In the INTEREST OF T. S., a Child. , 830 S.E.2d 789 ( 2019 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
July 1, 2019
In the Court of Appeals of Georgia
A19A0223. IN THE INTEREST OF T. S., a child. DO-009
DOYLE, Presiding Judge.
Following the grant of his discretionary application, the father of T. S., who
was 22 months old when he was taken into care, appeals the trial court’s order
terminating his parental rights. For the reasons that follow, we reverse.
On appeal from a juvenile court’s order terminating parental
rights, we view the evidence in the light most favorable to the juvenile
court’s ruling, and our review is limited to addressing the question of
whether any rational trier of fact could have found by clear and
convincing evidence that [the father’s] rights should have been
terminated. In this review, we must necessarily defer to the juvenile
court’s fact finding, weighing of the evidence, and credibility
determinations.1
1
(Punctuation omitted.) In the Interest of T. A., 331 Ga. App. 92 (1) (769 SE2d
797) (2015).
Viewed in this light, the record shows that T. S. was taken into care in late
2015 when the maternal grandmother filed a complaint of inadequate supervision
against the mother. The Department of Family and Child Services (“the Department”)
investigated and determined that the mother was using methamphetamine. Only the
mother and maternal grandmother appeared at the dependency hearing, at which the
mother testified that T. S. was the father’s biological child even though he had not
filed a petition to legitimate. When asked where the father lived, the mother stated
that he lived in Tennessee with his mother, but he had been living at her residence as
well; the mother stated the father failed to come to the hearing because of his job.
Based on the mother’s drug usage, the Department recommended that the
juvenile court temporarily place T. S. and his older half-brother, W. S., with the
maternal grandmother until the mother completed a case plan.2 The court entered a
visitation schedule for the mother, and it directed that she pay $40 a week in child
support to the grandmother. The court explained to the mother that its custody order
was in place until the children turned 18 or when the mother completed her case plan
2
Neither the mother, nor the half-brother, nor the half-brother’s father are
parties to this appeal.
2
and filed a motion with the court for return of custody. The trial court granted
temporary custody to the grandmother in a provisional dependency order entered on
February 23, 2016, nunc pro tunc to February 9, 2016. The dependency order notified
“all parents” that in order to have custody returned they must obtain and maintain
stable housing and income for a period of six consecutive months, complete a
parenting class, visit the children, and pay child support, which the court directed the
father to pay to the grandmother in the amount of $40 per week.
On April 12, 2017, the grandmother filed an omnibus motion to suspend
visitation/motion for contempt for failure to pay child support against the mother. At
the May 2, 2017 hearing on the grandmother’s motion, she testified that she took the
children to the mother’s home for visitation every Sunday afternoon and had done so
since the children were placed in her care. She testified that the father was there
because he and the mother were married shortly after the dependency order was
issued, and the father was rude to her at the visits, slammed doors, shouted, and
cursed. The grandmother testified that T. S. did not understand what was going on
with regard to any of the father’s inappropriate behavior. The grandmother’s
testimony largely covered her interactions with and bad feelings toward the father and
the father’s and mother’s arguments. The father appeared without counsel, and he was
3
not allowed to speak or take the stand. Thereafter, the trial court granted the
grandmother’s omnibus motion on May 9, 2017, nunc pro tunc to May 2, 2017.
On May 12, 2017, the grandmother moved for contempt for failure to pay child
support against the father, which the juvenile court granted on July 28, 2017 nunc pro
tunc to July 19, 2017. In the motion, the grandmother argued that the father had been
ordered to pay $65 per week; in fact, the temporary custody order ordered him to pay
$40 per week.
The trial court granted the motion and found that the father was $2,660 in
arrears as of July 14, 2017, and ordered the father to pay $300 on July 19, 2017, and
then pay $40 per week plus an additional $10 per week until the balance was paid.
On April 12, 2017, the grandmother also filed a petition for termination of
parental rights against the father,3 contending that he had for a period longer than
twelve months (1) failed to comply with a decree of support and (2) failed to comply
with the reunification plan; (3) that the children were dependent, and the dependency
was likely to continue; (4) the children were being harmed by continuing to maintain
visitation; and (5) it was in the children’s best interests to terminate parental rights.
