author: Dillard, Judge.

text:
    A14A2219.
    HTTP HYPOTHERMIA THERAPY v. KIMBERLY-CLARK CORPORATION et al.
    (768 SE2d 542)
   Dillard, Judge.

HTTP Hypothermia Therapy (“HTTP”) appeals the trial court’s dismissal of its appeal from the court’s grant of summary judgment in favor of Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, Inc. (collectively, “Kimberly Clark”) as to its counterclaims in a declaratory-judgment action. HTTP also appeals the underlying summary-judgment order. First, HTTP argues that the trial court abused its discretion in dismissing its appeal based on findings that the delay in completing the record on appeal was unreasonable, inexcusable, and caused by HTTP. Second, HTTP contends that the trial court erred in granting summary judgment in favor of Kimberly Clark because there were genuine issues of material fact remaining as to each of its counterclaims. For the reasons set forth infra, we affirm the trial court’s order dismissing HTTP’s appeal of the summary-judgment order, and as such, its arguments challenging the summary-judgment order are not subject to appellate review.

The record shows that, in 2008, Kimberly Clark filed a complaint against HTTP, requesting declaratory relief regarding certain agreements that the two companies entered into for the purpose of developing a patient-warming device. In its answer and amended answers, HTTP asserted numerous counterclaims against Kimberly Clark. Discovery then ensued and, in July 2012, Kimberly Clark filed a motion for summary judgment as to HTTP’s counterclaims. After a hearing on November 7, 2012, the trial court granted summary judgment in favor of Kimberly Clark, andonDecember 5,2012, HTTP filed a timely notice of appeal.

In relevant part, HTTP’s notice of appeal provides: “The Clerk shall attach the entire record of this matter for transmittal to the Georgia Court of Appeals. The transcript shall be ordered by Plaintiff and transmitted by the Clerk of the Superior Court to the Georgia Court of Appeals.” But when HTTP filed its notice of appeal, it apparently only intended for deposition transcripts to be included in the record, not the transcript of the summary-judgment hearing (which HTTP did not plan to order or file with the clerk).

When the record had not been completed for “several months,” HTTP’s counsel contacted the clerk’s office for the Fulton County Superior Court and learned that the clerk had been waiting to compile the record until he received the transcript of the summary-judgment hearing. Thereafter, on October 11, 2013, approximately ten months after HTTP filed its notice of appeal, HTTP filed an amended notice of appeal, clarifying that, “[although numerous deposition transcripts shall be filed for inclusion of the record on appeal, there exist [s] no trial or hearing transcript to be transmitted to the appellate court.” Subsequently, Kimberly Clark filed a motion to dismiss HTTP’s appeal, arguing that (1) HTTP’s failure to order and file the summary-judgment hearing transcript, as well as its failure to file any additional deposition transcripts, resulted in a ten-month delay in the record being transmitted to this Court, and (2) such a delay was unreasonable and inexcusable. After a hearing, the trial court granted Kimberly Clark’s motion and dismissed the appeal. This appeal follows.

1. HTTP first argues that the trial court abused its discretion in dismissing its appeal. We disagree.

OCGA § 5-6-48 (c) provides that

[n]o appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.

In applying this statutory framework, we begin by noting that the “determination of whether the delay in the filing of the transcript was unreasonable, inexcusable, and caused by the appellant is a fact issue for the trial court and will not be disturbed on appeal absent an abuse of discretion.” With this deferential standard of review in mind, we turn now to HTTP’s first enumeration of error.

Here, in dismissing the appeal, the trial court first noted that, as of March 11, 2014, over 15 months had passed since HTTP filed its original notice of appeal, and the appeal still had not been docketed in this Court. Further, the trial court found that this delay was solely HTTP’s fault because it mistakenly indicated in its original notice of appeal that it would file a hearing transcript and erroneously suggested in its amended notice of appeal that additional deposition transcripts would be filed. Next, the court noted that HTTP’s only explanation for the delay was its estimation of how long it would take the clerk’s office to compile such a voluminous record and that the summary-judgment hearing transcript was unnecessary on appeal. But the court found this explanation wanting:

The size of the record in this case does not come into play ... if the Clerk is waiting on the appellant to complete the record in the first instance. The delay in preparing the record necessitated by the original notice [of appeal], and the further delay in preparing the record necessitated by the amended notice [of appeal], are solely the fault of HTTP.
HTTP argues that it does not need the transcript because the transcript is merely argument. Whether HTTP needs the transcript or not is not the issue. What is at issue is the fact that HTTP asked the Clerk to hold in preparing the record because it intended to file the transcript(s). That HTTP erred in doing so, and did not correct its error for 15 months, is inexcusable ....

In sum, as to its reasons for dismissing the appeal, the trial court cited the length of the delay, HTTP’s explanation for the delay, the fault of HTTP, and the fact that the delay was inexcusable.

In considering the trial court’s dismissal of HTTP’s appeal, we note that our Supreme Court has previously held that a delay in excess of 30 days in filing a transcript after a notice of appeal is filed is prima facie unreasonable and inexcusable, but this presumption is “subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” And in evaluating the threshold question of whether the delay was unreasonable, we consider both the length and effect of the delay. This Court will also consider any delay in transmitting the appellate record unreasonable where it may affect an appeal by:

(a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

Indeed, we have repeatedly recognized that “justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.”

Here, HTTP’s inadvertent reference to a nonexistent transcript in its original notice of appeal caused the clerk to delay compiling the record while waiting for the transcript to be filed, and HTTP did not discover the mistake until ten months later when it inquired about the status of the appeal. And then, in an effort to clarify that it only meant for the deposition transcripts to be included on appeal, HTTP filed an amended notice of appeal in October 2012. But that amended notice only made things worse, erroneously suggesting that HTTP would file additional deposition transcripts. In the end, approximately 15 months passed between when HTTP filed its original notice of appeal in December 2012 and when the trial court dismissed the appeal in March 2014.

Nevertheless, HTTP contends that it did not cause the delay, but rather the delay in transmitting the appellate record was due to its voluminous nature. But HTTP cites no authority, and we find none, suggesting that the size of a record exempts an appellant from otherwise complying with the requirements of OCGA § 5-6-48 (c). Moreover, HTTP’s contention appears to be based on speculation because it does not direct us to any evidence in the appellate record establishing exactly what portion of the delay, if any, directly resulted from its voluminous nature. And as the appeal was delayed for over a year, it most certainly prevented “placement of the case on the earliest possible appellate court calendar.” As such, under these particular circumstances, we conclude that the trial court did not abuse its discretion in finding that the 15-month delay in transmitting the record on appeal to this Court was unreasonable, inexcusable, and caused by HTTP.

Decided February 12, 2015

Reconsideration denied March 3, 2015

Balch & Bingham, Michael J. Bowers, McNally Weeks, Jeffrey L. Sakas, for appellant.

Bryan Cave, Christopher P. Galanek, Ann W. Ferebee, for appel-lees.

2. Given our holding in Division 1, supra, we need not address HTTP’s remaining arguments with respect to the trial court’s grant of summary judgment.

For all of the foregoing reasons, we affirm the trial court’s order dismissing HTTP’s appeal.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       In previous orders, the trial court granted summary judgment in favor of Kimberly Clark as to some of HTTP’s counterclaims and dismissed others, but HTTP has not appealed those orders.

       OCGA § 5-6-48 (c).

        Bush v. Reed, 311 Ga. App. 328, 331 (715 SE2d 747) (2011); see also S & S Food Svcs., Inc. v. Dep’t of Transp., 222 Ga. App. 579, 581 (3) (475 SE2d 197) (1996); Teston v. Mills, 203 Ga. App. 20, 20 (416 SE2d 133) (1992).

       The record on appeal includes over 10,000 pages contained within 45 volumes.

        In the Interest of T. H., 311 Ga. App. 641, 643 (716 SE2d 724) (2011) (punctuation omitted); accord Kelly v. Dawson County, 282 Ga. 189, 189 (646 SE2d 53) (2007); Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006).

        See Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012); accord Am. Nat. Prop. & Cas. Co. v. Potts, 243 Ga. App. 645, 646 (534 SE2d 123) (2000); see also Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908) (1992) (“The threshold question whether the delay was unreasonable refers principally to the length and effect of the delay.” (punctuation omitted)).

        Mercer v. Munn, 321 Ga. App. 723, 726 (1) (742 SE2d 747) (2013) (punctuation omitted); accord Pistacchio, 314 Ga. App. at 121-22; Vaughn v. Faulkner, 288 Ga. App. 798, 798-99 (655 SE2d 686) (2007).

        Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 237 (1) (758 SE2d 135) (2014) (punctuation omitted); accord Bush, 311 Ga. App. at 332 (a); Adams, 279 Ga. App. at 159.

        Pistacchio, 314 Ga. App. at 121-22 (punctuation omitted); see Am. Nat. Prop. & Cas. Co., 243 Ga. App. at 646-47 (finding that a month-and-a-half delay in filing a transcript was unreasonable and prevented docketing of the appeal on the earliest possible calendar); see also Court of Appeals Rule 12 (“The dockets for the January, April, and September terms shall close at midnight on the 15th day of December, April and August, respectively.”).

        See Pirkle v. Bell, 270 Ga. 438, 438 (510 SE2d 814) (1999) (affirming the trial court’s dismissal of an appeal when three-month delay was caused by appellant’s designation in the notice of appeal that a nonexistent transcript would be included in the record and on appellant’s failure to check on the status of the appeal); Pistacchio, 314 Ga. App. at 121-22 (affirming the trial court’s dismissal of an appeal when the transcript was filed over three months after the notice of appeal and the delay prevented an appellate decision at the earliest possible date); Am. Nat. Prop. & Cas. Co., 243 Ga. App. at 646-47 (finding that a month-and-a-half delay in filing a transcript was unreasonable and prevented docketing of the appeal on the earliest possible calendar); Hameed v. Hall, 234 Ga. App. 890, 892 (1) (508 SE2d 680) (1998) (finding that a 72-day delay in filing a transcript identified in the notice of appeal was unreasonable and inexcusable regardless of whether that transcript was necessary); Lindstrom v. Forsyth County, 221 Ga. App. 581, 581 (472 SE2d 106) (1996) (affirming dismissal of an appeal when two-month delay wascausedbya mistaken designation in the notice of appeal that a nonexistent transcript would be included in the record and appellant made no efforts to expedite the appeal); Devins v. Leafmore Forest Condo. Ass’n of Owners, 213 Ga. App. 823, 823 (446 SE2d 531) (1994) (affirming the trial court’s dismissal of an appeal when appellant caused a delay in the docketing of the appeal by mistakenly designating a nonexistent transcript as part of the record and by failing to take any steps to expedite the appeal); Johnston v. Ga. Pub. Serv. Comm’n, 209 Ga. App. 224, 224 (433 SE2d 65) (1993) (affirming dismissal of an appeal when the sole reason for the delay in transmitting the record to this Court was appellant’s inadvertent designation that a nonexistent transcript would be included in the record on appeal and the earliest inquiry about the status of the appeal was not made until “several months” after the notice of appeal was filed); Teston, 203 Ga. App. at 20 (affirming the dismissal of an appeal when a three-month delay was causedhy appellant’s designation in the notice of appeal that a nonexistent transcript would he included in the record and appellant made no effort to expedite the appeal); cf. Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 44 (555 SE2d 508) (2001) (finding that a delay was not inexcusable when it appeared to he caused by an insurance company, not the party); Holy Fellowship Church of God in Christ v. First Cmty. Bank of Henry County, 242 Ga. App. 400, 403 (530 SE2d 24) (2000) (reversing dismissal of an appeal when the delay was caused by the clerk’s failure to open and transmit a sealed record).

       Moreover, our holding in Division 1 renders Kimberly Clark’s motion to dismiss this appeal moot.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1593.
    THE STATE v. PICKENS.
    (769 SE2d 594)
   BARNES, Presiding Judge.

Melanie Pickens was a special education teacher who was indicted on six counts of cruelty to children and five counts of false imprisonment for actions involving five of her students. Pickens moved to dismiss the indictment based on her immunity as an educator under OCGA § 20-2-1001, and after a three-day hearing, the trial court granted her motion. The State appeals, arguing that the trial court erred because Pickens’ actions did not constitute “discipline” and she did not act in good faith, both of which the statute requires for immunity from criminal prosecution. For the reasons that follow, we affirm.

OCGA § 20-2-1001 was enacted in 1997 as part of the “School Safety Act” and provides:

(a) As used in this Code section, the term “educator” means any principal, school administrator, teacher, school counselor, paraprofessional, school bus driver, volunteer assisting teachers in the classroom, tribunal members, or certificated professional personnel.
(b) An educator shall be immune from criminal liability for any act or omission concerning, relating to, or resulting from the discipline of any student or the reporting of any student for misconduct, provided that the educator acted in good faith.

Thus, to be entitled to immunity from prosecution under OCGA § 20-2-1001, a defendant must establish three things: (1) she is an educator; (2) the acts or omissions in question were related to or resulting from disciplining a student or reporting a student for misconduct; and (3) the educator acted in good faith.

“As a potential bar to criminal proceedings which must be determined prior to a trial, immunity represents a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether.” Bunn v. State, 284 Ga. 410, 412-413 (3) (667 SE2d 605) (2008) (interpreting OCGA § 16-3-24.2, which provides immunity from prosecution for using threats or force under certain condition, including self-defense or defense of others). See also OCGA § 16-3-22, which grants immunity from criminal liability to any person “who renders assistance reasonably and in good faith to any law enforcement officer” under certain circumstances. “[A] trial court must rule on a motion for immunity prior to trial.” Bunn, 284 Ga. at 412 (3).

The burden of proving entitlement to immunity by a preponderance of the evidence falls on the defendant. Bunn, 284 Ga. at 413 (3); State v. Cohen, 309 Ga. App. 868, 868-869 (711 SE2d 418) (2011). The old Evidence Code defined “preponderance of evidence” as “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” Former OCGA § 24-1-1 (5). The current Evidence Code, which is applicable to this case, does not define the meaning of “preponderance of evidence,” but lists the kinds of evidence a factfinder may consider to determine “where the preponderance of evidence lies.” OCGA § 24-14-4 (2014). That evidence includes

the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same may legitimately appear from the [hearing]. The [factfinder] may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number.

Id.

On appeal of an order [granting or] denying a motion for immunity from prosecution, we review the evidence in the light most favorable to the trial court’s ruling, and we accept the trial court’s findings with regard to questions of fact and credibility if there is any evidence to support them.

(Citation and punctuation omitted.) State v. Bunn, 288 Ga. 20, 23 (701 SE2d 138) (2010); see also Hipp v. State, 293 Ga. 415, 418 (746 SE2d 95) (2013); Cohen, 309 Ga. App. at 869 (applying “any evidence” standard to trial court’s findings of fact following pretrial evidentiary hearing addressing immunity under OCGA § 20-2-1001). “The trial court’s application of the law is subject to de novo appellate review.” State v. Green, 288 Ga. 1, 2 (2) (701 SE2d 151) (2010).

While numerous cases have analyzed immunity under OCGA § 16-3-24.2, Cohen is the only appellate case analyzing the application of OCGA § 20-2-1001 to bar a criminal prosecution of an educator. In Cohen, a teacher was charged with simple battery for grabbing or pushing three students. 309 Ga. App. at 868-869. The parties agreed that the defendant was an educator whose actions were undertaken for disciplinary reasons, but disagreed on whether he acted in good faith, with the State arguing that Cohen’s actions contravened the school’s no-touch policy and were therefore in bad faith. Id. at 868-869. The trial court granted Cohen’s motion for immunity, and this court affirmed, observing that “the exact nature of the school policy at issue is not clear from the record” and noting specifically the school principal’s contradictory testimony about whether a student could ever be touched. Id. at 869. We held that the evidence authorized the trial court to conclude that Cohen was acting in good faith and was thus entitled to immunity from prosecution. Id. at 870.

Pickens’ indicted charges involved five different special education students and were based on three types of conduct: confining students in a restrictive chair in the classroom or confining them and leaving them alone (six counts), recording a child’s screams and playing them back to the child or imitating a child’s screams or cries to the child (three counts), and “slamming” a child against school walls and lockers (two counts). She filed a motion to dismiss the indictment for immunity from prosecution under OCGA § 20-2-1001, contending that she acted to maintain discipline and order and that she acted in good faith.

The trial court held a three-day evidentiary hearing during which Pickens called five witnesses and the State called six. One of the State’s witnesses was qualified as an expert in behavior management strategies for students with moderate and severe developmental disabilities, and one witness investigated the claims against Pickens for the Georgia Professional Standards Commission (GPSC). The other eight witnesses had worked with or alongside Pickens in the special education hall of the middle school in question during the 2006-2007 school year, which is when the underlying actions allegedly occurred.

