Steele v. Steele. , 346 Ga. App. 196 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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
June 11, 2018
In the Court of Appeals of Georgia
A18A0353. STEELE v. STEELE.
BARNES, Presiding Judge.
Stephanie Steele (“biological mother”) appeals a judgment that, pursuant to
OCGA § 19-8-10 (b), terminated her parental rights to her biological child and
granted the adoption petition of the child’s stepmother, Sara Steele (“adoptive
mother”). The biological mother contends that the trial court erred by failing to
inform her of her right to counsel, engaging in ex parte communications, failing to
make express findings of fact, and entering judgment against her on insufficient
evidence. Because the biological mother has failed to demonstrate any reversible
error, we affirm.
The record reflects that the child was born in wedlock. When her parents
divorced on April 21, 2011, she was three years old. The father was awarded physical
custody of the child, as well as final decision-making authority. The biological
mother was granted visitation that included every other weekend and alternating
major holidays; she also was ordered to pay $245 as monthly child support.1 Each
parent was granted telephone contact with the child when the child was with the other
parent.
In 2012, the father married Sara Steele. And about four years later, on March
15, 2016, she filed petitions under Georgia’s Adoption Chapter2 seeking to terminate
the parental rights of the biological mother and to adopt the child. The adoption
petition was accompanied by the father’s sworn consent.
Generally, a stepparent may adopt his or her spouse’s child only if the parent
whose rights will terminate with the adoption “voluntarily and in writing surrenders
all of his [or her] rights to the child to [the stepparent] for the purpose of enabling [the
stepparent] to adopt the child[.]” OCGA § 19-8-6 (a) (1); see Ray v. Hann, 323 Ga.
App. 45, 48 (2) (746 SE2d 600) (2013). But if that parent refuses to surrender his or
her parental rights, OCGA § 19-8-10 (b) provides that the court may nevertheless
1
The biological mother received a credit on child support in an amount that
paid what was owed until June or July 2012.
2
See OCGA § 19-8-1 et seq.
2
terminate the biological parent’s rights and grant the stepparent’s petition to adopt the
child where the trial court finds that the parent,
for a period of one year or longer immediately prior to the filing of the
petition for adoption, without justifiable cause, has significantly failed:
(1) To communicate or to make a bona fide attempt to communicate
with that child in a meaningful, supportive, parental manner; or (2) To
provide for the care and support of that child as required by law or
judicial decree[.]
OCGA § 19-8-10 (b) (1). See Ray, 323 Ga. App. at 48-49 (2). “It is the petitioner[&s]
burden to prove that termination of the parental rights is warranted, including the lack
of justifiable cause.” (Citation and punctuation omitted.) Ray, 323 Ga. App. at 49 (2).
If the petitioner meets that burden of proof, then the court must also determine
whether the proposed adoption is in the best interest of the child. OCGA § 19-8-10
(b). See Ray, 323 Ga. App. at 49 (2).
In the instant case, given the adoptive mother’s petitions, the trial court
convened a series of hearings. Notice was sent to the parties that on June 29, 2016,
a hearing would be held on the termination petition; the petition alleged, inter alia,
that the biological mother had been using methamphetamine; that her last physical
contact with the child had been in mid-2014; that her last telephone contact with the
3
child had been in December 2014; and that the biological mother had failed to
provide court-ordered support for the child.
When that hearing convened as scheduled (“Termination Hearing”), the child
was 8 years old. The biological mother had not filed any response in the case, but she
appeared pro se at the hearing and expressed opposition to the petitions. When called
to the stand by the adoptive mother’s counsel, the biological mother acknowledged
that as part of the divorce decree, she was court-ordered to pay monthly child support,
but that she had not done so.3 She recounted that in early 2012, she began using
methamphetamine. And since 2013, she further recounted, she had not been “legally”
employed; as she explained at the hearing, “I was work – I was on the streets.” She
recalled that during that time, she was sometimes “staying at motels,” but otherwise
was “homeless on the streets.”
In August 2014, the biological mother testified, her visitation with her child
was modified to require supervision. But since June 2014, the biological mother
admitted, she had not exercised any visitation rights. She further explained that she
had not tried to contact her child because most of the time, “I was either – high or
intoxicated – and I didn’t want to call her when I was – in that state.” In November
3
See, however, note 1, supra.
