Ortega v. Temple

359 Ga.App. 5

856 S.E.2d 471

ORTEGA

v.TEMPLE et al.

A20A1716

Court of Appeals of Georgia.

March 15, 2021

Certiorari Denied September 8, 2021

Miles Hansford & Tallant, Deborah A. Pittman, Lauren C. Giles, for appellant.

Kessler & Solomiany, Nancy I. Jordan, for appellee.

Barnes, Presiding Judge.

Prosper Ortega, the noncustodial biological mother of A. U., filed a petition to regain custody of her child. Ortega sought relief from a final consent order which had placed physical and legal custody of A. U. with Ortega's godparents, Leigh and Anita Temple. Subsequently, the trial court entered a temporary order addressing, among other things, issues regarding the child's care and custody, which it later substituted with an amended order, and also holding that the terms and provisions of the final consent order would remain in full force and effect as to A. U.’s custody with the Temples (the "temporary order"). The trial court also entered a separate order addressing the standard that would govern the final hearing in which it concluded that the Temples now had the prima facie right to custody as against Ortega, who had lost the right to custody; and that Ortega could regain custody only upon showing by clear and convincing evidence that she was currently a fit parent and that it was in the child's best interest that custody be changed (the "legal standard order"). The court held that the standard of Durden v. Barron , 249 Ga. 686, 290 S.E.2d 923 (1982) – under which the noncustodial biological parent has the burden to show by clear and convincing evidence that she is a fit parent and that it is in the child's best interest that custody be changed – would apply in the final hearing. We granted Ortega's application for interlocutory review of the orders, and this appeal ensued. For the reasons that follow, we reverse the trial court's judgment in the legal standing order, vacate the temporary custody order, and remand the case to the trial court for consideration of Ortega's petition under the proper legal standard and further proceedings not inconsistent with this opinion.

When reviewing a child custody decision, this Court views the evidence presented in the light most favorable to upholding the trial court's order. Mitcham v. Spry , 300 Ga. App. 386, 386, 685 S.E.2d 374 (2009). However, the question of whether the trial court applied the correct legal standard is one of law, which this Court reviews de novo. See Bonus Stores v. Hensley , 309 Ga. App. 129, 133 (2), 710 S.E.2d 201 (2011).

The relevant facts demonstrate that in 2016, seven days after she gave birth to A. U., the child's biological father severely beat Ortega, which resulted in substantial and serious injuries to Ortega. The father was incarcerated as a result of the attack and remained incarcerated at the time the underlying petition was filed.

Because Ortega could not care for her newborn son, the maternal grandmother filed a petition for custody of the child. On January 20, 2017, following a hearing, the trial court issued a "final custody order" placing custody of A. U. with the grandmother.¹ The order indicated that Ortega and the father had agreed to the terms regarding custody and visitation as incorporated in the order. Those terms included:

[The grandmother] is granted sole legal and physical custody of the minor child [A. U.], with the following provisos:

a. Petitioner [the grandmother] shall consult and discuss any major decisions for the minor child with Respondent [Ortega] before making such decisions; and,

b. Visitation between [Ortega] and the minor child shall be as agreed upon by her and [the grandmother], with the understanding that such agreement shall not be unreasonably withheld.

The court ordered that the father have no visitation with the child, and required him to pay monthly child support to the grandmother. The court did not require Ortega to pay child support, "as she [was] in the home with [the grandmother] and assisting with the child's care."

Subsequently, the Temples filed a complaint to modify custody against Ortega, the grandmother, and the father. On September 29, 2017, the trial court issued a "Final Consent Order" (the "consent order"). The consent order provided that the parties had "reached a full and final settlement of all issues arising from [the Temples’] Complaint to Modify Custody," and consented to the entry of the order. The trial court ruled that "[the Temples] shall have sole legal and physical custody of the minor child" and that "[v]isitation between [Ortega] and the minor child shall be as agreed upon by [Ortega] and [the Temples]," with the understanding that visitation "shall not be unreasonably withheld[.]" The trial court ruled the same regarding visitation between the grandmother and the child. It found that Ortega had no income and ordered the father alone to pay child support, payable to the Temples. The trial court stated that it had deviated from the child support guidelines and would not require Ortega to pay child support because she was "disabled" and had "disabilities."

