                                THIRD DIVISION
                                  GOBEIL, J.,
                            COOMER and HODGES, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                    February 13, 2019




In the Court of Appeals of Georgia
 A18A1524. ELMORE v. CLAY, et al.                                              HO-055

      HODGES, Judge.

      Kelly Elmore petitioned to both terminate the rights of Tabitha Clay, the

biological mother of her step-daughter, E. E., and to adopt E. E. Paternal grandmother

Leslie Clay and maternal grandfather Tim Clay moved to intervene in the action to

obtain grandparent visitation.1 Following a hearing , the trial court terminated the

parental rights of Tabitha Clay, permitted Kelly Elmore (“Kelly”) to adopt E. E., and

granted visitation to E. E.’s grandparents over the objections of Kelly and E. E.’s

father. Kelly appeals the trial court’s grant of visitation to E. E.’s grandparents. For

the reasons that follow, we vacate the trial court’s order and remand the case for

further proceedings consistent with this opinion.

      1
          Leslie Clay and Tim Clay are married to each other.
      When reviewing an order granting grandparent visitation,

      we view the evidence in the light most favorable to the trial court’s
      judgment to determine whether any rational trier of fact could have
      found by clear and convincing evidence that the mandated visitation was
      authorized. We do not weigh the evidence or determine witness
      credibility, but defer to the trial court’s factfinding and affirm unless the
      evidence fails to satisfy the appellate standard of review.


(Citations omitted.) Luke v. Luke, 280 Ga. App. 607, 609-610 (1) (634 SE2d 439)

(2006).

      So viewed, the record shows that Ryan Elmore (“Ryan”) and his daughter E. E.

lived with E. E.’s grandparents off and on during the child’s early life. E. E.’s

grandmother, Leslie Clay (“Leslie”), played a large part in helping to raise E. E.

during this time and she provided child care as well as financial support for E. E. In

the past, Leslie was a maternal figure for E. E. In 2013, however, Ryan wed Kelly and

E. E. moved out of her grandparent’s home, thereby discontinuing Leslie’s quasi-

motherly role and the grandparents’ financial support of E. E.

      Several years later, in 2017, Kelly filed a petition to terminate the rights of

E. E.’s biological mother and to adopt E. E. Leslie and her husband, Tim Clay,

responded by moving to intervene to seek visitation with their grandchild. The trial


                                           2
court held a hearing at which it was undisputed that E. E. maintains a close

relationship with her grandparents. The parties disagreed as to whether Ryan and

Kelly were keeping E. E. from her grandparents, but it was undisputed that the

grandparents were offered numerous opportunities to visit with E. E. in 2016 and

2017. Leslie, as well E. E.’s great-grandmother and great-aunt, testified that E. E.

appeared less happy and bubbly than she was when she was able to see her

grandparents more frequently. At the end of the hearing, the trial court indicated that

it was inclined to deny the petition for visitation.

      Following the hearing, the trial court terminated the parental rights of the

biological mother, who did not answer the petition or appear at the hearing, and

permitted Kelly to adopt E. E. Contrary to its commentary at the hearing, the trial

court also granted visitation to Leslie and Tim Clay from 9:00 A.M. on Saturday

through 6:00 P.M. on Sunday one weekend a month as well as for one week over the

summer. Kelly appeals the portion of the order granting grandparent visitation.2

      1. In two related enumerations of error, Kelly contends that the trial court erred

in finding that visitation should be mandated against the wishes of Kelly and Ryan.



      2
          Appellees Leslie and Tim Clay did not file a brief in this appeal.

                                            3
Because we are unsure if the trial court properly exercised its discretion in reaching

its conclusion, we vacate the trial court’s order and remand the case.

       Under Georgia law, the trial court was permitted to grant the grandparents

visitation3 if it found

       by clear and convincing evidence that the health or welfare of the child
       would be harmed unless such visitation is granted and if the best
       interests of the child would be served by such visitation. . . . In
       considering whether the health or welfare of the child would be harmed
       without such visitation, the court shall consider and may find that harm
       to the child is reasonably likely to result when, prior to the original
       action or intervention: (A) The minor child resided with the family
       member for six months or more; (B) The family member provided
       financial support for the basic needs of the child for at least one year;
       (C) There was an established pattern of regular visitation or child care
       by the family member with the child; or (D) Any other circumstance
       exists indicating that emotional or physical harm would be reasonably
       likely to result if such visitation is not granted.




