FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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 6, 2021
In the Court of Appeals of Georgia
A21A1142. POE et al. v. CANTRELL.
RICKMAN, Chief Judge.
Jay and Heather Poe, the foster parents of the child at issue, bring this appeal
from the trial court’s orders denying their petition to adopt the child. On appeal, the
Poes argue that the trial court erred when it found that Randy Cantrell was his
daughter’s legal father and when it denied the Poes’ petition to adopt her. We find no
error and affirm.
The relevant facts are not in dispute.1 Cantrell and the mother of the daughter
at issue were living together at the time of the daughter’s conception. The daughter
was born in August 2017. At that time, the couple was together, with Cantrell
1
The Poes’ initial brief fails to provide record citations for many of its assertions of fact, in violation of Court of Appeals Rule 25 (a) (1). acknowledging paternity and appearing as the child’s father on her birth certificate.
The couple married in February 2018, and their son was born in September 2018. The
mother later testified, however, that due to her incarceration and drug habit, she did
not know who the biological father of the daughter was, but that it was not Cantrell.
Cantrell and the mother had histories of illegal drug use, including
methamphetamine, as well as domestic violence. In March 2019, the couple’s two
children were taken into the custody of the Floyd County Division of Family and
Children Services (“DFACS”) and eventually placed with the Poes, who had
previously adopted the daughter’s half-sibling. In June 2019, both children were
found to be dependent, with Cantrell allowed the possibility of reunification upon
completion of a plan. From August 2019 through the COVID-19 pandemic’s course
to the summer of 2020, Cantrell appeared at all his appointments and completed
counseling on parenting, anger management, addiction, and domestic violence.
Cantrell also paid all ordered child support, although some payments were not timely.
On March 25, 2020, and immediately after being released from jail, the mother
surrendered her rights in both children. In April 2020, the Poes filed a petition to
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adopt the daughter.2 In June 2020, the Poes amended their petition to include
evidence of a DNA test suggesting that the daughter was not Cantrell’s biological
child. After a hearing, the trial court ordered Cantrell to submit to DNA testing, but
it soon rescinded that order and entered a new finding, dated July 9, 2020, that
Cantrell was the daughter’s legal father. The trial court reasoned that under OCGA
§ 19-8-1 (11) (C), Cantrell had achieved that status because he had “not surrendered
or had terminated his rights” and had “married [the] legal mother . . . after [the] child
was born and recognized [the] child as his own,” and because his paternity had not
previously been “disproved by a final order of a court of competent jurisdiction.” The
trial court also held that under OCGA § 19-7-43 (governing petitions to establish
paternity), the Poes lacked standing to contest Cantrell’s status as his daughter’s legal
father. As a result, the trial court denied the Poes’ request that Cantrell submit to
DNA testing.
In July 2020, the Poes filed a motion for a declaratory judgment and for
reconsideration of the trial court’s finding of legal paternity. On the day after the Poes
filed their motion, however, and in light of Cantrell’s success in completing his
2
The Poes filed a separate petition to adopt the boy, but decided not to appeal the denial of that petition because they recognized Cantrell as the boy’s biological as well as legal father.
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reunification plan, the Department dismissed its dependency petition, and both
children were returned to Cantrell’s custody. After an emergency hearing, the trial
court returned the children to the Poes, giving Cantrell unsupervised overnight
visitation.
A hearing on adoption, which the Poes acknowledged would require
termination of Cantrell’s parental rights, was held in August 2020. Mrs. Poe testified
at the hearing that the daughter returned from visitation exhibiting poor hygiene, fear
of men, misbehavior at daycare, and night terrors, and the child’s therapist agreed that
the daughter was “terrified” of all men, including Cantrell. The evidence also showed,
however, that Cantrell had a steady job and that he, his mother and his sister were
capable of supporting and supervising both children. At a second hearing, the trial
court reopened evidence for the purpose of investigating two minor injuries – a cut
and a carpet burn – suffered by the son after his August 2020 visitation with Cantrell.
