author: McFadden, Judge. DILLARD, Judge,

text:
    A15A2015, A15A2016.
    In the Interest of S. P., a child (two cases).
    (784 SE2d 846)
   McFadden, Judge.

In these appeals, the mother of minor child S. P. appeals from two orders of the juvenile court: an order terminating her parental rights and awarding permanent custody to the Department of Family and Children Services (“DFCS”) to be placed for adoption (Case No. A15A2016), and an order declining to appoint the girl’s maternal grandmother as her permanent guardian (Case No. A15A2015). She argues that the evidence compelled different rulings from the juvenile court. Because the evidence authorized both rulings, we affirm.

As an initial matter, we note that Georgia’s new Juvenile Code, which applies to juvenile proceedings commenced on or after January 1,2014, see Ga. L. 2013, p. 294, § 5-1, applies to these cases. Case No. A15A2016 concerns a termination proceeding that commenced on July 3, 2014, when DFCS filed a petition to terminate the mother’s parental rights. See In the Interest of C. J. V., 333 Ga. App. 844, 848 (2) (777SE2d692) (2015) (applying new Juvenile Code to termination decision because termination petition was filed in 2014). See also OCGA § 15-11-16 (a) (3) (a proceeding under the new Juvenile Code “may be commenced ... by the filing of a complaint or a petition as provided in Article[ ] ... 4 ... of [the new Juvenile Code],” among other ways); OCGA § 15-11-280 (section within Article 4 of the new Juvenile Code providing for the filing of a petition to terminate parental rights). Case No. A15A2015 concerns a third party’s motion to intervene in that termination proceeding for the purpose of being appointed permanent guardian of the child. Compare In the Interest of J. M. L., 336 Ga. App. 518 (784 SE2d 869) (2016) (old Juvenile Code applied to permanent guardianship decision made in response to motion filed in 2014 in deprivation proceeding that had been commenced before January 1, 2014).

1. Facts and procedural history.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found clear and convincing evidence that the parental rights should be terminated.

In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012) (citation omitted). Our Supreme Court has stressed:

In the appellate review of a bench trial [such as, in this case, the evidentiary hearings on the motions for termination of parental rights and appointment of a permanent guardian],... due deference must be given to the trial court, acknowledging that it has the opportunity to judge the credibility of the witnesses.

Strickland v. Strickland, 298 Ga. 630, 633-634 (1) (783 SE2d 606) (2016) (citations omitted).

Viewed in the light most favorable to the juvenile court’s decision, the evidence showed that S. P. was born on January 14, 2011. At the time, her mother was incarcerated for a probation violation on a forgery conviction, and upon her birth S. P. went to live with her maternal grandmother. When S. P. was 20 months old, her mother was released from incarceration and moved into the household with S. P. and her grandmother. Four months later, in January 2013, the mother was arrested and incarcerated after an altercation in the child’s presence between the mother, the grandmother, and an aunt (the mother’s half-sister). Upon the mother’s arrest, DFCS obtained custody of S. P. because the mother refused to enter into a safety plan that would permit the girl to remain with the grandmother. (DFCS later declined to approve the grandmother’s home as a placement for S. P. following a home evaluation.) Finding no other relative who could care for S. P., DFCS placed the girl into foster care. After an initial placement with another family, in May 2013 S. P. was placed into care with the foster family with whom she currently resides. Her foster parents would like to adopt her.

The juvenile court adjudicated S. P. deprived in February 2013, in an unappealed order to which the mother, who was represented by counsel, stipulated. In that order, among other things, the juvenile court stated that S. P. was deprived due to the mother’s incarceration, the mother’s history of substance abuse, and the incident of domestic violence between the mother and the grandmother. The juvenile court also entered an order incorporating a reunification case plan for the mother, which required that she: (1) complete a drug and alcohol assessment, follow any recommendations made, submit to random drug screens, and establish six months of clean screens; (2) complete a psychological evaluation and follow any recommendations made; (3) obtain and maintain safe and stable housing; (4) obtain and maintain a stable, legal income; (5) complete age-appropriate parenting classes and demonstrate skills learned; (6) resolve all pending legal issues and commit no further violations of the law; (7) refrain from committing or exposing S. P. to domestic violence; (8) establish and maintain a bond with S. P. through regular visits upon the mother’s release from incarceration; (9) provide a specified amount of child support to DFCS beginning no later than 60 days from her release from incarceration; (10) reimburse the juvenile court for attorney fees in a specified amount; and (11) cooperate with DFCS and all other agencies providing services to her, including notifying DFCS of changes to her address, telephone number, and employment within 48 hours of the change.

The mother began working on the reunification case plan while she was incarcerated, obtaining a psychological evaluation in which she was diagnosed with antisocial personality disorder and aspects of dependent personality disorder. After she was released from incarceration, she began working on other aspects of her case plan. For a period of time she obtained housing and part-time, but not full-time, employment. She also initially participated in visits and joint therapy with S. P. and received individual counseling, but as time passed she became inconsistent and began missing appointments.

In several interim orders during this time period, the juvenile court found that the mother’s psychological conditions were impeding her ability to meet her case plan goals. In an October 2013 order following a citizen panel review, the juvenile court stated that S. P. would remain at risk until the mother addressed her psychological and legal issues and expressed concern about “the mother’s noncompliance with substance abuse treatment.” In a January 2014 temporary disposition order, the juvenile court adjudicated S. P. dependent, noting that the mother still needed to address her psychological condition and that the mother had consented to the child remaining in DFCS custody. And in an unappealed April 2014 order of disposition and permanency, which followed evidentiary hearings, the juvenile court held that S. P. remained dependent because, although the mother had complied with some aspects of her case plan, she needed additional work on her stability and significant mental health issues. The order of disposition and permanency listed reunification and adoption following termination of parental rights as concurrent goals.

In the order of disposition and permanency, the juvenile court found that an unhealthy relationship existed between the mother and grandmother that affected the mother’s ability to address her psychological conditions and work on her case plan goals. The juvenile court pointed to evidence that the relationship between the mother and grandmother was “toxic” and that the grandmother was a controlling individual who had abused the mother both as a child and adult; that the mother needed to establish boundaries to protect both herself and S. P. from an unhealthy relationship with the grandmother; that the mother knew her failure to resolve this issue “could be a barrier to her being reunified with [S. P.]”; and that the mother nevertheless remained dependent upon the grandmother and “ha[d] been unable to implement boundaries with [her].” In an earlier interim order, the juvenile court had forbidden the grandmother’s presence at visits between S. P. and the mother, and in the order of disposition and permanency the juvenile court stated that she “remain[ed] incredibly concerned about the mother’s allowing the child to have any contact with [the grandmother].”

After the hearings that led to the April 2014 order of disposition and permanency, the mother was arrested twice, first on bad check charges and then on shoplifting and drug charges. During this time she also was j ailed in connection with unpaid parking tickets, causing her to lose her job. Incarceration prevented her from attending her joint therapy sessions and visitation with S. P.

On July 3, 2014, DFCS petitioned to terminate the mother’s parental rights. The termination petition alleged, among other things, that the mother had not resolved her psychological issues, that she had missed counseling sessions, that she continued to engage in destructive relationships and risk-taking behavior, that she failed to meet her case plan goal of resolving pending legal issues and committing no further violations of the law, that she failed to maintain and establish a bond with S. P, that she missed visitation with the girl during periods of incarceration and for other reasons, and that she failed to pay child support on a regular and consistent basis. Subsequently, the grandmother moved to intervene in the termination proceeding and petitioned to be appointed S. P.’s permanent guardian.

