Prosper Ortega v. Leigh J. Temple, Jr. ( 2021 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 15, 2021
In the Court of Appeals of Georgia
A20A1716. ORTEGA v. TEMPLE et al.
BARNES, Presiding Judge.
Prosper Ortega, the noncustodial biological mother of A. U., filed a petition to
regain custody of her child. Ortega sought relief from a final consent order which had
placed physical and legal custody of A. U. with Ortega’s godparents, Leigh and Anita
Temple. Subsequently, the trial court entered a temporary order addressing, among
other things, issues regarding the child’s care and custody, which it later substituted
with an amended order, and also holding that the terms and provisions of the final
consent order would remain in full force and effect as to A. U.’s custody with the
Temples (the “temporary order”). The trial court also entered a separate order
addressing the standard that would govern the final hearing in which it concluded that
the Temples now had the prima facie right to custody as against Ortega, who had lost
the right to custody; and that Ortega could regain custody only upon showing by clear
and convincing evidence that she was currently a fit parent and that it was in the
child’s best interest that custody be changed (the “legal standard order”). The court
held that the standard of Durden v. Barron, 249 Ga. 686 (290 SE2d 923) (1982) –
under which the noncustodial biological parent has the burden to show by clear and
convincing evidence that she is a fit parent and that it is in the child’s best interest
that custody be changed – would apply in the final hearing. We granted Ortega’s
application for interlocutory review of the orders, and this appeal ensued. For the
reasons that follow, we reverse the trial court’s judgment in the legal standing order,
vacate the temporary custody order, and remand the case to the trial court for
consideration of Ortega’s petition under the proper legal standard and further
proceedings not inconsistent with this opinion.
When reviewing a child-custody decision, this Court views the evidence
presented in the light most favorable to upholding the trial court’s order. Mitcham v.
Spry, 300 Ga. App. 386, 386 (685 SE2d 374) (2009). However, the question of
whether the trial court applied the correct legal standard is one of law, which this
Court reviews de novo. See Bonus Stores v. Hensley, 309 Ga. App. 129, 133 (2) (710
SE2d 201) (2011).
2
The relevant facts demonstrate that in 2016, seven days after she gave birth to
A. U., the child’s biological father severely beat Ortega, which resulted in substantial
and serious injuries to Ortega. The father was incarcerated as a result of the attack,
and remained incarcerated at the time the underlying petition was filed.
Because Ortega could not care for her newborn son, the maternal grandmother,
filed a petition for custody of the child. On January 20, 2017, following a hearing, the
trial court issued a “final custody order” placing custody of A. U. with the
grandmother.1 The order indicated that Ortega and the father had agreed to the terms
regarding custody and visitation as incorporated in the order. Those terms included
that:
[The grandmother] is granted sole legal and physical custody of the
minor child [A. U.], with the following provisos:
a. Petitioner [the grandmother] shall consult and discuss any major
decisions for the minor child with Respondent [Ortega] before making
such decisions; and,
1
The paternal grandparents were permitted to intervene in the action and were
granted visitation as agreed to by the parties, but “at a minimum” of no less that four
hours every other weekend.
3
b. Visitation between [Ortega] and the minor child shall be as agreed
upon by her and [the grandmother], with the understanding that such
agreement shall not be unreasonably withheld.
The court ordered that the father have no visitation with the child, and required
him to pay monthly child support to the grandmother. The court did not require
Ortega to pay child support, “as she [was] in the home with [the grandmother] and
assisting with the child’s care.”
Subsequently, the Temples filed a complaint to modify custody against Ortega,
the grandmother, and the father. On September 29, 2017, the trial court issued a
“Final Consent Order” (the “consent order”). The consent order provided that the
parties had “reached a full and final settlement of all issues arising from [the
Temples’] Complaint to Modify Custody,” and consented to the entry of the order.
