Elicia Davis v. Tami Cicala, Intervenor ( 2020 )

SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 5, 2020
In the Court of Appeals of Georgia
A20A1116. DAVIS et al. v. CICALA.
MILLER, Presiding Judge.
In this dispute involving grandparent visitation, the trial court awarded
grandparent visitation to the children’s paternal grandmother, Tami Cicala.
Proceeding pro se on appeal, Elicia Davis and Kevin McKinney, the children’s
parents, contend that the trial court’s grant of grandparent visitation under OCGA §
19-7-3 was not supported by the evidence and improper, and that the trial court erred
in considering evidence pertaining to a child who is not involved in this case.
Discerning no error on the part of the trial court in its grant of grandparent visitation,
we affirm.
When reviewing an order granting grandparent visitation, we view the
evidence in the light most favorable to the trial court’s judgment to
determine whether any rational trier of fact could have found by clear
and convincing evidence that the mandated visitation was authorized.
We do not weigh the evidence or determine witness credibility, but defer
to the trial court’s factfinding and affirm unless the evidence fails to
satisfy the appellate standard of review.
(Citation omitted.) Elmore v. Clay, 348 Ga. App. 625 (824 SE2d 84) (2019).
So viewed, the record shows that Elicia Davis and Kevin McKinney are the
parents of two minor children: D. M., who was born in 2004, and S. M., who was
born in 2009. McKinney is also the father of another minor, J. M., born during his
current marriage, who is not involved in this action. The parents were divorced in
2014, and the final decree set out that they shared joint legal custody of the children
and it named the mother as their primary physical custodian. In June 2018, the mother
filed a petition for modification and motion for contempt, seeking to modify the
custody and parenting time arrangement that the trial court had established. Cicala
filed a motion to intervene in the modification proceeding to request reasonable
visitation, and the trial court held a hearing on Cicala’s motion.
At the hearing, Cicala testified that the children’s father lived with her for two
years, during which time the children stayed with her in her home every other
weekend and every other Wednesday, and that each child had a bedroom in her home.
According to Cicala, during these two years she took care of the children and
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provided financial support for them because the father “couldn’t afford to feed them”
while he was working. Cicala explained that she had a continuous and constant
relationship with the children “[s]ince the day they were born,” and she attended their
sporting events, spent traditional holidays with them, and took them on a summer
vacation to Florida each year. Prior to November 2017, when Cicala was no longer
allowed to visit the children, “[t]here weren’t many weeks that went by that [she]
didn’t see [her] grandchildren.” More recently, Cicala purchased food and Christmas
presents and helped pay the father’s water and electricity bills.
The parents both testified that Cicala had provided financial support for the
children, and Cicala’s husband testified to “extended periods” during which he and
Cicala cared for the children and that he and Cicala paid most of the expenses while
on vacations with the children. The mother affirmed that Cicala had seen the children
regularly, that Cicala had been active in the children’s lives, that they vacationed with
Cicala every summer while she and the father were still married, and that visitation
with Cicala added continuity and emotional stability to the children’s lives. The
mother further testified that for eight years, before she separated from the father, she
took the children to Cicala’s home “all the time.” Indeed, the mother plainly testified
that D. M. had been harmed by not seeing Cicala and that he had been crying over
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Cicala’s health, and as a result, she allowed Cicala and her husband to see the
children again. The mother testified that D. M. in particular had been concerned about
Cicala, given her primary immune deficiency disease, and that reconnecting with the
children with Cicala had been helpful for both children. The children’s father testified
that D. M. has diagnosed anxiety and that it would harm him to not see Cicala. Cicala
also testified to her belief that S. M. would feel hurt if she were not permitted to visit
Cicala at the same time as D. M., and that both children would benefit from visiting
with her and observing firsthand “that everything’s okay and that [she’s] okay.”
In a detailed order containing several pertinent findings, the trial court granted
Cicala’s motion to intervene and awarded grandparent visitation under OCGA § 19-7-
3 (c) (1). The trial court determined that, by clear and convincing evidence, harm
would result if the children were denied independent grandparent visitation, and that
it would be in the children’s best interest to have such visitation with Cicala.
