Elicia Davis v. Tami Cicala, Intervenor

                             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

                                          2
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

                                           3
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

                                            4
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

                                          5
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

                                             6
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.



                                            7
“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

                                           8
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

                                           9
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.

                                             10
 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 §


                                            2
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




                                            3
       (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


                                             4
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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