The trial court ruled that “[the Temples] shall have sole legal and physical custody
of the minor child” and that “[v]isitation between [Ortega] and the minor child shall
be as agreed upon by [Ortega] and [the Temples],” with the understanding that
visitation “shall not be unreasonably withheld[.]” The trial court ruled the same
regarding visitation between the grandmother and the child. It found that Ortega had
no income and ordered the father alone to pay child support, payable to the Temples.
4
The trial court stated that it had deviated from the child support guidelines and would
not require Ortega to pay child support because she was “disabled” and had
“disabilities.”
In December 2018, seeking to regain custody of A. U., Ortega filed a petition
for temporary and permanent modification of custody. In the petition, Ortega claimed
that: (1) due to material changes in circumstances since the entry of the consent order
– specifically, Ortega’s significant strides in her recovery from her traumatic domestic
abuse experience and her substance addiction issues – it was now in A. U.’s best
interest that Ortega be granted sole custody and that the child be reunited with her,
his biological mother; and (2) the Temples had (a) tried to alienate A. U. from Ortega
with no concern for the irreparable damage they were doing to the child, and (b)
threatened the child’s welfare by abusing alcohol, using improper language in the
child’s presence, and neglecting the child’s hygiene. In opposing the petition, the
Temples responded that they were bonded with the child, and it would be detrimental
for the child to be removed from their home; and that due to her mental instability,
Ortega was not capable of providing a safe and stable home for the child.
5
At a subsequent December 2019 “compliance” hearing related to the petition
at which several witnesses testified,2 the parties first contested the standard to be
applied by the trial court in ruling on Ortega’s custody petition. The Temples argued
that in agreeing to the consent order, Ortega had entered into a voluntary contract
releasing all of her parental power to a third person under OCGA § 19-7-1 (b) (1), and
therefore the standard articulated in Durden should apply. The Temples asserted that
Ortega did not retain any real rights to visitation in the consent order.
In response, Ortega argued that Durden did not apply, and instead the trial
court should apply the standard articulated in Lopez v. Olson, 314 Ga. App. 533 (724
SE2d 837) (2012). According to Ortega, Lopez required that prior to the entry of the
consent order, an evidentiary hearing should have been held, followed by a finding
that the she was unfit. She also argued that the consent order was intended to be
temporary, and that under the consent order, she had not fully released all of her
parental rights, but retained visitation. The trial court orally ruled that the standard
2
The trial court referenced an earlier hearing on the petition at which,
according to the trial court, the parties “voiced the opinion that they wanted some
time to see if they could talk and come to some sort of agreement about how things
might move forward.” The transcript of the hearing is not included with the record
on appeal, but its inclusion is not necessary for the disposition of this case.
6
of Durden, not Lopez, applied, and subsequently entered the written legal standard
order.
Regarding the legal standard it would apply in a final custody hearing, the trial
court concluded that because Durden applied, the Temples now had the prima facie
right to custody as against Ortega, who had lost the right to custody; and Ortega could
regain custody upon showing by clear and convincing evidence that she was currently
a fit parent and that it was in the child’s best interest that custody be changed. The
court reasoned that the consent order constituted clear and convincing evidence of a
voluntary contract by Ortega, pursuant to OCGA § 19-7-1 (b) (1), fully releasing her
parental rights to a third person, the Temples. The court explained that unlike the
prior order at issue in Lopez, under which the biological parent retained some custody
rights, here the consent order was a final order awarding sole permanent custody of
the child to the Temples. The court explained that the fact that the consent order
awarded Ortega visitation as agreed upon between her and the Temples did not mean
she retained any parental rights. The court certified its ruling for immediate review.
The court also entered a temporary order which, among other things, granted
Ortega supervised visitation every other weekend,3 access to the child’s school and
3
The trial court directed that the grandmother supervise the visitations.
7
medical records, and the opportunity to offer suggestions regarding A. U.’s
educational and medical care, with the stipulation that Ortega could not offer the
providers any “directives.” The order, however, gave the Temples sole decision
making authority over the child, and provided that the consent order would “remain
in full force and effect.”4
1. Particularly in matters as sensitive and important as the custody of children,
this Court should ensure that the trial court has applied the proper legal framework.