In December 2018, seeking to regain custody of A. U., Ortega filed a petition for temporary and permanent modification of custody.

In the petition, Ortega claimed that: (1) due to material changes in circumstances since the entry of the consent order – specifically, Ortega's significant strides in her recovery from her traumatic domestic abuse experience and her substance addiction issues – it was now in A. U.’s best interest that Ortega be granted sole custody and that the child be reunited with her, his biological mother; and (2) the Temples had (a) tried to alienate A. U. from Ortega with no concern for the irreparable damage they were doing to the child, and (b) threatened the child's welfare by abusing alcohol, using improper language in the child's presence, and neglecting the child's hygiene. In opposing the petition, the Temples responded that they were bonded with the child, and it would be detrimental for the child to be removed from their home; and that due to her mental instability, Ortega was not capable of providing a safe and stable home for the child.

At a subsequent December 2019 "compliance" hearing related to the petition at which several witnesses testified,² the parties first contested the standard to be applied by the trial court in ruling on Ortega's custody petition. The Temples argued that in agreeing to the consent order, Ortega had entered into a voluntary contract releasing all of her parental power to a third person under OCGA § 19-7-1 (b) (1), and therefore the standard articulated in Durden should apply. The Temples asserted that Ortega did not retain any real rights to visitation in the consent order.

In response, Ortega argued that Durden did not apply, and instead the trial court should apply the standard articulated in Lopez v. Olson , 314 Ga. App. 533, 724 S.E.2d 837 (2012). According to Ortega, Lopez required that prior to the entry of the consent order, an evidentiary hearing should have been held, followed by a finding that she was unfit. She also argued that the consent order was intended to be temporary, and that under the consent order, she had not fully released all of her parental rights, but retained visitation. The trial court orally ruled that the standard of Durden , not Lopez , applied, and subsequently entered the written legal standard order.

Regarding the legal standard it would apply in a final custody hearing, the trial court concluded that because Durden applied, the Temples now had the prima facie right to custody as against Ortega, who had lost the right to custody; and Ortega could regain custody upon showing by clear and convincing evidence that she was currently a fit parent and that it was in the child's best interest that custody be changed. The court reasoned that the consent order constituted clear and convincing evidence of a voluntary contract by Ortega, pursuant to OCGA § 19-7-1 (b) (1), fully releasing her parental rights to a third person, the Temples. The court explained that unlike the prior order at issue in Lopez , under which the biological parent retained some custody rights, here the consent order was a final order awarding sole permanent custody of the child to the Temples. The court explained that the fact that the consent order awarded Ortega visitation as agreed upon between her and the Temples did not mean she retained any parental rights. The court certified its ruling for immediate review.

The court also entered a temporary order which, among other things, granted Ortega supervised visitation every other weekend,³ access to the child's school and medical records, and the opportunity to offer suggestions regarding A. U.’s educational and medical care, with the stipulation that Ortega could not offer the providers any "directives." The order, however, gave the Temples sole decision making authority over the child, and provided that the consent order would "remain in full force and effect."⁴

1. Particularly in matters as sensitive and important as the custody of children, this Court should ensure that the trial court has applied the proper legal framework. In the Interest of A. S. , 293 Ga. App. 710, 713-714 (2), 667 S.E.2d 701 (2008) ("Where, as here, the trial judge acts as finder of fact, our duty is to make certain the proper standard was utilized by the court.") (citation and punctuation omitted). See also Blackburn v. Blackburn , 249 Ga. 689, 693 (2), 292 S.E.2d 821 (1982) ("[T]he appropriate burden of proof in a given type of case is shaped by the risk of error inherent in the truth-finding process.") (citation and punctuation omitted.) Within this framework, this Court, as it must, considers that "[p]arents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. This right to the custody and control of one's child is a fiercely guarded right that should be infringed upon only...