Van Leuvan v. Carlisle

• Decision Date: 02 July 2013
• Docket Number: No. A13A0048.,A13A0048.
• Parties: VAN LEUVAN v. CARLISLE.
• Court: Georgia Court of Appeals

322 Ga.App. 576

745 S.E.2d 814

VAN LEUVAN

v.CARLISLE.

No. A13A0048.

Court of Appeals of Georgia.

July 2, 2013.

Burleigh Lavisky Singleton, Atlanta, for Appellant.

David Neil Marple, Atlanta, for Appellee.

ELLINGTON, Presiding Judge.

In this appeal from a temporary visitation order, Kellie Van Leuvan, the mother of a minor child (hereinafter, “the mother”), challenges the Superior Court of Fulton County's order granting visitation rights to Connie Carlisle, the child's maternal grandmother (“the grandmother”). In its order, the trial court found that the grandmother had shown, pursuant to OCGA § 19–7–3(c)(1), that the health and welfare of the child would be harmed unless visitation with the grandmother is allowed and that such visitation is in the child's best interest. The mother contends that the court erred in issuing the order without including specific, written findings of fact supporting its ruling and without showing that it applied the proper evidentiary standard in reaching its decision. She also contends that the court erred in considering the testimony and report of the court-appointed guardian ad litem for the child during the visitation hearing, and that the court erred in issuing a temporary visitation order, arguing that the applicable statute does not authorize temporary orders. For the following reasons, we find no error as to the latter two contentions, but vacate the court's order and remand this case to the trial court with directions to issue a new written order that complies with OCGA § 19–7–3(c)(1).

The grandmother's request for visitation is governed by OCGA § 19–7–3, which is

commonly referred to as the “Grandparent Visitation Statute.” In accordance with the statute, a grandparent may file an original action for visitation rights to a minor child when the parents are separated and the child is not living with both of the parents. The statute was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child's parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

(Citations and punctuation omitted.) Sheppard v. McCraney, 317 Ga.App. 91, 92, 730 S.E.2d 721 (2012). The statute includes the following relevant provisions: “Except as otherwise provided in paragraph (2) of this subsection, [ ¹] any grandparent shall have the right to file an original action for visitation rights to a minor child[.]” OCGA § 19–7–3(b)(1).

Upon the filing of an original action ..., the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action [,] ...:(A) The minor child resided with the grandparent for six months or more; (B) The grandparent provided financial support for the basic needs of the child for at least one year; (C) There was an established pattern of regular visitation or child care by the grandparent with the child; or (D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

OCGA § 19–7–3(c)(1). This subsection also provides that “[t]he court shall make specific written findings of fact in support of its rulings.” Id.

In addition, the statute provides that,

[w]hile a parent's decision regarding grandparent visitation shall be given deference by the court, the parent's decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent may suffer emotional injury that is harmful to such child's health. Such presumption shall be a rebuttable presumption.

OCGA § 19–7–3(c)(3). “If the court finds that the grandparent or grandparents can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparents, may ... [a]ppoint a guardian ad litem for the minor child[.]” OCGA § 19–7–3(e)(1). “In the event that the court does not order mediation or upon failure of the parties to reach an agreement through mediation, the court shall fix a time for the hearing of the issue of visitation rights of the grandparent or grandparents.” OCGA § 19–7–3(f).

During such hearing, the grandparent seeking visitation bears the burden of presenting clear and convincing evidence showing that the child's health or welfare will be harmed unless such visitation is granted. Rainey v. Lange, 261 Ga.App. 491(1), 583 S.E.2d 163 (2003); see Sheppard v. McCraney, 317 Ga.App. at 92, 730 S.E.2d 721 (“Due process requires that evidence supporting grandparent visitation meet the clear and convincing standard of proof.”) (citation omitted). Ultimately, the decision to grant or deny a grandparent's petition for visitation is within the discretion of the trial court, and the court's decision will be affirmed on appeal absent abuse of such discretion. Srader v. Midkiff, 303 Ga.App. 514, 516(1), 693 S.E.2d 856 (2010).

