McAlister v. Clifton ( 2021 )

In the Supreme Court of Georgia
Decided: December 14, 2021
S22A0144. MCALISTER V. CLIFTON.
ELLINGTON, Justice.
Erin McAlister appeals from trial court orders awarding
Wendi Clifton, McAlister’s former domestic partner, visitation
rights to McAlister’s adopted daughter, Catherine, pursuant to the
equitable caregiver statute, OCGA § 19-7-3.1.1 McAlister contends
the trial court erred in declaring the statute “constitutional, both
facially and as applied to [Clifton],” as well as finding that Clifton
had standing to seek visitation rights as Catherine’s equitable
caregiver. However, Catherine is now an adult, having turned 18
years old prior to the docketing of this appeal, and the parties agree
that this fact rendered moot McAlister’s challenge to the award of
1 Clifton did not formally adopt Catherine and she does not contend that
she is Catherine’s legal parent.
visitation rights. 2 We conclude that the case is moot, and we
therefore vacate the trial court’s orders and remand the case to the
trial court with direction that the case be dismissed.
The record shows that, on January 25, 2021, the trial court
entered an order denying McAlister’s motion to dismiss Clifton’s
petition for visitation with Catherine, rejecting McAlister’s
challenge to the constitutionality of OCGA § 19-7-3.1.3 Also on
2 McAlister moved the trial court to set aside a portion of the final order
granting Clifton visitation after Catherine’s eighteenth birthday, citing
Francis-Rolle v. Harvey, 309 Ga. App. 491, 492 (1) (710 SE2d 659) (2011).
Clifton conceded that her right to visitation terminated by operation of law
when Catherine reached the age of majority, and the trial court granted the
motion. Thus, as discussed below, this portion of the final order is already a
nullity.
3 The equitable caregiver statute provides that a court may adjudicate
an individual to be an equitable caregiver if, among other things, the individual
shows by clear and convincing evidence that he or she has:
(1) Fully and completely undertaken a permanent,
unequivocal, committed, and responsible parental role in the
child’s life;
(2) Engaged in consistent caretaking of the child;
(3) Established a bonded and dependent relationship with
the child, which relationship was fostered or supported by a parent
of the child, and such individual and the parent have understood,
acknowledged, or accepted that or behaved as though such
individual is a parent of the child;
(4) Accepted full and permanent responsibilities as a parent
of the child without expectation of financial compensation; and
(5) Demonstrated that the child will suffer physical harm or
long-term emotional harm and that continuing the relationship
2
January 25, the trial court issued its “Final Order on Equitable
Caregiver,” in which it found that Clifton had satisfied the statute’s
criteria for standing as an equitable caregiver, and it awarded her
“parenting time” with Catherine. The orders did not grant Clifton
any rights beyond visitation. McAlister appealed to the Court of
Appeals, which transferred the case to this Court. 4 Thereafter, we
directed the parties to file supplemental briefs regarding whether
this appeal is moot. See In the Interest of M. F., 305 Ga. 820 (828
SE2d 350) (2019) (“Mootness is an issue of jurisdiction and thus
must be determined before a court addresses the merits of a claim.”
(citation and punctuation omitted)); Byrd v. Goodman, 192 Ga. 466,
466 (15 SE2d 619) (1941) (“[I]t is the duty of this court to raise the
question of its jurisdiction in all cases in which there may be any
doubt as to the existence of such jurisdiction.” (citation and
between such individual and the child is in the best interest of the
child.
OCGA § 19-7-3.1 (d).
4 The Supreme Court of Georgia has exclusive jurisdiction over cases
challenging the constitutionality of a statute. See Ga. Const. of 1983, Art. VI,
Sec VI, Par. II (1).
3
punctuation omitted)).
Clifton contends that this appeal is moot because McAlister’s
daughter is now legally an adult and no longer in the custody or
control of her parent. We agree.
When the resolution of a case would be tantamount to the
determination of an abstract question not arising upon
existing facts or rights, then that case is moot. When the
remedy sought in litigation no longer benefits the party
seeking it, the case is moot and must be dismissed.
(Citations and punctuation omitted.) M. F., 305 Ga. at 820. In a case
factually similar to this case, the Court of Appeals explained why it
was required to dismiss as moot an appeal from a custody order:
The child was 17 years old when the [trial] court granted
custody to Harvey and turned 18 years of age shortly after
the appeal was docketed. Because at 18 years the child
has reached the age of legal majority and is no longer
subject to the custody order, this issue is moot. OCGA §
39-1-1 (a) (age of legal majority is 18 years); OCGA § 19-
7-1 (a) (at age 18 child no longer in the custody or control
of either parent). To the extent Francis-Rolle claims the
custody award was error, the appeal is dismissed.
Francis-Rolle v. Harvey, 309 Ga. App. 491, 492 (1) (710 SE2d 659)
4
(2011).5
McAlister argues that her appeal is not moot because Clifton’s
“status” as an equitable caregiver continues beyond Catherine’s
eighteenth birthday, which presents a question concerning Clifton’s
existing parental rights. McAlister has cited no law in support of
this argument, and the trial court made no finding in either order
that Clifton had continuing parental rights as an equitable
caregiver. Rather, in its final order, the court found that Clifton had
“standing” to seek “parenting time” as an equitable caregiver
because she had satisfied the statutory criteria for such an award of
visitation. The court did not award Clifton any rights beyond
visitation, and the visitation award has since terminated by
operation of law. See Francis-Rolle, 309 Ga. App. at 492 (1). Hence,
the portion of the trial court’s final order awarding visitation is
already a nullity. McAlister also argues that Clifton is using the fact
5As explained below, the better practice would have been for the Court
of Appeals to vacate the trial court’s order rather than simply dismissing the
appeal from the order.