The juvenile court held a series of evidentiary hearings on the petitions and motion. At those hearings, the mother acknowledged that she had failed to complete her case plan goal of resolving all pending legal issues and committing no further violations of the law. At the time of the second hearing, she was again incarcerated on pending shoplifting and drug charges. Earlier in the year she had been jailed for outstanding traffic tickets and arrested for writing a bad check. She also admitted that she had a long and extensive criminal history and had been arrested more than 15 times over her lifetime for a variety of offenses. At times, incarceration kept her from visiting S. P.

When asked why she continued to break the law, knowing that this hindered her efforts to reunite with S. P., the mother stated that she has “bouts of not being able to maintain for long periods of time I think as a means of survival.” This inability to maintain an appropriate level of mental fitness for long periods of time was a recurring topic in the mother’s hearing testimony, which included her statements that she “just go[es] into deep bouts of depression [and] can’t maintain through a certain amount of time”; that she “could not. . . maintain [her] life for long periods of time”; that she would achieve some of her case plan goals but then “just kind of f[a]ll apart” and wind up back in jail; and that she needed “some time to get [her] self together as far as being able to maintain [her] life,” which she agreed would take a lengthy amount of time.

Evidence at the hearings showed that the mother had not met other case plan goals, as well. She initially obtained stable housing but was not able to maintain it. She was incarcerated at the time of the hearings and anticipated moving into a substance abuse rehabilitation facility as a condition of bond. She had not obtained full-time employment and had twice been terminated from part-time employment (once for missing too much work and once when she was in jail). She had not paid all of her child support obligations while S. P. was in foster care.

At the hearings, the juvenile court received expert testimony from the clinical psychologist who initially evaluated the mother. He described her diagnoses (antisocial personality disorder and dependent personality disorder) and testified that, among other things, the mother was self-centered and had poor internal controls. The clinical psychologist explained that a person with the mother’s diagnoses would perform better with external controls (e.g., under court or DFCS supervision) and would “have periods of normalcy, but over time it generally collapses.” He further explained that such conditions generally are less amenable to treatment because they reflect behaviors learned over time that are very difficult to change. The clinical psychologist testified that the mother had described to him her unhealthy relationship with the grandmother, including a history of the grandmother verbally abusing the mother, and she had told him that she specifically requested that S. P. be placed with DFCS rather than the grandmother when the mother was arrested in January 2013. Based on the mother’s diagnoses, the clinical psychologist opined that the conflict between the mother and the grandmother was likely to continue and would be detrimental to a child; that her regular incarcerations reflected a “continued pattern” that would be difficult for her to change; and that it was unlikely she would be able to meet S. P.’s needs for permanency, given that she had essentially missed four years of bonding with the child and remained incarcerated.

A DFCS employee also testified about the decision not to place S. P. with the grandmother when the mother was arrested. She stated: “We tried to safety plan [S. P.] with [the grandmother] when she first entered care, and [the mother] stated that she didn’t want [S. P] placed there, that she was violent and she was afraid that she wouldn’t keep her child safe.” There was evidence that the mother viewed her relationship with the grandmother as “toxic” and at one point after S. P. was taken into care the mother had contemplated getting a protective order against the grandmother or distancing herself from the grandmother in other ways. Nevertheless, when the mother was released from incarceration after her January 2013 arrest, she returned to live with the grandmother. There was no evidence of any further domestic violence involving the mother and her family members after S. P. was taken into care.

The juvenile court received expert testimony from the mother’s counselor, who described the mother’s inconsistent commitment to counseling. The mother began counseling in November 2013, and regularly kept her appointments and completed assignments until January, when she began to get inconsistent. As 2014 progressed, the mother was more sporadic about making and keeping counseling appointments. She began missing appointments and, at the time of the termination hearing, had not kept an appointment with the counselor in several months, which the counselor found “troubling.” The counselor had concerns about the mother’s ability to raise S. P. due to her inability to be consistent. She testified that the mother had a pattern of “physically not being there” to raise her child. She also testified about the mother’s unhealthy relationship with the grandmother, which had been a significant focus in the mother’s individual therapy. The mother told her counselor that the grandmother was verbally and emotionally abusive to her and that she wanted to protect S. P. from the grandmother. Based strictly on her therapy with the mother, the counselor testified that she would have concerns about placing S. P. with the grandmother. In the counselor’s opinion, the mother would need at least a year of therapy before the counselor could determine whether she was making lasting changes.

S. P.’s psychologist also gave expert testimony at the hearings. In April 2013, she began treating the girl, who initially displayed anxiety and some developmental delays but quickly made significant progress; the psychologist attributed S. P.’s progress to the stability and consistent support of the girl’s foster family. The psychologist testified that S. P. needed consistency and familiarity, that the lack of these things made her scared and anxious, and that “people being in and out for her . . . would be very traumatic.” The psychologist anticipated that if S. P. remained in her current home with her foster family she would only need therapy for a few more months.

S. P.’s psychologist conducted joint therapy sessions to give the mother an opportunity to bond with the girl. At the hearings, she described instances in which the mother impeded the development of a bond between the two and caused the girl confusion, stress, and anxiety because she was unwilling or unable to follow the psychologist’s instructions regarding the joint therapy sessions. The psychologist testified that the mother did not seem to appreciate the problem.

The psychologist also testified about the mother’s inconsistency in attending the joint therapy sessions. Initially she was diligent, but in May 2014, she began missing sessions, often without notifying the psychologist. On one occasion, the mother called the psychologist to apologize for missing a therapy session, and the psychologist noticed that the mother’s voice was extremely slurred and that she “did not sound like herself.” The mother also missed sessions because she was incarcerated.

The psychologist testified that the mother and S. P. interacted in a positive way during the therapy sessions but did not appear to have a parent-child bond. In the psychologist’s opinion, S. P. had a stronger bond with her foster parents and with the person assigned to drive her to and supervise visits than she did with the mother. When the mother stopped attending sessions because she was incarcerated, S. P. did not ask to see the mother but did ask to see the driver/supervisor. According to the psychologist, S. P. “just sees [the mother] as a friendly person she knows who she has fun with when she’s with her but not in the caregiver capacity.” The psychologist testified that S. P. was insecure after unsupervised visits with the mother and told the psychologist “that [the mother] was telling her she was going to live with her forever, and she didn’t want to live with her forever.” Her foster mother gave similar testimony, that after visits with the mother S. P. acted out and became clingy.

The juvenile court also received reports from a guardian ad litem and a court-appointed special advocate, who both recommended that the court terminate the mother’s parental rights. The court found that S. P. was a dependent child, that termination of parental rights and adoption were in her best interest, and that the grandmother could not provide S. P. a safe, stable, and permanent home, specifically citing the grandmother’s difficult and unhealthy relationship with the mother and stating that it was clear to the court that “the mental health disorders of the mother are [a] direct reflection of her lifelong environment [with the grandmother].”

On January 27, 2015, the juvenile court entered an order granting the grandmother’s motion to intervene but denying the petition to appoint her S. P.’s permanent guardian. Also on that date, the juvenile court granted the petition to terminate the mother’s parental rights. The trial court found, as detailed below, that the statutory ground for termination set forthin OCGA § 15-11-310 (a) (5) hadbeen met and that termination was in S. P.’s best interest as required by OCGA § 15-11-310 (b). In the termination order, the juvenile court awarded permanent custody of S. P. to DFCS to be placed for adoption. The mother appeals from both rulings.