       3
           The grandparents filed their motion pursuant to OCGA § 19-7-3 (b) (1) (B).

                                            4
(Emphasis supplied.) OCGA § 19-7-3 (c) (1).4 A rebuttable presumption exists that

“a child who is denied any contact with his or her family member or who is not

provided some minimal opportunity for contact with his or her family member when

there is a preexisting relationship between the child and such family member may

suffer emotional injury that is harmful to such child’s health.” OCGA § 19-7-3 (c) (3).

      Nonetheless, when ruling on questions of grandparent visitation, courts must

be mindful of the constitutional implications of interfering with parental rights.

      Today, there can scarcely be imagined a more fundamental and fiercely
      guarded right than the right of a natural parent to its offspring. Nix v.
      Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976).
      See also Wisconsin v. Yoder, 406 U. S. 205, 232 (92 SCt 1526, 32
      LEd2d 15) (1972) (“The history and culture of Western civilization
      reflect a strong tradition of parental concern for the nurture and
      upbringing of their children. This primary role of the parents in the
      upbringing of their children is now established beyond debate as an
      enduring American tradition.”); In re Suggs, 249 Ga. 365, 367 (291
      SE2d 233) (1982) (“The right to the custody and control of one’s child
      is a fiercely guarded right in our society and in our law. It is a right that
      should be infringed upon only under the most compelling


      4
         The Supreme Court of Georgia recently found OCGA § 19-7-3 (d)
unconstitutional. Patten v. Ardis, 304 Ga. 140, 145 (3) (816 SE2d 633) (2018). This
does not affect our analysis here, however, as the trial court relied on OCGA § 19-7-3
(c).

                                           5
      circumstances.”). The United States Supreme Court has held that the
      right of fit parents to the care, custody, and control of their children is
      secured by the United States Constitution. See Troxel v. Granville, 530
      U. S. 57, 65 (II) (120 SCt 2054, 147 LEd2d 49) (2000) (“The interest of
      parents in the care, custody, and control of their children . . . is perhaps
      the oldest of the fundamental liberty interests recognized by this
      Court.”). See also Quilloin v. Walcott, 434 U. S. 246, 255 (II) (A) (98
      SCt 549, 54 LEd2d 511) (1978) (“We have recognized on numerous
      occasions that the relationship between parent and child is
      constitutionally protected.”). And [the Supreme Court of Georgia] has
      recognized that the right is secured by our state Constitution as well.


(Citations, footnotes, and punctuation omitted.) Patten v. Ardis, 304 Ga. 140, 143-144

(2) (816 SE2d 633) (2018). “It is irrelevant, to this constitutional analysis, that it

might, in many instances be better or desirable for a child to maintain contact with a

grandparent.” (Punctuation omitted.) Brooks v. Parkerson, 265 Ga. 189, 194 (2) (c)

(454 SE2d 769) (1995).

      Here, the trial court acknowledged the role the grandparents played in the life

of E. E., including the previous living arrangements in the grandparents’ home, as

well as the child care and financial support they previously provided. The trial court

then recited the standard codified at OCGA § 19-7-3 (c) (1) for determining whether

grandparent visitation should be mandated. The trial court emphasized in its order


                                           6
that Georgia law required that it “SHALL consider” the factors identified in OCGA

§ 19-7-3 (c) (1), and found that it was “bound by these existing factors” in this case.

      Although Georgia law requires these factors to be considered by the trial court,

it still vests discretion in the trial court. Upon the consideration of these factors, the

trial court may find harm more reasonably likely if the factors are met. OCGA § 19-7-

3 (c) (1). The law does not require a finding of harm if the factors are met. See Ring

v. Williams, 192 Ga. App. 329, 330 (2) (384 SE2d 914) (1989) (“‘Shall’ ordinarily

denotes command and not permission, whereas ‘may’ ordinarily denotes permission

and not command.”) (citation omitted). Given the trial court’s finding that it was

“bound” by the existence of the factors in the present case, we cannot ascertain

whether the trial court properly applied the statute. In other words, it is unclear if the

trial court exercised its discretion to find clear and convincing evidence of harm, or

whether it mistakenly believed it was required to find clear and convincing evidence

of harm if the OCGA § 19-7-3 (c) (1) factors were met.

      Correct application of this standard is particularly important in a case such as

this, where the role of the grandparents in the child’s life has changed dramatically

over the years. In light of the constitutional implications of state interference with the

decisions of parents, we must ensure that the trial court correctly applies the law when

                                            7
deciding whether to mandate grandparent visitation against the wishes of parents. For

this reason, we vacate the trial court’s order and remand this case with instruction that

the trial court exercise the discretion afforded to it under OCGA § 19-7-3 (c) (1).

      2. In light of our holding in Division 1, we need not reach Kelly’s remaining

enumerations of error.

      Judgment vacated and case remanded. Gobeil and Coomer, JJ., concur.




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