In the INTEREST OF E. M. , 347 Ga. App. 351 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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
September 20, 2018
In the Court of Appeals of Georgia
A18A1162. IN THE INTEREST OF E. M.
RICKMAN, Judge.
The biological father of E. M. appeals from a juvenile court order terminating
his parental rights to his minor child. For the reasons given below, we affirm.
The record shows that in December 2015, the Juvenile Court of Murray County
entered a dependency removal order for three children, including E. M. (then age
five), arising in part from the children’s mother having tested positive to multiple
controlled substances at the time she gave birth to the youngest of the three children.
The children were placed in foster care. The local Department of Family and Children
Services (“DFCS”) thereafter filed a petition alleging that the children were
dependent, and the court entered a preliminary protective order. At the hearing on the
petition, the mother testified that the appellant, the biological father of only E. M.,1
was incarcerated for “family violence” and that the couple was not married. The
appellant was not present for the hearing. In January 2016, the court found that the
children were dependent because the appellant was incarcerated, the other two
biological fathers had no bond with their children, and the mother was an
unrehabilitated drug user; the court therefore placed custody of the children with
DFCS. All parents were ordered to contact the office of child support enforcement
immediately to establish an account for the payment of any child support obligation,
which was set, at a minimum, at $45 per week for one child pending further
determination.
Separately, the appellant was issued a “reunification/adoption” case plan that
required him to comply with numerous conditions, including that he begin supervised
visits with E. M. once he was released from incarceration “if approved by the courts.”
As of a February 2016 case plan review, the appellant had been appointed
counsel, but he remained incarcerated and did not appear; he was expected to come
up for parole in May 2016. In that same month, he moved to legitimate E. M.
1
The appellant is not the biological father of the other two children, and this
appeal concerns the termination of the appellant’s parental rights to E. M.
2
In December 2016, DFCS filed a petition to terminate the parental rights of all
three children. A hearing on the matter was held on June 20, 2017. The appellant was
still incarcerated at the time of the hearing and not present, although he was
represented by counsel. At the termination hearing, DFCS presented two witnesses,
and the court took judicial notice of the entire record with certain exceptions not
relevant here. The mother was not present because she recently had been arrested on
a new drug charge and was incarcerated. The guardian ad litem and the court-
appointed special advocate (CASA), who were present at the hearing, did not testify,
but the CASA’s reports are included in the record.
Following the hearing, the juvenile court terminated all of the parents’ parental
rights, including the appellant’s. The trial court found (1) that all parents had
wantonly and willfully failed to comply with orders to support their children; (2) that
the children had been abandoned by their parents; and (3) that the children were
dependent due to a lack of proper parental care or control by their parents, that
reasonable efforts to remedy the circumstances were unsuccessful or not required,
that the cause of the dependency of each child was likely to continue or not be
remedied, and that continued dependency would cause or was likely to cause serious
harm to the children.
3
With regard to the appellant specifically, the court found that he had been
incarcerated during the entirety of the case and had failed to complete any case plan
goals; that he “ha[d] a history of use and abuse of illegal drugs and ha[s]
unrehabilitated substance abuse issues”; that he had a “history of repeated criminal
behavior and incarcerations which have had a demonstrably negative effect on the
quality of relationship with his child”; that he has had no relationship with his child
since she entered care; and that he had sent the child only one card and no gifts or
support.
Finally, the court found that the children were bonded to the current foster
parents and vice versa, that DFCS had made reasonable efforts to finalize the
permanency plan, and that it was in the best interests of the children that termination
of parental rights be granted.
We granted the appellant’s application for discretionary review, and this appeal
followed.
1. The appellant first contends that the trial court lacked personal jurisdiction
over him because he was not personally served with process regarding the termination
of his parental rights. This assertion of error, however, is not properly before this
Court.
4
An application for discretionary review must “enumerat[e] the errors to
be urged on appeal,” OCGA § 5-6-35 (b), and so, when we grant
discretionary review, it necessarily is limited to the errors actually
enumerated in the application.
Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013); see also OCGA § 15-
1-2 (“lack of jurisdiction of the person may be waived”). Here, the appellant did not
enumerate lack of personal jurisdiction as an error in his application for discretionary
review, and therefore that enumeration is waived. See, e.g., Lutz v. Lutz, 302 Ga. 500,
502 (1) (807 SE2d 336) (2017).
2. The appellant contends that insufficient evidence was presented to warrant
termination of his parental rights.
On appeal from an order terminating parental rights, we review the
evidence in the light most favorable to the juvenile court’s judgment in
order to determine whether any rational trier of fact could have found by
clear and convincing evidence that the natural parent’s rights to custody
have been lost. We neither weigh evidence nor determine witness
credibility, but defer to the juvenile court’s findings of fact and affirm
unless the appellate standard is not met.
