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Fyffe v. Cain

Court of Appeals of Georgia, Fifth Division

October 30, 2019

CAIN et al.


          McMillian, Presiding Judge.

         After ten-year-old H. C.'s father ("Father") was tragically killed in a motorcycle accident, her mother Sidney Fyffe ("Mother") took custody of the child, but fourteen months later, the trial court granted a petition filed by the paternal grandparents, Scott and Sherree Cain ("Grandparents"), for custody of H. C. The mother appeals the trial court's order, and because we find that the evidence, even when viewed under the appropriate standard, does not support the trial court's conclusion that the Mother's continued custody of H. C. would cause significant, long-term emotional harm to the child, we reverse.

         H. C., who was 11 years old at the time the trial court issued its custody order, was born to the Mother and Father in 2007. The couple married in 2009 and divorced in 2012. In the divorce decree, the trial court awarded legal custody of H. C. to both parents and gave physical custody of H. C. to the Father. The Mother was given visitation rights and ordered to pay child support. On July 29, 2017, the Father was killed in a motorcycle accident. Following the father's death, the Mother took H. C. to live with her, and on August 25, 2017, the Grandparents filed a complaint seeking physical and legal custody of H. C. The trial court appointed a guardian ad litem to represent H. C.'s interests in the proceedings. Following a hearing, the trial court awarded legal and physical custody of H. C. to the Grandparents and visitation to the Mother, entering an order prepared by the Grandparents' counsel at the trial court's direction. The Mother filed the instant appeal, asserting in a single enumeration of error, that the trial court erred in awarding custody to the Grandparents because they failed to rebut the presumption under OCGA § 19-7-1 (b.1) in favor of the Mother by clear and convincing evidence.

         1. The start of any analysis that affects parental rights is the recognition that a parent has "a constitutional right under the United States and Georgia Constitutions to the care and custody of their children[]" and that this right "is a fiercely guarded right that should be infringed upon only under the most compelling circumstances." (Citation and punctuation omitted.) Clark v. Wade, 273 Ga. 587, 596 (IV) (544 S.E.2d 99) (2001) (plurality opinion). See also In the Interest of K. M., 344 Ga.App. 838, 844 (1) (811 S.E.2d 505 (2018). To guard that right, a non-parent seeking custody must overcome three constitutionally based presumptions in favor of parental custody: "(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child's best interest is to be in the custody of a parent." (Citation and punctuation omitted.) Jewell v. McGinnis, 346 Ga.App. 733, 736 (1) (816 S.E.2d 683) (2018).

         In custody disputes between a parent and close third-party relatives such as grandparents, OCGA § 19-7-1 (b.1) provides that the "sole issue for determination . . . shall be what is in the best interest of the child or children." However, in order to protect the parent's constitutional rights and to overcome the constitutionally based presumptions, our courts have held that the non-parent under these circumstances "must show, with clear and convincing evidence, [1] that the child will suffer either physical harm or significant, long-term emotional harm if custody is awarded to the parent." Strickland v. Strickland, 298 Ga. 630, 631 (1) (783 S.E.2d 606) (2016). To assess harm, "trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness," including

(1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.

Id. Moreover, harm in this context does not include "merely social or economic disadvantages." Brawner v. Miller, 334 Ga.App. 214, 216 (1) (778 S.E.2d 839) (2015). Suffice it to say, a non-parent bears a heavy burden in seeking to take custody of a child away from a parent.

         Nevertheless, [i]n reviewing a trial court's findings in a custody dispute governed by OCGA § 19-7-1 (b.1), "[i]n the appellate review of a bench trial, a trial court's factual findings must not be set aside unless they are clearly erroneous." Strickland, 298 Ga. at 633 (1). Moreover, "due deference must be given to the trial court, acknowledging that it has the opportunity to judge the credibility of the witnesses, and the evidence must be construed in the light most favorable to the trial court's decision." (Citation and punctuation omitted.) Holdaway v. Holdaway, 338 Ga.App. 477, 483 (789 S.E.2d 817) (2016).