2. Termination of parental rights (Case No. A15A2016).

Like the former Juvenile Code, Georgia’s new Juvenile Code provides for a two-step process that must be followed in determining whether to terminate parental rights. OCGA § 15-11-310 (a) requires that the juvenile court “first determine whether one of [several specified] statutory grounds for termination of parental rights has been met[.]” The statutory ground pertinent to this appeal provides:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

OCGA § 15-11-310 (a) (5). “If any of the statutory grounds for termination has been met, the [juvenile] court shall then consider whether termination is in a child’s best interest[ ] after considering [several specified] factors[.]” OCGA § 15-11-310 (b). “In all proceedings under this article, the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.” OCGA § 15-11-303.

The mother argues that there was not clear and convincing evidence of the following factors: that S. P. was presently dependent, that the dependency was likely to continue, that the dependency was likely to harm S. P, and that termination of parental rights was in S. P.’s best interest. We disagree.

(a) Present dependency caused by lack of proper parental care or control.

The juvenile court found that S. P. was a dependent child due to lack of proper parental care or control by the mother. The new Juvenile Code defines a dependent child as “a child who... [h]as been abused or neglected and is in need of the protection of the court[;]... [h]as been placed for care or adoption in violation of law; or . . . [i]s without his or her parent, guardian, or legal custodian.” OCGA § 15-11-2 (22). This definition is similar, although not identical, to the definition of a deprived child under our former Juvenile Code. See former OCGA § 15-11-2 (8). Likewise, both the new and former Codes set forth similar but not identical considerations for the juvenile court to determine whether a child is without proper parental care and control. See OCGA § 15-11-311; former OCGA § 15-11-94 (b) (4) (B), (C). Many of the principles expressed in decisions under our former Code are helpful in determining whether dependency has been shown for purposes of terminating parental rights.

The mother argues that there was not clear and convincing evidence of S. P.’s present dependency. See In the Interest of M. T. F., 318 Ga. App. 135, 145 (1) (733 SE2d 432) (2012) (“DFCS was required to present at the termination hearing evidence of present deprivation, not past or potential future deprivation”) (citations omitted; emphasis in original). The juvenile court’s termination order makes clear, however, that the dependency finding was based on present, not past, unfitness on the part of the mother — the mother’s ongoing and unaddressed psychological conditions, her inconsistent commitment to her own therapy and to joint therapy and visitation with S. P., her continuing criminal infractions (including pending drug-related offenses for which she was incarcerated at the time of one of the termination hearings), her continued inability to set boundaries with and become independent of the grandmother, the continued lack of stability in her life (including employment and housing) as a result of her repeated incarcerations, her failure to pay her child support obligation, and her continued inability to establish a parental bond with S. P.

In earlier orders, the juvenile court had adjudicated S. P. deprived and dependent for many of these same grounds. In January 2014, for example, the juvenile court adjudicated S. P. dependent on the grounds that the mother “continue [d] to need to address her psychological diagnosis; need[ed] to continue to address an ability to appropriately parent; [and] need[ed] to establish continued stability.” The mother, who was represented by counsel, consented to this ruling “that the child remained dependent as to her, as she needed to maintain stability and remain in counseling to address her mental health needs.” Because the mother did not challenge the earlier rulings on appeal, she cannot now challenge a conclusion that those grounds constituted deprivation or dependency at the time of those rulings. See In the Interest of P. D. W., 296 Ga. App. 189, 192 (1) (a) (674 SE2d 338) (2009) (unappealed order adjudicating child deprived binds parent to finding that at time of order child was deprived for reasons given therein). Since the earlier rulings, the mother’s circumstances have gotten worse, not better, and many of the grounds of deprivation or dependency identified in the earlier rulings persist. The evidence authorized the juvenile court to find that S. P. was presently deprived.

The mother also argues that the juvenile court improperly based her dependency finding on the mother’s poverty and mental disability, citing our statement in In the Interest of S. R. R., 330 Ga. App. 817, 821-822 (769 SE2d 562) (2015), that we “will not sustain the termination of a mother’s right to raise her child, based on either her poverty or her physical disabilities, when neither renders her incapable of caring for her child.” (Citation omitted.) We do not discern from the juvenile court’s order that she found poverty to be at the root of the mother’s failure to complete her case plan or any other cause of S. P.’s dependency; rather, the juvenile court found that the mother did not meet her case plan goals because of her inability or unwillingness to address her psychological issues and refrain from committing criminal acts. See In the Interest of B. A. S., 254 Ga. App. 430, 435-436 (3) (563 SE2d 141) (2002) (incarcerated parent’s history of repeated incarcerations for commission of criminal offenses was factor that juvenile court could consider in determining whether child was presently without proper parental care and control). And unlike the evidence in In the Interest ofS. R. R., here there was evidence that the mother’s psychological conditions were harmful to S. P. and otherwise rendered the mother incapable of caring for the child. The juvenile court’s findings as to present dependency were not clearly erroneous.

(b) Likelihood of dependency to continue.

The juvenile court found that the cause of S. P.’s dependency was likely to continue and not likely to be remedied, satisfying one of the factors set forth in OCGA § 15-11-310 (a) (5). Our former Juvenile Code contained a similar factor, see former OCGA § 15-11-94 (b) (4) (A) (iii), and accordingly we will look to cases interpreting our former Code for guidance.

Again, the mother argues that the evidence demonstrated past, not present, unfitness. While “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child,” In the Interest of D. D. B., 282 Ga. App. 416, 418 (1) (638 SE2d 843) (2006) (citation and punctuation omitted; emphasis supplied), the juvenile court was permitted to consider evidence of the mother’s past conduct in determining whether the dependency was likely to continue. In the Interest of M. L., 290 Ga.App. 437, 441 (3) (659 SE2d 800) (2008); In the Interest of C.R. G., 272 Ga.App. 161, 164 (611 SE2d 784) (2005). And as discussed above, evidence of the mother’s present unfitness was presented to the juvenile court.

The mother also points to evidence of her attempts to form a bond with S. P. and address her psychological issues as grounds for reversing the juvenile court’s judgment. Despite the mother’s sporadic efforts, however, the evidence authorized the juvenile court to find that she had not been able to establish a parental bond with S. P., and that her recurring incarcerations and unwillingness or inability to follow the recommendations of S. P.’s psychologist contributed to this problem. The lack of such a bond supports a finding of continued dependency. In the Interest of D. D. B., 282 Ga.App. at 419 (1). Several expert witnesses also testified that the mother had a low likelihood of resolving her psychological issues and the accompanying pattern of instability and incarceration. Evidence of the mother’s failure to resolve her psychological issues and evidence of her history of incarceration for repeated offenses supported the juvenile court’s finding that dependency was likely to continue. See In the Interest of O. M. J., 297 Ga. App. 20, 27 (2) (b) (676 SE2d 421) (2009); In the Interest of P.A.T. L., 264 Ga.App. 901, 903 (1) (592 SE2d 536) (2003).

The mother’s decision, during the course of the termination proceedings, to enter a rehabilitation program as a bond condition may reflect a renewed commitment toward addressing the issues that have manifested in her criminal acts and other unhealthy behaviors. But “recent improvements do not establish that the parent is capable of maintaining the progress.” In the Interest of M. L., 290 Ga. App. at 441 (3) (citation and punctuation omitted). “In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” In the Interest of D. D. B., 282 Ga. App. at 419 (1) (citation and punctuation omitted). See also In the Interest of N. M. H., 252 Ga.App. 353, 356 (556 SE2d 454) (2001) (it was for the juvenile court to judge the credibility of the mother’s contention that “she is now willing to take steps to be a proper parent”). “Based upon the record, there was sufficient clear and convincing evidence to support a finding that the mother’s inability or unwillingness to resolve the problems which have caused [S. P.’s dependency] is likely to continue and will not be remedied.” In the Interest of D. L. T., 283 Ga. App. 223, 228 (1) (641 SE2d 236) (2007) (citations omitted). See In the Interest of K. A. C., 290 Ga. App. 310, 313 (3) (659 SE2d 703) (2008) (“The evidence authorized a finding that the mother’s past actions [and patterns] would likely continue and cause [S. P.’s dependency].”) (citation omitted); In the Interest of G. L. H., 209 Ga. App. 146, 150 (2) (433 SE2d 357) (1993) (under former Juvenile Code, court may consider parent’s failure to participate in court-ordered mental health counseling when determining whether the child’s deprivation is likely to continue or will not be remedied).