At the end of the hearing, the trial court orally granted Pickens’ motion for immunity from criminal prosecution under OCGA § 20-2-1001, and subsequently issued a lengthy written order summarizing the testimony and concluding that Pickens met her “burden of showing by a preponderance of the evidence that all actions were done to maintain discipline and order and the actions were done in good faith.” The court thus dismissed the indictment.

On appeal, the State does not dispute that Pickens was an “educator” under the statute, but argues that the record does not support the trial court’s conclusions that Pickens’ actions were “used to discipline the misbehaving student and maintain order and safety in the classroom,” or that Pickens acted in good faith.

1. The State argues first that the record does not support the trial court’s conclusion that Pickens’ actions were “used to discipline the misbehaving student and maintain order and safety in the classroom,” but instead showed that Pickens acted “from an inability to control her anger and frustration with the job.”

As the State points out, our Supreme Court has defined “discipline” as “control obtained by enforcing compliance or order.” Randolph v. State, 269 Ga. 147, 150 (2) (496 SE2d 258) (1998) (rejecting void for vagueness claim against statute criminalizing sexual contact with a student by a person with “disciplinary authority,” including teachers, principals, and assistant principals). While the State submitted evidence in this case that Pickens acted in frustration at times, other evidence revealed that in a classroom like Pickens’, with five to seven developmentally disabled children, a single child’s actions could disrupt the entire classroom. Thus, actions taken to address the source of the disruption could constitute disciplinary actions, whether or not a teacher was frustrated when she took them.

For example, while the State argues that “crying was not a basis for disciplining a child,” evidence presented at the hearing showed that a child’s loud, continuous screams and cries prevented the other children from attending to their own work. A child who grabbed at other students, pushed their work onto the floor, turned over his desk, and performed other disruptive actions became the focus of the class and prevented the other children from learning. Achild who “plopped” onto the floor and refused to get up blocked the path of other students and had to be attended while the other children were deprived of the attendee’s time.

The five false imprisonment counts and one of the cruelty to children counts against Pickens were based on allegations that at some point during the 2006-2007 school year, she confined and isolated without supervision three different students, either across the hall from her classroom or in the bathroom, and also confined one of those students within her class. When the children were placed across the hall, they were secured in physically supportive seating designed for special needs students, and the child who was placed in the bathroom was secured in a version of the chair that could be rolled over a toilet.

One child was placed alone across the hall to quell his loud disruptive crying. Either Pickens or her paraprofessional would check on him, and when he stopped crying she would bring him back into the classroom. The longest he remained across the hall was 15 minutes, and she placed him there so he could become quiet again, not to be malicious or hurt him.

Another child was placed across the hall when he became aggressive toward other students, tripping, pushing, and hitting them, pulling their hair, throwing their work on the floor, knocking things over, and screaming. He seemed calmer in the chair sometimes, but at other times he would just move the chair around the room even when secured within it. When other methods failed, Pickens or her paraprofessional would move him across the hall by himself for some period of time. There was no evidence about the length of time the student remained across the hall, other than that the testimony of Pickens’ paraprofessional that he was only once left there “for a good while,” on the day that precipitated the investigation and charges against Pickens. That day the student was placed across the hall both before and after lunch because he would not stop hitting and pulling at the other students. He was calmer when seated in the supportive chair and when placed alone because he got no attention from other students.

Other educators knew that Pickens was placing disruptive children across the hall and understood that its purpose was to maintain discipline and order in the classroom. If a child behaved, he stayed in the classroom with the other students.

Pickens was charged with false imprisonment for leaving the third student confined alone in a handicapped bathroom. This student had “bathrooming” issues, and sometimes would remain unattended in the supportive chair in a private toilet space for “a little while” when he was trying to have a bowel movement. While Pickens was also charged with false imprisonment for confining the child within the classroom, the only testimony regarding that count was from a teacher who once saw him in class reclining in the supportive chair at an angle from which it would have been difficult for him to get out.

Pickens was also charged with three counts of cruelty to three different children for recording them while they were screaming and playing it back to them or for imitating their screams or cries. One of the children would scream at a very high pitch when asked to do something he did not want to do. As noted earlier, these episodes of screaming and crying disrupted the class, and Pickens tried playing back or imitating their screams in an effort to make them stop by showing them that the noise they were making was disruptive and upsetting to the other students. When the children heard themselves, sometimes they stopped screaming and crying and sometimes they did not.

Finally, Pickens was charged with two counts of cruelty to children for “slamming” them “face-first into lockers and walls.” Evidence was adduced at the hearing that Pickens developed a technique to prop one of the students up against the wall with her body to prevent him from “plopping” onto the floor or to get him up after he did so.

The trial court concluded that this evidence was sufficient to show by a preponderance of the evidence that Pickens’ actions were undertaken to maintain discipline and restore order in her classroom. Based on our review of the evidence presented, we cannot conclude that the trial court erred in its findings of fact that Pickens acted to maintain discipline and order in her classroom.

2. The State also contends that the record does not support the trial court’s conclusion that Pickens acted in good faith. “ ‘Good faith’ is a subjective standard: a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” (Punctuation and footnote omitted.) Owen v. Watts, 307 Ga. App. 493, 496 (1) (705 SE2d 852) (2010) (trial court was authorized to find by preponderance of evidence that person’s conduct was not undertaken in good faith and therefore person was not immune to protective order). Generally, “[t]he existence of good faith is a question for the trier of fact, and a trial court’s finding on the issue of good faith will be upheld if there is any evidence to support it.” (Citations omitted.) Gay v. Strain, 261 Ga. App. 708, 712 (3) (583 SE2d 529) (2003) (defendant in bona fide possession of disputed land entitled to set-off of value of permanent improvements “placed on the land in good faith”).

The State notes that this court in Cohen clarified that the determination of good faith under OCGA § 20-2-1001 does not rest solely upon whether the educator was complying with school policy. 309 Ga. App. at 869-870. We agree with the State, however, that violations of school policy are relevant to whether an educator acted in good faith, if not determinative. But here, although the State elicited testimony that there were no county policies permitting the use of restraint and isolation of developmentally disabled students during this time period, the evidence also established that there were also no county- or state-wide policies prohibiting the practice then, as there are now. The county offered little training in methods of handling children with more difficult behavior problems, and only later made available training in the prevention and management of aggressive behavior in developmentally disabled students. As Pick-ens observes, the school’s policy about touching and discipline in Cohen, 309 Ga. App. at 869, was unclear, while in this case the county had no policy at all. Pickens was therefore left to develop her own coping strategies to manage “a rough group of kids,” including one 13-year-old who was larger than she and who grew progressively more aggressive as the year passed.

Pickens gathered data documenting this child’s aggression and attempted unsuccessfully to have him moved to a different program that dealt with more aggressive developmentally disabled children. In fact, two months after entering high school the following year, the student was placed into the other program. The investigator for the Georgia Professional Standards Commission testified that Pickens thought it was necessary for her to physically restrain or remove this student because his behavior could endanger the other children in her care, and she believed that it was okay for her to place disruptive children across the hall. She did so either to have them calm down or to remove the source of the disruption for the benefit of the other students.

The county behavioral therapist testified that “time-out” is an effective intervention for children seeking attention inappropriately, and the facility for more aggressive students had a “time-out” room where out-of-control students were placed by themselves, although they were observed. The State’s expert psychologist testified that restraint was appropriate to avoid allowing a student to injure himself or to protect other children, although he also thought children who were restrained should be supervised. Further, he testified that putting a child into “time-out” was an appropriate response to certain behaviors, such as aggression. The county had no specific rules regarding “time-outs” until after a civil lawsuit related to these acts was filed.

Other educators were aware that Pickens placed students across the hall from her main classroom, and while some of them testified that they would never have left any student alone at any time, none of them made any attempts to stop it. Pickens’ paraprofessional also placed the children across the hall when directed to do so. The only teacher who reported Pickens to her superiors did so only after one of the children smeared feces all over himself and his surroundings in the short time between when Pickens’ paraprofessional checked on him before attending the other teacher’s classroom and a few minutes later when the educator was returning to her class. That teacher also admitted there were times when she had no choice but to leave a child unattended in the bathroom when she went to retrieve her paraprofessional to change places with her.

As to Pickens’ attempts to come up with methods to stop her students from screaming, shouting, or crying so loudly that classroom activities were effectively halted, she admitted that she came up with what she called “scream therapy” on her own, to mirror the screaming child’s actions and help him or her see how the loud noise disrupted class and upset the others. Although the method was effective sometimes, she stopped using it when another educator told her to stop and she realized its use was inappropriate.

