Case Information
*1
FINAL COPY
S19G0426. MATHENIA et al. v. BRUMBELOW .
M ELTON , Chief Justice.
This case stems from an action in which Joshua Brumbelow
petitioned the Superior Court of Habersham County to legitimate
his biological son, E. M.
[1]
The superior court denied the petition,
concluding that, under
In re Eason
, 257 Ga. 292 (358 SE2d 459)
(1987), Brumbelow had abandoned his opportunity interest to
pursue a relationship with his son. Brumbelow appealed to the
Court of Appeals, alleging that the trial court erred in finding that
he had abandoned his opportunity interest. The Court of Appeals
agreed and reversed the trial court’s decision. See
Brumbelow v.
Mathenia
,
We granted certiorari to decide two issues: (1) whether the Court of Appeals erred in reversing the superior court’s decision that Brumbelow had abandoned his opportunity interest to pursue a relationship with his son; and (2) if not, whether the Court of Appeals properly concluded that Brumbelow’s legitimation petition must be assessed on remand under the parental fitness standard rather than the best interests of the child standard. For the reasons that follow, we conclude that, because evidence supported the superior court’s finding that Brumbelow abandoned his opportunity interest, the superior court did not abuse its discretion in denying the legitimation petition. Accordingly, the Court of Appeals erred in its decision on that issue, and we must reverse that portion of the Court of Appeals’ judgment. With respect to the second question, we conclude that the portion of the Court of Appeals’ opinion relating to *3 the standard that must be applied to assess a biological father’s right to custody of his child in a legitimation action should be viewed as dicta only.
1. Standard of Review.
An appellate court reviews a trial court’s decision on a legitimation petition
for abuse of discretion only. Moreover, “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. The appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.”
(Citations omitted.)
Matthews v. Dukes
, 314 Ga. App. 782, 786 (1)
(
The Court of Appeals’ opinion in this case included analysis of
*4
evidence that the superior court did not mention in its order —
testimony and other evidence the superior court was entitled to
discredit or afford no significant weight. See generally
Brumbelow
,
supra,
We do not know — and the . . . Court of Appeals could not have known — exactly why the trial court said nothing about these things. But we do know that the trial court could have assigned no weight at all to the testimony of the [witnesses] about these things to the extent that it found that their testimony was not credible. See Tate [ v. State ], 264 Ga. [53, 56 (3) (440 SE2d 646) (1994)] (“Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” (Citation omitted)).
(Emphasis in original.)
Hughes v. State
,
Viewed in the light most favorable to the superior court’s ruling
and factual findings, the evidence presented at the hearing on
Brumbelow’s legitimation petition showed the following: In late
2015, Jeannie Mathenia became pregnant with E.M. after a one-
time sexual encounter with Brumbelow. Mathenia was married to a
different man at the time that she became pregnant with
Brumbelow’s child,
[4]
and she remained married to her husband after
E. M. was born. Thus, there is a statutory presumption that
Mathenia’s husband is E. M.’s legal father. See OCGA § 19-7-22 (a)
ability of appellate courts to notice some undisputed facts not rejected by a trial
court.” Dissent at 728. This is untrue. While “an appellate court properly may
take notice of the undisputed facts,”
Hughes
, supra, 296 Ga. at 746 (1) n.4,
appellate courts cannot use those undisputed facts to make alternative
findings of fact that are contrary to those explicitly or implicitly made by the
trial court where other evidence exists that supports the trial court’s findings.
See
Matthews
, supra,
[4] The superior court expressly found, and the parties do not dispute, that Brumbelow is the biological father of E. M. See OCGA § 19-7-22 (a) (1) (“‘Biological father’ means the male who impregnated the biological mother resulting in the birth of a child.”).
(2) (B) (“‘Legal father’ means a male who has not surrendered or had terminated his rights to a child and who . . . [w]as married to the 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 pursuant to Article 3 of this chapter”). [5]
As soon as Mathenia found out she was pregnant, which was approximately six weeks after conception, she informed Brumbelow of the pregnancy. Brumbelow denied that the child was his, but attended one of Mathenia’s doctor’s appointments in an attempt to figure out how far along Mathenia was in the pregnancy in order to determine if he could be the father. At that point, Brumbelow offered to pay for Mathenia to have an abortion. Mathenia refused, and, from that point on, Brumbelow did not visit Mathenia, inquire about her well-being, or offer her any emotional or financial support, even though Brumbelow was employed and capable of providing such *8 support. [6]
Lance and Ashley Hall planned to adopt E. M. After E. M. was born on July 10, 2016, Mathenia surrendered her parental rights to E. M., and the child went home with the Halls. E. M. has remained in the Halls’ exclusive care and custody ever since. At some point after E. M. was born and before Brumbelow filed his petition to legitimate E. M. on August 23, 2016, Brumbelow’s mother got in touch with Mathenia and arranged for Mathenia to meet with Brumbelow at his attorney’s office. Brumbelow requested visitation with E. M. only once, through his attorney, on December 29, 2016. [7] *9 The superior court found that Brumbelow had abandoned his opportunity interest in E. M. and that denying the petition for legitimation was in E. M.’s best interest.
