Neill v. Brannon

738 S.E.2d 724

NEILL

v.BRANNON.

No. A12A2560.

Court of Appeals of Georgia.

March 15, 2013.

Reconsideration Denied March 27, 2013.

Christopher Lee Moore, Atlanta, for Appellant.

James Roland Argo Jr., for Appellee.

ELLINGTON, Chief Judge.

Kelly Neill, the mother of seven-year-old C.B.N., appeals from the trial court's grant of the legitimation petition filed by the girl's biological father, Charles Brannon. Neill contends that the court erred in failing to expressly rule upon whether Brannon had abandoned his opportunity interest in establishing a parent-child relationship with C.B.N. and whether legitimation was in the child's best interest. She also argues that there was insufficient evidence to support the court's judgment. For the following reasons, we reverse the court's grant of Brannon's legitimation petition, and, as a result, the grant of visitation rights to Brannon is vacated as a matter of law. ¹

1. Neill contends that the trial court committed reversible error when it granted Brannon's legitimation petition without expressly determining, as a threshold matter, whether Brannon had abandoned his opportunity interest in establishing a parent-child relationship with C.B.N. We agree.

“In considering a legitimation petition, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child.” (Citation and punctuation omitted.) In the Interest of M.K., 288 Ga.App. 71, 74(2), 653 S.E.2d 354 (2007).

As our Supreme Court has found, a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. It is an interest which can be abandoned by the unwed father if not timely pursued.(Punctuation and footnotes omitted.) Binns v. Fairnot, 292 Ga.App. 336, 338, 665 S.E.2d 36 (2008). “Factors which may support a finding of abandonment include, without limitation, a biological father's inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.” (Footnotes omitted.) Morris v. Morris, 309 Ga.App. 387, 389(2), 710 S.E.2d 601 (2011). If the evidence supports a finding that a father has abandoned his opportunity interest in developing a relationship with his biological child, then the court is authorized to end its inquiry and to deny the legitimation petition on that basis. In the Interest of J.S., 302 Ga.App. 342, 344(1), 691 S.E.2d 250 (2010).

“We review a trial court's ruling on a legitimation petition for abuse of discretion.” (Footnote omitted.) Binns v. Fairnot, 292 Ga.App. at 337, 665 S.E.2d 36. We review the court's factual findings, however, for clear error and will only sustain such findings if there is competent evidence to support them. Matthews v. Dukes, 314 Ga.App. 782, 786(1), 726 S.E.2d 95 (2012), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380(3), 729 S.E.2d 393 (2012).

In this case, the record shows the following undisputed, relevant facts on the issue of whether Brannon abandoned his opportunity interest. Sometime prior to 2005, Brannon met Neill at a friend's house, and they began a sexual relationship. During that period, Brannon was “dealing in methamphetamine,” and both he and Neill were abusing the drug. When Neill told Brannon she was pregnant, Brannon asked her if he was the father, and she told him no. Neill's daughter, C.B.N., was born in September 2005. At some point within the next year, a DNA test revealed that Brannon was, in fact, the child's biological father. Based upon those results, Neill filed a paternity action seeking child support, and, in December 2006, the Superior Court of Dawson County ordered Brannon to begin paying $40 a week in child support. By February 2008, however, Brannon was $792 in arrears in his support payments, and Neill filed a child abandonment petition. Neill withdrew the petition when Brannon resumed his payments.

In March 2008, Brannon was arrested for felony possession of methamphetamine and Darvocet.² He was convicted and incarcerated for six months; he then spent twelve months in a residential drug rehabilitation program, followed by a six-month outpatient program. In February 2011, about a year after completing the programs, Brannon filed the instant legitimation petition; at that time, C.B.N. was five and a half years old.

