Georgia Family Law Appeals
IN THE COURT OF APPEALS
STATE OF GEORGIA
DAVID V……… , )
) APPLICATION NO. _________
MARIA ARISPE, ) FROM CIVIL ACTION
Respondent, ) FILE NO. 2011CV210456
) IN THE SUPERIOR COURT OF
) FULTON COUNTY
) FAMILY DIVISION
and )ATLANTA JUDICIAL CIRCUIT
JANE AND JOHN DOE and )
BETHANY CHRISTIAN SERVICES )
OF GEORGIA, INC., )
APPLICATION FOR DISCRETIONARY APPEAL by ATLANTA DIVORCE ATTORNEY
COMES NOW, Atlanta Divorce Attorney, Applicant herein, and respectfully makes this Application For Discretionary Appeal arising out of the Superior Court of Fulton County’s Final Order Denying Petition for Legitimation in the above-referenced Civil Action Number.
STATEMENT OF APPELLATE COURT JURISDICTION
Jurisdiction is conferred upon this Court, as this case is not a matter over which the Supreme Court of Georgia has exclusive or general appellate jurisdiction under 1983 Ga. Const., Art. 6, § 6, Par. 2, 3. This Application For Discretionary Appeal is made by an Atlanta Divorce Attorney pursuant to O.C.G.A. § 5-6-35(a)(2) and the Georgia Court of Appeals Rules 31-32.
I. STATEMENT OF FACTS
Counsel for the applicant is an Atlanta Divorce Attorney who applies for leave to appeal a Final Order Denying Petition For Legitimation, issued in Civil Action File No. ______________ by the Honorable ____________, Judge of the Superior Court of Fulton County, Family Division, Atlanta Judicial Circuit, and filed with the Superior Court Clerk on October 16, 2013. A stamped Filed In Office copy of said Final Order is attached hereto as Exhibit A. ( See Atlanta Divorce Attorney.)
Applicant DAVID V……… is the biological father of, PETER ARISPE,(“Minor Child” herein), born to MARIA ARISPE (“Respondent” herein), on January 3, 2011. As stipulated to by the parties at trial and based upon DNA testing, Applicant DAVID V……… is the biological father of the Minor Child. On January 6, 2011, Respondent surrendered her parental rights to BETHANY CHRISTIAN SERVICES OF GEORGIA, INC. (the “Adoption Agency,” and “Respondent Intevenor” herein), an adoption agency licensed in the State of Georgia. On the same day, the Adoption Agency placed the Minor Child in the care and physical custody of JANE AND JOHN DOE (the “Prospective Adoptive Parents” and “Respondent Intervenors” herein). (Exhibit A, p. 2). Atlanta Divorce Attorney is the guy writing the appeal.
The parties were never been married to one another, they had a short-term sexual relationship which resulted in Respondent becoming pregnant with the Minor Child. (Exhibit A, p. 2). Prior to the birth of the Minor Child, the Respondent and her two other minor children briefly resided with the Applicant at his home in Gwinnett County. (Exhibit A, p. 3). Respondent was unmarried at the time of the birth of the Minor Child. (Exhibit A, p. 2). The Applicant provided support and/or in-kind support during Respondent’s pregnancy. (Exhibit A, p. 3). It is undisputed that the Respondent provided transportation to and from multiple prenatal health care appointments prior to the birth of the Minor Child.(Transcript not yet available). Following the Child’s birth Applicant provided a total of $400 in money orders to counsel for the Prospective Adoptive Parents for the support and maintenance of the Minor Child. (Exhibit A, p. 3).Atlanta Divorce Attorney
Applicant and Respondent had a tumultuous relationship, but at all times relevant to this matter, the Applicant has expressed his interest in caring for and raising the Minor Child. (Transcript, not yet available).
On January 24, 2011, twenty-one (21) days after the birth of the Minor Child Applicant filed a pro se Petition for Legitimation of the Minor Child in the Superior Court of Gwinnett County, Respondent’s county of residence. (Exhibit B). The Respondent was served with a copy of the Petition and Summons at her home on January 28, 2011, prepared by an Atlanta Divorce Attorney.
On February 11, 2011, Respondent’s Defenses And Answer to Petitioner’s Petition For Legitimation and Custody/ Visitation was filed in the Superior Court of Gwinnett County. (Exhibit C). Did I mention an Atlanta Divorce Attorney had something to do with this.
On March 7, 2011, JANE AND JOHN DOE and BETHANY CHRISTIAN SERVICES OF GEORGIA INC., filed a Joint Motion to Intervene. (Exhibit D). Said Motion was granted on March 9, 2011, and filed with the Clerk of Superior Court on March 10, 2011. (Exhibit E).