3. Analysis.
(a) Jurisdiction.
As an initial matter, we must resolve an issue that the Court
of Appeals did not consider: whether the superior court had
jurisdiction to decide Brumbelow’s legitimation petition. We
conclude that it did. “Although the parties have not raised any
objections to jurisdiction, subject matter jurisdiction cannot be
waived or conferred on a court by agreement.” (Citations omitted.)
Brine
, supra,
Our jurisdictional analysis begins with our decision in
Brine
,
supra,
the biological father’s petition to legitimate a child who was born in wedlock [was] in essence a petition to terminate the parental rights of the legal father. . . . Since all children born in wedlock are deemed legitimate by law, the superior court was faced with a situation where the biological father of [the] child sought to delegitimate the child and sever an existing father-child relationship. See Baker v. Baker , 276 Ga. [778, 781 (1) (582 SE2d 102) (2003)]; Davis v. LaBrec , 274 Ga. [5, 7 (549 SE2d 76) (2001)]. To grant the legitimation petition required the superior court to first terminate the parental rights of the legal father.
Brine
, supra,
However, the law has changed since our decision in Brine . OCGA § 15-11-28 was replaced by OCGA § 15-11-10 (3) (D), which became effective on May 5, 2015, before the legitimation petition was filed in this case:
Except as provided in Code Section 15-11-560 [concurrent jurisdiction with superior courts in certain juvenile matters involving crimes], the juvenile court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action . . . [i]nvolving any proceedings . . . [f]or the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child in *12 accordance with Article 4 of this chapter; provided, however, that such [exclusive] jurisdiction [of the juvenile court] shall not affect the superior court’s exclusive jurisdiction to terminate the legal parent-child relationship and the rights of a biological father who is not the legal father of the child as set forth in Chapters 6 through 9 of Title 19 .
(Emphasis supplied.) Within the chapters of Title 19 where superior courts retain jurisdiction “to terminate the legal parent-child relationship” pursuant to OCGA § 15-11-10 (3) (D) is Chapter 8, which deals with “Adoption.” Thus, as was the case under former OCGA § 15-11-28, under OCGA § 15-11-10
(3) (D) superior courts continue to have jurisdiction “to terminate the legal parent-child relationship and the rights of a biological father who is not the legal father of the child” in adoption cases. [9] *13 But, unlike former OCGA § 15-11-28, OCGA § 15-11-10 (3) (D) does not limit the jurisdiction of superior courts to termination of parental rights only in adoption cases. To the contrary, OCGA § 15- 11-10 (3) (D) expands the jurisdictional reach of superior courts to resolve termination of parental rights issues beyond Chapter 8 of Title 19, and now includes matters under “ Chapters 6 through 9 of Title 19 .” (Emphasis supplied.)
In this regard, Article 2 of Chapter 7 of Title 19 deals specifically with “Legitimacy” and the procedures governing legitimation. See OCGA §§ 19-7-20 to 19-7-27. Thus, pursuant to OCGA § 15-11-10 (3) (D), superior courts have been granted exclusive jurisdiction to decide termination of parental rights issues in legitimation cases. Accordingly, the superior court here had jurisdiction to rule upon the termination of the parental rights of E. M.’s legal father in connection with the legitimation proceedings initiated by Brumbelow. [10] To the extent that Brine , supra, can be have had jurisdiction to decide the legitimation petition based on its potential jurisdiction over an adoption action that had not yet been filed.
[10] To that end, the legitimation statute protects the interests of legal *14 read to support the proposition that superior courts have jurisdiction only to decide legitimation petitions “in connection with adoption proceedings,” id. at 377 (1), it has been superseded by statute. See OCGA § 15-11-10 (3) (D).
(b) Merits.