In the Interest of A. S., 293 Ga. App. 710, 713-714 (2) (667 SE2d 701) (2008)
(“Where, as here, the trial judge acts as finder of fact, our duty is to make certain the
proper standard was utilized by the court”). See also Blackburn v. Blackburn, 249 Ga.
689, 693 (2) (292 SE2d 821) (1982) (“[T]he appropriate burden of proof in a given
type of case is shaped by the risk of error inherent in the truth-finding process.”)
(punctuation omitted.) Within this framework, this Court, as it must, consider that
“[p]arents have a constitutional right under the United States and Georgia
Constitutions to the care and custody of their children. This right to the custody and
4
The order further directed Ortega to, among other things, have periodic drug
and alcohol tests, attend individual and group counseling, abstain from alcohol and
drug use, use a real-time testing device to test for alcohol when parenting A. U., and
remain employed. All test results were to be reported to the Temples and the guardian
ad litem.
8
control of one’s child is a fiercely guarded right that should be infringed upon only
under the most compelling circumstances.” (Citations and punctuation omitted.)
Clark v. Wade, 273 Ga. 587, 596-587 (IV) (544 SE2d 99) (2001). See Troxel v.
Granville, 530 U. S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000) (“The liberty
interest at issue in this case — the interest of parents in the care, custody, and control
of their children — is perhaps the oldest of the fundamental liberty interests
recognized by this Court.”); Santosky v. Kramer, 455 U.S. 745, 769 (IV) (102 SCt
1388, 71 LE2d 599) (1982) (consistent with the Due Process Clause of the Fourteenth
Amendment, before a State may sever the rights of parents in their natural child, the
state must support its allegations “by at least clear and convincing evidence”). Guided
by this principle, we consider Ortega’s claims on appeal.
2. On appeal, Ortega contends that the trial court erred in concluding that the
Durden standard applies to the court’s custody determination, and therefore
concluding that the Temples have the prima facie right to custody pursuant to OCGA
§ 19-7-1. She asserts that the standard in Lopez should apply because the consent
order did not constitute a permanent award of custody to the Temples, made after an
evidentiary hearing with specific findings by clear and convincing evidence of
9
present parental unfitness. She further asserts that she did not release or lose all
parental power under the consent order.
According to the Temples, Ortega permanently surrendered her parental rights
in the consent order and the trial court properly concluded that the Durden standard
applies. They argue that she permanently lost her parental rights under the provision
of OCGA § 19-7-1 (b) (1) which holds that a parent may voluntarily contract with a
third party to relinquish parental rights – which, they assert, Ortega did in the consent
order. Thus, the Temples maintain, they have a prima facie right to custody of A. U.
and the burden of proof shifts to Ortega for her to regain custody of the child.
“In a contest between a parent and a third party over the custody of a child, the
first question to be determined is whether or not the parental control of the child has
been lost by the parent. Unless such parental control has been lost, the parent has a
prima facie right of custody.” Dornburg v. McKellar, 204 Ga. 189, 189 (48 SE2d
820) (1948). See In the Interest of M. F., 298 Ga. 138, 144-145 (780 SE2d 291)
(2015) (noting that “the presumption that children ordinarily belong in the care and
custody of their parents is not merely a presumption of the statutory and common law,
but it has roots in the fundamental constitutional rights of parents”; that “persons
faced with forced dissolution of their parental rights have a more critical need for
10
procedural protections than do those resisting state intervention into ongoing family
affairs. When the State moves to destroy weakened familial bonds, it must provide
the parents with fundamentally fair procedures”; and that, “if the law did not afford
the now fit parent of a child . . . any opportunity at all to revisit the question of
[custody] and thereby regain some or all of his parental power, it would raise serious
constitutional questions.”) (citations and punctuation omitted). This prima facie right
to parental custody changes, however,
[o]nce a third party has been awarded permanent custody of a child in
a court proceeding to which a parent was a party[.] [In that context,] the
roles of the parent and the third party reverse; that is, the third party now
has the prima facie right to custody as against the parent who has lost
the right to custody. The parent can regain custody upon showing by
clear and convincing evidence his or her present fitness as a parent and
that it is in the best interest of the child that custody be changed.
