BARNHILL v. ALFORD

Citation: Not availableDocket: S22A1075

Court: Supreme Court of Georgia; December 19, 2022; Georgia; State Supreme Court

Original Court Document: View Document

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This legal opinion addresses an appeal concerning a grandmother's petition for visitation rights to her biological granddaughter, following the child's adoption by her stepmother. The Supreme Court of Georgia determined that the grandmother, Cathy A. Alford, is permitted to pursue visitation rights under OCGA § 19-7-3 despite the adoption. The Court concluded that it only needed to evaluate the constitutionality of one specific subsection of the grandparent visitation statute, which it found to be constitutional. Therefore, the trial court's decision to allow the grandmother's visitation petition to proceed was affirmed.

The factual background includes that the minor child was born in 2013 to Lisa Hush and lived with Alford, her maternal grandmother, until Hush's death in March 2018. After Hush’s passing, the child moved in with Michael Barnhill and his wife, who subsequently minimized Alford's visitation rights. Alford filed for visitation in May 2018 but faced a dismissal motion from Barnhill, who argued that the adoption severed Alford's legal rights and standing under OCGA. The trial court denied this motion, leading to a scheduled final hearing on Alford's petition in March 2021.

One week prior to the hearing, the Barnhills filed a motion challenging the constitutionality of OCGA 19-7-3 subsections (c. 1, c. 3, and c. 5). They argued that these subsections: (1) do not prioritize the child's best interests, (2) create presumptions favoring family member visitation with whom the child has a prior relationship, (3) infringe upon parental rights to raise children without state interference, and (4) limit the trial court's discretion in determining appropriate visitation schedules. During the evidentiary hearing from March 16 to 18, 2021, the trial court permitted oral arguments regarding this motion. On March 31, 2021, the court ruled in favor of Alford's petition for grandparent visitation and denied the Barnhills' motion, stating that the presumption of constitutionality lies with the statute, placing the burden of proof on those claiming unconstitutionality. The court concluded that OCGA 19-7-3 was not unconstitutional in this case, specifically noting that: (A) subsection (c. 1) does not presume harm to parental rights, (B) subsection (c. 3) does not limit the court's authority to assess the child's best interests, and (C) subsection (c. 5), while not directly relevant, is severable. Regarding subsection (c. 1), the court determined it allows discretion to grant visitation based on clear evidence of potential harm to the child's health and welfare, while stating that a lack of a relationship alone does not constitute harm. The court is required to document specific findings when assessing harm based on established factors, including prior cohabitation or financial support, without imposing a presumption of harm favoring the family member.

The trial court determined that Alford needed to demonstrate by clear and convincing evidence that visitation was necessary to prevent harm to the child and that it was in the child's best interest, concluding that OCGA § 19-7-3(c)(1) does not imply a presumption of harm. Regarding OCGA § 19-7-3(c)(3), the court clarified that it does not unconstitutionally interfere with the parent-child relationship, as the rebuttable presumption it offers is subordinate to the evidentiary standard required by subsection (c)(1). The court found that Alford had sufficiently met this burden, establishing clear and convincing evidence of potential emotional harm to the child if visitation was denied.

Furthermore, the court ruled that since it was in the child's best interest to have more than the statutory minimum of 24 hours of visitation per month with Alford, it did not need to address the constitutionality of that minimum. The Barnhills appealed the trial court's decisions, which were transferred to this Court due to its exclusive jurisdiction over constitutional matters. On appeal, the Barnhills argued that the trial court incorrectly denied their motion to dismiss, asserting that Alford lacked standing to bring the visitation action under OCGA § 19-7-3(b) and filed prematurely per OCGA § 19-7-3(c). The analysis revealed that while the Barnhills claimed Alford had no standing, she did have standing as the deceased parent’s parent at the time of her petition in May 2018. Their argument that Katheryn’s adoption of the child negated Alford’s visitation rights was ultimately deemed unpersuasive. They contended that Alford's action was barred by OCGA § 19-7-3(b), which restricts grandparent visitation actions when parents are not separated and the child lives with both parents, referencing a prior case for support.

Alford's only means to obtain visitation rights following Katheryn's adoption proceedings was to intervene under OCGA § 19-7-3(b), which allows family members to seek visitation when a child is adopted by a stepparent. However, Alford did not intervene, resulting in Katheryn becoming the legal mother and Alford being legally estranged from the Child due to OCGA § 19-8-19(a), which terminates all legal relationships upon adoption. The Barnhills focused on Alford’s lack of authorization under § 19-7-3(b), but Alford countered that she was permitted to seek visitation under § 19-7-3(d), referencing Fielder v. Johnson, which affirmed that biological grandparents could seek visitation post-stepmother adoption despite the restrictions of § 19-7-3(b) and § 19-8-19. The trial court agreed with Alford, allowing her to pursue visitation under this framework, a decision the Barnhills did not contest on appeal. 

The Barnhills further argued that Alford failed to intervene in the adoption action, but the trial court criticized the Barnhills for conducting a "secret adoption" without notifying the court, violating OCGA § 19-9-69(d), which mandates ongoing notification of related proceedings. Although the Barnhills' failure to notify was noted as a significant issue, it did not negate Alford's authorization to seek visitation as established in Fielder.

Finally, the Barnhills contended that Alford prematurely filed her petition for grandparent visitation in violation of OCGA § 19-7-3(c), which prohibits filing during a year in which another custody action is pending. The trial court disagreed with this assertion.

In May 2016, Barnhill initiated a custody action in the Superior Court of Cherokee County concerning the Child against Lisa Hush. A 'Consent Final Parenting Plan' was established on December 6, 2017, designating Hush as the primary physical custodian. After Hush's death in March 2018, Alford filed a petition for grandparent visitation on May 22, 2018. Barnhill contends that Alford should have waited until December 6, 2018, to file her petition, claiming she violated OCGA § 19-7-3(c) by filing it less than a year after the Consent Final Parenting Plan was entered. However, it was determined that the filing deadline is based on the initial custody action date (May 2016), making Alford's petition timely.

