In the Interest of K. M., a child.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
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.
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.
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.
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. 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
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.
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.
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.
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.
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. 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
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
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."
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."
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."
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. See OCGA § 15-11-100 et seq.
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 ...