(c) Harm caused by dependency.

The juvenile court found that S. P.’s continued dependency would cause or was likely to cause her serious physical, mental, emotional, or moral harm, as required by OCGA § 15-11-310 (a) (5). Our former Juvenile Code contained a similar factor, see former OCGA § 15-11-94 (b) (4) (A) (iv), and accordingly we will look to cases interpreting our former Code for guidance.

As the mother correctly notes, a “mother’s inability to care for her children does not necessarily mean that her current relationship with them is detrimental.” In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (citations and punctuation omitted). She also criticizes the juvenile court’s consideration of S. P.’s need for permanence in determining that she was likely to be harmed by continued dependency. Pretermitting whether, under the new Juvenile Code, a child’s need for permanence remains a factor in determining whether the child is likely to be harmed by continued dependency, as well as a factor in determining the child’s best interest, see OCGA § 15-11-310 (b) (3) (identifying a child’s need for permanence among the factors for the juvenile court to consider in determining whether termination is in the child’s best interest), the evidence in this case supported the juvenile court’s finding that S. P.’s continued dependency was likely to harm her.

Evidence supporting the juvenile court’s finding included expert testimony that S. P. needed the type of stability and consistency provided by her foster family to thrive; expert testimony that the mother was unlikely to resolve the psychological issues that resulted in her pattern of incarceration and prevented her from developing a parental bond with the girl and providing stability to her; evidence that the mother’s failure to follow the recommendations of S. P.’s psychologist during their joint therapy and visitation confused and upset the girl; and evidence that during unsupervised visits, the mother caused S. P. significant distress by telling her that she might leave her foster family and return to live with the mother. This evidence of the impact upon S. P. of the mother’s recurring psychological problems and repeated incarcerations, and her admitted inability to manage her own life, supported the juvenile court’s determination. See In the Interest of A. K., 272 Ga.App. 429, 438 (1) (d) (612 SE2d 581) (2005).

While it is not automatically true that a finding that [dependency] is likely to continue will support a finding that continued deprivation will harm the child, in this case the trial court was authorized to conclude that the mother’s inconsistent efforts in the past to stay [out of jail], lead a stable life, [address her mental health needs], and [follow the recommendations of S. P.’s psychologist] so that she could develop a bond with her had caused the child to suffer emotional difficulties [.] . . . The evidence also showed that [S. P] had overcome many of her problems while in foster care and that although she had no bond with her mother she had bonded with her foster parent [s] who desired to adopt her. We have previously held that where evidence shows no parental bond between parent and child, the child has adapted well to foster care, and the foster parents wish to adopt, this is sufficient to support the conclusion that continued [dependency] is likely to harm the child.

In the Interest of D. D. B., 282 Ga. App. at 419-420 (1) (citations and punctuation omitted). See In the Interest of P. A. T. L., 264 Ga. App. at 904 (1) (finding clear and convincing evidence that child was likely to be seriously harmed by continued deprivation where mother had repeated criminal convictions and incarcerations, had failed to comply with her reunification case plans, and had failed to establish a parental bond with her child); In the Interest of M. J. G., 288 Ga. App. 754, 756 (655 SE2d 333) (2007) (evidence supporting termination of parental rights included testimony from child’s evaluating psychologist that child “could not tolerate being abandoned again”). Cf. In the Interest of N. T., 334 Ga. App. 732, 744 (4) (780 SE2d 416) (2015) (speculation that child might be upset and begin acting out if he learned of possibility of being removed from foster care was not evidence that parent’s present relationship with child was harmful),

(d) Best interest.

The juvenile court found that termination of the mother’s parental rights was in S. P.’s best interest, citing the girl’s needs for permanence, her expressed desire to interact with and be a part of her foster family, the juvenile court’s determinations that S. P. would be harmed if removed from her current placement and that the grandmother would not be an appropriate caregiver for the girl, and the recommendations of both the guardian ad litem and court-appointed special advocate in favor of termination. The new Juvenile Code requires a juvenile court to consider the following factors in determining whether termination is in a child’s best interest:

(1) Such child’s sense of attachments, including his or her sense of security and familiarity, and the continuity of affection for such child;
(2) Such child’s wishes and long-term goals;
(3) Such child’s need for permanence, including his or her need for stability and continuity of relationships with a parent, siblings, and other relatives; and
(4) Any other factors, including the factors set forth in Code Section 15-11-26, considered by the court to be relevant and proper to its determination.

OCGA § 15-11-310 (b). This Code Sectionis more specific than former OCGA § 15-11-94 (a), which provided that the juvenile court in its best interest analysis consider “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.” Nevertheless, decisions under our former Code are instructive.

The mother’s argument that the juvenile court erred in her best interest determination rests on the mother’s contention that the evidence showed she had a bond with S. P. and was making progress on her case plan. The juvenile court, however, construed the evidence otherwise, and she was authorized to consider S. P.’s need for permanence and emotional stability in making the best interest determination. See In the Interest of B. J. F., 276 Ga. App. 437, 443 (2) (623 SE2d 547) (2005). “After reviewing the record and giving the [juvenile] court’s findings of fact the required deference, we cannot conclude that these factual findings are clearly erroneous.” Strickland, 298 Ga. at 634-635 (1) (citation omitted).

3. Award of custody of S. P. to DFCS to be placed for adoption (Case No. A15A2016).

In the termination order, the juvenile court awarded custody of S. P. to DFCS to be placed for adoption, finding the placement to be in the girl’s best interest. The juvenile court stated that, in making this placement, she considered the factors set forth in OCGA § 15-11-321, which include “[t]he value of biological and familial connections [.]” OCGA § 15-11-321 (a) (4). The juvenile court stated that, while she “recognizes the value of biological family, [she] finds that [S. R] would be harmed if moved from her current placement” and that she “does not find that there are any biological relatives that are appropriate.”

The mother argues that the evidence compelled the juvenile court to reach a different conclusion and to place S. R with the grandmother. She challenges the juvenile court’s finding that the relationship between the grandmother and mother was unhealthy, asserting that the juvenile court should not have credited the mother’s own statements about that relationship or construed from the evidence that the relationship between the mother and grandmother would put S. P. at risk. “We will not disturb a trial court’s determination that placement with a relative is not in the best interest of the child absent an abuse of discretion [.]” In the Interest of A. L. S. S., 264 Ga. App. 318, 324 (2) (590 SE2d 763) (2003) (citation omitted). Given the evidence recounted above, we find no abuse of discretion here.

4. Permanent guardianship (Case No. Al SA2015).

In her enumerations of error, the mother offers two arguments for why the juvenile court erred in declining to appoint the grandmother as S. P.’s permanent guardian: because there was evidence of the grandmother’s suitability as a guardian that compelled the juvenile court to grant the petition; and because there was not evidence that DFCS had made reasonable efforts to place S. P. with a relative. Both arguments essentially challenge the sufficiency of the evidence to support the juvenile court’s determination not to appoint the grandmother as permanent guardian.