Specifically, the trial court found that the grandchildren and Cicala had a
longstanding relationship with a historical pattern of regular visitation, and that
during the marriage, separation, and divorce of the parents, Cicala provided some
financial support for the children for several years, including assistance with food and
other expenses. The trial court noted its consideration of the children’s emotional
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needs at this stage of their development and determined that, given Cicala’s diagnosis
with primary immune deficiency disorder, time to interact with the children while she
remains mobile may be limited. Cicala was granted independent visitation with the
children for one day during the Christmas break from school and one week during
their summer break, to coincide with the father’s portion of summer parenting time.
The parents filed a joint motion for reconsideration, which the trial court denied in
another detailed order. Jointly, the parents appealed to the Supreme Court of Georgia,
which transferred this appeal to this Court.
1. First, we reject Cicala’s claim in her appellee brief that the parents’ appeal
should be dismissed because the visitation issue in this case is ancillary to a divorce
action and that the parents were required to file a discretionary application.
“Under Georgia law, visitation rights are a part of custody.” Vines v. Vines, 292
Ga. 550, 551 (2) (739 SE2d 374) (2013). And “[a]ll judgments or orders in child
custody cases awarding, refusing to change, or modifying child custody” are directly
appealable under OCGA § 5-6-34 (a) (11). As discussed above, years after the parties
were divorced, the mother moved to modify custody, after which Cicala filed a
motion to intervene. Because the parents now challenge the trial court’s decision on
Cicala’s motion to intervene, which granted her visitation rights, this is a “direct
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appeal from a judgment in a child custody case.” Viskup v. Viskup, 291 Ga. 103 (727
SE2d 97) (2012) (recognizing a father’s appeal as a direct appeal where custody was
adjudicated as part of the divorce decree, but the mother later filed a petition for
modification of custody and the father appealed from the trial court’s decision on the
petition). Accordingly, we may consider this appeal.
2. In various related enumerations of error, the parents argue that the record
neither meets the evidentiary threshold required by OCGA § 19-7-3 nor supports the
trial court’s award of grandparent visitation, that the ruling was improperly entered
over the objection of both parents, and that because the grant of visitation to Cicala
was not warranted, they were denied fair process. These arguments fail because the
record contains sufficient evidence supporting the trial court’s grant of visitation to
Cicala under OCGA § 19-7-3 (c) (1), and the trial court committed no reversible error
in ordering visitation.
OCGA § 19-7-3, known as the Grandparent Visitation Statute, “codifies a
standard for the trial courts to utilize in balancing the interests of the child, the rights
of the parents, and the wishes of an alienated grandparent.” (Footnote omitted.) Luke
v. Luke, 280 Ga. App. 607, 611 (3) (634 SE2d 439) (2006). “Where a petitioning
grandparent meets this standard, a trial court may grant visitation — notwithstanding
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evidence or circumstances that weigh against a grant of visitation.” (Footnote
omitted.) Id. Under OCGA § 19-7-3 (c) (1), the court may grant a family member of
the child “reasonable visitation rights if the court finds by clear and convincing
evidence that the health or welfare of the child would be harmed unless such
visitation is granted and if the best interests of the child would be served by such
visitation.” OCGA § 19-7-3 (c) (1) further provides as follows:
In considering whether the health or welfare of the child would be
harmed without such visitation, the court shall consider and may find
that harm to the child is reasonably likely to result when, prior to the
original action or intervention:
(A) The minor child resided with the family member for six months or
more;
(B) The family member provided financial support for the basic needs
of the child for at least one year;
(C) There was an established pattern of regular visitation or child care
by the family member with the child; or
(D) Any other circumstance exists indicating that emotional or physical
harm would be reasonably likely to result if such visitation is not
granted.
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“Georgia law expressly provides that while a parent’s decision [regarding family
member visitation] shall be given deference by the court, the parent’s decision shall
not be conclusive when failure to provide grandparent contact would result in
emotional harm to the child.” (Citation, punctuation, and emphasis omitted.) Keith
v. Callahan, 332 Ga. App. 291, 292-293 (1) (772 SE2d 386) (2015).
