In re K. L.

362 Ga.App. 590

869 S.E.2d 543

In the INTEREST OF K. L., a child.

A21A1233

Court of Appeals of Georgia.

February 11, 2022

Shaw Law Firm, Scott Willis Shaw, Atlanta, for Appellant

Christopher Michael Carr, Atlanta, Shalen S. Nelson, Emily Allen Harris; Pham Law Office, Andy Pham; Homer Perry Jordan IV, Kennesaw, for Appellee.

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 S.E.2d 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 S.E.2d 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 S.E.2d 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 , 361 Ga. App.764, 770 (1), 863 S.E.2d 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 Based on our review of the record now before us and the facts stated in previous unpublished opinions of this Court,¹ it is clear that the custody of K. L. has long been entangled with the custody of his sisters and half-siblings, Ky.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children of K. L.’s mother with another man, who is a blood relative of John Statham.² As we explained in our first unpublished decision: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 (Case No. A13A1463) (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 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, 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."

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 (Case No. A18A0420) (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 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.

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...