4
2015, she was arrested and jailed until late January 2016; the charges stemmed from
violating probation (relating to June 2015 offenses of DUI and giving false
information). She relayed that, as part of the disposition of that case, she was ordered
to undergo a year of rehabilitation. In January 2016, she moved to Missouri, where
she entered a rehabilitation program. At the time of the Termination Hearing, she had
completed about six months of the program, and she had begun volunteering at the
facility’s senior center. The biological mother was asked at the Termination Hearing,
“[D]o you feel like you’re in a position to be a mother to your child at this time?” She
answered, “Not at this point, no.” She stated that she was returning to Missouri later
that day, but posited that she could “probably travel here to visit with her [child].”
At the end of the Termination Hearing, the trial judge announced that it
planned to “take this part under consideration,” then issue a written order, and
thereafter “take the evidence as far as the petition for adoption is concerned.”
In an order entered July 5, 2016 (“Interim Order”), the trial court determined
that the adoptive mother had adduced at the Termination Hearing sufficient evidence
to satisfy both OCGA § 19-8-10 (b) (1) and (2). The trial court set out its underlying
findings: the biological mother had no contact with the child since 2014; this lack of
contact was not caused by any circumstance beyond the biological mother’s control,
5
but was due instead to her decision to partake in drugs, to live on the streets and in
various motels, and to earn money through illegal activities. In addition, the court set
forth that the biological mother had been court-ordered to pay child support, but
admittedly had not done so; and that such failure was similarly without justifiable
cause, ascertaining that the biological mother could have legally earned money and
paid child support or that she could have paid child support out of her illegal
earnings.4 Finally, the court noted in the Interim Order that the Termination Hearing
had not addressed the best interest of the child prong, and thus concluded its order
with: “[T]he Court finds that there is clear and convincing evidence that the parental
rights of [the biological mother] may be terminated but holds in abeyance a ruling
until there is clear and convincing evidence as to what is the best interest of the
child.”
Counsel for the adoptive mother scheduled the next hearing, which convened
on August 18, 2016 in the judge’s chambers. The biological mother was not present
(nor represented). Thereafter, the court entered judgment on October 18, 2016 that
granted the adoptive mother’s petitions for termination and adoption. It was later
4
The court expressly took into account that the biological mother’s initial
credit went though mid-2012. See note 1, supra.
6
determined, however, that the biological mother had not been notified of the in-
chambers hearings. The biological mother, who by that time had obtained counsel,
filed a motion for recusal of the trial judge and a motion for new trial. Rulings thereon
resulted in the trial judge being disqualified, the case transferred, the October 18,
2016 judgment vacated, and the case proceeding with a new evidentiary hearing on
the issue of whether adoption was in the child’s best interest.
When the court subsequently convened such hearing on June 29, 2017, the
child’s father took the stand and reported that the child had turned 9 years old, was
going into the fourth grade, was excelling in school, and was enjoying playing sports
and engaging in various hobbies. He testified that his wife was a great mother to the
child, had supported the child, taken care of her, helped her with her homework, and
had “just always been there.” He asserted that he very much wanted his wife to adopt
the child, that their home had three bedrooms and two bathrooms, that they had
transportation, and that their family unit was financially stable.
The adoptive mother took the stand. She described how she and the child’s
father coordinated their respective full-time jobs to accommodate the child’s needs
and schedule. She detailed that she routinely helped the child with her homework,
that the child was an honor-roll student, that the child loved school, that she had many
7
friends, and that she participated in dance and soccer. Her pediatric and dental visits
showed that she was a healthy child; and she was getting ready for braces. The
adoptive mother further expressed that because of their years together, she and the
child enjoyed a strong bond.
The biological mother also took the stand. She updated the court that she had
left the rehabilitation program after 10 months. She had not completed the program;
nor had she obtained the sentencing court’s permission to discontinue the
rehabilitation. She further conceded that she had unsuccessfully tried rehabilitation
about six times before. She had left the most recent rehabilitation facility, she
explained, because she had become romantically involved with a man she had since
married; she was pregnant and expecting to deliver the baby in about 6 weeks.
The biological mother reported that her probationary period would not end for
another year, but that she remained in contact with her probation officer in Georgia.