Turning to the merits of the superior court’s decision to deny
Brumbelow’s legitimation petition, this Court has held that “unwed
fathers possess an opportunity interest [to develop a relationship
with their children that is] protected by due process of law.”
Eason
,
not indestructible.” Id. at 296 (1). Indeed, an unwed father’s
opportunity interest can be abandoned “if not timely pursued.” Id.
“Factors which may support a finding of abandonment include,
without limitation, a biological father’s inaction during pregnancy
and at birth, a delay in filing a legitimation petition, and a lack of
contact with the child.” (Footnotes omitted.)
Morris v. Morris
, 309
Ga. App. 387, 389 (2) (
Here, Brumbelow did not delay long in filing his legitimation
petition — filing it about six weeks after E. M. was born — and the
superior court concluded in its order that this filing “slightly moved
[Brumbelow] . . . from [being the type of] father who has developed
absolutely no relationship” with his child to one who expressed some
desire to have more than just a biological relationship with the
child.
[11]
However, there are other circumstances that support the
*16
superior court’s ultimate finding that Brumbelow abandoned his
opportunity interest to develop a relationship with E. M. First, the
superior court found, with support in the record, that the only
financial support that Brumbelow offered Mathenia during her
pregnancy was to pay for an abortion, which does not show that he
wanted to pursue a relationship with his child. See
Eason
, supra,
369 (1) (457 SE2d 575) (1995) (explaining that an unwed father’s
“disregard of his opportunity interest during [the mother’s]
pregnancy is as significant as such a disregard after the child is
born”) (citation omitted). Supporting Mathenia during her
pregnancy was an important way that Brumbelow could have shown
interest in the welfare of E. M. before the child was born, as one’s
opportunity interest “begins at conception” and may be pursued as
soon as the father learns a child has been conceived.
Eason
, 257 Ga.
at 296 (1). See also
Adoption of Michael H.
,
This is not a case where the mother prevented the father from
developing a relationship with his child despite the father’s clear
desire to do so during the pregnancy.
[13]
Cf.
Bowers v. Pearson
, 271
Ga. App. 266 (
4. Because we have determined that evidence supported the
trial court’s conclusion that Brumbelow abandoned his opportunity
interest, we would not necessarily be required to resolve the
remaining issue of whether the Court of Appeals properly concluded
that Brumbelow’s legitimation petition must be assessed on remand
under the parental fitness standard. See
Neill v. Brannon
, 320 Ga.
App. 820, 821-822 (1) (738 SE2d 724) (2013) (“If the evidence
supports a finding that [the unwed] father has abandoned his
opportunity interest in developing a relationship with his biological
child, then the court is authorized to end its inquiry and to deny the
legitimation petition on that basis.”). However, because the Court of
his actions. The cases on which the Court of Appeals relied for the proposition
that the trial court applied an incorrect legal standard are disapproved to the
extent that they can be read as the Court of Appeals read them in its opinion.
See
Magdangal v. Hendrix
,
Appeals did not consider an important statutory matter in its analysis, we address the issue.
In reaching its decision, the Court of Appeals did not consider the application of OCGA § 19-7-22 (d) (1). This statute, and its relationship to this Court’s decision in Eason , supra, have important ramifications in legitimation cases. In Eason , we concluded that, if an unwed biological father has not abandoned his opportunity interest, he has a constitutional right to obtain custody of his child over individuals who are strangers to the child and who seek to adopt unless the biological father is deemed unfit. See id. at 297 (1) (where relationship between prospective adoptive parents and biological father’s child does “not take place in the absence of state participation[,] . . . the standard which must be used to determine [the biological father’s] right to legitimate the child is his fitness as a parent to have custody of the child [rather than the best interests of the child standard]”). However, effective July 1, 2016, the General Assembly amended OCGA § 19-7-22 (d) (1) to require a different test, *23 specifically, that legitimation petitions be decided under the “best interests of the child” standard:
Upon the presentation and filing of a legitimation petition, and after a hearing for which notice was provided to all interested parties, the court may issue an order declaring the biological father’s relationship with the child to be legitimate, provided that such order is in the best interests of the child .
(Emphasis supplied.) In light of our holding in Eason that the “best interests of the child” standard is not sufficient to protect the constitutional rights of unwed biological fathers in at least some circumstances, there is significant doubt about whether OCGA § 19- 7-22 (d) (1) can be constitutionally applied (or reasonably construed to be constitutionally applied) in cases where the “fit parent” standard, rather than the “best interests” standard, must be applied to protect an unwed father’s constitutional rights.
