In THE INTEREST OF B. H.-W., a Child ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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.
http://www.gaappeals.us/rules/
April 23, 2015
In the Court of Appeals of Georgia
A15A0613. IN THE INTEREST OF B. H.-W., a child. JE-030
ELLINGTON, Presiding Judge.
D. W., the biological father of B. H.-W., filed in the Juvenile Court of DeKalb
County a petition to legitimate the child, then ten months old, and a motion for
placement. After a hearing, the juvenile court granted the petition for legitimation and
ordered that B. H.-W. be placed with the father. In the same proceedings, the juvenile
court dismissed a petition for permanent guardianship previously filed by the Georgia
Department of Human Resources by and through the DeKalb County Department of
Family and Children Services (“the Department”). B. H.-A., the child’s mother,
appeals, contending that the juvenile court erred in failing to include necessary
jurisdictional facts in its orders, in excluding certain testimony regarding the father’s
pursuit of his opportunity interest and his fitness to parent, in finding that the father
had not abandoned his opportunity interest in B. H.-W., in failing to determine
whether the father was a fit parent before granting his petition to legitimate, and in
failing to apply the best interest standard when it dismissed the guardianship petition
and awarded custody to the father. For the reasons explained below, we affirm.
1. The mother contends the trial court erred in failing to include necessary
jurisdictional facts in its judgment.1 “As a general rule, a juvenile court is a court of
special and limited jurisdiction, and [a juvenile court’s] judgment[ ] must show on
[its] face such facts as are necessary to give [the court] jurisdiction of the person and
subject matter. If the order of a juvenile court fails to recite the jurisdictional facts,
the judgment is void.” (Citation and punctuation omitted.) In the Interest of S. K. L.,
199 Ga. App. 731, 734-735 (2) (c) (405 SE2d 903) (1991).
In this case, the juvenile court’s final custody order referenced and
incorporated the legitimation order entered days earlier. The custody order reflected
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In this claim of error, the mother also contends that the juvenile court erred
in omitting findings of fact and conclusions of law on which the decision was based.
The mother failed to support this argument with any citation to relevant legal
authority, however, and therefore this argument is deemed abandoned. See Court of
Appeals Rule 25 (c) (“Any enumeration of error which is not supported in the brief
by citation of authority or argument may be deemed abandoned.”); Dixon v. MARTA,
242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal argument requires the
application of the appropriate law to the relevant facts).
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on its face that all parties were served with a copy of the pleadings and were present,
along with their counsel, for the August 11, 2014 hearing. The mother did not contest
the juvenile court’s personal jurisdiction, a matter which can be waived. See id. at 734(2) (b). The custody order also reflected on its face that the proceedings concerned
a child then in the Department’s custody and that the orders disposed of the father’s
petition for legitimation and motion for placement as well as the Department’s
pending petition that permanent guardianship be awarded to B. H.-W.’s current foster
parent. Accordingly, the custody order showed on its face such facts as were
necessary to give the juvenile court jurisdiction of the person and subject matter. See
In the Interest of S. K. L., 199 Ga. App. at 734-735 (2) (c); OCGA §§ 15-11-2 (22)
(“‘Dependent child’ means a child who . . . [i]s without his or her parent, guardian,
or legal custodian.”); 15-11-10 (1) (C) (Except as otherwise provided, “the juvenile
court shall have exclusive original jurisdiction over juvenile matters and shall be the
sole court for initiating action . . . [c]oncerning any child who . . . [i]s alleged to be
a dependent child[.]”;15-11-11 (1) (“The juvenile court shall have concurrent
jurisdiction to hear . . . [a]ny legitimation petition filed pursuant to Code Section
19-7-22 concerning a child alleged to be dependent[.]”).
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2. The mother contends the trial court erred in excluding certain testimony
regarding the father’s pursuit of his opportunity interest and his fitness to parent.
“Evidentiary rulings are reviewed under an abuse of discretion standard[.]” (Citation
omitted.) Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).
The mother cites to the following proceedings. After the father’s counsel
questioned him in support of his legitimation petition, the mother’s counsel asked him
on cross-examination whether he had signed B. H.-W.’s birth certificate, and he
responded that he had not. Counsel then asked, “But when [the child] was born [on]
October 4 you were aware that he was born[?]” The father’s counsel objected on the
basis of relevance, in light of the mother’s written consent to legitimation that she
filed on the day of the hearing. The mother’s counsel acquiesced, saying, “[M]y
questions go [also] towards the [issue of] placement. So I can save them for that
[portion of the hearing] as well.” Only then did the juvenile court sustain the
objection.
The record shows that, later in the hearing, the mother’s counsel recalled the
father to revisit the issue of his pursuit of his opportunity interest and questioned him
about when he knew about B. H.-W.’s birth, his visitation with the child, and his
financial and material support of the child. The trial court expressly found on the
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evidence presented that the father had not abandoned his opportunity interest.
