GOBEIL, J., COOMER and HODGES, JJ.
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. 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.
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).
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.
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.
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
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.
Georgia law, the trial court was permitted to grant the
grandparents visitation 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)
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).
when ruling on questions of grandparent visitation, courts
must be mindful of the constitutional ...