When we view the evidence in the light most favorable to the trial court’s
judgment and with deference to the trial court’s factfinding, we determine that a
rational factfinder could have found that mandatory visitation to Cicala was
authorized under the statute. First, while the parents argue that they have not
“blocked” Cicala from having a relationship with the children, the parents offer “no
authority that requires the trial court to balance the competing interests and rights of
the grandparent, parent, and child in such a way that OCGA § 19-7-3 would only
apply where absolutely all visitation has been cut off, and we find none.” Keith,
supra, 332 Ga. App. at 293 (1) (772 SE2d 386) (2015). Second, the trial court found
that the health or welfare of the children would be harmed in the absence of visitation
with Cicala and that such visitation would be in the children’s best interests. The
court determined that, prior to the filing of Cicala’s motion to intervene (1) the
children resided with Cicala for two years during every period of the father’s
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visitation and there was a historical pattern of regular visitation by Cicala; and (2)
Cicala provided some financial support for the children’s basic needs for several
years. The trial court also considered the children’s emotional and extended family
needs at this stage of their development, and found that an absence of visitation
would be harmful to the children particularly given Cicala’s health issues. These
findings are supported by the evidence discussed above and satisfy OCGA § 19-7-3
(c) (1) (B), (C), and (D). Keith, supra, 332 Ga. App. at 295 (2) (grandparent visitation
authorized where the trial court found that the grandmother had spent significant time
with the child since her birth, kept a bedroom for her in her home, cared for her two
to three days every week, provided substantial financial assistance, was a strong
influence in her life, maintained a very close relationship with the child, and that it
would be harmful to the child to sever this relationship); Luke, supra, 280 Ga. App.
at 611-612 (3) (although parent argued that the trial court “forced visitation” over her
objection, clear and convincing evidence supported the trial court’s finding that the
children would suffer emotional harm unless visitation was granted and that visitation
was in the children’s best interest).
3. The parents also argue that the trial court improperly considered evidence
that applied to J. M., the third grandchild who is not involved in this case. This
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contention is not meritorious because there is no indication that the trial court
considered inadmissible evidence in granting visitation to Cicala.
“When the trial court sits as the trier of facts, it is presumed that the court
separated admissible evidence from inadmissible evidence and selected only the legal
evidence in forming its judgment.” HWA Properties, Inc. v. Community & Southern
Bank, 320 Ga. App. 334, 336 (739 SE2d 770) (2013). The parents point to nothing
rebutting this presumption. On the contrary, the record shows the trial court’s
continual awareness that J. M. is not involved in the case. The judgment states,
“[t]here is also a third grandchild [J. M.] who is not a part of this action. . . . [N]either
[J. M.] nor his mother are proper parties to this action.” The trial court then expressly
noted that any visitation involving J. M. would be at the discretion of his parents.
Additionally, the trial court stated on the record during the hearing, “[I] don’t mean
to leave [J. M.] out, it’s just lawfully [J. M.’s] not before me and I will not cross that
line.” Because we discern no indication that the trial court considered any
inadmissible evidence concerning J. M. in its decision to grant visitation to Cicala,
this argument does not compel reversal. Accordingly, we affirm the trial court’s grant
of Cicala’s motion to intervene for grandparent visitation.
Judgment affirmed. Mercier, J., concurs; Coomer, J., concurs dubitante.
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A20A1116. DAVIS et al. v. CICALA.
COOMER, Judge.
I concur dubitante with the majority opinion.1 I believe the majority correctly
applies the statute in issue, but the statute itself appears to be unconstitutional. This
court lacks jurisdiction to strike the statute as unconstitutional. See Ga. Const. of
1983, Art. VI, Sec. VI, Par. II and Art. VI, Sec. V, Par. III.