5
that she was previously awarded visitation as an equitable caregiver
to gain an advantage in a guardianship matter involving her
daughter in the Probate Court of DeKalb County. 6 However,
McAlister has not shown that the trial court’s final order granting
Clifton parenting time with Catherine would have any collateral
consequence in the pending guardianship matter. 7 See In the
Interest of I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005) (a matter
does not become moot if adverse collateral consequences continue to
plague the affected party).
McAlister also argues that this Court has recognized certain
public policy “exceptions” to the doctrine of mootness and that we
should apply those exceptions to hold that her appeal is not moot.
To be clear, although we have sometimes used the word, there are
no true “exceptions” to the mootness doctrine, which is a
6 Although Catherine is now an adult, McAlister contends that her
daughter is in need of a guardian to protect her health and safety.
7 Who should act as the guardian of an incapacitated adult is for the
probate court to determine. See OCGA § 29-4-1 et seq. The order of preference
for selecting a guardian is set forth in OCGA § 29-4-3 (b). Preference is given
to a “parent” over a “friend, relative, or other individual,” although the probate
court may deviate from the order of preference for good cause. See OCGA § 29-
5-3 (a). “Equitable caregiver” is not listed in OCGA § 29-4-3 (b).
6
jurisdictional doctrine rooted in the common law and the separation
of powers; rather, “we have recognized circumstances where cases
that may appear to be moot are nonetheless viable due to the
particular nature of the litigated issue.” M. F., 305 Ga. at 821. As we
have explained, “a case is moot when its resolution would amount to
the determination of an abstract question not arising upon existing
facts or rights.” (Citation and punctuation omitted.) Collins v.
Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998). So,
when a case contains an issue that is capable of repetition yet evades
review, the issue is not moot “because a decision in such a case would
be based on existing facts or rights which affect, if not the immediate
parties, an existing class of sufferers.” (Citation and punctuation
omitted.) Id. at 121-122 (1). Contrary to McAlister’s argument, this
case is not one that affects an existing class of persons suffering
harm as a result of the statute. While the question of the
constitutionality of the equitable caregiver statute may well be
raised again, there is no reason to believe that it will evade review.
Any time a person seeks custody or visitation pursuant to the
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equitable caregiver statute, the opposing party may challenge the
constitutionality of the statute and the court may consider it, just as
the trial court did in this case. See id. at 122 (2) (the underlying issue
of the constitutionality of a statute imposing a tax could be raised
by other parties in a suit for a refund).
McAlister also argues that this case presents an issue of such
significance that the public interest demands that we address the
constitutionality of the statute immediately. She relies on Hopkins
v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000), in which we noted
that
[o]ther states have adopted a rule that permits them to
decide an appeal in a moot case where the case contains
an issue of significant public concern or an issue that
might avert future litigation. The courts find justification
for deciding issues raised in moot cases when (1) the
public interest will be hurt if the question is not
immediately decided; (2) the matter involved is likely to
recur frequently; (3) it involves a duty of government or
government’s relationship with its citizens; and (4) the
same difficulty that prevented the appeal from being
heard in time is likely to again prevent a decision.
(Footnotes omitted.) Id. Assuming Hopkins is authority for a
“significant public concern” rationale that could support the
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continuing viability of McAlister’s constitutional challenge to the
equitable caregiver statute,8 McAlister has failed to show that the
challenge presented satisfies the criteria set forth in Hopkins –
especially when trial courts are able to address the constitutionality
of the statute when a petition is filed pursuant to it. See id.Finally,
[w]hen a civil case becomes moot pending appellate
review due to happenstance – circumstances not
attributable to the parties, like the mere passage of time
– rather than by settlement of the dispute or voluntary
cessation of the challenged conduct by the prevailing
party below, the better practice is to vacate the judgment
under review and remand with direction that the case be
dismissed by the trial court.
8 In Collins, we rejected the creation of ad hoc public policy rationales for
rendering legal issues viable that would ordinarily be considered moot as
“unnecessary and undesirable in that they foster uncertainty in the law and
inappropriately serve to expand the jurisdiction of the court applying such
exceptions[.]” Collins, 270 Ga. at 122-123 (3). And this Court has yet to
expressly endorse the public policy rationale alone as a basis for considering
an otherwise moot issue. In Perdue v. Baker, 277 Ga. 1 (586 SE2d 606) (2003),
for example, although we noted that the case was of “significant public
concern,” we determined that the case was not moot for a number of reasons,
including that the issue presented was one capable of repetition yet had evaded
review. See id. at 3. See also Ricks v. State, 301 Ga. 171, 187 (4) (b) n.16 (800
SE2d 307) (2017) (Appellant’s “core claim is a matter capable of repetition yet
evading review,” though it was also a matter of significant public concern.
(citations and punctuation omitted)).
9
(Citations omitted.) Babies Right Start, Inc. v. Georgia Dep’t of Pub.
Health, 293 Ga. 553, 557 (2) (d) (748 SE2d 404) (2013) (vacating a
judgment disqualifying the appellant from participating in a welfare
program when the disqualification expired after a year, which
mooted the appeal through happenstance). Vacating the judgment,
instead of simply dismissing the appeal, has the effect “of clearing
the field and preventing a judgment, unreviewable because of
mootness, from spawning any legal consequences.” (Citations and
punctuation omitted.) Id. Accordingly, we vacate the trial court’s
orders as moot and remand the case to the trial court with direction
to dismiss the case. We express no opinion on the merits of
McAlister’s challenge to the constitutionality of the equitable
caregiver statute.
Judgment vacated, and case remanded with direction. All the
Justices concur, except Boggs, P. J., and McMillian, J., disqualified.
Bethel, J., not participating.
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