Neill objected to the legitimation petition, asserting that Brannon had failed to visit, contact, or make any other meaningful attempt to establish a relationship with C.B.N. since her birth and had failed to provide court-ordered child support on a consistent basis. She contended that Brannon had therefore abandoned his opportunity interest in establishing a parent-child relationship with C.B.N., and, consequently, the court should deny his legitimation petition. She also asserted that, even if Brannon had not abandoned his opportunity interest, the court should deny his petition because he is not a fit parent and legitimation would not be in C.B.N.'s best interest, citing his history of domestic violence, numerous DUI and other convictions, and felony drug possession convictions.

During the hearing on the legitimation petition, Brannon admitted that, during the years between when he learned that he was C.B.N.'s biological father in 2006 and November 2010, when he had triple bypass heart surgery, he never spoke to C.B.N., visited her, or sent her cards or presents,³ nor did he file a legitimation petition.⁴ Although Brannon claimed that he did not know Neill's address during that time period,⁵ he admitted that he learned Neill's mailing address in 2008, when she filed the child abandonment petition. Further, Brannon admitted that he had known the address of Neill's parents since at least 2006, yet he never tried to contact Neill or C.B.N. at that address.⁶ In addition, the record shows that Brannon was $618 in arrears in his child support payments at the time of the February 2012 hearing. ⁷

In an attempt to explain his lack of effort toward developing a relationship with C.B.N., Brannon testified that he had been in contact with Neill sometime in 2007 and had arranged to meet with her and the child, but he missed the meeting. According to Brannon, Neill then told him that he had missed his only chance to see C.B.N. Brannon also admitted that he made no efforts to contact Neill during the 18 months he was incarcerated and in the residential rehabilitation program following his 2008 arrest. In fact, he testified that he only started looking for Neill sometime in 2010, when he was preparing to file the legitimation petition. In addition, Brannon testified that he had never tried to contact Neill at her parents' house because he had gone to their home one time on an unrelated errand and Neill's father had told him to leave Neill alone or he would have a “fatal accident.” ⁸ Brannon failed to testify as to when this incident occurred, however, so there is no evidence to show whether it happened before or after C.B.N. was born.

Although the juvenile court judge in this case made no express findings in its written order as to whether Brannon abandoned his opportunity interest in establishing a relationship with C.B.N., he suggested during the hearing that he believed Brannon's failure to establish a relationship with C.B.N. was partly caused by Neill's statements to him, his “trouble finding” Neill, her return of the birthday cards he sent to C.B.N. in September 2011, and her father's threatening statement to Brannon. The judge stated that “I think there was a real problem in trying to communicate, even if [Brannon] had wanted to [communicate] with the child.”

As shown above, however, Brannon admitted that he had addresses for Neill and/or her parents since at least 2006, yet never tried to contact her or C.B.N. at those addresses. In addition, he admitted that he made no attempt to find an alternate address for Neill or to initiate legitimation proceedings until the fall of 2010, when C.B.N. was already five years old. Although Brannon suggested that he was unable to contact Neill while he was incarcerated and in residential drug rehabilitation for 18 months, “Georgia law is well settled that [Brannon] cannot object to the natural consequences brought about by his own voluntary commission of criminal acts.” (Citation omitted.) Turner v. Wright, 217 Ga.App. 368, 369(1), 457 S.E.2d 575 (1995). As for Neill's father's threat, there was no evidence to show when it occurred; it follows that, until the threat was actually made, it could not have preventedBrannon from contacting Neill at her parents' home. Further, the birthday cards for C.B.N.'s sixth birthday that Brannon sent to Neill's parents' address in September 2011 were the only cards or letters he had ever sent to C.B.N., and, by that time, Neill had already challenged his legitimation petition on the basis of his having abandoned his opportunity interest, as well as his lack of parental fitness.

Given these circumstances, we conclude that, even if Neill and/or her family had attempted to discourage Brannon from contacting her or C.B.N. from 2006 through 2010, the trial court erred to the extent it found that those efforts were the primary cause of Brannon's failure to pursue a parent-child relationship with the child. Instead, by his own admission, Brannon waited until after his heart surgery in November 2010—more than four years after conclusively...