Because the record shows that, before the trial court ruled on the father’s legitimation
petition, the mother had the opportunity to question the father on the issue of his
pursuit of his opportunity interest, or lack thereof, the trial court’s error, if any, was
corrected; we find no reversible error. Williams v. State, 328 Ga. App. 876, 880 (1)
(763 SE2d 261) (2014) (“[I]t is a fundamental principle that harm as well as error
must be shown for reversal” based on an evidentiary ruling.) (punctuation and
footnote omitted).
3. The mother contends the trial court erred in finding that the father had not
abandoned his opportunity interest in B. H.-W.
Before granting a petition to legitimate, the court must initially
determine whether the father has abandoned his opportunity interest to
develop a relationship with the child. Then, depending on the nature of
the putative father’s relationship with the child and other surrounding
circumstances, the standard for evaluating whether legitimation is
appropriate is either a test of his fitness as a parent or the best interest
of the child.
(Punctuation and footnote omitted.) Morris v. Morris, 309 Ga. App. 387, 388-389 (2)
(710 SE2d 601) (2011). “We review a trial court’s ruling on a legitimation petition
for abuse of discretion. We review the court’s factual findings, however, for clear
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error and will only sustain such findings if there is competent evidence to support
them.” (Citations and punctuation omitted.) Neill v. Brannon, 320 Ga. App. 820, 822
(1) (738 SE2d 724) (2013).
The father and his mother (the paternal grandmother) testified at the evidentiary
hearing in this case; B. H-A. did not adduce any conflicting evidence. They testified
that the father’s parents visited the mother and the baby in the hospital just after B.
H.-W. was born and took her a car seat, stroller, and baby clothes that the father had
purchased. A week or two after he was born, B. H.-W. was readmitted to the hospital
for a hernia repair, and the father stayed with B. H.-W. the entire time while he was
in the hospital, approximately one week. The paternal grandmother hosted the mother
and B. H.-W. at her home for a week at Thanksgiving, the month after the baby was
born. During that week, the father fed B. H.-W. and changed his diaper, including
during the night.
A few weeks later, the Department removed B. H.-W. from his mother’s care
because the mother, who was a minor in the Department’s custody, had disrupted her
placement and was unable to care for the baby independently. The father visited
frequently with B. H.-W. while he was in foster care. The father and the paternal
grandmother also contacted the Department many times at various stages during the
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case and attended court dates. Based on this evidence, the juvenile court found that
the father did not abandon his opportunity interest to develop a relationship with B.
H.-W. We conclude that the evidence was sufficient to support this finding, and the
mother has not shown that the trial court abused its discretion in its ruling. Morris v.
Morris, 309 Ga. App. at 389-390 (2).
4. The mother contends the trial court erred in failing to determine whether the
father was a fit parent before granting his petition to legitimate. In the hearing, the
juvenile court stated that it was granting the father’s petition to legitimate “using the
parental fitness test.” Thus, to the extent the mother contends that the trial court failed
to make this determination, such argument is not supported by the record. See also
Curtice v. Harwell, 313 Ga. App. 263, 264 (1) (721 SE2d 200) (2011) (Even though
the trial court made no express determination that either parent was a fit parent, such
determination was implicit in the court’s custody award.). Moreover, as the mother
concedes, parental fitness is a low threshold, and a parent is not unfit simply because
his or her child might have better financial, educational, or moral advantages
elsewhere. See Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (The
focus of a determination of fitness “must be the parent’s ability to provide for the
child in a manner sufficient to preclude the need for an entity of the government to
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intervene and separate the child from the parent[.]”) (citation omitted); Russell J.
Davis, 8 Ga. Jur. Family Law § 8:28 (updated December 2014) (“The fact that a child
might have better financial, educational, or moral advantages elsewhere is . . .
insufficient for a finding that a parent is unfit.”) (footnote omitted). We discern no
error.
5. The mother contends the trial court erred in failing to apply the best interest
standard when it dismissed the guardianship petition and awarded custody to the
father. This is incorrect. Under Georgia law, because the interest of a father to enjoy
the benefits of custody is protected by due process of law, provided that he has not
abandoned his opportunity interest, once the juvenile court determined that the father
had not abandoned his opportunity interest, the court was not required to apply the
best interest of the child standard in disposing of the third party petition for
guardianship of his child. See In re Baby Girl Eason, 257 Ga. 292, 296-297 (1) (358
SE2d 459) (1987) ( “[A] fit biological father who pursues his interest in order to
obtain full custody of his child must be allowed to prevail over strangers to the child
who seek to adopt.”);2 Doe v. Chambers, 188 Ga. App. 879, 880 (1) (374 SE2d 758)
2
In re Baby Girl Eason remains binding precedent despite the adoption in 1996
of OCGA § 19-7-1 (b.1), which concerns custody disputes between legal parents and
certain third parties, including prospective adoptive parents. See 1996 Ga. Laws 412;
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(1988) (In circumstances where the father “has not abandoned his opportunity
interest, the standard which must be used to determine his right to legitimate the child
is his fitness to have custody of the child[,]” and the trial court does not apply the best
interests of the child standard.) (citation and punctuation omitted). This claim of error
lacks merit.
Judgment affirmed. Dillard and McFadden, JJ., concur.
Clark v. Wade, 273 Ga. 587, 589-593 (II) (544 SE2d 99) (2001).
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