In the Interest of J. D., a Child (Mother)

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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
January 19, 2022
In the Court of Appeals of Georgia
A21A1198. IN THE INTEREST OF J. D., a child.
MCFADDEN, Presiding Judge.
This appeal challenges a juvenile court order denying a petition to terminate
a permanent guardianship of a minor child. Because there was not clear and
convincing evidence that termination of the guardianship was in the best interests of
the child, we affirm the juvenile court’s order. The appellant’s additional claim that
the juvenile court’s order should have included a visitation schedule is without merit
since no request, evidence, or argument for such a schedule was presented to the trial
court.
1. Facts and procedural posture.
J. D. was born in October 2010. When J. D. was approximately three months
old, his mother gave him to the mother’s cousin to care for him. In June 22, 2012,
with the consent of the mother, the juvenile court granted the cousin permanent
guardianship of J. D. In August 2019, the mother filed a petition to terminate the
permanent guardianship, claiming a material change in circumstances in that she had
become a fit parent, with stable housing and employment, who was caring for her
other children. After an evidentiary hearing, the juvenile court denied the petition to
terminate the guardianship. In its final order denying the petition, the court found that
while there was clear and convincing evidence of a material change in circumstances
in that the mother had become a fit parent, there was not clear and convincing
evidence that termination of the permanent guardianship was in the best interests of
J. D. The mother appeals from that order.
2. Best interests of the child.
The mother contends that the evidence does not support the juvenile court’s
finding that terminating the guardianship was not in the best interests of J. D. We
disagree.
“When a juvenile court enters an order of permanent guardianship, it ‘shall
retain jurisdiction over the guardianship action for the sole purpose of entering an
order following the filing of a petition to modify, vacate, or revoke the guardianship
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and appoint a new guardian.’ OCGA § 15-11-244 (a).” In the Interest of M. F., 298
Ga. 138, 140 (1) (780 SE2d 291) (2015) (punctuation omitted).
The proper grounds for a petition to modify, vacate, or revoke a
permanent guardianship are identified in OCGA § 15-11-244 (c): The
guardianship shall be modified, vacated, or revoked based upon a
finding, by clear and convincing evidence, that there has been a material
change in the circumstances of the child who was adjudicated as a
dependent child or the guardian and that such modification, vacation, or
revocation of the guardianship order and the appointment of a new
guardian is in the best interests of the child.
Id. at 141-142 (2) (punctuation and footnote omitted). Thus, a permanent
guardianship may be “modified, vacated, or revoked upon clear and convincing proof
of the requisite change in circumstances, accompanied by clear and convincing proof
that the modification, vacatur, or revocation is in the best interest[s] of the child.” Id.
at 142 (2) (punctuation omitted).
As noted above, the juvenile court found that the mother had shown clear and
convincing evidence of a material change in circumstances in that she had become a
fit parent. See In the Interest of M. F., supra at 144 (2) (previously unfit parent now
being fit to have responsibility for the care and custody of her child may amount to
a material change in the circumstances under OCGA § 15-11-244 (c)). But the court
further found, after considering the factors set forth in OCGA § 15-11-26 for making
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a best interests of the child determination, that there was not sufficient evidence that
vacating the guardianship was in J. D.’s best interests.
In reviewing such a finding, this court construes the evidence in favor
of the judgment and determines whether a rational trier of fact could
have found clear and convincing evidence that [vacating the
guardianship was not in the best interests of the child]. We neither
weigh the evidence nor determine the credibility of witnesses; we defer
to the juvenile court’s factfinding and affirm unless the appellate
standard is not met.
In the Interest of K. G., 343 Ga. App. 345, 347 (2) (b) (807 SE2d 70) (2017) (citation
and punctuation omitted).
So construed, the evidence showed that J. D., who was 10 years old at the time
of the hearing, has been in the continuous care of the permanent guardian since he
was only three months old; that he is well-adjusted and has a close relationship with
the permanent guardian and her parents; that he enjoyed visiting with his siblings who
live with his mother, but he does not want to live with them; and that he has
repeatedly said that he wants to stay with the permanent guardian. An expert in child
therapy who has counseled J. D. opined that it would be harmful to remove him from
the permanent guardian’s care. The expert testified that J. D. is attached to his
permanent guardian, that he loves his home and family with her, and that removing
him from the home he has known for years would not be in his best interests. J. D.’s
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guardian ad litem, who has been involved with the mother for years as guardian ad
litem for her other children, acknowledged that the mother has improved her life. But
she stated her belief that it was in J. D.’s best interests to remain in the permanent
guardian’s home and she recommended that the permanent guardianship not be
vacated.
“After giving the juvenile court’s findings of fact the required deference, we
find that the court was authorized to conclude that the [mother failed to]
demonstrate[] by clear and convincing evidence that [terminating the] permanent
guardian[ship] would be in (J. D.’s) best interests. [So] this enumeration presents no
basis for reversal.” In the Interest of J. W., 346 Ga. App. 443, 447 (2) (816 SE2d 409)
(2018) (citation omitted).
3. Visitation.
The mother complains that the juvenile court erred in failing to include a
visitation schedule in its order denying her petition to terminate the permanent
guardianship. But as the mother concedes, she did not request a change in visitation
in her petition. Indeed, in her petition, the mother sought termination of the
permanent guardianship and custody of the child, but she did not make any claim
regarding visitation. And contrary to the mother’s argument on appeal, the issue of
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visitation was not expressly or implicitly tried by the parties at the hearing on the
mother’s petition to terminate. A review of the hearing transcripts plainly reveals that
there was no evidence, argument, or request that the juvenile court modify any
existing visitation schedule.
We note that
an order granting a permanent guardianship must “establish a reasonable
visitation schedule which allows the child adjudicated as a dependent
child to maintain meaningful contact with his or her parents through
personal visits, telephone calls, letters, or other forms of communication
or specifically include any restriction on a parent’s right to visitation.”
OCGA § 15-11-242 (a) (3).
In the Interest of K. G. V., 358 Ga. App. 61, 66 (853 SE2d 376) (2020) (punctuation
omitted). So while the original order granting the permanent guardianship in this case
should have established a visitation schedule, the order denying the mother’s petition
to terminate that permanent guardianship was not required to include such a schedule
— especially in the absence of any evidence, argument, or request for a modification
of the visitation schedule.
Judgment affirmed. Rickman, C. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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