Further, the evidence showed that Pickens developed the technique of propping students against the wall to keep them from plopping onto the floor or to get them up after they did so. In fact, when one of her students plopped on the floor in gym class, Pickens was summoned to get him back on his feet. While the behavioral psychologist testified that when a student plopped on the floor and refused to get up, the best course was to leave him there, or at least obtain assistance in moving him, at times Pickens was unable to “get people from the front to help” deal with a recalcitrant student. If a student plopped down and no one was around to help, Pickens was on her own.

Decided March 3, 2015

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellant.

B. J. Bernstein, for appellee.

Pickens told the investigator that her actions were never malicious, that she never tried to hurt any of her students, and that whatever she did with her students was aimed at helping them. One of the paraprofessionals testified that the more aggressive child loved Pickens, and another educator testified that Pickens seemed fond of the child, who remained in Pickens’ classroom for three years.

Considering the evidence presented at the hearing, we conclude that the trial court was authorized to find that a preponderance of evidence showed that Pickens acted in good faith and was entitled to the benefits of the immunity statute.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Educators are also immune from civil liability under certain circumstances. OCGA § 20-2-1000; Gamble v. Ware County Bd. of Ed., 253 Ga. App. 819, 824 (2) (b) (561 SE2d 837) (2002).

       Only one case has cited this statute, and then only in passing. Cartero. State, 129 Ga.App. 536, 538 (199 SE2d 925) (1973).

       A total of ten witnesses testified, because both sides called the same witness, a paraprofessional who had been assigned to Pickens’ classroom during the time period in question. The paraprofessional asserted her Fifth Amendment right not to testify when Pickens called her, but was then granted immunity and the State called her to testify during its presentation of evidence.


text:
    A14A1941.
    PALMER v. THE STATE.
    (769 SE2d 600)
   BARNES, Presiding Judge.

A jury found Timothy Palmer guilty of two counts of aggravated child molestation and one count of statutory rape, and the trial court denied his motion for a new trial. On appeal, Palmer contends that the trial court committed reversible error in violation of OCGA § 17-8-57 by giving a jury instruction on statements by a child describing sexual contact or physical abuse in which the court expressed an opinion regarding the reliability of the child’s statements. Because we determined in Rolland v. State, 296 Ga. App. 889, 891 (676 SE2d 296) (2009), and Starr v. State, 269 Ga. App. 466, 467-468 (1) (604 SE2d 297) (2004), that virtually the same jury instruction violated OCGA § 17-8-57 and required reversal, Palmer’s convictions must be reversed and the case remanded for a new trial.

1. At trial, in addition to the testimony of the child victim, the State introduced into evidence and played for the jury a video recording of the victim’s forensic interview. The victim’s mother and the lead detective assigned to the case also testified regarding the victim’s disclosures of sexual abuse to them. Subsequently, during its charge to the jury, the trial court gave the following instruction on statements made by a child describing sexual contact or physical abuse:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and if the court finds that the circumstances of the statement provide sufficient indicia of reliability.

(Emphasis supplied.) See OCGA § 24-8-820 (2012).

Palmer contends that the trial court’s instruction, in light of the language informing the jury that the court found that the circumstances of the child’s statements had “sufficient indicia of reliability,” constituted an improper comment on the evidence in violation of OCGA § 17-8-57. We agree.

“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.” OCGA § 17-8-57. “Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.” (Citations and punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744 SE2d 429) (2013). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010); Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006).

In Rolland, 296 Ga. App. at 890-891, and Starr, 269 Ga. App. at 466-468 (1), the trial court gave virtually the same jury instruction on statements of a child describing sexual contact or physical abuse, and we considered a similar claim that the instruction violated OCGA § 17-8-57. We concluded in both cases that the jury instruction violated OCGA § 17-8-57 and required reversal because the jurors could have reasonably taken the instruction to be an expression or intimation of the trial court’s opinion that the child’s statements were reliable or true. See Rolland, 296 Ga. App. at 891; Starr, 269 Ga. App. at 467-468 (1).

Decided March 3, 2015.

Jimmonique R. S. Rodgers, Tyler R. Conklin, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Based on this binding precedent, we conclude that the trial court’s jury instruction violated OCGA § 17-8-57. “Given the mandatory nature of OCGA § 17-8-57 and the case law interpreting it, we must reverse [Palmer’s] conviction [s] and remand the case to the trial court for a new trial.” Murphy v. State, 290 Ga. 459, 461 (2) (722 SE2d 51) (2012). See Gardner, 286 Ga. at 634; Sauerwein, 280 Ga. at 439 (2).

2. Given our decision in Division 1, we need not address Palmer’s claim that the State failed to prove venue for one of the aggravated child molestation counts. The remedy for the failure to prove venue is to reverse and remand for a new trial if the State otherwise presented sufficient evidence to prove that the defendant committed the crime. See Powers v. State, 309 Ga. App. 262, 264 (1) (709 SE2d 821) (2011). Here, the evidence was sufficient to prove that Palmer committed the alleged act of aggravated child molestation; therefore, retrial is not barred by Double Jeopardy considerations. See Jones v. State, 272 Ga. 900, 905 (4) (537 SE2d 80) (2000). And because the remedy for failing to prove venue would be a retrial, which we already held in Division 1 must occur in this case, we need not resolve the venue question raised by Palmer in this enumeration of error.

Judgment reversed and case remanded.

Boggs and Branch, JJ., concur.

       The jury acquitted Palmer of aggravated sexual battery and child molestation.

        Starr subsequently was overruled in part on other grounds by Hatley v. State, 290 Ga. 480, 483 (1) (722 SE2d 67) (2012).

       This charge mirrors the language of OCGA § 24-8-820 (2012), which governed Palmer’s trial in March 2013. See Ga. L. 2011, p. 99, § 101. With respect to offenses occurring on or after July 1, 2013, a new version of the Child Hearsay Statute applies that, among other things, omits the statutory requirement that the trial court determine whether the circumstances of the statement provide sufficient indicia of reliability before admitting the hearsay evidence. See OCGA § 24-8-820 (2013); Ga. L. 2013, p. 222, §§ 13, 21/HB 349.

       We likewise need not address Palmer’s claim of ineffective assistance of counsel.


author: Barnes, Presiding Judge.

text:
    A14A2176.
    WALKER v. THE STATE.
    (769 SE2d 602)
   Barnes, Presiding Judge.

Kenzel Walker entered a negotiated plea of guilty to felony obstruction of an officer. He now appeals and contends that the superior court lacked jurisdiction to grant the State’s motion for an extension of time in which to indict Walker and, thus erred in denying his transfer to juvenile court. Consequently, Walker further contends, the superior court lacked jurisdiction to accept his guilty plea, and he seeks to have his judgment of conviction vacated and the case returned to juvenile court. For the reasons that follow, we affirm.

On February 3, 2011, Walker, then 15 years old and confined to the Eastman Youth Development Campus, was involved in an altercation with a guard at the facility. As a result of the altercation, on May 3, 2011, a complaint and petition was filed in juvenile court charging Walker with aggravated assault. The State filed a motion to transfer the case to superior court, which, following a hearing, the juvenile court granted on August 2,2011, the last date the State could indict Walker under OCGA § 17-7-50.1.

On that same day, the State filed a motion for an extension of time to indict Walker. At the hearing on the motion, which was also held on August 2, Walker obj ected to the extension of time and argued that the superior court lacked jurisdiction to hear the motion because the juvenile court’s transfer order had not yet been filed with the clerk. Walker further maintained that he had only a “five-minute” notice that the motion for an extension of time had been filed, and that the extension would impact his ability to appeal the juvenile court’s final order transferring the case, should he decide to appeal the order. Thereafter, the trial court granted the State’s motion, noting the limitations resulting from Dodge County only having three grand juries a year, and upon finding that a 90-day extension beyond the statutory period would not prejudice Walker. Walker was subsequently indicted for aggravated assault on September 26, 2011. On September 26, 2013, Walker filed a motion for an automatic transfer back to juvenile court essentially asserting that, because he had not been indicted within 180 days and there was no valid order transferring the case to superior court, the superior court did not have jurisdiction to extend the indictment period beyond 180 days. The trial court denied the motion, and found that the transfer from juvenile court order had been filed before the superior court considered the State’s motion for an extension of time. Subsequently, on February 24, 2014, Walker entered a negotiated plea to felony obstruction. This appeal ensued.

Walker contends that the superior court lacked jurisdiction to grant the State’s motion for an extension of the 180 days in which to indict because the juvenile court’s order was not signed and, thus, also lacked jurisdiction to accept Walker’s guilty plea.

