental fitness, concluding that there was no genuine issue of material fact as to the present unfitness of either parent. In an order denying reconsideration of this ruling, the court distinguished other appellate cases which involved past behavior of parents towards the child which related to present unfitness and concluded that the evidence in this case was not comparable.
Following a lengthy trial, the court entered final judgment on July 29, 1993. It states that the grandmother seeks custody under OCGA § 19-7-4 as well as 19-7-1(b)(3) and (b)(6). The court confirmed the summary judgment on the issue of present unfitness, found that the child had not been legally abandoned by the parents, and found that it had not been established by clear and convincing evidence that they failed to furnish necessaries or are chargeable with cruel treatment so as to have lost parental power. However, the court did find that it is in the child's best interest to spend significant time with the grandmother. Until August 1, 1994, she was granted visitation with the child several hours each Monday and Wednesday, every other weekend, and four consecutive weeks during the summer. The court ordered the mother to remain with the child in the Atlanta area at least until the beginning of August 1994. In the event she and the child subsequently move more than 150 miles from Atlanta, the grandmother is granted visitation for five consecutive weeks during the summer and parts of holidays.
We granted the grandmother's and the guardian ad litem's application for discretionary appeal of the summary judgment for the parents on the issue of parental fitness. Case No. A94A0566 is their appeal of that order. Case No. A94A0567 is the parents' appeal of the court's grant of visitation to the grandmother. Most of the trial record, but not the transcript of the trial, has been transmitted to this court.
Since the issue in the grandmother's and guardian ad litem's appeal is whether summary judgment was proper for the defending parents, the evidence is viewed in the light most favorable to the non-moving petitioner. Dixieland Truck Brokers, Inc. v. Intl. Indem. Co., 210 Ga.App. 160, 163(3), 435 S.E.2d 520 (1993); see, e.g., Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Although this case has now been tried, albeit not on the fitness issue, we apply this evidence rule to that which was presented to the trial court before its ruling on summary judgment. Meade v. Heimanson, 239 Ga. 177, 180, 236 S.E.2d 357 (1977); Lawal v. Stanley Bostitch Co., 209 Ga.App. 439, 440, 433 S.E.2d 706 (1993); Dove v. Nat. Freight, 138 Ga.App. 114, 117(6), 225 S.E.2d 477 (1976).
From May 1983, when the child was less than a year old, until September 1984, the parents failed to adequately clothe her in cool weather, so that her feet turned blue. They failed to adequately feed her, so that when she was first taken to visit others, she ate ravenously and gained many pounds. They failed to properly clean her, so that she had eczema behind her ears and sores in her diaper area. They failed to take her to the doctor for well baby check-ups or immunization. They failed to have a laceration suture removed from her knee, causing inflammation and scarring. They failed to see that she got proper rest; she slept for unusually long periods of time at the beginning of each visit with others.
The paternal grandfather is Dr. James Rieser, a family practice physician. When the child was first taken to visit him and his wife, the step-grandmother, she had totally flat affect and did not interact with them, laugh, smile, or speak, although she is a bright child. He opined that she was suffering from a condition known as failure to thrive, which is often the result of lack of parental care and attention. He testified that the father admitted to him that he did not know how to take care of the child.
Although the mother testified that using her training and experience as a nurse, she took care of the child, giving her vitamins and good food, and she was very rarely ill, Dr. Rieser testified that without request, he immunized the child and provided pediatric medical care.
In September 1984, the parents left the child with grandfather Rieser in order to make a trip to California for several months. Shortly after Thanksgiving in 1984, the father took the child to grandmother Miller without any prearranged plans and left her there. She took care of the child until after Christmas, when the mother returned from California. During that month, the father did not care for the child and visited her infrequently. She cried repeatedly for grandfather Rieser and his wife. Beginning in January 1985, the child began staying with grandmother Miller on the weekends and spending the weekdays with her parents. Her parents separated in 1986, and the father moved to California. He did not see or speak to the child again until the summer of 1989. The mother remained in Atlanta. The parents' 1988 divorce decree makes no provision for the custody or support of the child.
The mother testified that when the child lived with her, she generally would keep her during the day and leave her with babysitters at night. The grandmother testified that one of the babysitters was mentally unstable, had thrown the child on the floor, and had taken her to pornographic movies and to prostitutes. The child likewise testified that the babysitter had hurt her by throwing her on the floor. Her mother laughed when she told her about this.
The child testified that when she and her mother lived together, her mother would be either asleep or at her boyfriend's house when she awoke in the morning. She was frightened when she awoke and no one was there. She would have to pester her mother in order to get her to make her something to eat, which at times she would not do. When she was at the mission where the mother worked, many times her mother was not there when she got hungry. When that happened, she would beg other people for money, go to the drugstore, and get candy to eat. At night, she would sleep on the floor if she was tired. She would stay at the mission until 1:00 to 3:00 a.m. If her mother was not there, she would ask someone else to take her home. The grandmother testified that she would often find the child running around the mission unsupervised or asleep on the floor, and that upon coming to her house for the weekend, she usually slept the first 24 hours.
In the summer of 1987, the step-grandmother informed the mother that the child had four cavities. The mother said she would take care of it but did not do so. When the child next saw a dentist whom the step-grandmother had taken her to, she had four additional cavities. The step-grandmother paid for fillings.
In the fall of 1987, the grandmother enrolled the child in kindergarten after the mother failed to do it. The child began living with the grandmother and spending weekends with the mother, who picked her up from kindergarten on Friday afternoons. The grandmother pleaded with her to go there on other occasions such as to have lunch with the child or see her perform in a program, but she said she did not have time.
On one occasion, the child got chicken pox, and the grandmother left her in the mother's care. The mother left her in the care of a teenage boy who neglected her. She called her mother and asked her to come take care of her, but she said she was too busy. On another occasion, she got the flu and the mother again said she was too busy to see her.
In the spring of 1989, the mother moved to California. Afterward, she saw the child only sporadically. The mother sometimes telephoned the child, but sent no presents at Christmas or on her birthday and showed no interest in her development. Beginning in the summer of 1989, the father began to telephone the child, infrequently; he also did not send cards or presents for her birthday, Christmas, or other holidays. While the child lived with the grandmother, she was...
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