Hackett v. Stapleton

365 Ga.App. 405

877 S.E.2d 838

HACKETT

v.STAPLETON et al.

A22A0773

Court of Appeals of Georgia.

August 26, 2022

Reconsideration Denied September 06, 2022

Beverly L. Cohen, Roswell, for Appellant.

Andrew John Lavoie, Atlanta, Susan Warren Cox, Statesboro, Paige Boykin Navarro, for Appellee.

Rickman, Chief Judge.

Following the trial court's adjudication of James and Shirley Stapleton as equitable caregivers of a minor child, grant of legal and physical custody of the child to the Stapletons and denial of the father's legitimation petition, the mother appeals. The mother contends that the trial court erred by adjudicating the Stapletons equitable caregivers, awarding custody to the Stapletons, denying the father's legitimation petition, and awarding court registry funds to the Stapletons. For the following reasons, we affirm in part, reverse in part, and remand this case with direction.

We review the evidence in the light most favorable to the trial court's judgment. Miles v. Skinner , 361 Ga. App. 764, 764, 863 S.E.2d 578 (2021). So viewed, the evidence showed that the mother was 20 years old when she gave birth to the child. At the time of the birth, the mother lived with the child's maternal grandmother. The child's father was deployed in Iraq when he learned the mother was pregnant with the child. At the time the child's father learned of the pregnancy, he testified that the mother expressed that she was not aware of the child's paternity.

After the child was born, the maternal grandmother was given guardianship of the child when he was approximately six months old. The grandmother also obtained a protective order against the mother. The grandmother informed Mrs. Stapleton that the reasons for the protective order were that the mother demanded that the grandmother take care of the child and hit the grandmother at some point. The grandmother knew the Stapletons from work and church and they began to keep the chid occasionally. In the beginning, the child would stay with the Stapletons for just a few hours or overnight. Eventually, however, the child began staying with the Stapletons on a full-time basis. This transition occurred when the child was between six and eleven months of age. When the child was 11 months old, the grandmother obtained a more permanent guardianship order and the Stapletons cared for the child full time.

Despite not having a court order giving them any custody of the child, the Stapletons remained the child's primary caregivers. The mother continued to interact with the child while he was in the Stapletons’ care. The child saw the mother when he visited with his grandmother and she attended birthday parties and cook outs at the Stapleton's home. The mother has always had a room for the child at her home and she testified that it has always been her hope that he would come to live with her. After the child's birth, the mother married and had two other children.

When the child was nine years old, the mother discovered that the grandmother had "dropped" the protective order granting her custody. When the mother arranged for the child to go to the zoo with her other children, a dispute arose between the mother and the Stapletons about the trip. The child ultimately went to the zoo with the mother, who chose to not return him to the Stapletons.

After the zoo trip, the Stapletons filed both a petition for adoption and a motion for expedited hearing and immediate placement of the child. The trial court granted the Stapletons sole and legal custody of the child during the pendency of the action. The trial court also appointed a guardian ad litem ("GAL") and granted visitation to the mother.

Thereafter, the child's father filed a petition for legitimation and child custody. Following the filing of the legitimation petition, the Stapletons stipulated that the trial court could not grant their petition for adoption, but that they had standing to seek custody of the child pursuant to OCGA § 19-7-3.1, the adjudicated equitable caregiver statute. Additionally, the Stapletons amended their adoption petition seeking to be adjudicated equitable caregivers and to be granted sole and, permanent legal and physical custody of the child.

At the final hearing on all the parties motions, Mrs. Stapleton testified that she had concerns about the child while he was at the mother's house. Mrs. Stapleton explained that in past conversations that she had with the grandmother, she was told that on one occasion the mother and her husband were "arguing and fighting" and that the mother used bad language. Mrs. Stapleton was asked if she thought she was a better parent "simply because [she doesn't] curse" and she responded "I don't cuss in front of him. I think that's better raising, yes, ma'am." When asked if she thought if the child was exposed to these things if he would suffer harm at the mother's home, Mrs. Stapleton replied, "[i]t's possible."

As to the child's father, Mrs. Stapleton testified that at the time the child began living with them, she had no knowledge about the father's identity. At some point, Mrs. Stapleton did learn of the father's name and he came to her residence for a holiday when the child was a toddler. The father did not visit their home again prior to her filing the instant action. The father was awarded visitation during the pendency of this action and Mrs. Stapleton testified that "[h]e would get [the child] on a Friday afternoon, [and] bring him back Friday night. Then he could get him on Saturday morning and get him back Saturday night for so many visits." The father exercised all but one of those visitation opportunities. The father also reached out to the child with text messages and phone calls.

The father testified that he was married and had three other children, one biological and two step children, all of whom live with him and his wife. The father was deployed in Iraq when the child at issue was born and was stationed in Texas when he returned. He explained that when he got back from deployment he immediately took a DNA test and started paying child support to the grandmother.¹ As to developing a relationship with the child, the father testified that he met with the mother and grandmother along with the child when he was an infant. The father subsequently tried to see the child whenever he came home.

When he moved back to Georgia, the father continued to try to get in touch with the mother and the grandmother to see the child. The father was able to arrange to see the child in public places and attended one of his youth sporting events. The father also reached out to the Stapletons on a social media platform explaining that he was paying child support and was having trouble seeing the child. The father did not receive a response. Moving forward, prior to the filing of the adoption petition, the father testified that he was able to talk to the child once or twice a month.

A counselor hired by the Stapletons testified as an expert to explain what he had learned as the child's counselor and to make recommendations based on that relationship. The counselor had met with the child 11 times over a three-month period. He testified that the Stapletons provide for the child's daily needs and that the child and the Stapletons have a healthy interaction with each other. When asked about the potential consequences of removing the child from the Stapletons, the counselor responded,

Not even specific to this situation, but overall from experience, any removal for a child that's been with a family this long, ever since basically very, very early in his life, I believe from experience would be very detrimental to his mental health and could continue to carry on into physical health and all kinds of other things. Just the unnecessary interruption that that would cause in his life I think could be very detrimental.

The counselor opined that the child should remain with the Stapletons full-time and that the mother and father be given some sort of visitation.

Finally, the GAL testified that she had been the child's GAL for approximately 15 months. In that capacity, she had interviewed the Stapletons, the mother and her husband, the father and his wife, school counselors, teachers, employers for the parents, and the grandmother. When she first met the child, he was excited for his father to legitimate him and requested that he be given his father's name. Later, the child indicated that he was "fussed at" by Mr. Stapleton for desiring to have his father's name. When discussing the issues the Stapletons had with the mother and the father, the GAL testified that they did not have concerns about drug usage, job instability or homelessness, "it was just basically, you know, that was a thing for them that they cursed." Both parents and the mother's husband volunteered and passed drug screens.

The GAL testified that she believed the child was conflicted as to what he wanted and he really wanted all parties to get along. The GAL also had concerns because the child did not feel comfortable sharing everything about his life with the Stapletons, including secretly meeting with the mother's other children, his siblings, at school, and that Mrs. Stapleton struggled to share the child with his parents.

In her report, the GAL recommended that the mother have custody of the child explaining:

[A] s this case has moved forward, it has become clear that the only way to facilitate a healthy relationship between this child and all of the parties is for him to be in the custody of one of his parents.... The guardian has not been given any evidence of any HARM that would come to this child should he return to his mother's custody.... This recommendation for custody will allow more access to the child for all parties and foster the parent-child relationship, which is fiercely guarded under Georgia Law.

The GAL further recommended that the child have regular visitation with the Stapletons and his father. The GAL also recommended that the...