OCGA § 17-7-50.1 provides:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court... who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court. . . .

See Edwards v. State, 323 Ga. App. 864 (748 SE2d 501) (2013) (State must obtain indictment within specified time or superior court loses jurisdiction conferred). If the superior court lacked jurisdiction to enter its judgment on Walker’s guilty plea, his claim under OCGA § 17-7-50.1 was not waived and the judgment of conviction on his plea could be vacated. See Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011).

The record reflects that at the hearing on the motion to transfer, Walker argued that the transfer order from the juvenile court had not been filed with the court clerk, although it had been “signed by the judge.” The trial court responded that the order was in a file to be filed, and the issue could “be remedied in a matter of minutes,” and directed someone to go get the clerk. The record is silent as to what then ensued in relation to the order, and no transfer order, filed or otherwise, is included with the appellate record. However, in its order granting the extension, the trial court found that “a valid transfer order had been filed into the record prior to the Court’s consideration of the State’s Motion for Extension of Time.”

Decided March 3, 2015.

Stephen M. Reba, for appellant.

Timothy G. Vaughn, District Attorney, Lauren C. Finley, Assistant District Attorney, for appellee.

Given that Walker has failed to perfect the record by including in the record on appeal the transfer order at issue, we must assume that the trial court’s finding that a valid transfer order had been filed into the record before the superior court considered the State’s Motion for Extension of Time is correct. “[W]hen a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed.” (Citation and punctuation omitted.) Portee v. State of Ga., 277 Ga. App. 536, 537 (1) (a) (627 SE2d 63) (2006). Accordingly, under these circumstances, we find that, given the valid transfer under former OCGA § 15-11-30.2, the superior court had jurisdiction pursuant to OCGA § 17-7-50.1 (a) to grant the State an extension of time to indict Walker, and further had jurisdiction to accept Walker’s guilty plea. Compare Hill, 309 Ga. App. at 533-534 (because case should have been transferred pursuant to OCGA § 17-7-50.1 (b), superior court erred in accepting guilty plea).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The motions and transcript from the juvenile court were not included with the record presented for our review. To the extent this omission impairs our review of Walker’s claims, the “appellant bears the burden of showing error affirmatively by the record.” (Citation and footnote omitted.) Benton v. State, 286 Ga. App. 736 (649 SE2d 793) (2007).

       Although presumably filed in superior court, the motion for an extension of time to indict is also not included with the record.

       See former OCGA § 15-11-30.2 relating to the transfer of juvenile proceedings to superior court. Ga. L. 2013, p. 294, § 1/HB 242, significantly revised Chapter 11 of Title 15, effective J anuary 1, 2014, for juvenile proceedings commenced on or after that date. The provisions of the new code addressing the transfer of a juvenile to superior court for criminal trial are found in OCGA §§ 15-11-561; 15-11-562. The proceedings at issue occurred in 2011 and are thus addressed under the old Juvenile Code.


author: Branch, Judge.

text:
    A12A1622.
    HARGIS v. THE STATE.
    (768 SE2d 536)
   Branch, Judge.

In Hargis v. State, 319 Ga. App. 432 (735 SE2d 91) (2012), this Court granted appellant Anthony Hargis a new trial concerning his conviction for attempted manufacture of methamphetamine and other crimes. Id. at 439 (2). In State v. Hargis, 294 Ga. 818 (756 SE2d 529) (2014), the Supreme Court of Georgia reversed this Court’s decision and remanded the case to this Court. Id. at 827. After the Supreme Court issued its decision, Hargis filed a motion for reconsideration, but then withdrew that motion, stating as he did so that he “waive [d] any issues on remand in the Court of Appeals.” The State moved the Supreme Court to include Hargis’s motions in the appellate record, and the Supreme Court granted the State’s motion. The Supreme Court then remanded the case to this Court.

Decided January 30, 2015

Reconsideration dismissed March 4, 2015

Anthony Hargis, pro se.

W. Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.

We hereby adopt the Supreme Court’s decision as our own, and we deem abandoned those issues raised in Hargis’s initial brief to this Court but left undecided pending the outcome of his appeal to the Supreme Court. The State’s motion to dismiss this appeal is denied. See O’Kelley v. Hayes, 132 Ga. App. 134 (1) (207 SE2d 641) (1974) (abandonment of enumerated errors is not grounds for dismissal of an appeal). The trial court’s judgment is affirmed.

Judgment affirmed.

Miller and Ray, JJ., concur.


author: Miller, Judge.

text:
    A14A0983.
    STRANGE v. TOWNS et al.
    (769 SE2d 604)
   Miller, Judge.

Tony Lenoy Strange brought a declaratory judgment action against Bertha Mae Towns and Raymond Towns, seeking a determination that Tony was the only trustee of the Pauline Strange Inter Vivos Trust (the “Trust”) based on documents executed by Pauline before she died. Following a hearing, the trial court denied Tony’s petition. Tony appeals, contending that the trial court erred in concluding that the subject documents did not constitute a valid revision of the Trust. For the following reasons, we reverse.

“A trial court’s findings of fact after a declaratory judgment hearing are analogous to a jury verdict and will not be interfered with if there is any evidence to support them. However, we review the trial court’s conclusions of law de novo.” (Citation and punctuation omitted.) Bank of the Ozarks v. DKK Dev. Co., 315 Ga. App. 539, 540 (726 SE2d 608) (2012).

So viewed, the evidence shows that in March 2001, Pauline Strange created the Trust, naming herself as the trustee. On May 2, 2011, Pauline executed her last will and testament devising the entire residue of her estate to the Trust. That same day, Pauline amended the Trust, naming her son, Tony; her nephew, Raymond Towns; and her sister, Bertha Towns, to serve as successor co-trustees.

On July 9, 2012, Pauline executed a “General Durable Financial Power of Attorney,” stating that she wished for Tony to be the executor of her estate and the Trust. The document further provided that “[t]his agreement is for the sole benefit of Mr. Tony Lenoy Strange[ ] in the management of ([the Trust]) in which he has full [ownership] pursuant to [the] final wishes of Mrs. Pauline Strange.” The document was signed by Pauline and Tony.

Thereafter, in August 2012, Pauline wrote a letter to Scott Lowry, a lawyer at the law firm that revised the Trust in 2011, explaining that the law firm misunderstood her true intent. Pauline advised that the law firm needed to revise the Trust to name Tony as the trustee of the Trust and executor of her estate and name the Towns as alternate trustees and executors, respectively. Pauline further stated that she had already executed a document to reflect the revisions to the Trust should the law firm fail to amend the Trust prior to her death. Pauline died in October 2012.

On appeal, Tony argues that the trial court erred in concluding that Pauline did not validly revise the Trust to make Tony the sole trustee. We agree.

“The cardinal rule in construing a trust instrument is to discern the intent of the settlor and to effectuate that intent within the language used and within what the law will permit.” (Citation and punctuation omitted.) Smith v. Hallum, 286 Ga. 834 (691 SE2d 848) (2010); see also Ferst v. Ferst, 208 Ga. App. 846, 847 (432 SE2d 227) (1993).

Under OCGA § 53-12-40 (a), “[a] settlor shall have no power to modify or revoke a trust in the absence of an express reservation of such power.” Further, under OCGA § 53-12-40 (c), any modification of a trust is required to be in writing and signed by the settlor.

Here, under Article 4.1.1 of the Trust, “[t]he Settlor may at any time by duly executed written instrument alter or amend this Trust in any manner.” Consequently, Pauline, as the settlor of the Trust, reserved the right to alter or amend the Trust. OCGA § 53-12-40 (a). There is no dispute that Pauline signed a power of attorney on July 9, 2012 that expressed her intent to name Tony as the executor of her estate and the Trust.

The trial court found that the July 9 power of attorney did not constitute a valid revision because the document was not properly notarized. OCGA § 53-12-40 (c), however, requires only that a modification be in writing and signed by the settlor. To the extent Article 4.1.1 of the Trust required the document to be notarized, because it references a duly executed written instrument, the notary properly authenticated the document. Notably, the July 9 power of attorney clearly shows that, in addition to signing the document, the notary used a stamp that imprinted her name, the words “Notary Public,” the name of the state, and the county of her appointment. OCGA § 45-17-6 (a) (1) plainly provides that, by providing this information, the notary properly authenticated the document. Moreover, the statute allows the use of a stamp to imprint a notary’s seal, and the trial court erred in concluding otherwise.

