Navigating a Potentially Changing Landscape in Child Welfare Appellate Review

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2022
• Citation: Vol. 73 No. 3

Navigating a Potentially Changing Landscape in Child Welfare Appellate Review

Carolyn Altman

Robert Rodatus

Amanda Trimble

[Page 945]

Navigating a Potentially Changing Landscape in Child Welfare Appellate Review

The Hon. Carolyn Altman^*

The Hon. Robert Rodatus^**

The Hon. Amanda Trimble^***

I. Introduction

Recently, the Georgia Supreme Court, in reversing the Georgia Court of Appeals decision as to a legitimation petition, held that the evidence was sufficient, by the appropriate standard of proof, for the trial court to deny the putative father's petition to establish his legal rights to a child. This supreme court opinion, in reviewing the analysis of the court of appeals, illustrated an approach of the court of appeals in some child welfare cases to state a standard of review that defers to the trial court as trier of fact; but then, in de facto deference, to the rights of parents to re-weigh the evidence presented to the trial court; and thus, to reach a different conclusion on appeal than the trier of fact.

In Brumbelow v. Mathenia,¹ Mathenia v. Brumbelow,² and Brumbelow v. Mathenia,³ the court of appeals and the supreme court published opinions following a denial of a petition for legitimation by the Habersham County Superior Court, in which the different courts

[Page 946]

reached different conclusions while citing the same standard of review. The standard of review as to legitimation decisions has been largely deferential to the trial court—abuse of discretion as to rulings and clearly erroneous as to findings of fact—and is well-established by precedent. The analysis conducted by the court of appeals in this series of opinions raises a question: Is appellate review of trial court parental rights rulings moving toward a different standard of review than the one established by precedent?

II. The Brumbelow Cases

In Brumbelow I, the appellant challenged the Habersham County Superior Court's denial of his legitimation petition filed during the course of a third-party adoption proceeding.⁴ The biological father, Brumbelow, who attempted to legitimate the child in the lower court, argued on appeal that the trial court erred in finding that he abandoned his opportunity interest in developing a parent-child relationship with the child, E. M., and that the trial court's ruling was not supported by the evidence.⁵ The evidence presented to the trial court was subsequently interpreted much differently by the court of appeals and then by the supreme court.

The evidence in the trial court showed that the mother and father had a one-time sexual encounter resulting in the mother's pregnancy.⁶ When informed, the father denied paternity and never wavered in that denial. He met with the mother at her doctor's office to "do the math" regarding his paternity.⁷ Even though he still had doubts as to his fatherhood, he did offer to pay for an abortion, which was his only offer of arguable financial support made during the pregnancy. He did not visit her or make any inquiries regarding her needs or her condition. The mother surrendered her parental rights at the hospital the day after the child's birth so the child could be adopted. Subsequently, she and the alleged biological father met at his attorney's office where she acknowledged service of his legitimation petition. The legitimation and adoption action were consolidated by the trial court.⁸

The court of appeals, in an opinion written by the Hon. Stephen Dillard, held contrary to the findings of the trial court, that the father did not abandon his opportunity interest in developing a parent-child

[Page 947]

relationship.⁹ It reviewed the evidence considered by the trial judge as well as evidence in dispute and evidence not considered by the trial court.¹⁰ In addressing the standard of review, the court stated:

We review a trial court's ruling on a legitimation petition for an abuse of discretion, and its factual findings for 'clear error and will only sustain such findings if there is competent evidence to support them.' Bearing these guiding principles in mind, we turn now to Brumbelow's specific claims of error.¹¹

The supreme court granted certiorari and reversed the court of appeals' decision that the father did not abandon his opportunity interest.¹² The supreme court cited the same standard as the court of appeals: appellate courts review trial court decisions in this circumstance for abuse of discretion only.¹³ The court held, "factual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."¹⁴ Furthermore, the court held that "appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them."¹⁵

The court of appeals initial opinion in Brumbelow I included analysis of evidence that the trial court did not mention in its order: testimony and other evidence the superior court was entitled to discredit or to afford no significant weight.¹⁶ Unless detailed in the order of the trial court, the trial court's reasons, as trier of fact, for disregarding certain evidence could not be known. The trial court could have assigned no weight at all to the testimony of any witness to the extent that it found testimony not credible.¹⁷

[Page 948]

In its analysis in Brumbelow II, the supreme court applied the "any evidence" standard found in Matthews v. Duke.¹⁸ The case was remanded to the court of appeals to vacate the prior opinion, to adopt the opinion of the supreme court, and to affirm the trial court.¹⁹ At this point the appellate journey would ordinarily be over. However, the Hon. Stephen Dillard filed a largely unseen concurrence dubitante.²⁰ The concurrence stated, "I concur because my oath requires that I do so. But I continue to believe this court's original decision was correct, and I am troubled by the tone, reasoning, and holding of the supreme court's majority opinion."²¹ The delineation of the concurrence as dubitante perhaps suggested a desire to move away from the deferential analysis established by precedent and to move toward a standard of review in which the court of appeals takes a more active role in evaluating the evidence presented to the trial court. Furthermore, an examination of analyses the court of appeals has been conducting in cases involving parental rights since 2014, when the new Juvenile Code went into effect, a possible pattern begins to emerge. The stated standard of review is one giving deference to the trial court, yet the appellate analysis, arguably, defers to the parents.

III. Appellate Analysis: A Potentially Changing Landscape

At first blush, the precedential standard of review used by appellate courts in a number of child welfare circumstances seems clear:

In reviewing a juvenile court's decision to terminate parental rights, we view the evidence in the light most favorable to the juvenile court's disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody should be terminated. In so doing, we do not weigh the evidence or determine the credibility of witnesses;

[Page 949]

rather, we defer to the juvenile court's fact finding and affirm unless the appellate standard is not met.²²

Even so, in conducting our review, we must proceed with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.²³

In some cases, the court of appeals plainly applied the precedential standard of review it cited.²⁴ The court has affirmed trial court decisions, and presumably accepted the trial court's findings of fact in a variety of situations. Where a trial court received and considered expert testimony that a special needs child was benefiting from the stability provided by foster care, and the mother's significant cognitive deficits hampered her ability to implement the skills she had been taught while completing most of her case plan, the court of appeals affirmed the trial court's decision.²⁵ Similarly, it upheld a trial court's decision when the trial court received and considered expert testimony of bonding with foster parents, of harm if the child was removed from the foster parents, and of harm from the parents' inability to complete their case plans.²⁶ Likewise, the court of appeals has held that a trial court's findings of fact as to aggravating circumstances, such as physical and sexual abuse, supports a Termination of Parental Rights (TPR).²⁷ In each of those instances, the court of appeals accepted the facts as found by the trial court. Those opinions do not suggest that the court conducted a de novo-type review or reweighed the evidence.

In other cases, the court of appeals' holdings were less deferential to the trial court and appeared more deferential to biological parents. Notably, despite the standard of review being historically deferential to the trial court, the court of appeals has also long recognized the gravity of severing parent-child relationships: "[w]hile we are reluctant to re-

[Page 950]

verse the juvenile court's determination, no judicial determination is more drastic than the permanent severing of the parent-child relation-ship."²⁸ The court of appeals continues to highlight the right to parent one's child: "[a]nd the right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances."²⁹

Certainly, not all trial court reversals by the court of appeals suggest a possible move toward a different standard of review...