The new Juvenile Code vests the juvenile court with jurisdiction to appoint a permanent guardian for a child adjudicated as a dependent child. OCGA § 15-11-240 (a). To appoint the grandmother as S. P.’s permanent guardian, OCGA § 15-11-240 (a) (2) required the juvenile court to find that termination of parental rights and adoption was not in the girl’s best interest. As discussed above, the evidence authorized the juvenile court’s contrary finding, that the termination of the mother’s parental rights and the award of the girl’s permanent custody to DFCS to place for adoption were in S. P.’s best interest. Accordingly, we find no merit in the mother’s challenge to the sufficiency of the evidence supporting the juvenile court’s denial of the permanent guardianship appointment.

5. Unenumerated error (Case No. A15A2015).

In addition, the mother states in the argument section of her appellate brief that the juvenile court erred by not requiring her and the grandmother “to waive any potential conflict from having [the same counsel] represent both of them.” She did not enumerate this as error, however, and she cannot expand her enumeration of error through her brief. See Veolia Environmental Svcs. v. Vick, 309 Ga. App. 658, 660 (2) (711 SE2d 40) (2011).

Decided March 29, 2016.

Anna M. Johnson, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, for appellee.

Judgments affirmed.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       S. P.’s biological father informed DFCS that he was not interested in custody and subsequently voluntarily surrendered his parental rights to the girl.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A2059.
    ASHLINE v. MARINAS USA, L.P.
    (784 SE2d 856)
   McFADDEN, Judge.

John Ashline initially brought this suit against Marinas USA, L.P. (Marinas) for a tort allegedly arising out of its operation of Aqualand Marina. Marinas defaulted. Ashline now appeals the trial court’s order denying his motion to add or substitute Flagship Marinas Acquisition, LLC and Flagship Aqualand, LLC (collectively, Flagship) as Marinas’s successors-in-interest. He argues that Flagship, which purchased Aqualand Marina from Marinas, contractually agreed to assume liability for all claims against Marinas and thereby assumed liability to him for his default judgment. We find, however, that the language on which Ashline relies merely released Marinas from certain liabilities. Flagship, therefore, did not assume liability for Ashline’s default judgment. Accordingly, we affirm.

Ashline secured a default judgment against Marinas on May 4, 2012, for the conversion of his houseboat, which had occurred seven years earlier, on or about July 15, 2005. A few weeks before that alleged conversion, on May 26, 2005, Marinas had entered into a contract with Flagship for the sale of a marina.

After obtaining his default judgment against Marinas, Ashline filed a motion in the trial court to add or substitute Flagship to the litigation, arguing that Flagship had agreed in its contract with Marinas to “assume and pay the obligations that were formerly attributable to Marinas.” The trial court denied that motion, finding that “[Flagship] did not assume liability for [Marinas’s] claims in the actions, all of which arose or accrued prior to the date on which [Flagship] assumed ownership of their assets and liabilities caused by the defendant to paid entities.” We review the trial court’s construction of the contract as a question of law, subject to de novo review. See Etowah Environmental Group v. Advanced Disposal Svcs., 297 Ga. App. 126, 127 (676 SE2d 456) (2009).

1. Standing.

Although Ashline was not a party to the contract between Flagship and Marinas, he still has standing to bring suit. “The claim here is for [conversion], not for damages resulting from a breach of contract between two other parties, and the action was not brought to enforce a contract.” Gwinnett Hosp. System v. Massey, 220 Ga. App. 334, 336 (469 SE2d 729) (1996). Here, Ashline has argued only that under the agreement, Flagship assumed Marinas’s legal obligations, and he is therefore entitled to bring suit against Flagship. See MCG Health v. Nelson, 270 Ga. App. 409, 411 (1) (606 SE2d 576) (2004) (“The plaintiff merely recognized that, under the clear terms of the contract, [acquirer] was liable for pre-existing liabilities relating to the operations it took over from the former operator. In other words, [acquirer] took responsibility for its predecessor’s torts. And given this assumption of liabilities, the plaintiff was entitled to bring suit directly against [acquirer].”).

2. Terms of the contract.

Ashline’s first enumeration of error is that the trial court misconstrued the contract. He argues that under the contract for the sale of the marina between Flagship and Marinas, Flagship assumed all of Marinas’s liabilities, including his default judgment.

As to contract construction generally:

Construction of a contract, at the outset, is a question of law for the court. And such construction involves three steps: first, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

Holcim (US) v. AMDG, 265 Ga. App. 818, 820 (596 SE2d 197) (2004) (citations and punctuation omitted).

As to the particular issue before us, the general rule is that

a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.

First Support Svcs. v. Trevino, 288 Ga. App. 850, 852 (2) (655 SE2d 627) (2007) (citation omitted). Here, none of these circumstances apply.

In support of his argument that Flagship assumed all the liabilities of Marinas, Ashline cites assignment provisions in three contract documents that assign certain specific liabilities to Flagship, as well as two release provisions in the main contract. But none of those provisions require Flagship to assume liability for a judgment against Marinas arising out of events that occurred prior to the closing date.

Ashline’s judgment is outside the scope of the assignment provisions. The first assignment provision is in a document entitled “Assignment of Lease.” That is the document under which Flagship assumed the master property lease for the marina. Its language relating to assumption of liabilities reads, “Assignee assumes the payment and performance of, and agrees to pay, perform and discharge, all the debts, duties and obligations to be paid, performed, or discharged from and after (but not before) the effective date hereof by the lessee.” The next assignment provision cited by Ashline is in a document entitled “Assignment and Assumption of Leases.” In this document, Flagship assumes “all of Assignor’s obligations under the Leases and with respect to the Deposits arising or accruing from and after the Closing Date.” The final assignment provision cited by Ashline is in a document entitled “Assignment and Assumption of Contracts, Warranties and Guarantees and other Intangible Property.” In that document, Flagship assumes Marinas’s obligations “under the Contracts arising or accruing after the Closing Date.” All of the liabilities Flagship assumed by executing these documents arose prior to the closing date.

The two release provisions found in the main contract likewise do not amount to an assumption of all of Marinas’s liabilities on the part of Flagship. Ashline contends that under §§4.3 and 4.7 of the contract, Flagship assumed liability for all of Marinas’s liabilities, including Ashline’s judgment. But these two provisions are narrow in scope, and merely serve to limit Marinas’s liabilities to Flagship under certain circumstances. They do not amount to an assumption of all of Marinas’s liabilities. The release in § 4.3 of the contract reads as follows:

[N]o seller shall have (and each Seller is exculpated and released from any) liability'whatsoever with respect to any [Claims] under... any of the representations and warranties contained in this agreement or in any closing document, except to the extent (and only to the extent) that the aggregate amount of all claims for breach of such Seller’s representations and warranties . . . exceeds one hundred thousand dollars.

(Emphasis supplied.) The other release Ashline points to reads as follows:

[Flagship] . . . waives its right to recover from, and forever releases and discharges, and covenants not to sue [Marinas] with respect to any and all Claims, whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with any Property including the physical, environmental, or structural condition of the related Real Property or any law or regulation applicable thereto [.]

(Emphasis supplied.)

More fundamentally, Georgia law is clear that a release is not necessarily an assumption of liabilities.

Gwinnett Hosp. System, Inc. v. Massey, 220 Ga. App. 334 (469 SE2d 729) (1996), which [Ashline relies] on, actually illustrates the difference between an indemnification clause and an assumption of liabilities. In that case, unlike the case at hand, there was “an express agreement between the Buyer and the Seller recited in broad, unambiguous language that the Buyer assumed all liabilities and obligations” of the Seller. Because of this language, we specifically rejected the Buyer’s arguments that it was merely an indemnitor of the Seller, subject to suit only if liability against the Seller is found first. Thus, in that case, we clearly distinguished between agreements that create an assumption of liabilities and provisions that require indemnification.