The trial court also erred in concluding that the July 9, 2012 power of attorney was merely a contract to make “a will in the future.” What is at issue is not whether Pauline intended to modify her will, but whether she intended to revise the Trust. As to that determination, the trial court found the power of attorney to be ambiguous and considered parol evidence to discern Pauline’s intent. “The existence or nonexistence of an ambiguity is a question of law for the court.” (Citation omitted.) Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 476 (2) (644 SE2d 311) (2007). Consequently, we give the trial court’s finding no deference. Dodds v. Dabbs, Hickman, Hill and Cannon, LLP, 324 Ga. App. 337, 345 (3) (750 SE2d 410) (2013) (“In reviewing a question of law, as here, we owe no deference to a trial court’s ruling on a legal question.”) (footnote omitted).

Here, the power of attorney unambiguously provided that Pauline wanted Tony to be the sole trustee. In that document, Pauline stated that she “revoke[d] any special powers of attorney[,] will[,] or trust agreement” she had previously signed. Despite her use of the term “revoked,” Pauline clearly intended to modify, rather than revoke, the Trust, because she further explained that she wanted Tony to be the “executor” of her estate and the Trust. See OCGA § 53-12-40 (b) (“A power to revoke shall be deemed to include a power to modify, and an unrestricted power to modify shall be deemed to include a power to revoke.”). Although Pauline used the title “executor,” it is clear that she meant to name Tony as the trustee, because she expressed that Tony had “full ownership” of the Trust. “In construing a trust instrument it is the duty of a court to find the intention of the settlor and to effectuate that intention insofar as the language used and the rules of law will permit.” (Citation omitted.) DeLoach v. Miller, 157 Ga. App. 229, 230 (276 SE2d 897) (1981).

The Towns argue that if Pauline intended for the power of attorney to constitute a revision to the Trust, she would not have sent the August 2, 2012 letter to the law firm requesting the Trust be revised. However, Pauline also requested a change to her will in the August 2 letter. Nonetheless, although Pauline stated in the August 2 letter that she wanted the Trust to be revised, she ended by confirming that she had already made the revision in writing, ostensibly referring to the July 9 power of attorney. The fact that the law firm did not update the Trust to incorporate Pauline’s intent did not render the July 9 power of attorney invalid, because only Pauline, as the settlor, could modify the Trust. See OCGA § 53-12-40 (a), (c). Accordingly, the trial court erred when concluding that the July 9 power of attorney did not constitute a valid modification to the Trust and in failing to construe that document to carry out Pauline’s intent to name Tony as the sole trustee.

Decided March 4, 2015.

Fortson, Bentley & Griffin, Kevin E. Epps, for appellant.

David F. Ellison, for appellees.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.


text:
    A14A1577.
    STRICKLAND v. STRICKLAND et al.
    (769 SE2d 607)
   Miller, Judge.

Following a bench trial, the superior court granted permanent custody of three minor children to their maternal grandparents. The children’s mother appeals from the denial of her motion for new trial, contending, inter alia, that the evidence is insufficient to support the superior court’s order depriving her of her right as a parent to the care and custody of her children. After a thorough review, we find that the grandparents have not proven by clear and convincing evidence that the children will suffer either physical or significant, long-term emotional harm if they are placed in the mother’s custody. Accordingly, we reverse the grant of permanent custody to the grandparents.

In a custody dispute between a parent and a third-party relative, there is “a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child.” OCGA § 19-7-1 (b.l). A third-party relative may overcome this statutory presumption only by showing, with clear and convincing evidence, that the children will suffer either physical or significant, long-term emotional harm if custody is awarded to the parent. See Clark v. Wade, 273 Ga. 587, 598-599 (IV) (544 SE2d 99) (2001). When reviewing a superior court’s custody ruling, we view the evidence in the light most favorable to the trial court’s decision. See Whitehead v. Myers, 311 Ga. App. 680, 688 (1) (716 SE2d 785) (2011).

So viewed, the evidence showed that the mother’s oldest daughter, C. S., was born in September 1998; her son, L. T, was born in July 2000; and her youngest daughter, I. S., was born in August 2006. The grandparents first obtained temporary emergency custody of the children in 2006 after the home which the mother shared with I. S.’s biological father was raided by police. In October 2008, the juvenile court found that all three children were deprived and, with the mother’s consent, the court extended the grandparents temporary custody of the children through July 2010, with supervised visitation for the mother.

Shortly before the 2008 temporary custody order expired, the grandparents filed a petition in the juvenile court for appointment as the children’s permanent guardians. After expiration of the temporary custody order and while their guardianship petition in the juvenile court was still pending, the grandparents filed their petition for permanent custody in the superior court. The grandparents also simultaneously sought an emergency ex parte custody order in the superior court. In the resulting ex parte order, the Paulding County Superior Court awarded the grandparents temporary custody of the children and set a hearing date for a final custody determination.

Prior to the scheduled hearing, however, the case was transferred to the Cobb County Superior Court based on the parties’ agreement that Cobb County was the appropriate venue. The Cobb County Superior Court granted the mother’s requests for visitation over Christmas 2011 and pending resolution of the main case. The superior court also set the case for a February 2013 bench trial.

At trial, the guardian ad litem (“GAL”) described the entire family as “a dysfunctional nightmare,” noting that the grandparents are estranged from their other daughter and her children. Nevertheless, the GAL recommended that the children continue living with the grandparents, at least temporarily, primarily because she was concerned that any abrupt custody change would affect the children’s well being and she believed that the whole family would benefit from therapy.

The grandparents have been the subject of the Department of Family and Children Services (“DFCS”) investigations as to their care of the daughter and now her children. When the mother was a child, the grandparents frequently whipped her with a paddle and a belt. The grandfather also threw the mother against a wall and spat in her face. On one occasion, DFCS temporarily removed the mother from the grandparents’ house after a family friend reported them for abuse. The grandfather also hits the children with a paddle, and he used to hit L. T. with a belt. In 2011, the grandfather beat L. T. leaving marks on his arms and resulting in a DFCS investigation and the temporary removal of L. T. from the grandparents’ home.

As to the mother’s housing situation, the evidence showed that, except for a couple of months when she lived with a friend, the mother has been consistently living at the same residence with her fiancé for more than four years. During the relevant time period prior to the bench trial in this case, the children have visited the mother at her residence and have stayed there with her for summer vacations, spring break, weekends, and holidays.

The mother is not without her issues. She was diagnosed with bipolar disorder and has a history of drug use, including a former addiction to marijuana and experimentation with other drugs. In 2010, the mother was convicted of reckless driving in connection with her marijuana use. Since that time, however, the mother has attended court-ordered substance abuse counseling and additional counseling. She has passed all five of her drug screens since November 2012 and, according to her counselor, she is currently drug free.

With regard to income, the mother testified that she works from home, doing collections work. Also, as the grandfather acknowledged, the mother and her sister each own a 49-percent interest in a limited family partnership. The grandfather owns the remaining two percent and manages the partnership. Although the partnership earns approximately $6,600 in monthly income, the grandfather does not distribute any of the income to the mother or her sister.

During the mother’s visits with the children, she is attentive and loving. The mother interacts with each child individually, engages them in activities and conversation based on their interests, and assists them with their homework. The children enjoy their visits with the mother and would like to see her more. The mother also wants to spend more time with the children, but the grandparents have severely limited her visitation rights.

As to the children’s mental health needs, the evidence showed that I. S. was diagnosed with adjustment disorder and has demonstrated emotional reactivity, insecurity, and episodes of defiance, likely as a result of the stresses associated with the custody dispute. C. S. was also diagnosed with adjustment disorder and has demonstrated anxiety as to her relationship with her mother.

Of the three children, L. T.’s needs are the most complex. He has been consistently defiant, self-critical, and defensive, and, at almost thirteen years old, he still struggled with bed-wetting and loose bowels. The mother testified that L. T. did not have incontinence problems when he visited overnight with her. L. T. has been formally diagnosed with moderate depression, and requires therapy and possibly medication to treat his depression. He also needs a nurturing and supportive home atmosphere where he can feel safe verbalizing his frustrations without fear of punishment, a set routine, clearly defined rules, and continued access to extracurricular activities.

After the trial, in November 2013, the superior court awarded permanent custody of all three children to the grandparents, with provisions for the mother to have unsupervised visitation on alternating weekends, as well as two weeks each summer. In its order, the superior court found that the children will suffer long-term emotional harm if they are placed in their mother’s custody, and that permanent placement with their grandparents is in their best interest. After the superior court denied her motion for new trial, the mother filed this appeal.