She reported that she had not used any drugs since leaving the rehabilitation program,
and that her most recent drug tests had been negative. Additionally, she testified, her
volunteering at the senior center had led to a part-time job there, where she was
assisting the cooks and working with the meals-on-wheels program. When asked,
8
“[D]o you feel at this point that you’re in a place where you’d be able to be
productive in supporting [the child]?” She answered, “Yes.”
Thereafter, on July 14, 2017, the trial court entered the judgment that is on
appeal (“Final Order”). Therein, the court referenced the Interim Order, which found
that the adoptive mother had adduced sufficient evidence that the biological mother
had failed, as contemplated by OCGA § 19-8-10 (b) (1) and (2), to communicate or
attempt to communicate with the child, and/or to provide for the child during the
relevant period. In the Final Order, the court went on to recite that on June 29, 2017,
it had conducted an evidentiary hearing on whether adoption would be in the child’s
best interest. The court then set out these findings of facts that it concluded amounted
to clear and convincing evidence that granting the adoptive mother’s petitions was
in the child’s best interest: the child’s father and adoptive mother were married; they
both worked and were financially stable; the child was in good health, doing well in
school, and was well adjusted; the child had a strong bond with the adoptive mother;
the adoptive mother was capable of providing the home that the child should have;
and the adoptive mother was physically, mentally, financially, and in all other
manners a fit and proper person to adopt the child. The court thus granted the
9
adoptive mother’s petitions, thereby allowing her to adopt the child. This appeal
ensued.
1. Pointing to her pro se participation in the Termination Hearing, the
biological mother claims that she had been “unaware that she could request counsel
as an indigent and would have most likely qualified had she known she needed to.”
She thus charges the trial court with error by failing to inform her of her “right to
counsel” under OCGA § 15-11-262.
That Code section provides that “[a] child and any other party to a proceeding
under this article [referring to the Termination of Parental Rights Article within the
Juvenile Code] shall have the right to an attorney at all stages of the proceedings
under this article.” (Emphasis supplied.) OCGA § 15-11-262 (a). Additionally, that
Code section provides that “[a] party other than a child shall be informed of his or her
right to an attorney prior to the adjudication hearing and prior to any other hearing at
which a party could be subjected to the loss of residual parental rights.” OCGA § 15-
11-262 (j). See generally In the Interest of B. R. F., 299 Ga. 294, 294, n. 1. (788 SE2d
416) (2016) (“The appointment of counsel in a termination of parental rights
proceeding is now codified at OCGA § 15-11-262 as part of the new Juvenile
Code.”); Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976)
10
(noting that the Juvenile Code “provides that a parent is entitled to have counsel
appointed to represent that parent in the [termination] proceeding if counsel cannot
be employed without undue financial hardship”).
However, in Johnson v. Hauck, 344 Ga. App. 848 (812 SE2d 303) (2018), this
Court clarified that the right to counsel provided by OCGA § 15-11-262 does not
extend to adoption proceedings pursued, as in the instant case, under OCGA § 19-8-
10.
Georgia’s legislature has mandated that, in termination proceedings
conducted under the Juvenile Code, an indigent parent has a statutory
right to appointed counsel. See OCGA § 15-11-262 (a) (“A child and
any other party to a proceeding under this article shall have the right to
an attorney at all stages of the proceedings under this article.”). . .
[H]owever, that same statutory protection was not extended to an
indigent parent in adoption proceedings conducted pursuant to OCGA
§ 19-8-10, despite the fact that those proceedings may ultimately end in
the termination of his or her parental rights. See OCGA § 19-8-1 et seq.
(Citations omitted.) Johnson, 344 Ga. App. 854 (2).5
5
Notably, OCGA § 19-8-10 (c) provides that a parent “may appear in the
pending adoption action and show cause why such parent’s rights to the child sought
to be adopted in that action should not be terminated by that adoption”; but that
statutory provision does not go on to establish the right to appointed counsel for an
indigent parent in the manner of OCGA § 15-11-262 (relied upon by the biological
mother).