The trial court found, however, that these injuries were not “intentionally caused by
anyone” and “substantially healed by the following weekend.”
On appeal, the Poes assert that the trial court erred when it determined that
Cantrell was his daughter’s legal father, when it refused to reconsider its order
denying their request that Cantrell submit to DNA testing, and when it denied their
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petition for adoption. We disagree with these contentions, which implicate the law
of adoption, termination, custody, and legitimation.
“A child may be adopted by a third party who is neither the stepparent nor
relative of that child . . . only if each living parent and guardian of such child has
voluntarily and in writing surrendered all of his or her rights to such child to that third
party. . . .” (Emphasis supplied.) OCGA § 19-8-5 (a). No such surrender occurred
here. OCGA § 19-8-10 (a) also provides in relevant part, however, that a “surrender
or termination” of parental rights
shall not be required as a prerequisite to the granting of a petition for
adoption of a child . . . when the court determines by clear and
convincing evidence that the (1) [c]hild has been abandoned by that
parent. . . . or (5) [p]arent, without justifiable cause, has failed to
exercise proper parental care or control due to misconduct or inability,
as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section
15-11-310 [setting out the statutory grounds for termination of parental
rights], and the court is of the opinion that the adoption is in the best
interests of that child, after considering the physical, mental, emotional,
and moral condition and needs of the child who is the subject of the
proceeding, including the need for a secure and stable home.
(Emphasis supplied.)
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The Poes do not assert error as to whether Cantrell’s parental rights should
have been terminated, and the record shows that the trial court properly considered
whether Cantrell had “abandoned” his daughter or “failed to exercise proper parental
care or control” as set forth in OCGA § 19-8-10 (a). When Cantrell fulfilled the
requirements of his reunification plan, DFACS dismissed its dependency petition, and
the trial court explicitly held, with evidence supporting its decision, that the
daughter’s previous dependency was not likely to continue. See OCGA § 15-11-310
(a) (5) (dependency is a state caused by “lack of proper parental care or control”). By
statute, the trial court’s conclusion that the dependency was not likely to continue
mooted any inquiry into the best interests of this child. OCGA § 19-8-10 (a) (even in
the absence of a surrender or termination, an adoption petition may be granted only
when both parental abandonment or failure is proven by clear and convincing
evidence and the best interests of the child are served).
This record and the relevant law also support the trial court’s findings that
Cantrell is his daughter’s legal father and that the Poes have no standing to assert
otherwise. OCGA § 19-8-1 (11) defines a “legal father” as
a male who has not surrendered or had terminated his rights to a child
and who: (A) [h]as legally adopted such child; (B) [w]as married to the
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biological mother of such child at the time such child was born or within
the usual period of gestation, unless paternity was disproved by a final
order of a court of competent jurisdiction; (C) [m]arried a legal mother
of such child after such child was born and recognized such child as his
own, unless paternity was disproved by a final order of a court of
competent jurisdiction; or (D) [h]as legitimated such child by a final
order pursuant to Code Section 19-7-22.
(Emphasis supplied.) And OCGA § 19-7-43 provides in relevant part:
(a) A petition to establish the paternity of a child may be brought by: (1)
[t]he child; (2) [t]he mother of the child; (3) [a]ny relative in whose care
the child has been placed; (4) [t]he Department of Human Services in
the name of and for the benefit of a child for whom public assistance is
received or in the name of and for the benefit of a child not the recipient
of public services whose custodian has applied for services for the child;
or (5) [o]ne who is alleged to be the father.
(Emphasis supplied.)
Finally, the legitimation statute, OCGA § 19-7-20, provides:
(a) All children born in wedlock or within the usual period of gestation
thereafter are legitimate.
(b) The legitimacy of a child born as described in subsection (a) of this
Code section may be disputed. Where possibility of access exists, the
strong presumption is in favor of legitimacy and the proof must be clear
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to establish the contrary. If pregnancy existed at the time of the marriage
and a divorce is sought and obtained on that ground, the child, although
born in wedlock, will not be legitimate.