1. The mother contends that the evidence is insufficient to support the superior court’s order depriving her of her right as a parent to the care and custody of her children. Specifically, the mother argues that there is no clear and convincing evidence that the children will suffer significant, long-term emotional harm if they are placed in her custody. We agree.

Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. The parental right to custody is “a fiercely guarded right that should be infringed upon only under the most compelling circumstances.” (Punctuation and footnote omitted.) Clark, supra, 273 Ga. at 596-597 (IV). Accordingly, Georgia courts are not permitted to terminate a mother’s natural right to custody of her children merely because the children might have better financial, educational or moral advantages elsewhere. See Harris v. Snelgrove, 290 Ga. 181, 182-183 (2) (718 SE2d 300) (2011). Moreover, as set forth above, the mother in this case has a statutory right to custody of her children in preference to the grandparents, unless the grandparents have proven by clear and convincing evidence that the children will suffer either physical or significant, long-term emotional harm if custody is awarded to the mother. See id.; see also Clark, supra, 273 Ga. at 598 (IV). We conclude that the grandparents failed to present sufficient evidence to overcome the mother’s presumptive right to custody of her children.

In granting permanent custody to the grandparents, the superior court specifically found that the mother had no present income and that her home with her fiancé was not a stable environment. The superior court also found that the children have resided exclusively with the grandparents since 2006; the children have bonded with the grandparents; the mother’s interest in the children since 2006 has been sporadic at best; and the children have unique psychological issues that only the grandparents have addressed.

Contrary to the superior court’s findings, the evidence showed that the mother has rectified those issues that led to her temporary loss of custody of her children. Notably, the mother has a job working from home and is also entitled to a share of the $6,600 monthly income earned by the family partnership. The mother also has a stable home with her fiancé where the children are welcome, she has completed substance abuse treatment and passed her drug tests, she is receiving treatment for her bipolar disorder and she has maintained a strong bond with her children. The evidence also showed that the mother is attentive and loving during her visits with the children, and they wish to spend more time with each other. Therefore, the evidence showed that the mother is strongly bonded with the children, and can provide a stable environment for them.

While the evidence showed that the children have also bonded with their grandparents and that the grandparents have been somewhat attentive to the children’s needs while in their care, these circumstances are not the “most compelling circumstances” justifying termination of the mother’s constitutional and statutory right to custody of her children. Further, while the record includes ample evidence of the children’s mental health needs, none of this evidence established that they will suffer significant, long-term emotional harm if they are placed in the mother’s custody. Although the children may experience stress and anxiety over the move, that is not the kind of harm that is sufficient to rebut the presumption in favor of parental custody. “[A] change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.” (Citation omitted.) Clark, supra, 273 Ga. at 598 (IV). Moreover, the children’s counselor testified that, more than a change in custody itself, it would be an abrupt change that would cause harm.

Decided March 4, 2015

Barnes Law Group, Roy E. Barnes, for appellant.

There is also no evidence that the mother will fail to address the children’s psychological issues if she is the children’s primary custodian. Although the grandparents, as the children’s temporary custodians, have brought the children to counseling, no evidence showed that the mother is unwilling to do the same. Indeed, the mother’s willingness to attend counseling for herself suggests that she is likely to address those issues for the children.

Moreover, there is no evidence that the mother will fail to provide the type of environment the children need. L. T., in particular, needs an environment where he can express himself without fear of punishment, and there is no evidence that he — or any of the children — fear punishment from their mother. There is evidence, however, that the grandfather regularly engages in unreasonable, excessive corporal punishment, and that L. T. has experienced significant emotional challenges while in the grandparents’ custody.

Under these circumstances, we conclude that the grandparents have failed to overcome the statutory presumption that the mother has the right to custody of her children. The evidence showed that the problems with the mother have been resolved such that the grandparents have not proven by clear and convincing evidence that the children will suffer either physical or significant, long-term emotional harm if custody is awarded to the mother. See Clark, supra, 273 Ga. at 598-599 (IV) (requiring stringent burden of proof for grant of custody to third party); Burke v. King, 254 Ga. App. 351, 354 (562 SE2d 271) (2002) (reversing grant of custody to maternal aunt in absence of clear and convincing evidence that child would suffer significant long-term emotional harm in father’s custody). Consequently, we reverse the trial court’s grant of permanent custody to the grandparents and remand this case for further proceedings not inconsistent with this opinion.

2. In light of our holding in Division 1 above, we need not address the mother’s remaining enumerations of error.

Judgment reversed and case remanded.

Doyle, P. J., and Dillard, J., concur.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellee.

       The children’s fathers are not parties to this appeal.

       The juvenile court dismissed the grandparents’ guardianship petition in July 2011, after the grandparents filed their petition for permanent custody.

       The grandparents have not seen their other daughter and her children for more than six years, even though they live near one another.

       The mother filed an application for discretionary review, which this Court granted because judgments and orders that award, modify or refuse to change child custody are directly appealable.

       The mother also argues that there was no evidence that the children would suffer physical harm in her custody. The superior court found only that the children would suffer long-term emotional harm, not physical harm, if the mother was awarded custody

       We conclude that the grandparents failed to overcome the mother’s presumptive right to custody; therefore, we need not determine whether the grandparents demonstrated that a permanent award of custody to them would be in the children’s best interest. See Harris, supra, 290 Ga. at 183 (2).


author: DOYLE, Presiding Judge.

text:
    A14A1723.
    ABF FREIGHT SYSTEM, INC. v. PRESLEY.
    (769 SE2d 611)
   DOYLE, Presiding Judge.

Omer Presley sought judicial review of the decision of the State Board of Workers’ Compensation (“the Board”), which denied his claim for workers’ compensation benefits. The superior court reversed and remanded the case to the Board for consideration of certain evidence. ABF filed an application for discretionary review, this Court granted the application, and ABF now appeals. For the following reasons, we reverse.

The relevant facts show that Presley worked for ABF for approximately 19 years as a truck driver and dock worker. On June 4, 2009, he sustained a compensable job-related injury to his right knee. He had surgery on his knee, remained out of work until September 15, 2009, and was paid temporary total disability benefits during his absence. On September 16, 2009, Presley returned to work without restrictions or limitations. He continued to perform his normal job duties: loading and unloading trucks by hand and machine and driving a tractor-trailer. His right knee, however, continued to get worse, and he was diagnosed with arthritis in that knee on March 17, 2010, and was advised that he would eventually need a right knee replacement.

On December 4, 2009, Presley sustained a compensable job-related injury to his left knee. He subsequently had surgery, remained out of work as a result of this injury from June 24, 2010, through September 18, 2010, and received temporary total disability benefits during this time. On September 20, 2010, Presley returned to work without restrictions or limitations and resumed his normal duties, with no changes thereto.

In June or July 2010, the doctor who performed both knee surgeries discussed the possibility that Presley might need surgical replacement of his right knee. On January 21, 2011, the doctor again discussed the possibility of right knee replacement surgery. Presley testified before the Board that his right knee pain worsened after his left knee surgery. On February 4, 2011, a recurrent tear of the medial meniscus was diagnosed in Presley’s left knee. Presley continued to work his normal job duties, but his right knee pain worsened. He received several injections in his right knee between September 2011, and December 15, 2011, and he was prescribed various anti-inflammatory medications. In February 2012, after an additional year of continuing to work his regular job duties following his left meniscus tear, the doctor informed Presley that right knee replacement surgery was necessary.

Presley had total knee replacement surgery on his right knee on June 19,2012, and was placed on a “no-work” status until October 29, 2012. OnMarch21, 2013, Presley sought payment of temporary total disability benefits from June 2012, through October 2012, arguing that he had sustained a fictional new injury.

The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement. Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.

A fictional new accident, or aggravation of a pre-existing condition, occurs when a

claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury.

A change in physical condition, on the other hand, occurs when

the claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto[,] he returns to his employment performing his normal duties or ordinary work. Then[,] as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident[,] his condition gradually worsens to the point that he can no longer continue to perform his ordinary work.

‘‘[0]rdinarily[,] the distinguishing feature that will characterize the disability as either a ‘change of condition’ or a ‘[fictional] new accident’ is the intervention of new circumstances.” Whether the employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ.

The ALJ in this case denied benefits, finding that the two-year statute of limitation in OCGA § 34-9-104 (b) barred Presley’s claim since Presley last received temporary total disability benefits for his right knee injury on September 15, 2009. In its order, the ALJ stated that “while close, I find the employee has undergone a change in condition for the worse and not suffered a fictional new injury. . . . [His] right knee condition is related to his June 4, 2009 accident/ injury.” The ALJ found Presley’s testimony “very credible” and his work ethic “tremendous,” and it commended Presley for consistently working even “when injured and in clear pain.” Nevertheless, the ALJ based its decision on the fact that “there were not any new and/or different circumstances concerning the employee’s job duties [that] caused a new injury.” The Board adopted this decision.