(Citation and punctuation omitted). In the Interest of U. G., 291 Ga. App. 404, 404
(662 SE2d 190) (2008).
5
Construed in favor of the judgment, the evidence presented to the trial
court—as found in the record of the entire proceedings, for which the court took
judicial notice, and as presented at the termination hearing—is set forth either in the
recitation of the procedural facts above, or as follows.
The children had been in DFCS custody since May 28, 2016. The appellant had
“issues with drugs and alcohol”; had not completed any case plan goals; and had
failed to provide DFCS with proof of stable housing or income, drug treatment,
payment of child support, or psychological evaluations. Further, the appellant had not
had a relationship with the child during the two years that DFCS had been involved
and, in the same two years, the appellant had only sent the child one card, no gifts,
and no money or support. The case manager had written to the appellant once a month
since she had become involved and the appellant had responded perhaps four times.
DFCS performed an exhaustive search for appropriate family members with whom
to place the child but found none. DFCS performed a home evaluation of the
appellant’s mother’s home, but her home was not approved because the appellant had
lived there and he had a “drinking problem,” the appellant and the mother had
unspecified “domestic violence” issues, and DFCS could not confirm that the
appellant’s mother would prevent the mother and appellant from living there in the
6
future. E. M. was doing well and strongly bonded with her foster mother but was
receiving counseling due to behavioral issues. Finally, there was testimony that it was
in the children’s best interest to terminate the parental rights of all of the parents.
The court considered the CASA’s reports, which are contained in the record.
The reports show that the appellant never indicated any interest in obtaining custody
of the child, and that the CASA recommended that the appellant’s parental rights be
terminated and that termination was in the child’s best interests.
The court also allowed into evidence certified copies of six criminal multi-
count convictions of the appellant ranging from 2002 to 2015, including at least three
convictions of family violence (battery), one being a felony, as well as a conviction
of second degree cruelty to children because an incident of violence occurred in the
presence of a child. More specifically, in the first case, the appellant was convicted
of family violence battery for striking his spouse about the head and face and
knocking her to the ground; cruelty to children for doing so in the presence of two
children; and disorderly conduct for breaking the windshield of his spouse’s car. In
the second case, the appellant was convicted of obstruction of a law enforcement
officer by fleeing from the officer; he was sentenced to time served plus probation.
In the third case, the appellant was convicted of family violence battery for striking
7
a woman about the head and body and throwing her to the ground. In the fourth case,
the appellant pled guilty to felony family violence battery for striking a woman about
her head and body, dragging her across the floor, and by kicking her. In the fifth case,
the appellant again pled guilty to family violence battery for striking the same victim
about the head and body; in April 2013, he was sentenced to four years to serve two,
with the remainder on probation. Finally, in the sixth case, the appellant was
convicted of two counts of aggravated stalking for violating his previous probation
by having contact with the victim for the purpose of harassing and intimidating her;
he was also convicted of terroristic threats by offering to commit other violent acts
on the same victim. On June 1, 2015, he was sentenced to a total of twelve years to
serve approximately four years and three and a half months (after credit for time
served), with the remainder on probation.
(a) The juvenile code calls for a two-pronged analysis in such a case. See
OCGA § 15-11-310.2 First, the trial court determines whether one of five statutory
grounds for termination has been met, including the three grounds upon which the
court relied in this case:
2
The current juvenile code went into effect on January 1, 2014, before the
original petition in this case was filed on December 12, 2016. See Ga. L. 2013,
p. 294, § 5-1.
8
The parent has wantonly and willfully failed to comply for a period of 12
months or longer with a decree to support his or her child that has been
entered by a court of competent jurisdiction of this or any other state;
A child is abandoned by his or her parent; or
A child is a dependent child due to lack of proper parental care or control
by his or her parent, reasonable efforts to remedy the circumstances have
been unsuccessful or were not required, such cause of dependency is
likely to continue or will not likely be remedied, and the continued
dependency will cause or is likely to cause serious physical, mental,
emotional, or moral harm to such child.
OCGA § 15-11-310 (a) (3), (4), (5).3 These grounds are independent, and thus, on
appeal, if there is sufficient evidence supporting any one of these grounds, we need
not consider the other grounds in order to affirm.4 See, e.g., In Interest of B. D. O.,
343 Ga. App. 587, 591 (1) (807 SE2d 507) (2017); In the Interest of S. G. T., 175 Ga.
App. 475, 477 (2) (333 SE2d 445) (1985). Second, if one or more of these criteria has
been met, the trial court then considers whether termination is in each child’s best
interest by considering certain factors as shown below. OCGA § 15-11-310 (b).
3
The statute was amended in 2018 to include additional language. See Ga. L.
2018, p. __, § 3.
