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In re K. M.

Court of Appeals of Georgia, Fifth Division

March 1, 2018

In the Interest of K. M., a child.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         The mother of K. M., a minor child, appeals from an order of the Camden County Juvenile Court denying the mother's petition to terminate the temporary guardianship of K. M. held by K. M.'s maternal grandparents. The mother contends that the trial court applied the wrong evidentiary standard to determine whether the guardianship should be terminated and that under the correct evidentiary standard, the evidence does not support the court's judgment. We agree with the mother and therefore reverse the order of the juvenile court and remand the case for further proceedings consistent with this opinion.

         The relevant facts are largely undisputed and show that K. M. was born in January 2011. Although K. M.'s parents have never been married to each other, the father has legitimated the child. Immediately after his birth, K. M. and his mother moved in with the mother's parents where they both remained until the mother moved out in October 2011. In September 2011, K. M.'s grandparents filed a petition in Camden County probate court seeking temporary guardianship of the child. The petition stated that the guardianship was needed because neither parent was financially stable, and each of K. M.'s parents consented to both the temporary guardianship and the appointment of the maternal grandparents as the temporary guardians. The probate court granted the petition the same day it was filed.

         In March 2016, the mother filed a petition in Camden County Probate Court seeking to terminate her parents' temporary guardianship of K. M. After the grandparents filed an objection to the petition, the case was transferred to the juvenile court. The juvenile court heard evidence in the matter in June and September 2016 and appointed a guardian ad litem to represent K. M. The evidence presented at the hearing showed that during the initial years of K. M.'s life, the mother went through a period of instability where she lived in a number of different rental properties and worked a number of different jobs. Even during this period, however, the mother maintained contact with K. M. and was present in his life.

         In April 2014, the mother married K. M.'s stepfather, who serves as a submariner in the U.S. Navy. At the time of the hearing, the couple had lived for two years in a three-bedroom townhouse, where K. M. had his own bedroom. At some point after her marriage, and at least one year prior to the June 2016 hearing, the mother began caring for K. M. and the mother's nine-year-old brother two days a week. One day a week the mother would also care for the mother's foster brother in addition to the other two children. For at least an entire year before the hearing, the mother had taken K. M. and the mother's brother and foster brother to their weekly speech therapy sessions, and the grandparents had allowed K. M. (and sometimes their other children) to spend the night with the mother and her husband once or twice a month.[1] Additionally, the mother's unrefuted testimony showed that in the year before the hearing, she picked up K. M. from school as many as four days a week and saw him as many as six days a week. The mother knew all of the child's teachers and physicians and she could also identify the child's medical issues and how to treat them.[2]

         Although the mother did not pay child support for K. M., she did provide financial assistance to the guardians. Specifically, the mother and her husband gave her parents money, paid for K. M.'s speech therapy, and regularly paid for food and clothing for the child. Additionally, the mother provided the grandparents with the child support K. M.'s father paid to her. The mother had worked full-time until approximately nine months before the hearing. Because her work schedule changed from week to week, however, the mother quit her job to ensure she was available to get K. M. from school at least two days a week, thereby increasing her time with him and decreasing his time in day care. Although the mother was not currently employed outside the home, she testified that she and her husband could provide for K. M. and that doing so would not strain their resources.

         Neither the mother nor her husband has a history of drug or alcohol use and the evidence showed that they did not drink and did not keep alcohol in their home. Although the mother does smoke, she does so only outside and never around K. M. because of his issues with asthma.

         The mother presented the testimony of a local police officer who described herself as the mother's "best friend." The friend lived less than two blocks from the mother and was in the mother's home frequently. According to the friend, the home was always clean and was an appropriate place for a child to live. The friend had observed the mother with K. M. on numerous occasions, noting that when the mother was with K. M. she usually had her youngest brother and sometimes her parents' foster child. According to the friend, K. M. appeared to love his mother, the mother took good care of K. M. and the other children when they were with her, and she had witnessed the mother giving K. M. his required medications. The friend had seen the mother engaging in activities with the children on a regular basis, including cooking, crafts, playing outside, and watching television.

