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In re S. M.

Court of Appeals of Georgia

July 16, 2015

In the Interest of S. M., a child

Guardianship. Bartow Juvenile Court. Before Judge Averett.

John L. Mulkey, pro se.

A. Christina Stahl, for appellee.

OPINION

Page 783

Phipps, Presiding Judge.

Acting pro se, John Mulkey, the father of 17-year-old S. M.,[1] appeals from an order of the Juvenile Court of Bartow County dismissing his petition for termination of guardianship on the basis that he failed to comply with an order of the court. Mulkey also appeals the judgment entered on the legal guardian's counterclaim for contempt, wherein the guardian alleged Mulkey wilfully failed to pay child support. For the following reasons, we affirm the judgment of the court to the extent that it ordered Mulkey to pay child support arrearage; we vacate the judgment to the extent that it dismissed Mulkey's petition for termination of guardianship; and we remand the case to the trial court for further proceedings.

On September 13, 2013, Mulkey, through counsel, filed a " Petition to Vacate Permanent Guardianship Pursuant to OCGA § 15-11-30.1 [(a)] (2) (D)." [2] [333 Ga.App. 327] Mulkey sought to be reunited with his child on the basis that the circumstances upon which he had consented to the appointment of a permanent legal guardian for his child no longer existed, and that he had complied with and completed the requirements of a court-ordered reunification case plan created by the Department of Family and Children Services. Mulkey attached as an exhibit to his petition a copy of the Order of Permanent Guardianship entered by the court on January 14, 2011. The juvenile court issued an order approving the filing of the petition, and directing the matter to be scheduled for a hearing.

S. M.'s legal guardian filed an answer and counterclaim for contempt. The guardian sought, pertinently, dismissal of Mulkey's petition and that Mulkey " be held in wilful contempt for his failure to pay child support pursuant to the Order of Permanent Guardianship." Thereafter, Mulkey filed an Amended Petition, requesting therein that the court modify the guardianship order to " provide for visitation between [him] and the child." On December 5, 2013, the juvenile court issued a continuance order on the basis that Mulkey had recently filed the amended petition, and his attorney had requested an opportunity to depose S. M.'s therapist prior to moving forward with the case. The court specifically ordered therein: " [Mulkey's attorney] shall notify the Court if this matter needs to be rescheduled or if this matter needs to be dismissed no later than March 1, 2014."

On June 19, 2014, the juvenile court issued a Final Order. In issuing its dismissal, the court stated:

This Court entered a continuance order on December 5, 2013 to allow the Petitioner an opportunity to depose the child's therapist, [therapist's name]. The order further stated that if the Petitioner failed to reschedule this matter after said deposition no later than March 1, 2014 this matter shall be dismissed. The Petitioner did not comply with the order of the Court and did not depose [the child's therapist] nor request this matter be rescheduled in the time frame allowed by the Court. As such, the Petition to Vacate the Permanent Guardianship is hereby dismissed.

[333 Ga.App. 328] Concerning the guardian's counterclaim for " wilful contempt" for failure to pay child

Page 784

support pursuant to the guardianship order, the court, in ordering Mulkey to pay arrearage at a specified weekly rate, found as follows:

The Court finds by stipulation that the issue of willfulness cannot be proven by sufficient evidence, as the underlying language of the court [guardianship] order was not clear enough to establish the responsibility to respective ...

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