Blackburn v. Blackburn

Smith, Justice,

dissenting.

I respectfully dissent from the majority opinion.

Appellant divorced her husband in July 1979. Custody of their six-month-old son was awarded to appellant. In May 1981, appellant gave birth to an illegitimate female child. Appellee, the paternal grandmother of appellant’s legitimate child, thereafter filed a petition in the Superior Court of Jenkins County, Georgia, seeking custody of her grandson.

After hearing, the trial court found that appellant had by her conduct “surrendered her right to continued custody of the minor child” and awarded permanent custody to appellee. Appellant’s application for appellate review to the Court of Appeals was denied. We granted certiorari to determine “[w]hether there was clear and convincing evidence (exclusive of the issue of race) of the natural mother’s unfitness as a parent, which authorized the termination of her custody of her legitimate child.” For reasons that follow, I would affirm the order of the trial court.

Appellant contends that there was no clear and convincing evidence presented that she was unfit or that one of the conditions set forth in Code Ann. §§ 74-108, 74-109 or 74-110 were met; therefore, appellant contends, the trial court obviously based its award of custody on either a) appellant’s giving birth to a child out of wedlock or b) racial considerations, neither of which would be proper bases for depriving appellant of the custody of her child.

I cannot agree that the evidence was insufficient to justify the termination of appellant’s right to custody, nor can I agree that the trial court’s order was based upon improper considerations. The record shows the following.

*697 Appellant moved six times after her divorce. While living in a motel registered under a name other than Blackburn, appellant frequently had late night guests and often left with her son after midnight, returning hours later. As a result her son was usually sleepy and lethargic during the day.

While appellant worked at a local hospital, she took her son to work with her, where he played unattended on cold tile floors, exposing him, in the opinion of his physician, Dr. Abreu, to a high risk of disease contamination.

Later, appellant, now unemployed, moved into an apartment. Although she now had more free time, she nonetheless allowed her son to play unattended in a heavily traveled parking lot some 300 feet from her apartment.

Appellant did not have the time to properly supervise her son or to clean her apartment, which was dirty and cockroach infested, but she did find the time to have an affair with a married police officer. His visits supposedly were of short duration, lasting “a few minutes, at the most maybe half an hour.” However, these visits involved sexual intercourse and resulted in the birth of an illegitimate child.

Appellant failed to properly clothe her son for cold weather. His diapers were often soaking wet. On at least one occasion, appellant fed her child a bottle of milk formula that had been left unrefrigerated overnight. As a result of this lack of care, the child had constant bouts of respiratory and gastrointestinal problems.

On several occasions, the child was left for extended periods of time with appellee. On each occasion, the child was sick upon his arrival and healthy when he departed. In the four months preceding appellee’s acquisition of custody, the child gained no weight at all. During the first month of appellee’s custody, the child gained two pounds. In Dr. Abreu’s opinion, appellant failed to take proper care of her son.

The trial court recognized that appellant’s right to custody of her child could be lost only upon a clear and convincing showing of appellant’s unfitness as a parent or that one of the conditions set forth in Code Ann. §§ 74-108, 109, or 110 were met. See Wright v. Hanson, 248 Ga. 523 ( 283 SE2d 88 ) (1981) and Miele v. Gregory, 248 Ga. 93 ( 281 SE2d 565 ) (1981). Under our decisions prior to this case, therefore, the trial court’s decision to terminate appellant’s right to custody must be affirmed if there is reasonable evidence to support it. Gazaway v. Brackett, 241 Ga. 127 ( 244 SE2d 238 ) (1978); White v. Bryan, 236 Ga. 349, 350 ( 223 SE2d 710 ) (1976). There is certainly reasonable evidence in the record of this case to support a finding that appellant failed to provide necessaries for the child and that the child *698 was being reared under immoral influences likely to degrade his moral character. See Code Ann. §§ 74-108 (a) (3) and 74-110. 1

Today’s decision, however, marks a radical departure from our earlier cases defining the scope of appellate review in child custody cases. The majority opinion today abandons the long-standing “reasonable evidence” standard of review in favor of a stricter, constitutionally-based rule requiring that we affirm only if “any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” The majority apparently believes that two recent Supreme Court decisions, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and Santosky v. Kramer, - U. S. - (102 SC 1388, 71 LE2d 599) (1982), require such a result. I disagree. Neither Jackson v. Virginia nor Santosky is even remotely applicable to the issue of the correct standard to be applied in appellate review of child custody decrees. Jackson dealt with the proper standard of review of state criminal convictions by a federal habeas court and is thus inapplicable here. The Santosky case, so heavily relied upon by the majority, does not even discuss appellate review. That decision is concerned solely with the standard of proof to be applied by a trial court in a proceeding to terminate parental rights. Moreover, Santosky did not effect any significant change in Georgia law, since our cases have long required that a third party seeking custody prove his case by “clear and convincing” evidence. See Wright v. Hanson, supra; 102 SC 1388, 1392, n. 3.

