Barr v. Gregor

728 S.E.2d 868, 316 Ga. App. 269, 2012 Fulton County D. Rep. 2017, 2012 WL 2161386, 2012 Ga. App. LEXIS 533
CourtCourt of Appeals of Georgia
DecidedJune 15, 2012
DocketA12A0366
StatusPublished

This text of 728 S.E.2d 868 (Barr v. Gregor) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barr v. Gregor, 728 S.E.2d 868, 316 Ga. App. 269, 2012 Fulton County D. Rep. 2017, 2012 WL 2161386, 2012 Ga. App. LEXIS 533 (Ga. Ct. App. 2012).

Opinion

Adams, Judge.

Appellees Glenda Sue Gregor and Richard James Gregor, the paternal grandmother and paternal stepgrandfather of H. M. S., filed a petition to adopt her after both her parents died. The trial court granted the petition and the appellants, who are relatives of the child, filed the present appeal.

H. M. S.’s father died in 2008 and her mother died in 2009.1 Less than a week after her mother died, a juvenile court in Tennessee, where the mother and H. M. S. had lived, entered an interim order awarding physical custody to the Gregors. In December 2009, another juvenile court in Tennessee entered a “Permanent Caregiver Plan Order” which awarded custody of the child to the Gregors and liberal visitation to appellant Laura Barr, who is the child’s maternal aunt.2

In August 2010, the Gregors filed the present petition for adoption in the Superior Court of Hall County, the county of their [270]*270residence. Barr and David Nichols (the child’s maternal grandfather and Barr’s father) filed a motion to intervene and a joint objection to the petition for adoption pursuant to OCGA § 19-8-15. The trial court granted the motion to intervene, but subsequently granted the petition for adoption over the intervener’s objections, who then filed the present appeal.3 After careful consideration, we now affirm.

1. Appellants first contend that the trial court did not have subject matter jurisdiction to modify the Tennessee Custody Order under the Georgia Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19-9-40 et seq. Although appellants note that adoptions are generally excluded from the UCCJEA, they urge that we nevertheless should apply the provisions here because of the effect of the adoption petition on the custody order rendered by the Tennessee Court. However, our legislature has specifically provided that the “[UCCJEA] does not govern an adoption proceeding[,]” OCGA § 19-9-42, and based on this provision our appellate courts have refused to extend the UCCJEA to adoption proceedings. In re Adoption of D. J. F. M., 284 Ga. App. 420, 423, n. 4 (643 SE2d 879) (2007); Rokowski v. Gilbert, 275 Ga. App. 305, 314 (7) (620 SE2d 509) (2005). Further, appellants do not cite us to any contrary authority in which our appellate courts have carved out an exception and applied the current version of the UCCJEA to divest the Georgia Court of subject matter jurisdiction over an adoption proceeding. “The applicable Code section, OCGA § 19-8-2, grants exclusive jurisdiction to superior courts in all adoption proceedings, and makes venue proper in the county in which the adopting parents reside.” Rokowski, 275 Ga. App. at 314 (7). Thus, the trial court did not err by exercising jurisdiction in this case.4

2. Appellants further argue that the adoption was improper under the doctrine of collateral estoppel, and if the Gregors were dissatisfied with the Tennessee custody order, they should have sought modification of that order instead of petitioning to adopt H. M. S.

However, it does not appear that appellants argued this below; indeed, at the hearing appellants’ attorney recognized that “the adoption case is separate than the custody case in Tennessee,” and he agreed that the custody case and the adoption petition involved “two distinctively different issues.” Although appellants did vehemently [271]*271contend that Barr’s rights under the custody order would be eviscerated by allowing the adoption to go forward and that the two cases could not be “separated,” we do not think that this is the same as contending that collateral estoppel barred these proceedings. Based on the foregoing, we conclude the issue of collateral estoppel was not fully and fairly raised below and that, therefore, appellants cannot now assert that defense as a reason the trial court’s order granting the petition should be reversed. See In the Interest of B. A. S., 254 Ga. App. 430, 441 (8) (563 SE2d 141) (2002) (failure to raise estoppel issue below precludes appellate consideration); Haygood v. Head, 305 Ga. App. 375, 377-378 (1) (699 SE2d 588) (2010) (trial court erred by sua sponte dismissing claims based on collateral estoppel when that affirmative defense was not pled and proved below).

3. Appellants next contend that the trial court “abused its discretion in its application of law relative to the Child’s best interest.” Additionally, in their fourth enumeration, they contend the trial court erred by finding that the adoption was in the child’s best interest.

We begin with our standard of review. In an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion. Motherly v. Kinney, 227 Ga. App. 302 (1) (489 SE2d 89) (1997). And because there are no surviving natural parents in this case, the trial court,

[a]rmed with this discretion... must determine whether the “petitioner is capable of assuming responsibility for the care, supervision, training, and education of the child, that the child is suitable for adoption in a private family home, and that the adoption requested is for the best interest of the child.” [OCGA § 19-8-18 (b).] On appeal, we construe the evidence in a light most favorable to the court’s judgment, and we will affirm a trial court’s finding that the adoption is in the child’s best interest if there is any evidence to support it.

In the Interest of B. A. S., 254 Ga. App. at 444 (12). Rokowski, 275 Ga. App. 306 (2) (“in matters of adoption the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse. . . .”) (punctuation and footnote omitted).

At the hearing on the adoption petition, the appellants acknowledged that the Gregors are “fully capable of being good parents” to H. M. S. The trial court found overwhelming evidence that the Gregors were worthy and capable of caring for the child, a finding that [272]*272is not challenged in this appeal. The trial court next considered whether it was in the best interest of the child for the adoption petition to be granted, and in doing so specifically utilized the factors listed in OCGA § 19-9-3, although the court recognized that these factors are listed in the statute governing custody between parents. Appellants now contend that the trial court erred by considering these factors, arguing that because the legislature intended that these factors apply in child custody proceedings between parents, it was reversible error for the trial court to utilize these factors in this case.

We do not believe, however, that the trial court abused its discretion by considering these factors under the facts of this case.

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Related

Rokowski v. Gilbert
620 S.E.2d 509 (Court of Appeals of Georgia, 2005)
Snyder v. Carter
623 S.E.2d 241 (Court of Appeals of Georgia, 2005)
Matherly v. Kinney
489 S.E.2d 89 (Court of Appeals of Georgia, 1997)
Haygood v. Head
699 S.E.2d 588 (Court of Appeals of Georgia, 2010)
In re Adoption of D. J. F. M.
643 S.E.2d 879 (Court of Appeals of Georgia, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 868, 316 Ga. App. 269, 2012 Fulton County D. Rep. 2017, 2012 WL 2161386, 2012 Ga. App. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barr-v-gregor-gactapp-2012.