Shannon Lee Floyd v. Sherry Anne Gibson

• Court: Court of Appeals of Georgia
• Decided: June 21, 2016
• Docket: A16A0171
• Status: Published

Opinion

FIFTH DIVISION PHIPPS, P. J., DILLARD and PETERSON, 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. http://www.gaappeals.us/rules

June 21, 2016

In the Court of Appeals of Georgia A16A0171. FLOYD v. GIBSON. PE-006

PETERSON, Judge.

This is the second time this child custody case has come before us. The first

time, the trial court’s order awarding custody of the children to their maternal

grandmother instead of their father left us unsure whether the trial court had made all

of the required findings and considered all of the applicable factors. We vacated the

order and remanded for the trial court to consider all the factors and make explicit

findings. But on remand, the trial court instead adopted a proposed order from the

grandmother that simply edited the prior order (based entirely on evidence now well

over two years old) to include, as the trial court put it, the required “magic words.”

The father argues that the trial court’s new order applied an incorrect standard and

that the evidence did not support the court’s custody determination. We again vacate the trial court’s order because the court failed to consider substantively all the

circumstances of the case in accordance with our previous instruction, and remand

for further proceedings consistent with this opinion.

Shannon Lee Floyd (“the father”) and the mother, who were never married,

have three minor children. The children lived with both parents until the parents

separated in 2012, after which the children remained with their mother. Shortly

thereafter, the children’s mother was granted a temporary protective order against the

father after he allegedly threatened to kill her and the children. The father was not

separately charged for any crime associated with that incident and disputes the

version of facts that formed the basis for the protective order. The mother maintained

custody of the children but continued to leave them with the father for weekend

visitations. In May 2013, the children were removed from their mother’s custody after

she suffered a drug overdose and were placed with Sherry Anne Gibson, the

children’s maternal grandmother (“the grandmother”).

Soon thereafter, the grandmother petitioned for custody. The children moved

into the grandmother’s home, which was shared with the grandmother’s 16-year-old

son and the grandmother’s husband, who had recently been released from prison. The

father answered, counterclaimed for custody, and began the legitimation process.

2 During that process, it was revealed that the father was being treated with methadone,

although the father disputed that drug addiction was the reason for the methadone

treatment. The father was living at his mother’s house, was employed, and had been

paying child support. The judge awarded temporary custody to the grandmother

because the father had not yet legitimated the children. Several months later, an order

was entered legitimating the children.

In October 2013, the trial court held a permanent custody hearing. After

receiving requested proposed orders from the parties, on November 5, 2013, the court

entered the grandmother’s proposed order awarding her custody of the children.1 The

father moved for a new trial, which was denied. The father appealed, arguing the trial

court had applied an incorrect standard and that the evidence did not support the

court’s custody determination.

On March 19, 2015, we vacated the trial court’s order and remanded for

reconsideration, holding that it was not apparent whether the trial court had “made the

requisite determination that the children would suffer ‘either physical harm or

significant, long-term emotional harm’” if placed in the father’s custody as required

by Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001) (plurality decision),

1 The mother conceded she was not a placement option for the children.

3 or whether the trial court had “considered the four factors set forth in Clark with

regard to custody determinations in cases in which certain third-party relatives seek

custody from parents.” Floyd v. Gibson, 331 Ga. App. 301, 303-04 (1) (771 SE2d 12)

(2015) (physical precedent only).

Following remand, the father moved for a hearing, which the trial court

granted. At the hearing, the court discussed with the parties how to proceed. The

grandmother argued that the vacated order simply needed to be amended. The father

objected, noting that all the evidence in the case was, at that time, nearly two years

old, and that a change in circumstances warranted an emergency custody hearing. The

trial court indicated that it did not intend to hear any new evidence, and that it would

review a proposed order from the grandmother based upon the same evidence that had

been presented nearly two years earlier. But the trial court also stated that it would set

a hearing on the emergency custody motion.

Less than a week later, the trial court emailed the parties stating that it did not

“see a need to re-litigate the case” and that it simply intended to amend its original

order to “comply with what the Court of Appeals wants,” which it described as simply

adding “magic words” to the prior order. The trial court judge further stated, “I stand

by my ruling, I just need an amended order to comply with the [Court of Appeals].”

4 Less than two weeks later on July 22, 2015, the trial court entered a final order,

drafted by the grandmother’s counsel, awarding permanent custody to the

grandmother. The trial court attached an “addendum” to that final order, however,

stating that the court had “concerns that the language expressed [in the order] may not

directly address the reasons the Court of Appeals vacated the prior Order.” The trial

court also observed that the order was “based on the testimony before the Court on

October 17, 2013” and that there “may have been substantial changes since that

date[.]” For this reason, the trial court stated it would hold a hearing, though the

record does not reflect any such hearing. Nevertheless, based on that well-aged

evidence that may have changed substantially, the trial court found “it likely that

future physical and mental harm may be done to the children if placed in the father’s

custody” and issued the order awarding permanent custody to the grandmother. This

appeal followed.

1. The father correctly argues that the trial court failed to apply the proper

standard in determining custody. In Georgia,

a parent has a right of custody to h[is] child[ren] in preference to a third party unless there is clear and convincing evidence that the parent is unfit. The focus of such a determination of unfitness must be the parent’s ability to provide for the child[ren] in a manner sufficient to

5 preclude the need for an entity of the government to intervene and separate the child[ren] from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the child[ren] might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise h[is] child[ren] is not to be compared to the fitness of a third person.

Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (citations omitted).

OCGA § 19-7-1 (b.1), which governs custodial disputes between the father and

grandmother, establishes a rebuttable presumption that it is in the best interest of the

children for custody to be awarded to the father. OCGA § 19-7-1 (b.1). The Supreme

Court of Georgia previously concluded that there are three presumptions implicit in

the statute: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the

best interest of his or her children, and (3) the children’s best interest is to be in the

custody of a parent.” Clark, 273 Ga. at 593 (II).

The father may lose custody of his children to the grandmother only “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 . . . children and will best

promote their welfare and happiness.” OCGA § 19-7-1(b.1) (emphasis added). The

6 “best interest of the children” standard requires “the third party to show that parental

custody would harm the child[ren]” in order to rebut the statutory presumption in

favor of the parent. Clark, 273 Ga. at 598 (IV). The harm must be either physical “or

significant, long-term emotional harm; we do not mean merely social or economic

disadvantages.” Id. “Once this presumption is overcome, the third party must show

that an award of custody to him or her will best promote the child[ren]’s health,

welfare, and happiness.” Id.

Additionally, as we directed the trial court last time, the court should consider

four factors with respect to determining custody and harm:

(1) who are the past and present caretakers of the children; (2) with whom have the children formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with the children over time; (4) do the children have unique medical or psychological needs that one party is better able to meet.

Floyd, 331 Ga. App. at 303 (1) (citing Clark, 273 Ga. at 598-99 (IV)) (punctuation

omitted).

The father correctly argues that the trial court applied the wrong standard when

it made its tentative findings of future physical and mental harm. The standard

requires a showing by the third party that a child “will suffer physical or emotional

7 harm if custody were awarded to the biological parent[,]” not that the harm “may”

result, as found by the trial court. See Clark, 273 Ga. at 599 (V) (emphasis added).

While we agree with the father’s argument, we note that the simultaneous existence

of both the order and the addendum that followed it creates an oddity here. In the

order, the court appears to make its ruling quite decisively — but then calls into

question the findings underpinning that ruling with its addendum. Taking the two

orders together, along with the trial court’s comments at the hearing and via email,

it becomes entirely unclear what findings the trial court actually made. This lack of

clarity is due in large part to the court’s verbatim adoption of a proposed order with

which the court appears not to have fully agreed. See Outdoor Adv. Ass’n of Ga., Inc.

v. Dep’t of Transp., 186 Ga. App. 550, 550 (1) (367 SE2d 827) (1988) (“It has been

noted that when the trial court adopts verbatim the proposed findings and conclusions

of the prevailing party the adequacy of the findings is more apt to be questioned, the

losing party may forfeit his undeniable right to be assured that his position has been

thoroughly considered, and the independence of the trial court’s thought process may

be cast in doubt.”) (citation omitted).

Our prior instruction in March of 2015 to the trial court was intended to do

more than simply garner the addition of certain “magic words” to the trial court’s

8 2013 order depriving the father of custody. Rather, the trial court was instructed to

conduct a substantive analysis of the Clark factors, and determine whether the

children would suffer physical “or significant, long-term emotional harm” by having

custody awarded to their father. See Floyd, 331 Ga. App. 303-304 (1). The

considerations the trial court was instructed to make were to be supported by findings

of fact. While evidence of prior acts can support a conclusion that the children would

suffer harm if custody were awarded to their father, the trial court failed to consider

“all the circumstances of the case” when it declined to consider any evidence that was

less than 21 months old at the time despite explicitly acknowledging that

circumstances may have changed. The trial court’s concession to the staleness of the

evidence before it — offering a post-order hearing — is inadequate. This “order first,

then hearing” approach is puzzlingly backwards.

The grandmother asks that we attribute any error in the revised order to her

counsel instead of the trial court because her counsel drafted the revised order for the

court and made the “required findings” for the court. But this argument underscores

the necessity of our vacating the trial court’s order, and misunderstands how the

judicial process should work. An order adopted by a trial court becomes its own, and

the findings must be its own (although it may be assisted by counsel). We cannot

9 apply the appropriate deferential standard of review to the trial court’s findings of fact

when it is entirely unclear that the trial court even made any such findings, or where

it failed to base its findings, to the extent any were made, on contemporaneous

evidence.

“[P]arents have a fundamental liberty interest in the care, custody, and

management of their children and there can scarcely be imagined a more fundamental

and fiercely guarded right than the right of a natural parent to his offspring.” See In

re M.F., 298 Ga. 138, 145 (2) (780 SE2d 291) (2015) (citations and punctuation

omitted). When that fundamental interest is at stake, the court must give full, fair, and

thoughtful consideration to the serious matter at hand. Accordingly, we again vacate

the trial court’s judgment, although we do not do so lightly. We are mindful of the

additional delay this will cause both in the permanent placement of the children and

in the adjudication of the father’s parental rights, due in no small part to the time this

court has had to expend due to unclear orders of the trial court. However, we are

obligated to ensure that the law has been followed, and so we remand the case for

reconsideration and an evidentiary hearing consistent with this opinion. To ensure a

third error is avoided, we direct the trial court — following the evidentiary hearing

10 on remand — to craft its own order without the use of proposed orders from the

parties.

2. In light of our holding in Division 1, we need not address the father’s

remaining enumerations.

Judgment vacated and remanded with direction. Phipps, P. J., and Dillard, J.,

concur.