Unbeknownst to the Applicant, on April 7, 2011, the Prospective Adoptive Parents filed a Petition of Adoption in the Superior Court of Fulton County, Civil File Action No. 2011CV-198986. On April 8, 2011, the Adoption Agency filed a Petition for Termination of Parental Rights in the Superior Court of Fulton County, Civil File Action No. 2011CV-199046.
On August 10, 2011, the Superior Court of Gwinnett County issued an Order On Plaintiff’s Motion For Guardian Ad Litem And Order for Partial Transfer to Juvenile Court. (Exhibit F). The matter was subsequently sent to the Juvenile Court for determination of Atlanta Divorce Attorney’s Legitimation Petition.
On December 8, 2011, the Juvenile Court of Gwinnett County issued an Order on the Intervenors’ Motion to Transfer to Fulton County Superior Court, transferring the case to Fulton County Superior Court. (Exhibit G). A two-day hearing on the Atlanta Divorce Attorney’s Petition for Legitimation was held in the Fulton County Superior Court beginning on July 31, 2013
On September 10, 2013, on the issue of legitimation the Superior Court of Fulton County (“Trial Court”, herein) issued a Final Order Denying Petition for Legitimation which included findings of fact and conclusions of law. (Exhibit A). The Trial Court found as a finding of fact and as a conclusion of law that the “Petitioner did not abandon his opportunity interest in developing a relationship with the Minor Child.” (Exhibit A, p. 6). The trial court never the less denied the Atlanta Divorce Attorney Petition for Legitimation finding “the Child’s best interest would be served by allowing him to remain with, and be adopted by, the Adoptive Parents.” (Exhibit A, p. 6).Atlanta Divorce Attorney
II. ENUMERATION OF ERRORS
1. The Fulton County Superior Court erred in denying the Atlanta Divorce Attorney’s Petition For Legitimation by failing to apply the proper legal standard, parental fitness of the biological father, as required under the particular circumstances of the Petitioner’s case, and constitutes reversible error.Atlanta Divorce Attorney
2. The Fulton County Superior Court’s reliance in denying Atlanta Divorce Attorney’s Petition for Legitimation on its finding that the Minor Child’s best interest would be served by allowing him to remain with, and be adopted by, the Prospective Adoptive Parents where he has been since shortly after his birth was misplaced and constitutes reversible error.
3. The Fulton County Superior Court’s denial of Atlanta Divorce Attorney’s Petition For Legitimation based upon the finding that the Adoptive Parents are fit and capable was misplaced and constitutes reversible error according to an Atlanta Divorce Attorney.
III. ARGUMENT AND CITATION OF AUTHORITY
STANDARD OF REVIEW
The standard of review by an appellate court of a trial court’s ruling on a petition for legitimation of a child born out of wedlock is abuse of discretion. Binns v. Fairnot, 292 Ga. App. at 337, 665 S.E.2d 36 (2008); Morris v. Morris, 309 Ga. App. 387, 710 S.E.2d 601(2011). So says an Atlanta Divorce Attorney.
The evidence of an order of denying a legitimation and terminating parental rights, must be viewed in the light most favorable to the court s ruling to determine if any rational trier of fact could have found, by clear and convincing evidence, that the petition to legitimate should have been denied. This Court does not weigh the evidence or determine the credibility of witnesses, and we must defer to the juvenile court s findings of fact if supported by the evidence. In the Interest of L.S.T., 286 Ga.App. 638, 649 S.E.2d 841 (2007).
The Fulton County Superior Court’s reliance in denying Atlanta Divorce Attorney s Petition for Legitimation on its finding that the Minor Child’s best interest would be served by allowing him to remain with, and be adopted by, the Prospective Adoptive Parents, where he has been since shortly after his birth, was misplaced and constitutes reversible error.
An analysis of the issue of whether a petition for legitimation should be granted in a case where the petitioner is the biological father of a minor child and asserts his claim for legitimation of said minor child against a mother who has surrendered her rights in the child in favor of adoption to third party strangers, must begin with a review of three cases In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459 (1987); Doe v. Chambers, 188 Ga. App. 879, 374 S.E.2d 758 (1988); and Bowers v. Pearson, 271 Ga. App. 276, 609 S.E.2d 174 (2005). Each of these cases comprise a subset of legitimation cases where a biological father is found to have pursued his opportunity interest in establishing a relationship with his minor child and where the interest of the biological father in the minor child is pitted against the interest of prospective adoptive parents, unknown to the minor child, prior to placement for adoption for custody of the minor child.
Eason, the earliest of the three cases identified above, stands for the principle that an unmarried biological father of a child has a constitutionally protected opportunity interest in developing a relationship with his child, by virtue of his biological connection to the child. The Supreme Court in Eason noted that such an interest could be deemed abandoned if not timely pursued by the biological father. Id. at 463.
Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected … It is, then, an interest which can be abandoned by the unwed father if not timely pursued…Absent abandonment of his interest, a state may not deny a biological father reasonable opportunity to establish a relationship with his child. Eason at 462. Atlanta Divorce Attorney just typed this.
In the fact scenario presented by Eason, the Supreme Court mandated a two part test for determination of whether to grant a petition to legitimize a child born out of wedlock. In deciding whether to grant legitimation, the trial court must first determine whether the putative father has abandoned his constitutionally protected opportunity interest to develop a relationship with the child. If the trial court makes a finding that the putative father has abandoned his opportunity interest then further inquiry is not necessary. Id. at 462. A biological father who is found to have abandoned his opportunity interest in developing a relationship with his child his petition to legitimate may be denied solely on this basis and without further inquiry.
Without deciding whether or not the putative father in Eason had abandoned his opportunity interest in his minor child, the Supreme Court in Eason changed its focus to a discussion of by what substantive standard will the claim of the biological father to legitimation be evaluated, in cases where he is found not to have abandoned his opportunity interest in developing a relationship with the minor child. The Court concluded “the standard which must be used to determine his right to legitimate the child is his fitness as a parent to have custody of the child.” Id. at 463. In the matter of the Applicant presently seeking review before this Court, the Applicant shows that though the Trial Court correctly concluded that he had not abandoned his opportunity interest in developing a relationship with the Minor Child. In light of this finding, the Trial Court erred by denying the legitimation basing its decision to deny legitimation on the best interest of the child test rather than the parental fitness test required by Eason .
In Doe v. Chambers, supra, the Court of Appeals reviewed another legitimation case where the prospective adoptive parents intervened in a legitimation action and filed an objection to the legitimation. In Chambers, the Court of Appeals upheld the Trial Courts decree of legitimation and affirmed its reliance on the two part test annunciated in Eason.
In Chambers, the Court of Appeals sustained the trial court’s ruling and found “while there are contradictions and inconsistencies in the evidence…there was evidence to sustain Chambers’ position that he never knew the mother was pregnant and did not learn of his daughter’s birth until some two months after the fact. Id. at 760. After finding that Chambers had not abandoned his opportunity interest, the trial court held a hearing on Chambers’ parental fitness. In ruling in favor of the biological father’s legitimation petition on the fitness issue, the trial court specifically noted and the Court of Appeals concurred “it was not a question of whether the Does were more qualified to raise the child, but whether Chambers was unfit to do so.” Id. at 758.
Bowers v. Pearson, is a more recent case to rely on Eason for the principle “that if the father had not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness as a parent to have custody of the child.Atlanta Divorce Attorney
In Bowers, the Court of Appeals reversed a trial court’s judgment
denying the putative father’s Petition for Legitimation. The Court of Appeals found that the trial court’s ruling denying the legitimation was in effect a determination that the father had “abandoned his opportunity by failing to provide financial or other assistance to Pearson (the mother) during her pregnancy and delivery.” Bowers at 174. The Court of Appeals rejected the trial court’s inference and held that the evidence did not support a finding that Bowers, who instituted his legitimation proceedings and simultaneously filed a registration form with the Georgia Putative Father’s registry before the child’s birth, abandoned his opportunity interest by failing to provide financial or other assistance to Pearson during her pregnancy.” Id. at 175.
The Court of Appeals reasoned that by bringing his claim for legitimation, Bowers agreed to assume all the responsibilities of the child’s legal father and to submit to a claim by Pearson for recovery of birthing expenses. “Under the circumstances, Bowers did not abandon his opportunity to develop a relationship with the child by failing to offer financial or other pregnancy-related assistance to Pearson beforehand.” Id. at 177.
Once the Applicant was found not to have abandoned his opportunity interest in developing a relationship with the Minor Child, he was entitled to have his legitimation petition evaluated by the Trial Court employing a parental fitness test to determine the propriety of legitimation. As the court in Eason and Bowers noted, “If he is fit he must prevail.”
The Fulton County Superior Court’s reliance in denying Atlanta Divorce Attorney’s Petition for Legitimation on its finding that the Child’s best interest would be served by allowing him to remain with, and be adopted by, the Prospective Adoptive Parents where he has been since shortly after his birth was misplaced and constitutes reversible error.
The parental fitness test presents a rigorous defense to a court that would deny a biological father’s constitutionally protected right to develop an opportunity interest with his minor child in favor of placing custody of the child with third party strangers.