4
Thus, even if aspects of the trial court’s rulings on the other grounds might
be flawed, the appellant cannot show harm as long as the evidence supports the trial
court’s rulings on one ground. See In re M. T. C., 267 Ga. App. 160, 161 (598 SE2d
879) (2004).
9
As shown above, the trial court found three independent statutory grounds for
terminating the appellant’s parental rights in the child, including that he wantonly and
willfully failed to comply for a period of 12 months or longer with a decree to support
his or her child. See OCGA § 15-11-310 (a) (3). The court found as a matter of fact
that the appellant had failed to provide any gifts or support at any time during the
proceedings.
On appeal, however, the appellant references this ground in only one sentence
of his brief: “When asked whether she or anyone at DFCS ever informed [the
appellant] of an amount he was supposed to be paying in child support for his child,
she testified she did not and had no knowledge anyone else with DFCS so informed
him.” The appellant did not otherwise argue or cite any authority to support that the
trial court erred in its finding on this ground. “Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.” Court of Appeals Rule 25. Pretermitting whether the appellant
abandoned this argument, however, we conclude that clear and convincing evidence
was presented to support this independent ground for terminating the appellant’s
parental rights.
10
First, on January 19, 2016, the appellant was ordered by the court to pay
support of $45 per week pending further determination. Although the DFCS case
manager admitted that she had not personally informed the appellant of the required
amount of support, this order provided the appellant with the required information.
And it is undisputed that the appellant was represented by counsel as of February 22,
2016, if not before. Next, the DFCS case manager testified that the appellant failed
to provide any support for the child through the date of the final hearing on June 20,
2017, well over 12 months after the date of the court order requiring him to support
the child. Thus, the undisputed evidence supports the trial court’s finding that the
appellant failed to comply for a period of 12 months or longer with a decree to
support his child. See OCGA § 15-11-310 (a) (3).
With regard to the finding that the appellant’s actions were wanton and willful,
although it is true that an inability to earn income due to incarceration may constitute
justifiable cause for failing to pay child support, see In re G. W. R., 270 Ga. App. 194,
199 (2) (606 SE2d 281) (2004), here, the appellant failed to offer any explanation
whatsoever for failing to pay any support. Id.; see also In the Interest of M. J. P., 290
Ga. App. 184, 187 (659 SE2d 402) (2008) (“incarceration does not per se give rise
to justifiable cause”). The court therefore was authorized to conclude that the
11
appellant’s failure to pay support was wanton and willful. See In re A. D. L., 253 Ga.
App. 64, 68 (2) (557 SE2d 489) (2001) (appellant’s failure to show lack of ability to
pay contributed to trial court’s finding by clear and convincing evidence of wanton
and willful failure to pay court-ordered child support for a period of 12 months or
more); In Interest of J. M. H., 203 Ga. App. 856, 857 (1) (418 SE2d 128) (1992)
(clear and convincing evidence of wanton and willful failure to pay court-ordered
support shown where appellant “offered no evidence of justifiable cause for not
supporting his child”); cf. In the Interest of S. R. M., 283 Ga. App. 463, 468 (2) (a)
(641 SE2d 666) (2007) (imprisoned parent may present testimony to the court by
affidavit or deposition).
Combined with the appellant’s almost complete lack of contact with the child,
we conclude that appellant’s failure to explain his failure to pay court-ordered support
provided sufficient evidence to show that the appellant wantonly and willfully failed
to comply for a period of 12 months or longer with a decree to support his child. See
OCGA § 15-11-310 (a) (3); In Interest of J. M. G., 214 Ga. App. 738, 739 (3) (448
SE2d 785) (1994) (wanton and willful failure to pay court-ordered support for more
than one year supported termination under prior similar statute); In Interest of G. K.
J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988) (same).
12
(b) The appellant also contends that insufficient evidence was presented to
show that termination of his parental rights was in the best interests of the child. The
statute applicable to this case5 provided that when addressing the best interests of the
child, the court consider the following factors:
(1) Such child’s sense of attachments, including his or her sense of
security and familiarity, and the continuity of affection for such child;
(2) Such child’s wishes and long-term goals;
(3) Such child’s need for permanence, including his or her need for
stability and continuity of relationships with a parent, siblings, and other
relatives; and
(4) Any other factors, including the factors set forth in Code Section 15-
11-26, 6 considered by the court to be relevant and proper to its
determination.
OCGA § 15-11-310 (b).
The trial court found that termination of the appellant’s parental rights
was in the child’s best interests in part because the appellant “essentially had no
relationship with the child since she entered care”; he sent the child only one
5
The statute was amended in 2018. See Ga. L. 2018, p. _, § 3.
6
“OCGA § 15-11-26 sets forth an additional, non-exhaustive list of factors the
court can consider in determining the best interests of the child.” In Interest of B. D.