The Court of Appeals recognized the potential tension between our decision in Eason and recent amendments to the Georgia Code involving the “best interests” standard, but cited only OCGA § 19-7- 1 (b.1) (discussing “best interests” standard in certain custody *24 matters involving a parent and certain enumerated third parties) in an effort to explain why the “fit parent” standard applied, not OCGA § 19-7-22 (d) (1), which specifically directs that the “best interests of the child” standard apply in legitimation cases. But, regardless of whether OCGA § 19-7-1 (b.1) could be applicable in this case, the tension identified by the Court of Appeals exists between Eason and the statute that is directly applicable in this case, OCGA § 19-7-22 (d) (1).
Whether OCGA § 19-7-22 (d) (1) is unconstitutional as applied
in this case due to
Eason
’s holding is not a question that the Court
of Appeals has jurisdiction to answer. See Ga. Const. of 1983, Art.
VI, Sec. VI, Par. II (1) (“The Supreme Court . . . shall exercise
exclusive appellate jurisdiction in . . . all cases in which the
constitutionality of a law, ordinance, or constitutional provision has
been drawn in question.”). However, the Court of Appeals could, in
some future case, decide whether OCGA § 19-7-22 (d) (1) may be
reasonably construed to avoid constitutional concerns.
[15]
See
*25
case, and the statute has never been declared unconstitutional. However, the
statute
could
be declared unconstitutional in some other case (but not by the
Court of Appeals) or perhaps could be interpreted not to apply (but only if that
is a
reasonable
interpretation). See
Clark v. Martinez
,
[T]here exists a continuum of unwed father-child relationships with assigned degrees of [constitutional] protection afforded rights to custody [for the unwed father] . . . . There are circumstances [such as those involving a father who has never had custody of his children] in which the best interests of the child standard is adequate [to protect the father’s substantive due process and equal protection rights]. . . . [But] [o]n the other hand 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.
Id. at 294-296 (1). Furthermore, this Court has already declared
unconstitutional other statutes that used a “best interests” standard when
those statutes were applied to cases in which a “fit parent” standard was
necessary. See
Patten v. Ardis
, 304 Ga. 140, 145 (3) (816 SE2d 633) (2018)
(holding that OCGA § 19-7-3 (d), which authorized an award of visitation to a
grandparent in the “best interests” of the child and over the objection of a “fit
parent,” was unconstitutional, because the statute authorized such visitation
“without any showing whatsoever (much less a showing by clear and
convincing evidence) that the visitation [was] required to keep the child from
actual or threatened harm”);
Brooks v. Parkerson
,
Judgment reversed. All the Justices concur, except Blackwell, Peterson, and Ellington, JJ., who dissent.
B ETHEL , Justice, concurring.
I join the opinion of the Court and write separately to emphasize my understanding of the scope and nature of appellate review in relation to determinations of an abandonment of an opportunity interest in parenting a child.
Having made a finding of the salient facts, the trial court determined that Brumbelow abandoned his opportunity interest in being a parent of E. M. There was clearly evidence in the record to support this determination and limited evidence to the contrary. The Court of Appeals was wrong to attempt to reweigh the evidence because the proper standard of review asks whether the trial court, which carries the burden and responsibility of making these decisions across Georgia in the first instance, abused its discretion. In this case, it did not.
Moreover, while I would not deem it conclusive on the point, it appears to me that an offer to pay for an abortion is highly probative of a lack of intent to parent the child. Of course, hearts and minds change and the lack of an interest in parenting at the outset of a *29 pregnancy can give way to genuine parental concern, nurture, and love. But, whether such a change has occurred is patently the sort of question appellate courts routinely leave to trial courts to resolve. Because such a determination is so tightly bound in fact and credibility determinations, we afford broad discretion to those trial courts that hear the testimony and deal with the interested parties in person.
Having made a factual finding that Brumbelow did offer to pay for an abortion, the trial court was authorized to weigh that fact as strong evidence of abandonment of Brumbelow’s interest in parenting the child. Importantly, the trial court found other evidence it deemed probative of a determination of abandonment — particularly, Brumbelow’s initial denial of paternity and the lack of action on his part (other than offering to pay for an abortion) during Mathenia’s pregnancy. By contrast, the evidence offered to support a determination that Brumbelow’s interest was not abandoned was in no way overwhelming. In another case, there might be strong evidence that could outweigh this or any other evidence of a clear *30 and unambiguous action demonstrating a complete lack of interest in parenting a child. There is no clear talisman on either side of the equation. And trial courts must weigh all salient facts they find in reaching a determination concerning abandonment of opportunity interest. When they do and their determination falls within the parameters of what a reasonable jurist could determine on the facts found, they are due to be affirmed.