I cannot agree that the majority’s new constitutional standard of review will help to “safeguard the high value society places on the integrity of the family unit.” I believe that introduction of the new standard will have exactly the opposite effect: heightened appellate scrutiny of trial court custody decrees can only cause confusion in judicial administration and encourage appeals and protracted litigation of custody disputes. This increased appellate involvement in family disputes will in my opinion tend to erode, rather than safeguard, the family unit. The practical effect of today’s decision is to allow this court to substitute its judgment for that of the trial court. I believe that the sort of judicial second-guessing of the trial judge encouraged by the majority opinion is unwise, particularly in the delicate area of child custody disputes. Furthermore, the majority’s approach in this case is inconsistent with the decision in Dur- *699 den v. Barron 249 Ga. 686 (1982), as revised on motion for reconsideration, June 29,1982, where we held that once custody has been awarded to a third party in a proceeding to which a parent was a party, “the parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the beat interest of the child that custody be changed.” (Emphasis supplied.) Id. at 686 .

Assuming, as appellant contends, that an act of fornication resulting in the birth of an illegitimate child could not, standing alone, render a mother unfit in light of Code Ann. § 74-203,* 2 nonetheless, “it is not error to admit testimony tending to throw light on the moral character of a party to the action seeking such custody [of a minor child], since this is one of the issues for the consideration of the trial court.” Eller v. Matthews, 216 Ga. 315 (3) ( 116 SE2d 235 ) (1960). Numerous decisions of this state’s appellate courts have upheld trial court findings of parental unfitness based on violations of our laws dealing with adultery, fornication, drugs and other crimes. See Godfrey v. Godfrey, 239 Ga. 707 ( 238 SE2d 378 ) (1977) (adultery); Collier v. Collier, 228 Ga. 38 ( 183 SE2d 769 ) (1971) (adultery); Wilbanks v. Wilbanks, 220 Ga. 665 ( 141 SE2d 161 ) (1965) (“immoral conduct” and birth of an illegitimate child); Bell v. Bell, 154 Ga. App. 290 ( 267 SE2d 894 ) (1980) (cohabitation); Henderson v. Dept. of Human Resources, 152 Ga. App. 74 ( 262 SE2d 241 ) (1979) (heroin usage and repeated arrests). The trial court’s award of custody was properly based in part upon appellant’s immoral conduct.

Appellant argues that since the evidence does not support the court’s decision terminating her right to custody and since she is white and the father of her illegitimate daughter is black, the trial court’s decision was necessarily based on racial considerations. I cannot agree. First, appellee complained to the local office of the Department of Family and Children Services that her grandson was not being properly cared for long before appellant gave birth to a racially mixed child. Second, two superior court judges have ordered that custody of the child be awarded to appellee. 3 Finally, the issue of race was injected by appellant, not appellee, and appellant was rebuked for doing so. I find nothing in the record of this case to support appellant’s allegation that the trial court’s decision was *700 based on race. 4

I am authorized to state that Justice Marshall joins in this dissent.

Phelps v. Phelps, 230 Ga. 243 ( 196 SE2d 426 ) (1973), is inapplicable. Appellant’s right to custody of her illegitimate child is not an issue in this case and custody of her illegitimate child was not “awarded” to appellant.

Code Ann. § 74-203 gives a mother the presumptive right to custody of her illegitimate child.

Judge Faye Martin awarded temporary custody to appellee pending a final hearing.

Appellant and amicus curiae have referred to evidentiary matters either not in the record at all, or matters not presented until after the final hearing. The former cannot be considered in any event and appellant failed to show that the latter could not have been timely presented had appellant exercised due diligence. See Code Ann. § 81A-143 (a); Williams v. State, 249 Ga. 6 (7) ( 287 SE2d 31 ) (1982).