Decided March 29, 2016.

Robinson & Blazer, John E. Robinson, Gregory H. Blazer, Mark A.C. Robinson, for appellant.

Andrew, Merritt, Reilly & Smith, Paul E. Andrew, for appellee.

Herren v. Sucher, 325 Ga. App. 219, 225 (2) (750 SE2d 430) (2013). The term “release” is not synonymous with either “assumption” or “indemnification.” We therefore turn to dictionaries for the plain meaning of these terms. Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995) (noting that courts may turn to a dictionary for the plain, ordinary, and popular sense of a word in interpreting contracts). The applicable definition of “release” is “[liberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced.” Black’s Law Dictionary (10th ed. 2014). “Indemnify” is defined as, “[t]o reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Black’s Law Dictionary (10th ed. 2014). The applicable definition of “assumption clause” is a “provision by which the transferee of an instrument agrees to assume an obligation of the transferor.” Black’s Law Dictionary (10th ed. 2014). The parties’ contract does not adopt different definitions.

In short, Flagship only released Marinas from specified liabilities and assumed specified contractual obligations in its purchase of the marina. None of those provisions override the general rule that liabilities are not assumed by operation of law. First Support Svcs., 288 Ga. App. at 852 (2).

3. Failure to add defendant.

Ashline’s second enumeration of error is that the trial court abused his discretion by failing to add Flagship as a defendant in fi. fa. As the trial court did not err in its construction of the contract, this enumeration is also without merit.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       The motion of appellee for sanctions is hereby denied.


text:
    A15A2236.
    ALDAY v. THE STATE.
    (784 SE2d 860)
   McFADDEN, Judge.

Faron Alday was tried before a jury and convicted of two counts of child molestation for touching the vaginal area and buttocks of minor child L. A. Alday appeals, asserting that the trial judge improperly expressed his opinion as to what had been proven in violation of OCGA § 17-8-57. Because we find that the trial judge violated OCGA § 17-8-57 by improperly intimating his opinion as to what had been proven in the case, we must reverse the convictions. However, there was sufficient evidence to support the convictions, and therefore, despite the trial errors, Alday may be retried on the charges. See Green v. State, 291 Ga. 287, 288-289 (1) (728 SE2d 668) (2012); Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997). Alday’s further contention that the trial court erred in excluding testimony concerning prior feuds between him and his son, the father of L. A., presents nothing for review because Alday did not perfect the record with a sufficient proffer of the expected testimony.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We do not weigh the evidence or judge the credibility of witnesses, but determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Owens v. State, 334 Ga. App. 203 (778 SE2d 830) (2015).

So viewed, the evidence shows that Alday is the grandfather of L. A. On June 28, 2012, L. A.’s father, who is Alday’s son, entered Alday’s house and saw him sitting on the couch with six-year-old L. A. The child’s father testified that as he entered the house, Alday jumped up and got off the couch as if he had done something bad. The father took L. A. outside and asked if she and Alday had a secret. The father testified that L. A. immediately started crying and said that she did not want Alday to go to jail. The father asked L. A. if Alday had touched her, and she said that he had, although she did not describe the touching. The father reported the incident to his wife, L. A.’s mother, who was at work. The following day, the mother of L. A. asked her if anyone had touched her “no-no” spots, and L. A. said that Alday had done so on her clothes. A week later, a forensic interview of L. A. was conducted. L. A. initially told the forensic interviewer that she had not been touched on her private parts, but subsequently said that Alday had used his hand to massage her vaginal area and touch her buttocks. At trial, L. A. testified that Alday had massaged her on “the girl’s part,” but not on her “booty.”

Based on the foregoing evidence, we “conclude that there was sufficient evidence from which the jury was authorized to find [Alday] guilty beyond a reasonable doubt of [the two counts of] child molestation.” Harris v. State, 333 Ga. App. 118, 119 (1) (a) (775 SE2d 602) (2015) (citations omitted). Any “issues of consistency and credibility were for the jury to decide.” Jackson v. State, 334 Ga. App. 469, 473 (2) (779 SE2d 700) (2015) (citations omitted).

2. Violations of OCGA § 17-8-57.

Alday asserts that the trial judge violated OCGA § 17-8-57 by making several improper comments that expressed his opinion about what had been proved in the case. We agree.

The version of OCGA § 17-8-57 that was in effect at the time of Alday’s November 2013 trial provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Comments by the trial judge “that include expressions of opinion as to what has been proven, the credibility of a witness, or on a disputed issue of material fact are clearly improper under OCGA § 17-8-57. [Cits.]” Huff v. State, 334 Ga. App. 254, 257 (1) (779 SE2d 29) (2015) (applying same version of statute that was in effect during the trial in this case).

(a) Comment outside jury’s presence.

After an objection during Alday’s cross-examination of the state’s first witness, L. A.’s father, the trial court excused the jury and conferred with the attorneys outside the jury’s presence. During the conference, defense counsel explained that he wanted to ask the father about how he had threatened and been aggressive toward Alday. The judge refused to allow such questioning, stating, ‘You know, [counselor], I believe if my father molested my daughter I believe I might be aggressive too.”

Even outside the jury’s presence, a judge “must be alert to avoid [comments] that may be perceived as prejudicial.” Phillips v. State, 275 Ga. 595, 599-600 (571 SE2d 361) (2002) (citations and punctuation omitted) (comments after imposing sentence). Nevertheless, because the judge’s comment was made outside the jury’s presence, it does not constitute a violation of OCGA § 17-8-57. “That Code section’s scope... is confined to matters occurring before the jury. [Cit.]” Ingram v. State, 286 Ga. App. 662, 663 (2) (650 SE2d 743) (2007). “Hence, standing alone, [the judge’s comment does] not mandate that appellant’s convictions be reversed.” Johnson v. State, 278 Ga. 344, 346 (2) (602 SE2d 623) (2004).

(b) Comments during cross-examination of forensic interviewer.

There was no physical evidence in the instant case. The state’s case rested almost entirely on the statements of L. A., including the forensic interview of L. A., which was introduced during the testimony of the forensic interviewer. The defense, through cross-examination of the forensic interviewer and presentation of testimony from its own forensic expert, sought to show that the forensic interview of L. A. was unreliable because of biases and flaws in the interview. During defense counsel’s cross-examination of the forensic interviewer, the trial judge interjected questions and comments.

(i) The evidence showed that during the forensic interview, L. A. initially indicated, in four separate responses to the interviewer’s questions, that she had not been touched on her private part. But she subsequently stated that Alday had massaged her private area. At trial, during direct examination by the state, the forensic interviewer opined that the apparent inconsistency in L. A.’s statements could have been due to her not using the word “touch” and instead using the word “massage” to refer to any touching of her vaginal area. The interviewer further testified that Alday might have used that terminology as part of his “grooming process” of the child.

On cross-examination, defense counsel asked the forensic interviewer if her goal was to confirm the state’s allegations of abuse, noting that during the forensic interview she had consulted with a law enforcement investigator who told her to ask certain questions of the child. After the forensic interviewer denied that confirming the allegations of abuse was her goal, defense counsel sought to challenge that response by pointing out that she had continued questioning L. A. even after she had said “no” four times when asked about being touched. When counsel began asking the witness about those initial denials, the state objected as to the lack of a question, and the trial judge responded: “Well, I think he’s reading toward a question. But I think that was the distinction they made between touching and a massage, but keep going, [defense counsel].”