P ETERSON , Justice, dissenting.
I am far less certain than the majority that the Court of Appeals got it wrong. The majority overstates the responsibility of appellate courts to ignore undisputed facts that a trial court has not rejected. And the only question the majority actually answers today is essentially one of the sufficiency of the evidence; our rules make clear that is not a matter for our certiorari review. I would dismiss this case as improvidently granted, and so I respectfully dissent.
This case involves a biological father who had a one-night- stand with a woman who was married to another man; the child was conceived that night. It was undisputed that the father doubted he was the father. It was undisputed that the mother did not want the biological father to contact her for at least some portion of her pregnancy. And it was undisputed that the biological father filed his legitimation petition mere weeks after the child was born, and before he received results of a paternity test; not the years later many Georgia cases point to as coming too late.
Our case law does recognize the ability of appellate courts to
*32
notice some undisputed facts not rejected by a trial court. See
Hughes v. State
, 296 Ga. 744, 746 (1) n.4 (770 SE2d 636) (2015)
(when “some or all of the material facts may be undisputed, as where
the defendant concedes a fact unhelpful to his cause in his motion to
suppress, where the State admits a fact unhelpful to its case in
connection with the motion, or where the State and defendant
expressly stipulate to a fact . . . an appellate court properly may take
notice of the undisputed facts — even if the trial court did not —
without interfering with the prerogative of the trial court to resolve
disputes of material fact”); cf.
Barrett v. State
,
The majority acknowledges this case law, but suggests that it
is inapplicable here because the undisputed facts cannot be used to
make alternative findings of fact contrary to those explicitly or
*33
implicitly made by the trial court. I agree that an appellate court
cannot make factual findings contrary to factual findings made by
the trial court so long as those latter findings are supported by some
evidence. But the undisputed facts that I note do not actually conflict
with any factual findings of the trial court; rather, those undisputed
facts are merely contrary to the trial court’s ultimate conclusion that
the father abandoned his opportunity interest. And that ultimate
conclusion is itself not a finding of a discrete fact but instead is based
on several factors. If abandonment were a discrete factual finding,
appellate courts would always affirm that finding unless there were
nothing in the record to support it. But that is not what our appellate
courts have done. See
Binns v. Fairnot
,
Notwithstanding these undisputed facts, there may well have been enough evidence in the record, viewed in the light most favorable to the trial court’s findings, to support the trial court’s conclusion that the father abandoned his opportunity interest. But this question — the only question we decide today — is not cert- worthy, see Supreme Court Rule 40 (“Certiorari generally will not be granted to review the sufficiency of evidence.”), and its answer is not nearly as clear to me as it appears to the majority.
Because I do not believe the only question the majority answers today is worthy of our review on certiorari, and it is not clear to me that the Court of Appeals erred, I would dismiss this case as improvidently granted. I respectfully dissent.
I am authorized to state that Justice Blackwell and Justice Ellington join in this dissent.
D ECIDED M AY 18, 2020. Certiorari to the Court of Appeals of Georgia — 347 Ga. App.
861.
Hester Outman, Justin Y. Hester, James B. Outman , for appellants.
Timothy P. Healy; Cathey & Strain, Dennis T. Cathey, Thomas L. Hatchett III , for appellee.
Kazmarek Mourey Cloud Laseter, Richard A. Horder, Jacqueline O. Eisermann , amici curiae.
Notes
[1] The petition was originally filed in the Superior Court of Stephens County on August 23, 2016, but was transferred to the Superior Court of Habersham County for a final hearing. The Stephens County Superior Court transferred the petition to Habersham County because E. M. was living in Habersham County at that time with a couple, Lance and Ashley Hall, who wished to adopt him. The parties do not dispute that the Halls filed their petition to adopt on September 1, 2016, but the actual adoption petition does not appear in the record for the legitimation action.
[2] We cite to Hughes only to emphasize the deference that appellate courts must give to trial courts with regard to findings of fact supported by the evidence and to remind appellate courts not to engage in the inappropriate practice of making independent findings.
[3] The dissent contends that we have not sufficiently recognized “the
[5] Although Mathenia’s husband was a named party in the legitimation action, the record does not reveal whether Mathenia’s husband has surrendered his parental rights or had his parental rights terminated. So, we must assume that his parental rights have not been terminated.