The Barnhills also challenged the constitutionality of OCGA § 19-7-3(c)(1), (c)(3), and (c)(5) on appeal. The court emphasized the presumption of constitutionality of legislative acts and noted that a statute can only be declared unconstitutional if the conflict with the Constitution is clear and undeniable. The Barnhills argued these subsections disregard the best interests of the child, infringe upon parental rights, and create unwarranted presumptions favoring family member visitation without considering parental authority. They specifically criticized OCGA § 19-7-3(c)(1) for establishing presumptions in favor of visitation based on preexisting relationships, which they claim undermines parental rights affirmed in precedent cases like Troxel v. Granville.

The Barnhills argue that OCGA § 19-7-3 unconstitutionally infringes on parental rights by establishing a rebuttable presumption favoring family members' visitation rights. They reference a concurring opinion in Davis, emphasizing that this presumption conflicts with the notion that fit parents act in their child's best interests. They assert that the statute's subsection (c. 1) improperly presumes that family member visitation is necessary for a child's health and welfare, requiring parents to overcome this presumption. 

However, OCGA § 19-7-3 (c. 1) allows courts to grant reasonable visitation rights to family members only if clear and convincing evidence shows that the child's health or welfare would be harmed without such visitation and that it serves the child's best interests. Factors for consideration include previous cohabitation, financial support, established visitation patterns, and any other relevant circumstances indicating potential harm. The statute places the burden on the family member seeking visitation, and no single factor alone suffices to establish a right to visitation; rather, they are meant to guide a comprehensive assessment.

The court concluded that OCGA § 19-7-3 (c. 1) is constitutional both on its face and in application, as it does not infringe on the parent-child relationship. The Barnhills also challenge subsection (c. 3), claiming it improperly shifts the burden to parents to demonstrate that denying grandparent visitation is in the child's best interest, and subsection (c. 5), which mandates a minimum of 24 hours for grandparent visitation, without adequately considering the child's best interests.

The trial court's decision regarding Alford’s grandparent visitation rights did not invoke the subsections challenged by the Barnhills. Specifically, subsection (c. 3) allows for a rebuttable presumption of emotional harm to a child if denied contact with family, but the court did not apply this presumption. Instead, it found that Alford demonstrated by clear and convincing evidence that the Child would suffer harm without visitation and that such visitation was in the Child’s best interest under subsection (c. 1). The court did not rule on the constitutionality of subsection (c. 5) since it granted Alford more visitation than the minimum 24 hours required. The Barnhills' claims of constitutional issues related to subsections (c. 3) and (c. 5) were therefore disregarded. 

On appeal, the Barnhills argued that the trial court abused its discretion in concluding Alford met her burden under subsection (c. 1). They contended that the evidence presented could not reasonably support the trial court's findings. Although the trial court referenced subsection (d) in its authority to grant visitation, it ultimately based its decision on subsection (c. 1), which has a stricter standard. Any potential error in applying (c. 1) instead of (d) was deemed harmless, as meeting the higher standard of (c. 1) implies entitlement under (d) as well. Furthermore, subsection (c. 1) is constitutional, unlike the previously effective version of subsection (d) declared unconstitutional in a prior case, thus validating the trial court's application of (c. 1) in this matter.

The trial court has the discretion to grant or deny a grandparent's petition for visitation, and such decisions are upheld unless there's a clear abuse of that discretion. In this case, substantial evidence was presented during a three-day hearing that supported Alford's petition for visitation, including testimonies from various parties and professionals. The trial court found that all factors outlined in OCGA § 19-7-3 (c. 1) were satisfied, noting that the Child had lived with Alford for over four years, received parental care, and that Alford had provided financial support. The court determined that denying visitation would harm the Child emotionally, thereby establishing that granting visitation was in the Child's best interest. Consequently, the appellate court affirmed the trial court's decision, concluding there was no clear abuse of discretion. Additionally, a scrivener's error was identified in the visitation order regarding the duration of Alford's summer visitation, but this does not affect the validity of the decision. A concurring opinion highlighted concerns about potential misuse of the judicial system and noted that the Barnhills did not contest the trial court’s finding of standing, which was based on unchallenged grounds. The opinion also mentioned the Child's transition to living with her father and stepmother after her mother’s death, which impacted the visitation dynamics.

Alford's ability to maintain her visitation petition was compromised when the Child's stepmother completed an adoption without notifying Alford or the court overseeing Alford's case, as required by OCGA 19-7-3 (b). This adoption decree terminated Alford's legal relationship with the Child, per OCGA 19-8-19. The Barnhills did not disclose the adoption's filing or finalization to Alford or the trial court, nor did they provide an explanation for this omission. They contended that the adoption eliminated Alford's standing but failed to contest the trial court's standing determination under Fielder. There is uncertainty about the potential outcome had the issue been preserved. The document reflects concern over the Barnhills' disregard for Alford's role as a loving grandmother with a nurturing bond with the Child. It criticizes the omission as potentially deceptive and as an abuse of the legal system, suggesting that if Barnhills' counsel knowingly misled the court, it may violate the Georgia Rules of Professional Conduct, specifically Rule 8.4 (a). Additionally, the case raises questions about compliance with OCGA 19-9-69 regarding notification obligations in child custody proceedings. However, the decision avoids addressing these broader legal issues, focusing instead on the unacceptable nature of the Barnhills' omissions, which undermine the Child's interests and the legal process's integrity. The author concludes by inviting legislative reconsideration of the relevant laws given the circumstances of the case.