The Trial Court recognized that its decision was “a difficult one,” and was “sympathetic to the frustrations of the Petitioner,” yet ruled that “it was in the best interest of the Child to remain in the home where he has been since shortly after his birth and would suffer psychological harm if he were to be removed from the Adoptive Parents, the only parents he has known.” (Exhibit A, p. 7)
The Trial Court’s reliance on the importance of maintaining the status quo by finding that the Minor Child’s best interest would be served by allowing him to remain with, and be adopted by, the Prospective Adoptive Parents was misplaced. In addition to being the wrong standard as discussed in the previous enumeration of error by which to judge legitimation under the circumstances its use as criteria for denying legitimation under these circumstances has been examined and rejected by the courts. In Baby Girl Eason the Supreme Court specifically rejected the type of status quo analysis used by the Trial Court to deny Atlanta Divorce Attorney’s Petition for Legitimation. The Court in Eason noted that the relationship that was formed between the minor child and the prospective adoptive parents was the result of state intervention. The Eason Court found that the absence of a custodial relationship between the biological father and the child was not the result of the father’s inaction. This is an appeal written by an Atlanta Divorce Attorney.
We have before us an unwed father, an infant some nine months old, adopting parents who have been in custody of the child virtually all its short life, and a mother who has surrendered her rights in the child in favor of the adoption. Scharlach (the biological father) has had no custody but he possesses an opportunity interest because he is the biological father…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…Those who were strangers are no longer strangers. The adopting parents have developed a relationship to the child and are presumably providing the care and maintenance parents should provide children…But the relationship here between adopting parents and child did not take place in the absence of state participation. The adoption laws were being pursued through the courts and this accounts for the placement of the child with the adopting parents. The unwed father has a constitutionally protected interest which cannot be denied him through state action. Only the state can alter its action to prevent the development of a parent-child relationship with adopting parents until the unwed father’s rights are resolved. In Re Baby Girl Eason, 358 S.E.2d 459 (Ga. 1987).
The Appellate Courts are consistent and have repeatedly made it clear that where the parental fitness standard applies the parental fitness standard differs from a best interests of the child standard. In order to deny legitimation where a biological father has not abandoned his opportunity interests in the minor child the ATLANTA DIVORCE ATTORNEY must demonstrate by clear and convincing evidence that the biological father is presently unfit to have custody.
The Trial Court’s reliance on its finding “the Child has had no contact with the Petitioner and recognizes his adoptive parents as his family,” to deny legitimation where as is the case here a father has not abandoned his opportunity interest in the Minor Child is misplaced and ignores the reality of why the Minor Child is in the home of the prospective adoptive parents to begin with. (Exhibit A, p. 7).
The fitness standard does not consider the absence of a custodial relationship between parent and child, the parent’s conduct in causing any separation, the emotional bond that the child has developed with the third party due to their day-to-day relationship, or the age, maturity, and special needs of the child. Rather, it automatically vests custody in a biological parent, unless the parent is unfit, to the exclusion of the others who have performed the parental roles of nurturing and caring for the child. See Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (2001).
The Fulton County Superior Court’s denial of Atlanta Divorce Attorney s Petition For Legitimation based upon the finding that the Adoptive Parents are fit and capable was misplaced and constitutes reversible error.
The Trial Court found “the Adoptive Parents are fit and capable caregivers and the evidence observed by this Court is that the home environment is stable and conducive to raising the child.” (Exhibit A, p. 7). A conclusion that the Applicant, for the sake of his son, hopes to be true but is still never-the-less not legally determinative to the Court’s inquiry under the parental fitness test.
The Supreme Court has noted that application of the fitness test because it can lead to what the court has identified as “unfair results.” is limited in application to a particularized set of facts. It is not the approved standard by which to determine custody in all contested custody or legitimation cases rather the courts have found that it is to be used in a subset of contested cases involving contests between putative fathers and third party strangers who do not hold a special claim to custody under O.C.G.A. § 19-7-1(b.1). See Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (2001).
However, in those cases where the parental fitness applies the court has noted,
“A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (2001).
The Trial Court by premising its denial of the Atlanta Divorce Lawyers’s Petition for Legitimation on a finding that the prospective adoptive parents are “fit and capable caregivers,”(Exhibit A, p. 7), impermissibly vested the Prospective Adoptive Parents, with greater rights to the Minor Child than the biological father who does have a constitutionally protected right to rear his Minor Child but is denied that right because it was not found to be in the Minor Child’s best interest. Ironically the Trial Court denied the Atlanta Divorce Lawyers’s Petition for Legitimation because it found that the Prospective Adoptive Parents passed a fitness test, the standard that should have been reserved for the Applicant.
Atlanta Divorce Attorney
For the foregoing reasons, Applicant respectfully requests the Court to grant its Application and allow Applicant the opportunity to present the important issues raised in this case by virtue of an appeal.
Martin M. del Mazo
Atlanta Divorce Attorney
750 Hammond Drive
Atlanta, Georgia 30328