In the Interest of K. L., a Child (Guardian) ( 2022 )


Menu:
  •                                 THIRD DIVISION
    DOYLE, P. J.,
    REESE and BROWN, 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
    February 11, 2022
    In the Court of Appeals of Georgia
    A21A1233. IN THE INTEREST OF K. L., a child.
    BROWN, Judge.
    This case concerns the custody of K. L., born on August 3, 2009. Joy and John
    Statham, who have no blood relation to K. L. and are the paternal aunt and uncle of
    K. L.’s half-siblings, appeal from a juvenile court order concluding that they lack
    standing to be adjudicated an equitable caregiver under OCGA § 19-7-3.1. They
    assert that the juvenile court erroneously interpreted and applied the statute governing
    equitable caregivers in various ways. See OCGA § 19-7-3.1. For the reasons set forth
    below, we affirm.
    We review a juvenile court’s decision interpreting a statute de novo. In the
    Interest of K. B., 
    347 Ga. App. 694
     (820 SE2d 732) (2018). We also “review a
    juvenile court’s application of law to undisputed facts de novo.” (Citation and
    punctuation omitted.) In the Interest of A. M., 
    350 Ga. App. 333
     (829 SE2d 422)
    (2019). But, the juvenile court resolves conflicts in the testimony, and its factual
    findings should not be set aside on appeal unless they are clearly erroneous. See
    Holdaway v. Holdaway, 
    338 Ga. App. 477
    , 483 (789 SE2d 817) (2016). “Due
    deference must be given to the [juvenile] 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 [juvenile] court’s decision.” (Citation and
    punctuation omitted.) Skinner v. Miles, Ga. App. (1) (863 SE2d 578) (2021).
    The juvenile court noted in its order that the procedural history of “this case is
    convoluted, confusing and procedurally inept, in large measure because [the juvenile]
    court allowed a review hearing for a case over which it had no jurisdiction.” Based
    on our review of the record now before us and the facts stated in previous
    unpublished opinions of this Court,1 it is clear that the custody of K. L. has long been
    entangled with the custody of his sisters and half- siblings, Ky. S., born on August 11,
    2007, and Kl. S., born on April 12, 2011, the minor children of K. L.’s mother with
    1
    In the Interest of K. S. et al., children, 346 Ga. App. XXIV (June 27, 2018)
    (unpublished); In the Interest of K. S. et al., children, 324 Ga. App. XXVII (October
    11, 2013) (unpublished).
    2
    another man, who is a blood relative of John Statham.2 As we explained in our first
    unpublished decision:
    On May 13, 2011, [the three children] were removed from their mother’s
    home due to medical neglect, substance abuse by the mother and K. L.’s
    father, the mother’s history of mental health issues, and the mother’s
    recent incarceration for possession with intent to distribute illegal drugs.
    . . . [O]n July 8, 2011, the juvenile court entered an order wherein it
    found the children to be deprived, placed the children in the temporary
    custody of the Department of Family and Children Services (DFCS), and
    . . . directed DFCS to prepare a permanency plan to reunite the children
    with their parents. . . . In late October 2012, however, the mother
    relapsed, and DFCS placed all three children with the paternal aunt and
    uncle of Ky. S. and Kl. S., [Michael and Marie Zelig], [who] had been
    visiting the children regularly since they were first placed in DFCS
    custody. On November 1, 2012, [Joy and John Statham, who] also had
    been visiting the children, filed a petition for change of custody seeking
    physical custody of Ky. S. and Kl. S., [which they] later amended . . . to
    include K. L.
    In the Interest of K. S. et al., children, 324 Ga. App. XXVII (October 11, 2013)
    (unpublished). The juvenile court awarded permanent custody to the Zeligs, and the
    Stathams appealed. This Court vacated the juvenile court’s ruling because it lacked
    2
    The mother also has a daughter, who is approximately four years old and
    resides with the mother. K. L.’s father died in 2017.
    3
    jurisdiction to award permanent custody and had not made the findings required for
    a long-term custody order under OCGA § 15-11-58 and remanded the case “for
    proceedings not inconsistent with this opinion.” (Punctuation omitted.) Id.
    On November 4, 2013, the Stathams filed a “Petition for Emergency Order of
    Detention” seeking temporary custody of the children. Their petition alleged that the
    children were deprived, that their parents “have indicated that they cannot provide for
    the children at this time,” and that “[t]he State of Georgia has indicated . . . it does not
    intend to take custody of the children” following the return of the case to juvenile
    court. On November 7, 2013, the mother and her attorney, K. L.’s father and his
    attorney, the father of K. L.’s sisters and his attorney, the Stathams and their attorney,
    Marie Zelig and her attorney, and a guardian ad litem appeared before the juvenile
    court. The juvenile court issued a “72-Hour Hearing Order” on the same day stating
    the case was before it based upon the Stathams’ complaint that the children were
    deprived, that the children had been in the home of the Zeligs since December 6,
    2012, that the parents of the children “stipulat[ed] to probable cause for deprivation,
