In re Interest of M. M. D.

356 Ga.App. 653

848 S.E.2d 687

In the INTEREST OF M. M. D., a child.

A20A0893

Court of Appeals of Georgia.

September 11, 2020

James Wrixam McIlvaine, Brunswick, Molly Dinan McIlvaine, for Appellant.

Christopher Michael Carr, Atlanta, James A. Chamberlin Jr., Brunswick, Penny Hannah, Shalen S. Nelson, Atlanta, for Appellee.

Doyle, Presiding Judge.

The putative father ("the Father") of M. M. D. appeals from an order of the Glynn County Juvenile Court terminating his parental rights. He contends that the juvenile court erred because (1) his incarceration alone was insufficient to support the termination; (2) he was not appointed counsel in time to file a petition for legitimacy; (3) he was not appointed counsel or served with process in the dependency proceeding prior to the termination; (4) an expert was allowed to testify as to the ultimate issue; and (5) the evidence of harm to the child was insufficient to support the termination. For the reasons that follow, we affirm.

The record shows that M. M. D. was born on July 18, 2015. Her mother, who lacked stable housing, executed a power of attorney in favor of the paternal grandmother, who cared for M. M. D. in her home. In December 2015, the mother attempted to gain custody of M. M. D. by instigating a violent attack against the grandmother, and five-month-old M. M. D. was removed from the grandmother's home and placed in foster care. At that time and throughout these proceedings, the Father was incarcerated.¹

A few days later, the Department of Family and Children Services ("DFCS") filed a dependency complaint alleging that M. M. D. and her one-year-old sister were dependent. At that time, the mother's whereabouts were unknown. In January 2016, the juvenile court entered an order finding M. M. D. to be dependent.² The order noted that the Father was incarcerated and stated that the Father had been notified by personal service, but proof of service does not appear to be in the record. The order directed DFCS to prepare a case plan for the Father, but it is not clear whether he actually received one.³ Throughout the rest of 2016, a DFCS caseworker mailed certified letters to the Father on a monthly basis, explaining that M. M. D. was in care, a case plan had been developed, and he needed to demonstrate an interest in the child. The first letter was not delivered, but the remaining letters were. DFCS received no response from the Father.

In August 2017, DFCS petitioned for termination of the parental rights of both parents as to M. M. D. The Father was served on September 27, 2017. With respect to the Father, the petition alleged that he was incarcerated, had made no attempt to legitimate the child, had not supported the child, had not established a bond with the child, and had abandoned the child. In November 2017, the court entered an order appointing an attorney for the Father. Due to that attorney's subsequent maternity leave, a new attorney was appointed to represent the Father in January 2018. At the request of new counsel, the hearing on the termination was continued until March 2018, and the court continued the remainder of the hearing twice more, with the final hearing day concluding in January 2019, with the child now three and one-half years old and having had no contact with the Father. The Father was represented by counsel and able to participate by telephone in hearing dates held on March and April of 2018 and in January of 2019.

Following the conclusion of the hearing, the juvenile court terminated the Father's parental rights, finding that he had abandoned M. M. D. and that M. M. D. was a dependent child due to lack of parental care and control. This Court granted the Father's application for discretionary review, and he now challenges the termination of his parental rights.

1. The Father contends that the termination was based solely on his incarceration, which was not a sufficient basis for the termination. This is belied by the record.

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.⁴

We begin with the statutory scheme authorizing termination of parental rights.

OCGA § 15-11-310 (a) provides that [when] considering the termination of parental rights, the court shall first determine whether one of the statutory grounds for termination of parental rights has been met.... One of those grounds is when a child is abandoned by his or her parent. Abandonment is defined as any conduct on the part of a parent ... showing an intent to forgo parental duties or relinquish parental claims. Intent to forgo parental duties or relinquish parental claims may be evidenced by ... failure, for a period of at least six months, to communicate meaningfully with a child; ... failure, for a period of at least six months, to maintain regular visitation with a child; ... leaving a child with another person without provision for his or her support for a period of at least six months; failure, for a period of at least six months, to participate in any court ordered plan or program designed to reunite a child's parent, guardian, or legal custodian with his or her child; [or] ... any other conduct indicating an intent to forgo parental duties or relinquish parental claims.⁵

Here, the Father argues that the termination was based solely on his incarceration, which alone is not a sufficient reason to terminate his parental rights. It is true that

a parent's incarceration does not always compel the termination of parental rights, but it can support a termination when sufficient aggravating circumstances are present. Those circumstances are present in this case. Indeed, one of the factors that may be considered is whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive and parental manner.⁶

There was evidence that the Father made no effort to communicate with the child, DFCS, or the foster parents, nor did he attempt to provide financial support or gifts to the child. This was evident despite testimony from a DFCS caseworker who verified the Father's location and wrote monthly certified letters to him at the facility where he was incarcerated. Those letters provided contact information, but DFCS never received any attempted contact by the Father. Furthermore, there was evidence of the Father's repeated and continued incarceration due to five felony convictions from 2001 to 2016 and throughout the life of the child, such that establishing a bond would remain difficult absent substantial reform efforts on the part of the Father.⁷ This evidence, combined with his lack of any effort to form a meaningful relationship with the child, supported the juvenile court's finding of aggravated circumstances establishing the Father's abandonment of the child under OCGA § 15-11-310 (a) (4).⁸

2. The Father next contends that he was deprived of his right to establish standing to challenge the termination proceeding because he was not appointed counsel in time to file a timely petition to legitimate the child.⁹ Under Georgia's old Juvenile Code, a putative father who had not legitimated his relationship lacked standing to challenge the termination of his parental rights.¹⁰ But under the present Code, applicable to this case,¹¹ the juvenile court has discretion as to whether to proceed with termination on the basis of a lack of legitimation. Here, the court exercised its discretion not to do so and appointed the Father an attorney so that he could participate in the termination proceedings on the merits with representation.¹² Furthermore, the juvenile court did not rely in whole or in part on the Father's failure to legitimate the child in its ultimate determination to terminate the Father's parental rights. Under the particular facts of this case, because the Father's inability to timely file a petition to legitimate did not prejudice him, we discern no basis for reversal on this ground.¹³

3. In his next enumeration, the Father makes a cursory argument that the juvenile court erred by adopting findings and orders determined in dependency proceedings in which the Father was not served. The record reflects that the Father was not served in the dependency proceeding, but the juvenile court's written termination order nevertheless makes it clear that the termination was based on the Father's abandonment of the child. As noted in Division 1, the abandonment finding was predicated on the Father's ongoing lengthy incarceration aggravated by his history of repeated incarceration and the absence of any effort on his part to establish a bond with the child since contact by DFCS in 2016, including the time leading up to and including the 2018-2019 termination proceedings in accordance with OCGA §§ 15-11-310 (a) (4) and 15-11-2 (1).¹⁴ Abandonment is an independent ground authorizing termination, and "if there is sufficient evidence supporting any one of [the statutory] grounds, we need not consider the other grounds [such as dependency] in order to affirm."¹⁵ Accordingly, because the termination was supported by a finding of abandonment properly explained in the written order and authorized by the evidence adduced at the termination hearing in which the Father participated with representation by counsel, this enumeration presents no basis for reversal.¹⁶

4. The Father also contends that the juvenile court erred by allowing DFCS's Attending County Director, Laurie Morton, to testify as an expert as to the ultimate issue in the termination case. The Father points to testimony by Morton based on...