O., 343 Ga. App. 587, 591 n. 6 (807 SE2d 507) (2017). These include “[a]ny other
factors considered by the court to be relevant and proper to its determination.” OCGA
§ 15-11-26 (20).
13
card during the pendency of the case; he failed to send any gifts or support; and
he had “a history of repeated criminal behavior and incarcerations that have had
a demonstrably negative effect on the quality of [the] relationship with his
child.”
The evidence cited above supports these findings. The record shows that
the appellant never indicated that he wanted custody of the child; that with one
exception in 18 months, he failed to communicate with the child; that he failed
to pay court-ordered support; that he had been incarcerated repeatedly for
violence, including family violence; that in one incident, he committed family
violence in the presence of a child; that, at a minimum, the appellant had a
drinking problem; that the child was bonded to her current foster parents and
was doing well; and that the CASA opined that it was in the child’s best interests
to terminate the appellant’s parental rights. These findings are sufficient to
support the court’s conclusion that termination of the appellant’s rights was in
the child’s best interests as is evident from best-interest factors found in the
Code. See OCGA § 15-11-26 (2) (“[t]he love, affection, bonding, and emotional
ties existing between such child and each parent”); OCGA § 15-11-26 (4) (the
“[s]uch child’s need for permanence”); OCGA § 15-11-26 (6) (“[t]he capacity
14
and disposition of each parent or person available to care for such child to give
him or her love, affection, and guidance”); OCGA § 15-11-26 (8) (“[t]he
stability of the family unit”); OCGA § 15-11-26 (18) (“[a]ny evidence of family
violence, substance abuse, criminal history”); and OCGA § 15-11-26 (19)
(“[a]ny recommendation by a court appointed custody evaluator”). Cf. In
Interest of B. D. O., 343 Ga. App. 587, 592 (2) (807 SE2d 507) (2017) (“the
same evidence that shows a lack of parental care and control can also support a
finding that termination is in a child’s best interests”).
(3) Finally, citing OCGA § 15-11-202, the appellant contends that the trial
court erred by concluding that DFCS used reasonable efforts to reunify the
appellant and his child. He argues further that he was entitled to a case plan that
contained achievable goals and assistance in meeting those goals.
(a) A review of the Juvenile Code shows that OCGA § 15-11-202 pertains
to dependency proceedings, not termination proceedings. Termination
proceedings are a separate matter and are governed by Article 4 of the Juvenile
Code. See OCGA § 15-11-260 et seq. The purpose of a termination proceeding
is to protect children who already have been adjudicated as dependent from
parents unwilling or unable to provide safety and care adequate to protect the
15
children, “by providing a judicial process for the termination of all parental
rights and responsibilities.” OCGA § 15-11-260 (a) (1). The “reasonable efforts”
requirement pertaining to termination proceedings is found in OCGA § 15-11-
310 (a) (5), which, as applicable to this case, provided for termination of
parental rights if:
A child is a dependent child due to lack of proper parental care or
control by his or her parent, reasonable efforts to remedy the
circumstances have been unsuccessful or were not required, such
cause of dependency is likely to continue or will not likely be
remedied, and the continued dependency will cause or is likely to
cause serious physical, mental, emotional, or moral harm to such
child.
(Emphasis supplied). Nothing else in Article 4 of the Juvenile Code references
“reasonable efforts” or OCGA § 15-11-202. For the above reasons, we conclude
that OCGA § 15-11-202 is not applicable to the issue of the appellant’s failure
to comply with a support decree. Cf. In Interest of V. S., 230 Ga. App. 26, 30-31
(2) (495 SE2d 142) (1997) (holding that, under prior version of the Juvenile
Code, procedures contained in statute pertaining to orders of disposition
removing a child from the home of his parents and placing him in the State’s
care did not pertain to proceedings to terminate parental rights); In re F. C., 248
16
Ga. App. 675, 679 (2) (549 SE2d 125) (2001), disapproved on other grounds by
Miller v. State, 285 Ga. 285 (676 SE2d 173) (2009) (under prior version of the
Juvenile Code, statute regarding reasonable efforts for reunification pertaining
to removal and placement orders did not pertain to termination proceedings).
And, because we are affirming the trial court’s termination order based on
the third of five independent grounds for termination, see OCGA § 15-11-310
(a) (3), we need not address whether the trial court had sufficient evidence to
support termination under OCGA § 15-11-310 (5), which contains the only
“reasonable efforts” clause related to termination proceedings. Similarly,
because our holding does not depend on the trial court’s conclusion that the
appellant failed to meet the requirements of his case plan, the appellant’s
argument that the trial court erred with regard to that holding does not require
a reversal.
Judgment affirmed. McFadden, P. J., and Ray, J., concur.
17