3
The grandmother’s petition also named the father of T. S.’s half-brother and
the mother.
4
On September 15, 2017, nunc pro tunc to April 26, 2016, the court entered an
order finding that service on the father of notice of the dependency hearing granting
the grandmother custody had been perfected by publication. The father moved for
reconsideration of this order, arguing that at the time of the dependency hearing, he
had been residing with the mother and that the grandmother and the Department were
aware of how to serve him in person. The juvenile court vacated the April 26, 2016
order, finding that the father was entitled to personal service because his whereabouts
were known to the Department, personal service had not occurred, and thus no service
of process of the initial dependency action filed against the father was made.
Nevertheless, the juvenile court found “no other irregularity in that dependency
action, [and] the dependency order regarding [T. S.] is otherwise left unchanged by
this order.”
At the September 19, 2017 termination hearing, the father appeared with
counsel. The trial court entered an order terminating the father’s parental rights on
April 2, 2018. The trial court found that the father had administratively legitimated
T. S. shortly after birth, but had failed to support the child from the time the child was
removed from the mother until the petition to terminate was filed. The father also did
not attempt to establish a visitation schedule with the child for the 16 months prior
5
to the termination hearing and did not file any action demanding custody. Thus, the
court found T. S. dependent under OCGA § 15-11-310 (a) (3). The court also found
that pursuant to OCGA § 15-11-310 (a) (5), T. S. was a dependent child due to “lack
of proper parental care or control,” largely based on the father and mother’s
arguments with the grandmother or their arguments with each other. The trial court
also found that the father failed to pay child support for over 12 months under OCGA
§ 15-11-310 (a) (3).
1. As an initial matter, we must address whether the father timely filed his
application for discretionary appeal from the juvenile court’s order.4 The juvenile
court entered the termination order on April 1, 2018. Thereafter, the order was
amended on April 24, 2018, stating that the termination hearing occurred on
September 19, 2017, rather than June 6, 2017. The father’s application for
discretionary appeal of the termination order was filed on May 18, 2018, so it was
timely as to the amended termination order but not as to the April 1 order.5 Our courts
4
See In the Interest of B. R. F., 299 Ga. 294, 298 (788 SE2d 416) (2016)
(holding that an appellate court lacks jurisdiction over an untimely application for
discretionary appeal).
5
See OCGA § 5-6-35 (d) (an application for discretionary review must be filed
within 30 days of entry of the complained-of order).
6
previously have determined that a trial court’s entry of a corrected final order extends
the time for filing an appeal or discretionary application based on the date the
corrected order is entered.6 Although the April 24 order arguably does not include a
change to the final judgment or correction of error as facially significant as the
changes made by trial courts in those cases, the juvenile court included a recitation
of the multiple continuances that occurred between the original termination hearing
date and the final hearing date in its amended order. We glean from this extended
recitation that the trial court believed correcting the termination hearing date to be
material to its order and intended this April 24 order to be its final order, and
therefore, the discretionary appeal application was timely filed.7
6
See Underwood v. Underwood, 282 Ga. 643, 644 (1) (651 SE2d 736) (2007)
(order correcting the amount of life insurance policy in a final divorce decree resulted
in an extension of time from which to file a timely discretionary application); Morton
v. Macatee, 345 Ga. App. 753, 756, n.1 (815 SE2d 117) (2018) (trial court’s entry of
a corrected order substituting proper names rendered timely the discretionary appeal
application filed within 30 days of the corrected order); First Southern Bank v. C&F
Svcs., Inc., 290 Ga. App. 304, 306 (1) (659 SE2d 707) (2008) (substituted order
correcting scriveners error regarding the amount of judgment extended the time for
filing the notice of appeal); Nodvin v. West, 197 Ga. App. 92, 94 (1) (397 SE2d 581)
(1990) (order correcting omission of post-trial interest was amended and constituted
an appealable final order).