         A second friend of the mother offered similar testimony, saying that for approximately two years she had seen K. M. with his mother at least twice a week; that the mother frequently cared for her youngest brother while she was caring for K. M.; that the mother took good care of the children; and that the home was kept clean.

         K. M.'s biological father testified that he supported termination of the guardianship and the return of custody to the mother, with the father having visitation.[3] The father indicated that at the time he and the mother consented to the guardianship, the understanding between the parties was that the guardianship would not be permanent, explaining, "[t]he whole point of the guardianship was due to our financial [in]stabilities. We're both in a better position [now] where we can handle our responsibilities."

         The grandmother testified that she believed the guardianship should be continued because it was in the best interest of K. M. To support her position, the grandmother pointed to the facts that K. M. had a close bond with his grandparents and their youngest son; the grandparents lived on approximately three acres of land that provided K. M. with space to play, while the mother's home did not have a substantial yard; the grandparents had a number of animals on their property and K. M. experienced joy and satisfaction caring for the animals; K. M. was especially close to his dog and his horse, both of which lived on the property; that K. M. had become withdrawn after the mother filed her petition to terminate the guardianship; and that at the suggestion of K. M.'s pediatrician, the grandparents had begun taking K. M. to a therapist.[4]

         Although the grandmother acknowledged that over the course of K. M.'s life, the mother had "grown up" significantly, she also indicated that she had concerns about the stability of the mother's marriage. In support of their claims of potential marital instability, the grandparents introduced evidence showing that approximately 18 months before the hearing, in January 2015, the mother and her husband had an argument, during which the mother kicked the husband. Although some limited physical contact occurred during the argument, police were not called and no incident report was filed. According to the mother and her husband, it was the only major argument the couple had ever had; it did not occur in front of K. M.; and the couple had learned from the experience. The husband described the argument as "a newly [married] thing, " while the mother testified that the argument "was stupid" and "made us realize a lot of things, " and that "we talk better now and we communicate better now."

         The court-appointed guardian ad litem ("GAL") filed a written report based on his review of the record and his interviews with the parties. The GAL expressed his belief that if the guardianship was terminated immediately there was a "possible threat" of emotional or physical harm to K. M. that would be "more than just the emotional toll that comes from a change in living arrangements." In support of this conclusion, the GAL cited the strong psychological bond K. M. had with his grandparents and their youngest son; the "sporadic" contact between K. M. and his mother "until recently"; and K. M.'s unique medical needs that [his grandparents] are well able to handle while [the mother] is still learning."

         The GAL further noted that "it remains to be seen whether . . . there would be probable cause of likely abuse, neglect, or abandonment of the child if the guardianship were terminated." (Emphasis supplied.) The GAL also expressed concern that the mother's stability depended in large part on her marriage. He opined that in the absence of the marriage, there was probable cause to believe that K. M. would be at risk of abuse, neglect, or abandonment in the custody of the mother. The GAL stated that "there has not been enough time to know whether the [mother's] relationship with [her husband] is a true lasting one or just another fling like she has had in the past."

         The GAL acknowledged that all parties (including the grandparents) agreed that "at some point" custody of K. M. needed to be returned to the mother. The GAL therefore recommended a continuation of the guardianship for some period of time, while the case moved forward as a dependency proceeding, with the court retaining jurisdiction and formulating a permanency plan to transition K. M. to his mother's custody.[5] See OCGA § 15-11-100 et seq.

         When giving his oral report to the court on the final day of the hearing, the GAL expressed the same opinions set forth in his written report. And during his oral report, the GAL stated that the guardianship would have to be terminated in the absence of "a showing of probable cause of possible abandonment, neglect, or abuse" of K. M. in his mother's custody. The court responded that ...

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