The judge’s comment referenced the forensic interviewer’s earlier testimony that the inconsistency between L. A.’s initial responses that she had not been “touched” and her subsequent responses that she had been “massaged” could be explained by the terminology used by the child: the forensic interviewer had opined that Alday might have introduced the term “massage” in the course of “grooming” L. A., that is of teaching her to tolerate molestation. Prior to the judge’s comment, the touch/massage distinction had not come up in defense counsel’s questions or the forensic interviewer’s responses.

The purpose of OCGA § 17-8-57, at least in part, is to prevent the jury from being influenced by any disclosure of the trial court’s opinion regarding the credibility of a witness. The determination of the credibility of a witness is soundly within the province of the jury and is a material fact in every case.

Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012) (citations omitted). Here, the jury could have interpreted the trial court’s comment as expressing his favorable opinion of the credibility and reliability of the forensic interviewer’s explanation of the distinction between the “touch” and “massage.” “Therefore, the trial court erred in making statements that could have been interpreted as offering an opinion on [the forensic interviewer’s] credibility.” Id. at 461 (2).

(ii) Alday’s attorney also asked the forensic interviewer if a statement by the child that she had been touched was different from a statement by the child that she had told someone that she had been touched. The court intervened, interrupting the defense’s cross-examination to pose the following question to the witness: “Are we dealing here with a matter of semantics with ... a little child[?] I mean, it would be like taking one page out of a hundred page book and isolating it. You’ve got to get the whole thing together basically; is that what you’re trying to do?” The forensic interviewer responded that the distinction raised by the defense question was indeed “a matter of semantics.”

It is arguable whether defense counsel’s question was about a matter of semantics or about a substantive distinction — between a child saying she had been touched and saying she had told someone she had been touched. The characterization of defense counsel’s question as merely a “matter of semantics” could have been construed by a juror as an intimation of the judge’s opinion that the defense was attempting to draw a meaningless distinction. “The reason for O CGA § 17-8-57 prohibiting the judge from intimating his opinion as to what has been proved is to keep the jury from being influenced.” Chumley v. State, 282 Ga. 855, 857 (2) (655 SE2d 813) (2008) (citations and punctuation omitted).

We note that the lack of any objections to the trial court’s comments is of no consequence because under the version of the statute then in effect, a “violation of OCGA § 17-8-57 [was] always ‘plain error’ and failure to object [would] not preclude appellate review. Given the mandatory nature of [that version of] OCGA § 17-8-57 and the case law interpreting it, we must reverse [Alday’s] conviction[s] and remand the case to the trial court for a new trial.” Murphy, 290 Ga. at 461 (2) (citations omitted).

3. Evidence of prior feuds between witness and defendant.

Alday contends that the trial court erred in excluding testimony of prior feuds, apparently concerning financial dealings, between him and his son, L. A.’s father. Alday correctly notes that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury, and a defendant has the right to make a thorough and sifting cross-examination of the witnesses against him.” Miceli v. State, 308 Ga. App. 225, 227 (2) (707 SE2d 141) (2011) (citations and punctuation omitted).

However, because [Alday] did not perfect the record with a sufficient proffer of the [expected] testimony, we are unable to reach the merits of his claim. Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this (c)ourt.

Id. at 228 (2) (citations and punctuation omitted).

4. Remaining claims of error.

Having reversed the judgments of conviction and determined that Alday is entitled to a new trial, we need not address his additional claims of error as they are moot or unlikely to recur on retrial. Willingham v. State, 279 Ga. 886, 889 (3) (622 SE2d 343) (2005).

Judgment reversed.

Ellington, P. J., and Dillard, J., concur in judgment only.

Decided March 29, 2016.

Meghan E. Carroll, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Amanda N. Heath, Assistant District Attorneys, for appellee.

       The current version of this Code section became effective July 1, 2015, and similarly provides: “It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1).


author: McFadden, Judge.

text:
    A15A2326.
    JONES v. SABAL TRAIL TRANSMISSION, LLC.
    (784 SE2d 865)
   McFadden, Judge.

This appeal is from a trial court’s grant of declaratory judgment and injunctive relief authorizing a company to enter and survey certain property for a proposed natural gas pipeline. The appellant property owner claims that she did not get adequate notice that the hearing on the appellant’s petition would consolidate the interlocutory injunction and declaratory judgment requests set forth in the petition; however, the record shows that she did receive sufficient notice and that she acquiesced in the consolidated hearing on both issues. The appellant also claims that the trial court erred in applying state law in this matter because it is preempted by federal law, but she waived this issue by not raising it below. Likewise, the appellant’s argument that the appellee did not meet the definition of the term “pipeline company” as it is used in two Code sections was also waived because it was not raised in the trial court. Finally, the appellant contends that the appellee was required to obtain a certain federal certificate before it could be authorized under a state statute to survey her property; however, the plain language of the applicable state statute imposes no such requirement. Because the appellant has failed to show reversible error, we affirm.

Sabal Trail Transmission, LLC was hired to construct and operate a natural gas pipeline that will begin in Alabama, run through Georgia, and end in Florida. Sabal Trail has already surveyed approximately 99 percent of the proposed pipeline route, which will traverse property owned by Sandra Jones in Colquitt County. Sabal Trail requested permission to enter Jones’ property to perform the survey, but Jones refused the request.

Sabal Trail filed the instant action for interlocutory injunctive relief and declaratory judgment, seeking authorization to enter Jones’ property to perform the survey pursuant to OCGA § 22-3-88, which provides:

The power of eminent domain may be exercised by persons who are or may be engaged in constructing or operating pipelines for the transportation or distribution of natural or artificial gas and by persons who are or may be engaged in furnishing natural or artificial gas for heating, lighting, or power purposes in the State of Georgia.

Jones filed an answer and counterclaims. After an evidentiary hearing at which both parties appeared and were represented by counsel, the trial court entered a final declaratory judgment and injunction, declaring that Sabal Trail has the right under OCGA § 22-3-88 to enter the property for purposes of conducting the survey and enjoining Jones from interfering with Sabal Trail’s right to survey the property. Jones appeals from the final declaratory judgment and injunction.

1. Consolidated hearing.

Jones contends that the trial court erred in consolidating the hearing on the interlocutory injunction application with the declaratory judgment action because the notice for the hearing indicated only that it was for the interlocutory injunction. The contention is without merit.

The notice of the hearing indicated that it was issued pursuant to Sabal Trail’s “Motion for Interlocutory Injunction,” which, despite the style of the pleading, was also an action for declaratory judgment; the pleading plainly asserted claims for, and sought, both injunctive relief and a declaratory judgment as to Sabal Trail’s right to conduct the survey. See Udoinyion v. Michelin North America, 313 Ga. App. 248, 253 (2) (721 SE2d 190) (2011) (substance, rather than nomenclature, of pleadings determines their nature). The notice further ordered Jones to appear at the hearing “pursuant to OCGA §§ 9-4-1, et seq., 9-5-1, et seq. and 9-11-65.” OCGA § 9-4-1 et seq. is the chapter of the Code governing declaratory judgments, while OCGA § 9-5-1 et seq. governs injunctions. OCGA § 9-11-65 (a) (2) expressly provides: “Before or after the commencement of the hearing of an application for an interlocutory injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.”