[6] The superior court expressly found not credible Brumbelow’s assertion that he did not have the ability to get in touch with Mathenia throughout the pregnancy, especially in light of the fact that Brumbelow’s mother was able to get in touch with Mathenia soon after E. M. was born. In this regard, the dissent’s statement that the undisputed evidence showed that Mathenia “did not want the biological father to contact her” (Dissent at 728) is belied by the record, and it cannot be used as a basis for making a finding contrary to the ones made by the trial court. The dissent downplays the Court of Appeals’ finding, contrary to the findings of the trial court, that “Mathenia ‘cut off all contact’ with Brumbelow . . . [and] [a]s a result , during the entirety of Mathenia’s pregnancy, Brumbelow never asked about her well-being or if she needed anything.” (Emphasis supplied.) Brumbelow , supra, 347 Ga. App. at 862 See also id. at 870-871 (2). It was for the superior court to determine how to view the mother’s statements and what weight to give them in relation to Brumbelow’s efforts (or lack thereof) to contact her and provide support.
[7] The superior court’s order lists the date as December 29, 2017, but this
[8] Former OCGA § 15-11-28 (a) (2) (C) provided: Except as provided in subsection (b) of this Code section, the [juvenile] court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action . . . [i]nvolving any proceedings . . . [f]or the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child.
[9] We note that, despite the fact that the Halls filed a petition to adopt E.
M. in the same superior court that decided Brumbelow’s legitimation petition,
the Halls’ filing would not show, under the circumstances presented in this
case, that the superior court had jurisdiction to decide Brumelow’s legitimation
petition. While it is true that superior courts continue to have jurisdiction to
terminate a legal father’s parental rights in “adoption” cases, see OCGA § 15-
11-10 (3) (D), Brumbelow filed his legitimation petition
before
any formal
adoption proceedings were initiated by the Halls. Accordingly, Brumbelow’s
petition was
not
filed “in connection with adoption proceedings.”
Brine
, supra,
[11] The Court of Appeals asserted that “the trial court failed to give any
meaningful consideration to Brumbelow’s decision to file a legitimation
petition shortly after E. M.’s birth.”
Brumbelow
, supra,
[12] The Court of Appeals asserted that the trial court should not have
“discounted” the actions of Brumbelow’s mother “
on her son’s behalf
. . . to
preserve his opportunity interest in a relationship with E. M.” (Emphasis
supplied.)
Brumbelow
, supra,
[13] The Court of Appeals extensively discussed the evidence presented at
the hearing and concluded that Mathenia made it “difficult for Brumbelow to
contact or assist her during the pregnancy.”
Brumbelow
, supra, 347 Ga. App.
at 870 (2). But the trial court made no such finding. Instead, the trial court
found that “at all times relevant [to the case, Brumbelow] had the ability to
contact Ms. Mathenia and . . . he had the means to provide support[,] . . . [but
Brumbelow] knowingly and willfully failed to do either,” and this finding was
supported under the “any evidence” standard. See
Matthews
, supra, 314 Ga.
App. at 786 (1) (“The appellate courts will not disturb fact findings of a trial
court if there is
any evidence
to sustain them.”) (citations and punctuation
omitted; emphasis supplied). See also
Hughes
, supra,
[14] We also point out that the Court of Appeals erred in holding that the trial court applied the wrong legal standard in finding that [Brumbelow] abandoned his opportunity interest in developing a relationship with E. M. by basing its decision on everything he did not do to pursue that interest, rather than all of the things he did to pursue a parent-child relationship with the child . . . [because] the appropriate inquiry is not whether the father could have done more, but rather whether the father has done so little as to constitute abandonment . (Punctuation and footnote omitted; emphasis in original.) Brumbelow , supra, 347 Ga. App. at 868 (2). The superior court considered both the things that Brumbelow did do (i.e., filing a legitimation petition and attending one doctor’s visit) and did not do (i.e., failing to visit E. M. and failing to support Mathenia or E. M. in any way during pregnancy or after birth) to develop a relationship with E. M., which was exactly what the superior court was supposed to do in reaching its finding on abandonment of opportunity interest. See, e.g., Morris , supra, 309 Ga. App. at 389 (2) (“Factors which may support a finding of abandonment include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.”) (footnotes omitted; emphasis supplied). The superior court did not apply an incorrect legal standard, as there is not a different legal standard applicable to the evaluation of a biological father’s inactions versus
[15] By its plain terms, OCGA § 19-7-22 (d) (1) would seem to apply in this