(c) The marriage of the mother and reputed father of a child born out of
wedlock and the recognition by the father of the child as his shall render
the child legitimate[.]
(Emphasis supplied.) Our Supreme Court has summarized this law as follows:
All children born in wedlock are deemed under law to be legitimate. A
child’s legal father is defined as the man married to the biological
mother at the time the child was conceived or born, unless such paternity
is disproved by final court order. Where a child is legitimate, the father
has a claim to parental and custodial rights to the child. The public
policy favoring the presumption of a child’s legitimacy is one of the
most firmly-established and persuasive precepts known in law.
(Citations omitted; emphasis supplied.) Baker v. Baker, 276 Ga. 778, 779 (1) (582
SE2d 102) (2003).
Cantrell became the legal father of this child by operation of law when he
married the mother after the child was born and recognized her as his own. See Baker
v. Langford, 306 Ga. App. 327, 329 (1) (702 SE2d 666) (2010) (a man who was
married to a child’s biological mother at the time of birth was not required to obtain
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a court order to legitimate the child), citing Baker, supra, 276 Ga. at 779 (1). Having
thus become the child’s legal father, Cantrell “stands in the same position as any other
parent and possesses the same custodial rights with respect to the child.” (Citation
omitted.) Davis v. LaBrec, 274 Ga. 5, 7 (549 SE2d 76) (2001). The trial court also
correctly concluded that Cantrell’s marriage to the mother rendered the child
legitimate because his paternal status was not previously disproved by a final court
order. See OCGA § 19-8-1 (11) (C). Under these circumstances, the trial court
properly vacated its earlier order that Cantrell submit to DNA testing because such
testing could not have provided relevant evidence.3
Further, foster parents such as the Poes are not included in the categories of
persons and organizations authorized to bring a paternity petition, and thus have no
3
Our Supreme Court’s decision in Veal v. Veal, 281 Ga. 128 (636 SE2d 527) (2006) is distinguishable: the husband and wife in Veal “knew all along that husband was not [the child’s] biological father,” id. at 128, whereas Cantrell acknowledged the child as his own at birth and married the mother shortly afterward, with some evidence that he was not the biological father emerging only after these events. When Cantrell acknowledged the child and the mother married him without raising any dispute about his biological status, the trial court had no choice but to award custody to the only relative before it rather than any foster parent. See OCGA § 19-8-5 (a) (“A child may be adopted by a third party who is neither the stepparent nor relative of that child . . . only if each living parent and guardian of such child has voluntarily and in writing surrendered all of his or her rights to such child to that third party” (emphasis supplied).
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standing to contest the trial court’s determination that Cantrell is the daughter’s legal
father. See OCGA § 19-7-43 (a); Wallace v. Chandler, ___ Ga. App. ___ (859 SE2d
100) (2021) (non-relative foster parents had no standing to petition for sole custody
of a child of an incarcerated mother when the mother had not lost her right to
custody). Our recent decision in Wallace is in accordance with longstanding law that
a trial court has no discretion to make a custody award to a non-relative unless the
parent has lost parental control. See Woods v. Martin, 212 Ga. 405, 405-406 (2) (93
SE2d 339) (1956) (some evidence of abandonment did not “prove [a] clear and strong
case[,] which the law requires,” that a father had lost parental control); Drummond
v. Fulton County Dept. of Family and Children Services, 237 Ga. 449, 450 (1) (228
SE2d 839) (1976) (foster parents had no standing to contest DFACS’s discretion, as
children’s legal custodian, to give or refuse consent to a petition for adoption); Clark
v. Wade, 273 Ga. 587, 597 (IV) (544 SE2d 99) (2001) (“OCGA § 19-7-1 (b.1)
expressly limits third parties who may seek custody to a specific list of the child’s
closest relatives, including an adoptive parent.”).
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For all these reasons, the trial court did not err when it found that Cantrell was
his daughter’s legal father, when it denied the Poes’ request that he submit to DNA
testing, and when it denied the Poes’ petition to adopt the child.
Judgment affirmed. McFadden, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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