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Elmore v. Clay

Court of Appeals of Georgia, Third Division

February 13, 2019

ELMORE
v.
CLAY, et al.

          GOBEIL, J., COOMER and HODGES, JJ.

          Hodges, Judge.

         Kelly Elmore petitioned to both terminate the rights of Tabitha Clay, the biological mother of her step-daughter, E. E., and to adopt E. E. Paternal grandmother Leslie Clay and maternal grandfather Tim Clay moved to intervene in the action to obtain grandparent visitation.[1] Following a hearing, the trial court terminated the parental rights of Tabitha Clay, permitted Kelly Elmore ("Kelly") to adopt E. E., and granted visitation to E. E.'s grandparents over the objections of Kelly and E. E.'s father. Kelly appeals the trial court's grant of visitation to E. E.'s grandparents. For the reasons that follow, we vacate the trial court's order and remand the case for further proceedings consistent with this opinion.

         When reviewing an order granting grandparent visitation,

we view the evidence in the light most favorable to the trial court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized. We do not weigh the evidence or determine witness credibility, but defer to the trial court's factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

(Citations omitted.) Luke v. Luke, 280 Ga.App. 607, 609-610 (1) (634 S.E.2d 439) (2006).

         So viewed, the record shows that Ryan Elmore ("Ryan") and his daughter E. E. lived with E. E.'s grandparents off and on during the child's early life. E. E.'s grandmother, Leslie Clay ("Leslie"), played a large part in helping to raise E. E. during this time and she provided child care as well as financial support for E. E. In the past, Leslie was a maternal figure for E. E. In 2013, however, Ryan wed Kelly and E. E. moved out of her grandparent's home, thereby discontinuing Leslie's quasi-motherly role and the grandparents' financial support of E. E.

         Several years later, in 2017, Kelly filed a petition to terminate the rights of E. E.'s biological mother and to adopt E. E. Leslie and her husband, Tim Clay, responded by moving to intervene to seek visitation with their grandchild. The trial court held a hearing at which it was undisputed that E. E. maintains a close relationship with her grandparents. The parties disagreed as to whether Ryan and Kelly were keeping E. E. from her grandparents, but it was undisputed that the grandparents were offered numerous opportunities to visit with E. E. in 2016 and 2017. Leslie, as well E. E.'s great-grandmother and great-aunt, testified that E. E. appeared less happy and bubbly than she was when she was able to see her grandparents more frequently. At the end of the hearing, the trial court indicated that it was inclined to deny the petition for visitation.

         Following the hearing, the trial court terminated the parental rights of the biological mother, who did not answer the petition or appear at the hearing, and permitted Kelly to adopt E. E. Contrary to its commentary at the hearing, the trial court also granted visitation to Leslie and Tim Clay from 9:00 A.M. on Saturday through 6:00 P.M. on Sunday one weekend a month as well as for one week over the summer. Kelly appeals the portion of the order granting grandparent visitation.[2]

         1. In two related enumerations of error, Kelly contends that the trial court erred in finding that visitation should be mandated against the wishes of Kelly and Ryan. Because we are unsure if the trial court properly exercised its discretion in reaching its conclusion, we vacate the trial court's order and remand the case.

         Under Georgia law, the trial court was permitted to grant the grandparents visitation[3] if it found

by clear and convincing evidence that 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 when, prior to the original action or intervention: (A) The minor child resided with the family member for six months or more; (B) The family member 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 family member 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.

(Emphasis supplied.) OCGA § 19-7-3 (c) (1).[4] A rebuttable presumption exists that "a child who is denied any contact with his or her family member or who is not provided some minimal opportunity for contact with his or her family member when there is a preexisting relationship between the child and such family member may suffer emotional injury that is harmful to such child's health." OCGA § 19-7-3 (c) (3).

         Nonetheless, when ruling on questions of grandparent visitation, courts must be mindful of the constitutional ...


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