    based, in part, on substance abuse issues,” and that the parents consented to
    temporary custody with the Stathams. The juvenile court then awarded temporary
    custody to the Stathams pending “an Adjudicatory hearing,” scheduled for December
    4
    4, 2013, and ordered that the Stathams be permitted to pick the children up from the
    Zeligs’ home.
    On December 4, 2013, the mother signed a “Consent Agreement” for the
    “custody, visitation, and general welfare” of the children that was filed with the
    juvenile court on the same day. The agreement was captioned with the case style and
    case numbers assigned to the emergency petition filed by the Stathams. The
    agreement contemplated that it would be approved by a court of competent
    jurisdiction into a final order and gave temporary custody of K. L. and his half-sisters
    to the Stathams “until age 18 with the knowledge that any of the parents may petition
    the court to have custody returned at any time prior to age 18.” It specified that “[i]t
    shall at all times be the objective of [the Stathams] to include the parents in decisions
    affecting their children in such a manner as to promote the welfare, happiness and
    well-being of [each] child.” The Stathams were obligated to “notify the parents of all
    medical and dental appointments [and] school activities,” and the parents
    acknowledged that they could not seek a return of custody until they completed a
    substance abuse assessment. Finally, the agreement mandated “a judicial review of
    the terms and conditions of [the] agreement at six months.”
    5
    While the juvenile court never adopted or incorporated the agreement into an
    order, it nonetheless held a hearing on June 11, 2014, and issued a “Dependency
    Review” order on June 30, 2014, finding that the children “continue to be dependent
    children,” that the Stathams “shall maintain legal/physical custody of the children,”
    and custody of the children could not be returned to the parents without the prior
    consent of the court. On March 19, 2015, the juvenile court issued another order
    stating the “current consent agreement shall stay in effect” and imposed various
    requirements upon the mother with regard to employment and completion of
    probation.
    In August 2015, the Stathams sought permanent custody of the three children
    in superior court. After the case was transferred to juvenile court, the juvenile court
    denied the Stathams’ petition. In the Interest of K. S., et al., children, 346 Ga. App.
    XXIV (June 27, 2018) (unpublished). On appeal, this Court vacated the order and
    directed the juvenile court to consider the issue of custody under OCGA § 19-7-1
    (b.1) (third party custody procedures and standards). Id. at *5. On November 30,
    2018, the juvenile court awarded sole physical and legal custody of K. L.’s half-
    sisters to the Stathams and granted visitation rights to the mother. The juvenile court
    expressly noted that OCGA § 19-7-1 (b.1) does not provide a means for a non-related
    6
    third party to gain custody of a child. Accordingly, it concluded that K. L. was still
    subject to what it characterized as an “open deprivation action,” i.e., the one in which
    the consent order was filed on the day of the adjudication hearing. The order further
    stated that K. L. had “continuously” been in the juvenile system and subject to the
    deprivation action since 2013.
    On June 1, 2020, the mother petitioned the juvenile court to return K. L. to her
    custody. Following a June 19, 2020 hearing, the juvenile court continued the mother’s
    request for a return to custody and ordered increased supervised and unsupervised
    visits for the mother.
    On June 23, 2020, the Stathams filed a petition seeking permanent custody of
    K. L. in superior court, relying upon OCGA § 19-7-3.1, the equitable caregivers
    statute, effective July 1, 2019. Their petition alleged that K. L. had been in the
    juvenile court system as a dependent child since 2011. The mother answered the
    petition, requested that the superior court dismiss it for lack of standing, and asserted
    a counterclaim for modification of custody and visitation. The superior court
    transferred the Stathams’ case to juvenile court, where it was consolidated with the
    mother’s case seeking a return of custody.
    7
    Following an October 2020 hearing at which several witnesses testified, the
    juvenile court issued an order in which it concluded by clear and convincing evidence
    that the Stathams lacked standing to seek custody under OCGA § 19-7-3.1 as
    equitable caregivers. It also concluded that based upon the lack of a petition for
    dependency or an order finding K. L. dependent in the 2013 action that resulted in the
    consent agreement, the juvenile court action should have been dismissed without
    prejudice. It then found that the mother has custody of K. L. and that it was
    impossible for it “to give custody back to the mother in that the court cannot give
    what it does not have.” The Stathams appeal from the portion of the order concluding
    that they were not equitable caregivers.3 Neither party asserts error in connection with
    the juvenile court’s conclusion that the mother has custody of the children as a result
    of the procedural deficiencies in the deprivation action initiated by the Stathams in