11
As this Court further resolved in Johnson, “[t]he propriety of that legislative
decision is not for this Court to decide. See generally Commonwealth Investment Co.
v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (“[T]he legislature, and not the
courts, is empowered by the Constitution to decide public policy, and to implement
that policy by enacting laws.”).” Johnson, 344 Ga. App. at 854 (2). In light of the
foregoing, the biological mother’s contention – hinged on the applicability of OCGA
§ 15-11-262 – fails. “Since the adoption statutes do not require the appointing of an
attorney for the [parent], the trial court did not err in failing to [advise the biological
mother as to any rights to be] appoint[ed] an attorney pursuant to [OCGA § 15-11-
262].” Arrington v. Hand, 193 Ga. App. 457, 458 (4) (388 SE2d 52) (1989).6
2. The biological mother maintains that the trial judge engaged in ex parte
communications during that in-chambers hearing (after which that judge entered
judgment purportedly granting the adoptive mother’s petitions for termination and
adoption). The biological mother cites that she was not given notice of that hearing
6
Accord In the Interest of B. R. F., 299 Ga. at 297 (“The termination of
parental rights is a civil matter. Civil litigants typically do not enjoy a constitutional
right to counsel.”) (citations omitted); DeKalb County v. Adams, 272 Ga. 401, 403 (2)
(529 SE2d 610) (2000) (reasoning that the trial court “was not authorized to appoint
counsel to represent an indigent civil petitioner absent a statutory or constitutional
provision to compel payment with State or county funds”).
12
and was neither present nor represented. She asserts that she had a right to be afforded
opportunity to be present at that hearing, because at that time, no order terminating
her parental rights had been entered. But given remedial actions taken in response to
the biological mother’s motions for recusal and for new trial, we find no reversible
error.
The record reveals that the biological mother raised this precise issue in a
motion seeking recusal of that judge. When that recusal motion was assigned to a
different judge, the assigned judge held a hearing, then entered an order finding these
facts:
[T]he trial judge [in question] relied upon the [adoptive mother’s]
attorney to notify the [biological mother] of the [in-chambers] hearing.
Although the [adoptive mother’s] attorney failed to do so, he
immediately took corrective action when he realized the failure by
informing the trial judge and having the hearing reset.
The assigned judge then ascertained that the failure to give notice was “inadvertent,”
but nevertheless ruled that the in-chambers hearing amounted to ex parte
communications and that: “[T]he Motion to Recuse is hereby GRANTED and the trial
judge is hereby Disqualified from presiding over any further proceedings in this
13
matter.” Accordingly, the instant case was transferred to a different judge for
decision on the biological mother’s then pending motion for new trial.
At this point in the proceedings below, as mentioned above, the judge in
question had already entered judgment on October 18, 2016 granting the adoptive
mother’s petitions. So in her motion for new trial, the biological mother asserted
again that the in-chambers hearing had deprived her of her right to participate fairly
in this matter; and she explicitly requested that the October 18, 2016 judgment be set
aside and that she be granted a new trial. After a hearing, the trial court entered an
order recapping that the biological mother’s motion to recuse had been granted, that
the initial presiding judge was then disqualified from presiding over any further
proceedings, and that the case had accordingly been transferred. Turning to the merits
of the new trial motion, the trial court: (i) vacated the October 18, 2016 judgment;7
(ii) ruled that the Interim Order (entered prior to the in chambers hearing) was “not
vacated and remains in effect”; and (iii) announced that a new evidentiary hearing on
the best interest of the child would be held. And as the record confirms, such hearing
was conducted on June 29, 2017, after which the trial court entered the Final Order.
7
See Prater v. State, 222 Ga. App. 486, 488 (474 SE2d 684) (1996) (“In civil
cases, orders improperly rendered without notice or the opportunity to be heard are
‘nugatory’ or a nullity.”).
14
At this juncture, the biological mother contends that the handling of the ex
parte communications did not go far enough, insisting that she was entitled to a new
trial on all matters. The biological mother has not, however, supported her position
with any authority mandating further relief; and we find none. The judge who ruled
on the recusal motion ascertained that the failure to give notice to the biological
mother had been inadvertent. Nevertheless, the judge in question was disqualified,
the October 18, 2016 judgment (entered by that judge) was vacated, the case was
transferred, and a new evidentiary hearing on the child’s best interest was conducted
(by a different judge). There is no dispute that the biological mother had ample notice
of that hearing, and the record confirms that she appeared with counsel. While the
Interim Order was left in effect, that order was entered before the in-chambers
hearing; and that entry was made only after a full evidentiary hearing (Termination
Hearing) at which the biological mother appeared and was afforded opportunity to be
heard. Indeed, the Interim Order clearly specified the evidence underlying the
determination that circumstances contemplated by OCGA § 19-8-10 (b) (1) and (2)
had been demonstrated by the adoptive mother – and none of that evidence could
have stemmed from the (subsequent) in-chambers hearing.