Durden, 249 Ga. at 686 (2).
a. OCGA § 19-7-1 (b) (1) provides in part that “[p]arental power shall be lost
by . . . [v]oluntary contract releasing the right to a third person.” See White v. Bryan,
236 Ga. 349, 350 (223 SE2d 710) (1976) (“A parent may lose the right to custody
only if one of the conditions specified in [OCGA § 19-7-1 (b)] is found to exist, or,
in exceptional cases, if the parent is found to be unfit.”) (citations omitted).
11
In its legal standard order, the trial court agreed with the Temples that the
consent order between Ortega and the Temples equated to “clear and convincing
evidence of a voluntary contract by [Ortega] releasing her parental rights to a third
person, namely [the Temples].” The trial court also concluded that the order awarded
permanent custody to the Temples and the fact that the parties agreed upon visitation
did not make it less so.
To support a finding that a party permanently relinquished her parental rights
pursuant to a voluntary contract under OCGA § 19-7-1 (b) (1), “the evidence must
establish clear, definite, and unambiguous terms of such a contract.” Baskin v. Hale,
337 Ga. App. 420, 423 (1) (787 SE2d 785) (2016). In assessing whether a voluntary
contract was clear, definite and unambiguous, we determine whether there was an
“indication that when entering the . . . consent order, the superior court decided that
[the third party] would have a permanent ongoing custodial right in [the child and]
that such a custodial arrangement was in the child’s best interest.” Id. See also Clark
v. Wade, 273 Ga. 587, 590 (II) (544 SE2d 99) (2001) (“Under the parental rights
standard, a third party could gain custody in a dispute with a parent only by proving
by clear and convincing evidence that the parent had lost his or her parental power.
12
A parent could lose parental power in one of these ways: voluntary contract [and
other ways not relevant here].”).
In this case, Ortega did not permanently surrender her parental power or
custody rights to A. U. in the consent order. There is no indication from the consent
order that the trial court considered A. U.’s best interest, or that it determined that
custody would be permanently granted to the Temples. The consent order reflects
only that Ortega, the grandmother, and the Temples agreed to certain custodial terms
related to A. U. The consent order, by its terms, purported to modify the January 20
custody order between Ortega and the grandmother to give the Temples “sole legal
and physical custody” of A. U. The consent order also provided that Ortega and the
Temples would agree upon visitation and it would not be “unreasonably withheld,”
and changed the recipient of the child support payments from the grandmother to the
Temples. It is important to note that in the January 20 custody order, although the
grandmother was given physical and legal custody of A. U., the order directed that
the grandmother “consult and discuss any major decisions for [A. U.] with Ortega
before making such decisions.” Given this proviso, Ortega clearly retained significant
parental rights in the earlier custody order. Nor did the trial court make any findings
regarding the Ortega’s fitness or the best interest of A. U. See Clark, 273 Ga. at
13
594-595 (III) (“Unlike the parental termination cases, third-party custody cases do not
sever the relationship between parent and child. Instead, the parent retains significant
rights, including the right to visitation and to obtain custody under changed
circumstances.”). See also Baskin, 337 Ga. App. at 423-424 (1) (no permanent
custodial right where “there is no indication that when entering the 2007 consent
order, the superior court decided that Hale would have a permanent ongoing custodial
right in A. W. or that such a custodial arrangement was in the child’s best interest. By
entering into the consent order, Baskin simply agreed that Hale was entitled to joint
custody of A. W., with liberal visitation, at that time. She did not bestow upon Hale
permanent custodial or parental rights in A. W. Thus, the record does not support the
trial court’s conclusion that Baskin voluntarily relinquished her parental power
pursuant to OCGA § 19-7-1 (b) (1)”).
b. Moreover, the reversal of the presumption to a third party in Durden applies
“only to a permanent award which was made properly upon an evidentiary hearing
with specific findings” establishing parental unfitness by clear and convincing
evidence. Parton v. Haviland, 212 Ga. App. 835, 837 (4) (5) (442 SE2d 806) (1994).