    2013.
    Before addressing the Stathams’ specific claims of error on appeal, we outline
    the general framework of the equitable caregivers statute. “Under OCGA § 19-7-3.1,
    3
    The Georgia Department of Human Services filed a “Notice of Non-
    Participation” in this appeal, contending that it was never involved in the private
    agreement between the mother and the Stathams and that it was never involved in the
    action initiated by the Stathams.
    8
    which became effective July 1, 2019, courts are permitted to adjudicate an individual
    to be an equitable caregiver.” (Citation and punctuation omitted.) Skinner, Ga. App.
    at (1). A trial court may adjudicate a person as an equitable caregiver by finding clear
    and convincing evidence that the person has:
    (1) Fully and completely undertaken a permanent, unequivocal,
    committed, and responsible parental role in the child’s life;
    (2) Engaged in consistent caretaking of the child;
    (3) Established a bonded and dependent relationship with the child,
    which relationship was fostered or supported by a parent of the child,
    and such individual and the parent have understood, acknowledged, or
    accepted that or behaved as though such individual is a parent of the
    child;
    (4) Accepted full and permanent responsibilities as a parent of the child
    without expectation of financial compensation; and
    (5) Demonstrated that the child will suffer physical harm or long-term
    emotional harm and that continuing the relationship between such
    individual and the child is in the best interest of the child.
    OCGA § 19-7-3.1 (d). The statute also mandates four factors to be considered by the
    trial court “[i]n determining the existence of harm.” OCGA § 19-7-3.1 (e). After a
    trial court adjudicates a person an equitable caregiver, it “may enter an order as
    appropriate to establish parental rights and responsibilities for such individual,
    including, but not limited to, custody or visitation.” OCGA § 19-7-3.1 (g).
    9
    1. The Stathams assert that the juvenile court erred by failing to conclude that
    they had established the requirement of OCGA § 19-7-3.1 (d) (3). In their view, the
    2013 consent agreement met their burden despite the mother’s later change of heart.
    We disagree.
    OCGA § 19-7-3.1 (d) (3) required the juvenile court to find, by clear and
    convincing evidence, that the Stathams “[e]stablished a bonded and dependent
    relationship with the child, which relationship was fostered or supported by a parent
    of the child, and such individual and the parent have understood, acknowledged, or
    accepted that or behaved as though such individual is a parent of the chil[d].” While
    the Stathams presented evidence at the hearing with regard to their “bonded and
    dependent relationship with [K. L.],” their proof that they and the mother “have
    understood, acknowledged, or accepted that or behaved as though such individual is
    the parent of [K. L.]” is lacking. Id. The consent agreement refers to the mother and
    father as the parents and the Stathams as “petitioners” throughout and sets forth
    conditions for the return of custody to the parents. And while the agreement allowed
    for custody to remain with the Stathams until K. L. reached the age of 18, it was
    clearly an agreement for temporary custody. The mother testified that she understood
    10
    the agreement to be a temporary arrangement so that the children could be returned
    to her.
    In the hearing, Joy Statham testified that she has done nothing to “sour [the
    mother] in the mind of [K. L.],” explaining, “I always tell the children, all of them .
    . . we want to respect your mother, we want to honor your mother. On Mother’s Day
    we get gifts for her, and birthdays.” She also acknowledged:
    [K. L.] knows we’re not biologically his mom and dad. When we first
    had custody of them, . . . we would say, it’s aunt and uncle. [The mother]
    has told them every single time and when she would have visits . . . she
    would tell them . . . that’s not your mom and dad. So, . . . she’s actually
    . . . kind of pushed that it’s not your mom and dad, so they know, but
    they have chosen to still say it.
    She acknowledged that when she and her husband told K. L. that his father had died,
    the mother was “quite upset” that she had not been the person to give him the news.
    After reviewing the consent agreement relied upon by the Stathams to make the
    showing required by OCGA § 19-7-3.1 (d) (3), as well as all of the other evidence
    presented in the hearing relevant to this issue, we cannot say that the juvenile court
    clearly erred by declining to find that the Stathams had standing to seek custody as
    equitable caregivers under OCGA § 19-7-3.1, and we therefore affirm. Compare
    11
    Skinner, Ga. App. at (1) (c) (affirming trial court’s order naming woman’s former
    partner equitable caregiver status where women lived and raised the children together
    before their relationship ended in 2015).
    2. In light of our holding in Division 1, the Stathams’ remaining enumerations
    of error are moot and need not be addressed.
    Judgment affirmed. Doyle, P. J., and Reese, J., concur.
    12
    

Document Info

Docket Number: A21A1233

Filed Date: 2/11/2022

Precedential Status: Precedential

Modified Date: 2/11/2022