7
See e.g., Underwood, 282 Ga. at 644 (1); Morton, 345 Ga. App. at 756, n.1;
First Southern Bank, 290 Ga. App. at 306 (1); Nodvin, 197 Ga. App. at 94 (1).
7
2. The father argues that the evidence was not sufficient to support termination
of his parental rights and that termination was not in the child’s best interest.8
(a) The trial court found that the father had “wantonly and willfully failed to
comply for a period of 12 months or longer with a decree to support his . . . child that
has been entered by a court of competent jurisdiction of this . . . state.”9 But the trial
court had set aside the dependency order as to the father because it found that
although the Department was aware of the father’s whereabouts, it had failed to serve
him properly. Therefore, the trial court erred by basing its finding of dependency on
time during which the father had not been served10; moreover, at most five months
8
The grandmother contends that the father failed to argue that he had not
abandoned T. S.; however, the juvenile court found T. S. dependent based on OCGA
§ 15-11-310 (a) (3) and (a) (5). To the extent that the juvenile court intended to find
him dependent under OCGA § 15-11-310 (a) (4), our holding that the court erred by
making findings based on the dependency order after finding that the father was not
properly served would also apply to any implicit findings under that Code section.
9
OCGA § 15-11-310 (a) (3).
10
Compare with In the Interest of D. R. W., 229 Ga. App. 571, 574-576 (2)
(494 SE2d 379) (1997) (holding that mother could not raise insufficiency of service
of process because she was represented by counsel at the termination hearing and
failed to raise the issue). To the extent that the father appeared at the May 2, 2017
hearing on the contempt motion and petition to suspend visitation as to the mother,
he was not represented nor was he allowed to speak. Accordingly, that hearing did not
constitute the father’s first opportunity to raise the issue.
8
had passed since the father was properly served with anything related to the case, and
during that time, he paid at least $1,020 in child support and cured the court’s
contempt order.11
(b) Again, because the trial court also found that T. S. was a dependent child
due to lack of proper parental care or control based on time during which the father
had not been served with the dependency petition, this finding is improper. First, the
father cured the juvenile court’s contempt order on failure to pay child support by the
time of the termination hearing. The father also visited with T. S. from the time when
he was removed until the mother’s visitation was terminated in May of 2017, so at
most, at the time of the hearing, he had not seen T. S. for the final three months prior
to the hearing. Moreover, at the termination hearing, the father had rented his own
home and had been living separately from the mother for most of the preceding four
months. He was gainfully employed and had paid at least $1,020 in child support over
the preceding few months. The father also started parenting classes in June and had
completed ten out of fifteen at the time of the hearing.
11
The father was served with the grandmother’s petition to terminate parental
rights in April 2017, and the termination hearing occurred on September 19, 2017.
9
Although it is apparent from the record that there are issues among the family
members that needed to be addressed,12 the juvenile court erred by terminating the
father’s rights after finding that he had not been served properly regarding the
dependency petition or the order.13 First, T. S. initially was taken into care based upon
the mother’s drug use, and there was no showing that the father had that same issue.
Additionally, the father had progressed with his case plan, was living separate from
the mother, and had cured the child support contempt by the time of the termination
hearing. Thus, the trial court’s specific finding that the dependency was likely to
continue is not supported by clear and convincing evidence.14
(c) Because the juvenile court erred by finding that the statutory grounds for
termination were met, we need not reach the issue of the best interest of the child
under OCGA § 15-11-310 (b).
12
The behavior upon which the juvenile court found dependency was centered
on the interpersonal relationships of the mother, father, and grandmother, rather than
any testimony about the father’s relationship with T. S.
13
Compare with In the Interest of C. J. L. C., 293 Ga. App. 848, 853 (3) (668
SE2d 821) (2008).
14
See In the Interest of K. J., 226 Ga. App. 303, 303-306 (1) (486 SE2d 899)
(1997) (reversing a termination order based on the juvenile court’s finding that
dependency was likely to continue because it lacked clear and convincing evidence).
10
3. Based on our holding in Division 2, we need not address the father’s due
process argument.
Judgment reversed. Coomer and Markle, JJ., concur.
11