1. The mother contends that the trial court erred in failing to include in its visitation order specific written findings of fact that support its decision to grant the grandmother's visitation petition, as required by OCGA § 19–7–3(c)(1), and in failing to show that it employed a clear and convincing evidentiary standard in reaching that decision. She relies on Rainey v. Lange, in which the court's order granting the grandparent visitation stated that,

[g]iven the allegations the parents have raised against each other (but without making a finding as to the truth or falsity of any of the allegations), the Court finds that enough issues have been raised that visitation with the maternal grandparents is in the child's best interests and will promote the child's well-being and avoid harm to the child's welfare, by way of providing a system of checks and balances.

(Punctuation omitted.) 261 Ga.App. at 492(1), 583 S.E.2d 163. This Court ruled that “[t]his broad conclusory statement fail[ed] to set forth specific findings of fact supporting the trial court's grant of grandparent visitation which would enable this Court to conduct an intelligent review of the merits of this case.” (Citation and punctuation omitted.) Id. Because the order did not include the requisite findings of fact, this Court vacated the order and remanded the case for the trial court to employ a clear and convincing evidence standard and to enter written findings of fact that were supported by such evidence. Id. See also Cates v. Jamison, 301 Ga.App. 441, 442, 687 S.E.2d 675 (2009) (“[T]he inclusion of specific written findings of fact supported by clear and convincing record evidence is mandatory to justify a grant of visitation.”) (citation omitted).²

In the temporary order at issue in the instant case, the trial court stated only that it had considered the entire record before concluding that the grandmother “has shown, pursuant to OCGA § 19–7–3[ ], that the health and welfare of the minor child ... would be harmed unless visitation is provided for her with her grandmother[.] ... [and that] it [is] in said minor child's best interest to have such visitation.” Thus, we must agree with the mother's contention that the trial court erred in failing to show that it applied the proper evidentiary standard and in failing to include written findings of fact to support its broad, conclusory ruling, as required by OCGA § 19–7–3(c)(1). Rainey v. Lange, 261 Ga.App. at 492(1), 583 S.E.2d 163.³ Consequently, even though the mother did not ask the trial court to include findings of fact in its written order either before or after the court issued the order, and even though she failed to raise this issue in the court below, we are compelled to vacate the court's grant of visitation to the child's grandmother. Cates v. Jamison, 301 Ga.App. at 442, 687 S.E.2d 675;Rainey v. Lange, 261 Ga.App. at 492(1), 583 S.E.2d 163.⁴ On remand, the trial court is directed to determine whether the record contains sufficient clear and convincing evidence to support its ruling and, if so, to issue specific, written findings of fact to support such ruling, pursuant to the requirements of OCGA § 19–7–3(c)(1). Cates v. Jamison, 301 Ga.App. at 442, 687 S.E.2d 675;Rainey v. Lange, 261 Ga.App. at 492(1), 583 S.E.2d 163.

Even though we have vacated the court's order, we must address the mother's remaining enumerated errors, since those issues will still be relevant on remand when the court issues a new order.

2. The mother contends that the trial court abused its discretion in overruling her objection to the testimony and written report of the guardian ad litem (“GAL”) whom it appointed to represent the child's interests, arguing that such evidence did not meet the requirements for the admission of evidence under former OCGA § 24–9–67.1(b).⁵We conclude, however, that the mother waived any objections to the GAL's qualifications as an expert witness or the admissibility of her testimony and written report by expressly consenting to the court's order appointing the attorney who served as the GAL in this case and specifically enumerating her powers and duties under USCR 24.9.

The record shows that, in the visitation petition, the grandmother asked the court to appoint a GAL to protect the child's best interests. In her response to the petition, the mother stated that her...