         2. With these standards in mind, we turn to the trial court's findings of fact to assess the court's conclusion that significant, long-term emotional harm[2] would result from allowing the Mother to continue with custody and that it is in the best interests of H. C. for her Grandparents to be awarded permanent physical custody.

         (a) H. C.'s Care While in her Mother's Custody

         The trial court acknowledged that in the fourteen months that H. C. was in her Mother's custody, her grades were "quite good" and remained at the same level as when her Father was alive. However, the trial court found that the Mother had used the "F" word in front of H. C. and on social media and that she had called the Grandparents profane names.[3] Twice, H. C. had been put "on restriction" and had her cell phone taken away from her as discipline. Also, the Mother limited visitation with the Grandparents, and on one occasion it was because H. C. was "on restriction." The Mother also received a speeding ticket while H. C. was in the car.

         Even viewing these findings with deference, they fail to support the conclusion that H. C. would suffer significant, long-term emotional harm if left in her Mother's custody. The guardian ad litem testified that he was not bothered by the Mother's language and opined that the Mother had "done a fine job raising the child," and that the child's "optimistic, bright, smiling, shining personality" "is no doubt in large part due to the fantastic job that her mother has done." The Grandparents offered no evidence showing that a parents' use of profanity can result in emotional harm to a child. Indeed, if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children.[4] Similarly, one speeding ticket and the Mother's decision to discipline her pre-teen child by placing her on restriction and taking away her phone cannot be considered harmful absent additional evidence of negative circumstances surrounding the ticket or that the discipline resulted in harm to the child.[5]

         (b) The Mother's Non-Compliance with the Divorce and Custody Decree The Father and Mother divorced in 2012, and the trial court found that from 2012 to 2017 when the Father was killed, the Mother was unable to establish that she made any child support payments although she testified that she made a little more than one half of them. The trial court made no finding that the Mother's lack of child support had caused the child any harm, emotional or otherwise, and the evidence is to the contrary.[6] Moreover, the Grandparents presented no evidence that H. C. had been deprived in any way during the 14-month period the Mother had custody.

         The court also found that as to the Mother's visitation between 2014 and 2017, family friends testified that the Mother failed to avail herself of approximately half of her court-awarded visitation opportunities and "[o]n at least 10 occasions . . . [the Mother's] arrival for the visitation pickup was excitedly anticipated by [H. C.], but [the Mother] did not appear and offered no explanation for her non-appearance. This left the child visibly and audibly upset, and even in tears."

         However, the trial court's finding regarding visitation is clearly erroneous as it is not supported by the evidence, and thus, it must be set aside. See Strickland, 298 Ga. at 633 (1). Although the family friends, a married couple who lived in an apartment on the Father's property for a time, testified that H. C. would get upset when her Mother missed a visitation, they never said the Mother failed to keep one half of her visits[7] or that the child was upset on ten occasions. While one of the friends said it happened "quite often," the other friend said that she did not keep track of how many days the visits were missed because "[i]t was not [her] responsibility." Moreover, no evidence supports the trial court's findings that the missed visitations were without explanation. Although one of the friends testified that she was unaware of the "exact reasons" for the Mother's missed visitations, there is no evidence that the Mother failed to give the Father or H. C. a reason. To the contrary, that friend testified that at the last minute the Mother "would change the plan, something happened; don't know. I don't know the extent of the reasoning[, ]" and the other friend said that missed visitations occurred when something came up.

         Thus, the trial court's unsubstantiated finding in this regard fails to support a determination that H. C. would suffer significant, long-term emotional harm if left in her Mother's custody. Although before the Father died, the Mother may not have made all her child support payments and may not have exercised all of her visitation rights, she took custody of H. C. after his death and was able to support the child and provide for her emotional needs. Likewise, the fact that H. C. was upset with her Mother on occasion for missing visitation hardly supports significant, long-term emotional harm, especially in the absence of any evidence of upset or disagreement in the relationship between H. C. and the Mother in the fourteen months the child was in the Mother's custody.

         (c) The ...

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