“The right to the custody and control of one’s child is a fiercely guarded right
in our society and in our law. It is a right that should be infringed upon only under the
1
“A concurrence dubitante is a concurrence that is given doubtfully. Unlike a
concurrence in the judgment only or a special concurrence without a statement of
agreement with all that is said[,] . . . a concurrence dubitante is a full concurrence,
albeit one with reservations.” Benefield v. Tominich, 308 Ga. App. 605, 611 n. 28
(708 SE2d 563) (2011) (Blackwell, J., concurring dubitante).
most compelling circumstances.” Brooks v. Parkerson, 265 Ga. 189, 192 (2) (a) (454
SE2d 769) (1995) (citation and punctuation omitted). I believe that OCGA § 19-7-3
unconstitutionally infringes on that parental right because it creates a rebuttable
presumption in favor of family members’ visitation rights that must be overcome by
parents.
In Brooks, the Supreme Court of Georgia considered the constitutionality of a
statute that provided that the courts “may grant any grandparent of [a] child
reasonable visitation rights upon proof of special circumstances which make such
visitation rights necessary to the best interests of the child.” 265 Ga. at 190 (1) (citing
former OCGA § 19-7-3 (c)). The Court held that the statute was unconstitutional
because it authorized an award of visitation to a grandparent over the objection of the
parents without “a showing that failing to do so would be harmful to the child.” 265
Ga. at 194 (2) (c).
Similarly, in Patten v. Ardis, 304 Ga. 140, 140 (816 SE2d 633) (2018), the
Supreme Court of Georgia considered whether OCGA § 19-7-3 (d) is constitutional.
OCGA § 19-7-3 (d) allows a court to award visitation to the parent of a deceased,
incapacitated, or incarcerated parent “if the court in its discretion finds that such
visitation would be in the best interests of the child.” The Court held that OCGA §
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19-7-3 (d) is unconstitutional because “it authorizes an award of visitation to a
grandparent over the objection of a fit parent and without any showing whatsoever
(much less a showing by clear and convincing evidence) that the visitation is required
to keep the child from actual or threatened harm.” Id. at 145 (3).
OCGA § 19-7-3 (c) (1) provides that a court may “grant any family member of
the child reasonable visitation rights if the court finds by clear and convincing
evidence that the health or welfare of the child would be harmed unless such
visitation is granted and if the best interests of the child would be served by such
visitation.” OCGA § 19-7-3 (c) (1) allows the court to find that harm to the child is
“reasonably likely to result” if any of the following factors exist prior to the original
action or intervention:
(A) The minor child resided with the family member for six months or
more;
(B) The family member provided financial support for the basic needs
of the child for at least one year;
(C) There was an established pattern of regular visitation or child care
by the family member with the child; or
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(D) Any other circumstance exists indicating that emotional or physical
harm would be reasonably likely to result if such visitation is not
granted.
Furthermore, OCGA § 19-7-3 (c) (3) provides:
A court may presume that a child who is denied any contact with his or
her family member or who is not provided some minimal opportunity for
contact with his or her family member when there is a preexisting
relationship between the child and such family member may suffer
emotional injury that is harmful to such child’s health. Such
presumption shall be a rebuttable presumption.
Thus, OCGA § 19-7-3 (c) (3) explicitly creates a presumption in favor of family
member visitation if the child has a preexisting relationship with the family member.
This presumption violates the constitutional protections of parents’ rights to raise
their children without interference from the State. “[T]here is a presumption that fit
parents act in the best interests of their children.” Troxel v. Granville, 530 U. S. 57,
68 (120 SCt 2054, 147 LE2d 49) (2000). “[S]o long as a parent adequately cares for
his or her children (i.e., is fit), there will normally be no reason for the State to inject
itself into the private realm of the family to further question the ability of that parent
to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-
69. As applied in this case, OCGA § 19-7-3 (c) (3) directly contravenes this
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presumption that a fit parent will act in the best interest of his or her child, because
it, in effect, placed on Davis and McKinney the burden of proving that their children
would not suffer emotional injury if the trial court did not order visitation.
Furthermore, to the extent that OCGA § 19-7-3 (c) (1) implies that a
presumption of harm exists if any of the factors in that subsection are met, it is also
unconstitutional. The presumption must always be that a fit parent will act in the best
interest of his or her child, and a court may not set aside the decisions of a fit parent
about what is best for his or her child without clear and convincing proof that those
decisions have harmed or threaten to harm the child. See Troxel, 530 U.S. at 68;
Patten, 304 Ga. at 140.
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