See Blackburn, 249 at 692 (“where a third party sues the custodial parent to obtain
custody of a child and to terminate the parent’s custodial rights in the child, we have
14
required a stricter standard. In such a case, the parent is entitled to custody of the
child unless the third party shows by ‘clear and convincing evidence’ that the parent
is unfit or otherwise not entitled to custody.”) (citation and emphasis omitted). There
is no evidence, nor do the parties contend, that an evidentiary hearing was made prior
to the entry of the consent order. Likewise, the consent order contains no findings
whatsoever regarding Ortega’s fitness, other than the court had deviated from child
support guidelines because Ortega was “disabled.” See Morgan v. Morgan, 349 Ga.
App. 886, 888 (2) (827 SE2d 73) (2019) (explaining that “[t]he Durden standard[,]
under which the roles of the parent and the third party reverse, applies where there
has been a permanent award of custody to the third party made pursuant to an
evidentiary hearing with specific findings by clear and convincing evidence of
present parental unfitness.”) (punctuation omitted.)
Thus, given the absence of a permanent custody award which was entered upon
an evidentiary hearing establishing Ortega’s unfitness by clear and convincing
evidence, we do not agree with the trial court that the consent order established
“clear, definite, and unambiguous terms” of such a voluntary contract between Ortega
and the Temples pursuant to OCGA § 19-7-1 (b) (1) such that Ortega had
permanently relinquished all parental rights to A. U.
15
Accordingly, as there was no prior permanent custody award to the Temples,
the trial court erred in holding that the legal standard in Durden would apply to the
final custody determination, and as such the burden of proof does not shift to Ortega.
See Durden, 249 Ga. at 686 (2). See also Lopez, 314 Ga. App. at 539-540 (3)
(decided under the rebuttable presumption standard in favor of the parent as set forth
in OCGA § 19-7-1 (b.1),5 involving a custody dispute between the children’s
5
OCGA § 19-7-1 (b.1) provides:
Notwithstanding subsections (a) and (b) of this Code section or any
other law to the contrary, in any action involving the custody of a child
between the parents or either parent and a third party limited to
grandparent, great-grandparent, aunt, uncle, great aunt, great uncle,
sibling, or adoptive parent, parental power may be lost by the parent,
parents, or any other person if the court hearing the issue of custody, in
the exercise of its sound discretion and taking into consideration all the
circumstances of the case, determines that an award of custody to such
third party is for the best interest of the child or children and will best
promote their welfare and happiness. There shall be a rebuttable
presumption that is in the best interest of the child or children for
custody to be awarded to the parent or parents of such child or children,
but this presumption may be overcome by a showing that an award of
custody to such third party is in the best interest of the child or children.
The sole issue for determination in any such case shall be what is in the
best interest of the child or children.
16
biological mother and grandparents, in which we concluded that mother had not lost
all parental powers in prior custody order and that “[t]he Durden standard applies
where there has been a permanent award of custody to the third party made pursuant
to an evidentiary hearing with specific findings by clear and convincing evidence of
present parental unfitness. Even assuming the [prior] court order could be construed
on its face as awarding permanent custody of the children to the [grandparents], there
was no evidentiary hearing and no finding by the court that [the mother] was an unfit
parent, nor does it appear that such a finding was waived by the parties while
represented by counsel.”) (citation and punctuation omitted; emphasis supplied).
Thus, we reverse the trial court’s legal standard order with direction that the
prima facie right to parental custody has not shifted to the Temples, but remains with
Ortega, as the mother.
3. Because it is unclear whether the trial court used the appropriate legal
standard in the temporary order, as amended, which the trial court entered pursuant
to Ortega’s petition, we vacate that order, and remand the case to the trial court for
further proceedings not inconsistent with this opinion.
17
Judgment reversed in part, vacated in part, and case remanded with direction.
Gobeil and Pipkin, JJ., concur.
18