15
Given the foregoing, the biological mother has failed to show that the in-
chambers hearing mandated relief beyond that granted by the rulings on motions for
recusal and for new trial.8 See Ivey v. Ivey, 264 Ga. 435, 438 (3) (445 SE2d 258)
(1994) (rejecting for lack of harm a father’s complaint that the trial court considered
ex parte communications in ruling on custody, because although the trial court
admittedly received numerous letters and telephone calls from both of the parents’
friends and relatives regarding their respective parenting abilities, the trial court
clearly specified the evidence that it relied upon in deciding custody, and there was
“no indication in the record that the trial court gave any consideration to the ex parte
communications”); Arnau v. Arnau, 207 Ga. App. 696, 697 (1) (429 SE2d 116)
(1993) (reversing final order terminating father’s visitation rights, where after trial
on the merits of the mother’s modification petition, the trial court held an ex parte
meeting with a trial witness; yet leaving intact an interim consent order entered by
8
The biological mother suggests in her brief that some other ex parte
communication occurred. With respect to this suggestion, however, she has provided
no relevant record cite, has given no indication as to what might have been said and
under what circumstances, and has provided no legal analysis. To the extent the
suggestion was intended to be a claim of error, it is deemed abandoned. See Gardner
v. State, 289 Ga. App. 359, 359-360 (657 SE2d 288) (2008) (deeming as abandoned
claims of error not supported by citation to the record, citation of authority or
argument); Court of Appeals Rule 25 (c) (2).
16
that trial court); Stinchcomb v. State, 192 Ga. App. 8, 10 (383 SE2d 609) (1989)
(explaining that any technical violation of the rule against ex parte communications
did not constitute ground for reversal of convictions, where trial judge at issue stated
that the complained-of ex parte communication with the assistant district attorney did
not include any discussion on the merits or facts of the case). Cf. State v. Wakefield,
324 Ga. App. 587, 594-595 (2) (c) (751 SE2d 199 (2013) (explaining that defendants
were entitled to new trial, where the presiding judge should have sua sponte recused
from each trial as a result of his sexual relationship with the public defender
representing either the defendants or their co-defendants).
3. Finally, the biological mother challenges the Final Order on grounds that:
(a) the trial court failed to make express findings of fact; and (b) the evidence was
insufficient.
(a) Express findings of fact. “In all cases wherein Code Section 19-8-10 is
relied upon by any petitioner as a basis for the termination of parental rights, the court
shall include in the decree of adoption appropriate findings of fact and conclusions
of law relating to the applicability of Code Section 19-8-10.” OCGA § 19-8-18 (b).
Accordingly, a judgment terminating parental rights and granting an adoption petition
“must present more than a mere legal conclusion which is not supported by
17
mandatory findings of fact, or a dry recitation the certain legal requirements have
been met.” Sauls v. Atchison, 316 Ga. App. 792, 795-796 (2) (730 SE2d 459) (2012)
(concluding that the adoption decree lacked requisite findings of fact and conclusions
of law, given the “absence of any specific findings of fact to support the trial court’s
recitation of the language of the statute”) (emphasis in original); see Maynard v.
Brown, 276 Ga. App. 229, 230-231 (622 SE2d 901) (2005) (explaining that the
adoption decree lacked requisite findings of facts and conclusions of law, where
“decree stat[ed] in pertinent part only that ‘Petitioner has complied with all
formalities of law, the biological father has had no contact with the minor child for
at least two years, and that said proposed adoption is in the best interest of the
child’”).
Here, the biological mother makes a bare assertion that the Final Order failed
to provide specific findings of facts as to the child’s best interest.9 But our review of
the Final Order, which we have detailed above, confirms that this claim lacks merit.
The biological mother has misplaced reliance on Dell v. Dell, 324 Ga. App. 297, 301
(1) (748 SE2d 703) (2013) (determining that the order terminating parental rights was
9
The biological mother makes no claim that the trial court failed to set forth
factual findings as to the other factors required by OCGA § 19-8-10 (b) (1) and/or (2).
18
facially deficient because, among other reasons, the trial court’s conclusion that
adoption was in the child’s best interest “lacked particularity”). See generally Ray v.