Pursuant to the notice, Jones appeared at the hearing with counsel. At the start of the hearing, the trial judge stated that the litigation involved “the petition for declaratory judgment to conduct survey.” Thereafter, the judge stated to the attorneys, “Gentlemen, on the petition for declaratory judgment to conduct the survey, the petition was filed by the Plaintiff. Is the Plaintiff ready to proceed?” Counsel for Sabal Trail responded affirmatively and then, during his opening statement, asserted that both declaratory judgment and injunctive relief were appropriate to enforce Sabal Trail’s right to conduct the survey and expressly asked the court to conduct a final hearing “and grant declaratory relief on the right of entry.” Jones raised no objection to this request.

Thereafter, during his opening statement, counsel for Jones said that he believed the hearing should be “about following those elements as to whether [Sabal Trail is] entitled to this injunction,” but he did not object to consolidating that interlocutory injunction issue with the petition’s declaratory judgment request and he did not claim insufficient notice. Thereafter, both sides presented evidence in the form of testimony and exhibits. During closing argument, counsel for Sabal Trail again expressly requested both an injunction and declaratory judgment, citing OCGA § 9-11-65 as support for “this being a final hearing and a declaratory judgment being granted at this time with an associated injunction.” During his closing, counsel for Jones argued legal issues, but did not address the consolidation of the injunction and declaratory judgment issues or make any argument concerning the notice of the hearing.

The trial court did not issue a decision at the conclusion of the hearing; rather, it took the matter under advisement and instructed the parties to submit proposed orders. There is nothing in the record showing that Jones subsequently raised any objection to the consolidation of the injunction and declaratory judgment requests at the hearing or asserted a claim of insufficient notice. Almost two weeks after the hearing, the trial court entered its final declaratory judgment and injunction.

Under these circumstances, we find that Jones not only had sufficient notice that the hearing would encompass both the interlocutory injunction and declaratory judgment claims set forth in Sabal Trail’s initial pleading, but that she also acquiesced in the consolidation of those issues, which were clearly identified by the judge and opposing counsel, at the hearing. “Parties can not take their chances for a favorable [judgment], and then, the result being unsatisfactory, ask that a new trial be granted because of [alleged] irregularities which they have passed over in silence during the progress of the [hearing].” Fulcher v. Canal Ins. Co., 132 Ga. App. 325, 328 (3) (208 SE2d 116) (1974) (citations and punctuation omitted) (rejecting claim that trial court erred in granting declaratory relief because notice indicated hearing was only for injunctive relief, where appellants did not object to the proceeding). Accordingly, this enumeration of error provides no grounds for reversal.

2. Preemption.

Jones claims that the trial court erred in finding that Sabal Trail has authority under OCGA § 22-3-88 to enter her property to survey because the Natural Gas Act, 15 USC § 717 et seq., does not authorize the entry and federal law preempts state law in this area. However, Jones did not raise this issue below, and therefore it is waived.

We note that in a recent unreported opinion involving the same pipeline at issue in this case, this same claim of error was found to have been waived because it was neither raised below nor ruled upon by the trial court. While that unreported opinion, in which all three judges fully concurred, is neither physical nor binding precedent, see Court of Appeals Rule 33 (b), its analysis on this issue is persuasive. See Bell v. Sabal Trail Transmission, 336 Ga. App. XXIII (Case No. A15A2390) (March 9, 2016) (unpublished). Accordingly, we adopt the analysis from that case, set it forth in full below, and apply it to this case. As explained in our unreported opinion:

“Whether the defense of preemption is jurisdictional or waivable is a question of law we review de novo. The Supreme Court has recognized that the defense of preemption can be jurisdictional, and therefore nonwaivable, if success on the preemption defense would dictate the choice of forum and thereby deprive the reviewing court of subject matter jurisdiction. In contrast, the defense of preemption is waivable where it merely dictates a different choice of law.” (Citations omitted.) Fryer v. A.S.A.P. Fire & Safety Corp., 658 F3d 85, 90 (II) (1st Cir. 2011). “Here, the preemption defense is not jurisdictional because a successful preemption defense under [the Natural Gas Act] would dictate only a change in law, not a change in forum.” Id.; see also Van Scyoc v. Equitrans, L.P., 2:13-cv-01735, 2015 WL 1346872, *6 (III) (W.D. Penn. 2015) (because natural gas regulation is not a completely preempted field, defendants’ eminent domain counterclaim could not provide a basis for removal or otherwise support subject matter jurisdiction upon federal court); Vaden v. Discover Bank, 556 U. S. 49, 61-62 (II) (129 SCt 1262, 173 LE2d 206) (2009) (state-law-based counterclaim does not qualify a case for federal court jurisdiction, even if counterclaim relies exclusively on federal substantive law). The preemption claim in this case involves a choice of federal law, rather than a choice of forum.

(Footnote omitted.)

Consequently, we conclude that Jones’ failure to raise this preemption claim below waives the issue, and we will not consider it for the first time on appeal.

3. OCGA §§ 22-3-80 and 22-3-81.

Jones argues that it was error for the trial court to find that Sabal Trail has eminent domain authority because it is not a pipeline company as that term is used in OCGA §§ 22-3-80 and 22-3-81. Pretermitting the fact that those Code sections concern petroleum pipeline companies, not natural gas pipeline companies like Sabal Trail, is the fact that this argument has been waived because it was not raised and ruled on in the trial court. “An appellate court will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it.” (Punctuation and footnote omitted.) Sitton v. Print Direction, 312 Ga. App. 365, 370 (3) (718 SE2d 532) (2011) (citation and punctuation omitted).

4. FERC certificate.

Jones argues that the trial court erred in finding that Sabal Trail has the right under OCGA § 22-3-88 to enter and survey her property because Sabal Trail has not yet obtained a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (“FERC”). As with the federal law preemption issue discussed above in Division 2, this same issue concerning a FERC certificate was addressed and rejected by this court’s unreported opinion in Bell, 336 Ga. App. XXIII. As noted above, this unreported decision is not physical or binding precedent. See Court of Appeals Rule 33 (b). Nevertheless, we find its analysis of this issue to be persuasive and therefore set it out below in full and follow it in this case. As explained in our unreported opinion:

By its plain terms, OCGA § 22-3-88 does not condition its grant of eminent domain on the possession of any certificate or permit. If the General Assembly had intended to condition the right of eminent domain for natural gas pipelines upon a certificate of convenience and necessity, it could have made the certificate an express condition, as it did with petroleum pipelines. See OCGA § 22-3-81 (2) (defining “pipeline company” as one which transports petroleum and petroleum products); OCGA § 22-3-82 (c) (pipeline company has right of reasonable access for surveying after obtaining certificate ofconvenience and necessity); and OCGA § 22-3-83 (a) (pipeline company’s exercise of eminent domain right conditioned upon obtaining certificate of public convenience and necessity).

Decided March 29, 2016.

Jonathan P. Waters, for appellant.

Hunton & Williams, Matthew J. Calvert, Brooke F. Voelzke, James D. Humphries TV, for appellee.

Moreover, the certificate prerequisite for the exercise of eminent domain for petroleum pipelines was enacted at the same time as the statute governing eminent domain for natural gas pipelines, which has no such prerequisite. Accordingly, we conclude that a certificate is not a condition precedentto the survey and entry rights grantedby OCGA § 22-3-88 and Georgia case law. See, e.g., Robinson v. Transcontinental Gas Pipe Line Corp., 421 F2d 1397,1398 (5th Cir. 1970). See also Walker v. Gateway Pipeline Co., 601 So2d 970, 975 (Ala. 1992) (“Although a FERC certificate may have been a prerequisite to construction .of pipeline facilities, such a certificate was not a prerequisite to precondemnation entries for the purpose of survey and examination.”).

Accordingly, the trial court did not err in finding that Sabal Trail is not required to have a FERC certificate in order to exercise its rights under OCGA § 22-3-88.

Judgment affirmed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.