Presley appealed to the superior court, arguing that he suffered a fictional new injury when he ceased working in June 2012. The superior court reversed and remanded the case, finding that the Board failed to consider all of the evidence in light of correct and applicable legal principles. Specifically, the superior court noted:

The Court has reviewed the cases cited by the parties that contemplate the distinction between changes in condition and fictional new accident. In the main, these cases focus on changes in an employee’s work environment after the employee has re-commenced working following a com-pensable job-related accident. The focus of those cases has been on whether the job duties being performed by the injured worker upon his or her return to work were different from those previously performed, or whether such duties exceeded restrictions issued by treating physicians.
The Court notes that our workers’ compensation laws are not designed to penalize injured workers for attempting to continue working even though they are hurt to some extent. The Court also notes that the term “accident” is broadly defined under our workers’ compensation laws, and an employee who continues to perform the duties of employment and thereby aggravates an initial injury has sustained what is considered a “new injury.”
In determining whether an injured worker has sustained a fictional new accident, as opposed to a change in condition, the Court sees no reason why the finding of a new accident should be limited to those factual scenarios that have been previously considered. The nature of an employee’s job duties upon returning to work after a compensable job-related accident is not the sole determinant in deciding whether a new accident has occurred. Since the ultimate factor in determining whether a fictional new accident has arisen is the intervention of new circumstances, it is herein found that such new circumstances may arise in the form of a disabling accidental injury suffered by an employee after an original accidental injury has been sustained, as long as there is a showing that such subsequent injury has contributed to a worsening of the employee’s original condition.

The superior court remanded the case for a determination regarding whether Presley’s left knee injuries constitute “new circumstances” that caused a worsening of his right knee condition resulting in his disability in June 2012.

Pretermitting whether the superior court departed from the previous cases distinguishing a fictional new accident from a change in condition, the ALJ and the Board did consider whether Presley’s left knee injuries caused a worsening of his right knee condition and found that they did not. The ALJ specifically noted that the evidence did not support Presley’s argument that his right knee injury was a “super-added” injury to his left knee. Indeed, the evidence supports the ALJ and Board’s determinations that Presley’s right knee was never the same after surgery and simply grew worse without any additional injuries or job responsibilities. In fact, the doctor told Presley in June or July 2010 that he probably would need a right knee replacement. This evidence supports a finding that Presley underwent a change in condition for the worse and not a fictional new injury.

Decided March 4, 2015

Hamilton, Westby, Antonowich & Anderson, William N.'Anderson, Robert W. Smith, for appellant.

Todd K. Maziar, for appellee.

It is well settled that in reviewing a workers’ compensation award, this Court “must construe the evidence in the light most favorable to the party prevailing before the appellate division.” “ [D] eterminations of credibility and the weight of testimony are for the ALJ and appellate division, not for [the] reviewing court.” And, “[t]he findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this [C]ourt may substitute itself as a factfinding body in lieu of the State Board.”

Although a superior court may remand a case to the appellate division if that court questions whether all evidence was considered, in this case, the superior court substituted its factual findings for those of the appellate division, which were supported by the evidence. We therefore reverse.

Judgment reversed. Dillard, J., concurs.

Miller, J., concurs in judgment only.

       See Certain v. U. S. Fidelity & Guar. Co., 153 Ga. App. 571, 573 (266 SE2d 263) (1980).

        Central State Hosp. v. James, 147 Ga. App. 308, 309 (1) (a) (248 SE2d 678) (1978). In such a case, “the one-year statute of limitation begins to run from the date the claimant was forced to cease his employment. They base this holding on the theory that the date of the ‘new accident’ is the date that the disability manifests itself.” See id.

       Id. at 309-310 (1) (c).

       See Certain, 153 Ga. App. at 573.

       See Trucks, Inc. v. Trowell, 302 Ga. App. 488, 491 (1) (690 SE2d 880) (2010); Laurens County Bd. of Ed. v. Dewberry, 296 Ga. App. 204, 206 (674 SE2d 73) (2009); Cypress Companies v. Brown, 246 Ga. App. 804, 806 (542 SE2d 544) (2000).

       OCGA § 34-9-104 (b), which addresses modification of a prior final decision, permits a party to apply for another decision because of a change in condition provided that “at the time of application not more than two years have elapsed since the date the last payment of income benefits . . . was actually made . . . .”

       The ALJ further found that even if Presley suffered a “super-added” injury to the December 4, 2009 left knee injury, income benefits were last paid for that injury on September 20, 2010, and Presley’s March 21, 2013 request for benefits still fell outside the two-year statute of limitation.

       (Citations omitted.)

       See Scott v. Shaw Indus., Inc., 291 Ga. 313, 315 (729 SE2d 327) (2012).

        Laurens County, 296 Ga. App. at 205-206.

        Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995); see also Johnson v. Weyerhaeuser Co., 231 Ga. App. 627, 628-629 (499 SE2d 916) (1998).

       (Citation and punctuation omitted; emphasis supplied.) The Med. Center, Inc. v. Hernandez, 319 Ga. App. 335 (1) (734 SE2d 557) (2012). Of course, “erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.” Renu Thrift Store, Inc. v. Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007) (punctuation omitted).

       See Henderson v. Mrs. Smith’s Frozen Foods, 182 Ga. App. 829, 829-830 (2) (a) (357 SE2d 271) (1987); Roberson v. Englehard Corp., 190 Ga. App. 674, 675-676 (379 SE2d 524) (1989).


text:
    A14A2124.
    WHITE v. MULTIBANK 2009-1 RES-ADC VENTURE, LLC.
    (769 SE2d 620)
   Miller, Judge.

Tina White appealed from the grant of summary judgment and entry of final judgment to Multibank 2009-1 RES-ADC Venture, LLC in its suit to collect on a promissory note. After White filed her appeal, Multibank filed a motion for supersedeas bond, which the trial court granted. White then filed this appeal and withdrew her first appeal.

1. White contends only that the trial court erred in granting summary judgment without conducting a hearing despite her request for one. Her claim is without merit because the undisputed evidence shows that her request for a hearing was untimely.

“Uniform Superior Court Rule 6.3 provides in pertinent part that oral argument on any motion for summary judgment shall be permitted upon written request if such request is made not later than five (5) days after the time for response.” (Punctuation omitted; emphasis in original.) Pit Stop, Inc. v. Jackson, 216 Ga. App. 648 (455 SE2d 358) (1995). Pursuant to Uniform Superior Court Rule 6.2, a party opposing a motion shall serve and file a response no later than 30 days after service of the motion.

In this case, Multibank filed its motion for summary judgment on October 29, 2013 and attached a certificate of service showing that White’s counsel was served by mail. White did not respond to Multi-bank’s motion or request oral argument until January 27, 2014, almost three months after Multibank served its motion. Based on the undisputed evidence showing that White’s request for oral argument was untimely, there is no merit to White’s claim that the trial court erred in granting summary judgment without oral argument. See, e.g., Thompson v. Tom Harvey Ford Mercury, Inc., 193 Ga. App. 64 (387 SE2d 28) (1989).

2. Since the applicable law is unquestionably clear and this appeal has no arguable merit, we conclude that this appeal was brought only for the purposes of delaying enforcement of the judgment against White and is therefore frivolous. Pursuant to Court of Appeals Rule 15 (b), we impose a sanction of $500, not against White herself, but against her attorney for pursuing this appeal. See Rivers v. Almand, 241 Ga. App. 565, 567 (2) (527 SE2d 572) (1999); see also Shamsai v. Coordinated Properties, Inc., 259 Ga. App. 438, 440 (2) (576 SE2d 901) (2003) (“[D]amages for delay are especially appropriate where the underlying action, like this one, involves a collection action.”) (citation omitted). Upon receipt of the remittitur, we direct the trial court to impose upon counsel for White a penalty of $500.

Decided March 4, 2015.

Roberts Law, Grady A. Roberts III, for appellant.

Hartman Simons & Wood, Samuel R. Arden, Katherine M. Silverman, for appellee.

Judgment affirmed with direction.

Doyle, P. J., and Dillard, J., concur.

       Court of Appeals Rule 15 (b) provides: “[t]lie panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $2,500.00 against any party and/or party’s counsel in any civil case in which there is [an] appeal... determined to be frivolous.”