Denton, 278 Ga. App. 69, 72-73 (2) (628 SE2d 180) (2006) (rejecting contention that
adoption decree was facially deficient, where the decree contained specific findings
of fact relating to the contested element).
(b) Sufficiency of the evidence.
On appeal of a decision terminating parental rights, we determine
whether after viewing the evidence in the light most favorable to the
appellee, 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 defer to the trial court’s findings unless the clear and
convincing standard is not met. In matters of adoption, the superior
court has a very broad discretion which will not be controlled by the
appellate courts except in cases of plain abuse.
(Citations and punctuation omitted.) Ray, 278 Ga. App. at 70 (1).
The biological mother claims that she presented evidence of her recovery,
employment, and overall progress in reforming her life; she claims that there was no
evidence that she would not be able to provide for the child sufficiently; and she
claims that any evidence favorable to the adoptive mother showed merely that the
19
adoptive mother could provide the child with better financial, education, and moral
advantages. These claims are unavailing.
Viewed in the light most favorable to the adoptive mother, the evidence
authorized the trial court’s determination that, within the meaning of OCGA § 19-8-
10 (b), the biological mother had failed, for the requisite period and without
justification, to: (1) communicate or attempt to communicate with the child; and/or
(2) provide for the care and support of the child.
Justifiable cause for the failure to pay child support may be found in
situations where the parent has been unable to earn income due to
incarceration, mental illness, mental incapacity, hospitalization, or other
circumstances beyond his or her control. Each case must be decided on
its own circumstances.
(Citation and punctuation omitted.) In the Interest of Marks, 300 Ga. App. 239, 245
(2) (b) (684 SE2d 364) (2009).
It was for the trial court, and not for the appellate court, to assess the
credibility of the witnesses and resolve contested factual issues. The trial
court is vested with significant discretion in making the determination
as to whether the parent’s failure to communicate with the child [and/or
failure to provide care and support] is excusable.
(Punctuation and footnotes omitted.) Sauls, 326 Ga. App. at 305 (2) (a).
20
“With regard to the best interest test in adoption cases, the trial court has very
broad discretion with which this Court will not interfere except in cases of plain
abuse.” (Citation omitted.) Ray, 323 Ga. App. at 49 (2). “If there is any evidence to
support the trial court’s finding that the adoption is in the child’s best interest, such
finding will be affirmed.” (Citation and punctuation omitted.) McCurry v. Harding,
270 Ga. App. 416, 420 (4) (606 SE2d 639) (2004). Despite the biological mother’s
characterization of the evidence, we are required to view the evidence in the light
most favorable to the adoptive mother. Having done so, we find no abuse of
discretion. See Johnson v. Taylor, 292 Ga. App. 354, 358-359 (3) (665 SE2d 49)
(2008) (determining that evidence authorized finding that stepfather’s adoption was
in the child’s best interest, where the biological father had “very limited” contact with
the child and provided “virtually no financial or parental support” for the child for at
least one year preceding the filing of the adoption petition, and where the stepfather
had meanwhile been involved in the child’s daily life by participating in his activities,
teaching him skills, and generally functioning as a loving, concerned parent and the
stepfather had financially supported the child and demonstrated his ability to do so
in the future); McCurry, 270 Ga. App. at 420 (4) (determining that evidence
authorized finding that stepfather’s adoption was in the children’s best interest, where
21
their biological father had failed to contact or support them for a period longer than
one year prior to the filing of the adoption petition, and where the stepfather had
meanwhile held jobs and provided for the children’s financial needs and had also
developed with the children a close, loving relationship).
The biological mother’s challenge to the sufficiency of the evidence is without
merit. See, e. g., Ray, 278 Ga. App. at 70-72 (1) (affirming judgment terminating a
biological father’s parental rights and allowing stepfather’s adoption pursuant to
OCGA § 19-8-10, where the biological father made no child support payments for the
one year immediately before the filing of the petition, and, while the father was
incarcerated for a part of that period, the support payments were sporadic even before
the incarceration, and where the adoptive parent and the child were close and the
adoptive parent was capable and willing to take parental responsibility of the child).
Judgment affirmed. Reese, J., concurs fully. McMillian, J., concurs fully in
Divisions1, 2, and 3 (b), and in judgment only in Division 3 (a).*
*DIVISION 3 (a) OF THIS OPINION IS PHYSICAL PRECEDENT ONLY.
SEE COURT OF APPEALS RULE 33.2 (a).
22