In re Interest of H.A.S.

358 Ga.App. 54

853 S.E.2d 371

In the INTEREST OF H.A.S., a child.

A21A0140

Court of Appeals of Georgia.

December 30, 2020

Christopher Brian Rawls, for Appellant.

Christopher Michael Carr, Penny Hannah, Atlanta, Shalen S. Nelson, Atlanta, Kathleen Van Pelt Gibson, for Appellee.

Barnes, Presiding Judge.

The juvenile court terminated the parental rights of the father of H. A. S. and subsequently denied his motion for new trial. On appeal,¹ the father argues that the juvenile court erred in denying his motion for a continuance of the termination hearing. The father also argues that the juvenile court erred in finding that clear and convincing evidence established that he abandoned the child and that termination of his parental rights was in the child's best interest. For the reasons discussed more fully below, we vacate and remand for further proceedings consistent with this opinion.

Viewed in the light most favorable to the juvenile court's disposition of the case,² the record reflects that H. A. S. was born on October 24, 2013 and resided with his father for most of his life prior to the events at issue in this case. In August 2018, when H. A. S. was four years old, the father was arrested and incarcerated on drug possession and other charges in Dade County. The father asked his girlfriend to care for H. A. S. after his arrest. The girlfriend contacted Walker County Department of Family and Children Services ("DFCS") after she observed H. A. S. engaging in inappropriate sexual behavior with another child in her home.

H. A. S. came into DFCS custody on August 11, 2018. The juvenile court found H. A. S. to be dependent and granted DFCS temporary custody of the child,³ and DFCS placed the child in a foster home. Once in foster care, H. A. S. made allegations consistent with sexual abuse by another relative. H. A. S. was referred for a psychosexual evaluation and diagnosed with post-traumatic stress disorder. H. A. S. also received therapy to address his sexual acting out and other inappropriate behavior and his fear and anxiety.

DFCS developed a case plan for the father. The case plan required the father to provide stable housing, maintain stable income, resolve all pending criminal charges, complete a psychological and parental fitness assessment and follow all recommendations, complete substance abuse treatment, submit to DFCS drug screens, and participate in parenting services. The case plan also noted that visitation between the child and father was not currently possible because of the father's incarceration.

In September 2018, the father pled guilty to the Dade County charges. As part of his sentence, the father completed a substance abuse treatment program at a prison treatment facility. The father also completed two levels of parenting classes and wrote two letters to H. A. S.

In May 2019, DFCS filed its petition to terminate the parental rights of the mother and father of H. A. S. In its petition, DFCS alleged that termination was appropriate with respect to the father because he had subjected H. A. S. to aggravated circumstances by abandoning him. DFCS also alleged that termination of the father's parental rights was appropriate on the separate ground of dependency due to lack of proper parental care or control.

On October 30, 2019, after completing the prison substance abuse treatment program, the father was extradited to Tennessee and held on outstanding warrants for identity theft and other charges that predated his Dade County case. Shortly thereafter, on November 5, 2019, a hearing was conducted on the termination petition. The father's counsel sought a continuance so that the father could be present at the hearing. The juvenile court denied the motion, and the termination hearing proceeded without the father.⁴

At the hearing, the DFCS case manager assigned to the case testified that H. A. S. had been in DFCS custody for 15 months, that the father had been incarcerated during that entire time either in jail or in the prison substance abuse treatment facility, and that the father had not completed most of his case plan or had visitation with the child. The case manager acknowledged that the father had completed the prison substance abuse treatment program and two levels of parenting classes, had expressed to her that he did not want to lose his parental rights, and had sent two letters to H. A. S. The case manager testified that she did not provide the first letter to H. A. S. at the direction of the child's therapist and had not provided the second letter to the child because it had been recently received.

Following the conclusion of the hearing,⁵ the juvenile court entered its order terminating the parental rights of the mother and father. In its order, the juvenile court found that the father had subjected H. A. S. to aggravating circumstances by abandoning him and that termination was in the best interest of the child. The juvenile court did not address whether termination would be appropriate on the ground of dependency due to lack of proper parental care or control.

Following entry of the termination order, the father filed a motion for new trial, contending that there was insufficient evidence to support the termination of his parental rights. The father also stated in his motion that he had been incarcerated in Tennessee at the time of the termination hearing, but that he was no longer in custody and wished to have an opportunity to present evidence at a hearing. In January 2020, the trial court conducted a hearing on the new trial motion in which the father testified. The father testified that he had been released from jail in Tennessee in December 2019, and he currently lived in a group home and was receiving outpatient substance abuse treatment as part of his probation for the Dade County offenses. The father testified that the Tennessee charges remained pending but as of yet he had not been indicted in that case. The father expressed his desire to continue working on his DFCS case plan and ultimately regain custody of H. A. S. After the hearing on the motion for new trial, the juvenile court denied the motion.

1. The father contends that the trial court committed reversible error in denying his motion for a continuance of the termination hearing. We disagree.

"We will not disturb a juvenile court's denial of a motion for continuance absent abuse of discretion." (Citation and punctuation omitted.) In the Interest of K. G. , 344 Ga. App. 674, 675 (1), 811 S.E.2d 451 (2018). Here, the juvenile court acted within its discretion in refusing to continue the termination hearing, given that the father was incarcerated out-of-state when the hearing occurred and his attorney was present at the hearing to cross-examine witnesses on his behalf and otherwise represent his interests. "Georgia courts have held consistently that an incarcerated parent, if represented by counsel, has no constitutional entitlement to appear personally at a hearing terminating parental rights." In the Interest of J. H. , 273 Ga. App. 424, 426, 615 S.E.2d 231 (2005). See In the Interest of T. N. T. , 258 Ga. App. 396, 399, 574 S.E.2d 444 (2002) (denial of continuance did not offend due process, where parents were incarcerated in another state and were represented by counsel at termination hearing). "Therefore, the court did not offend due process by refusing to [grant a continuance and] arrange for the [father's] attendance at the hearing." In the Interest of T. N. T. , 258 Ga. App. at 399, 574 S.E.2d 444.

2. The father contends that the juvenile court erred in finding that there was clear and convincing evidence that he abandoned H. A. S. We agree with the father.

On appeal from a juvenile court's decision to terminate parental rights, we review the evidence in the light most favorable to the court's decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated. In doing so, we do not weigh the evidence or resolve credibility issues, but merely determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent's right to custody should be terminated.

(Punctuation and footnotes omitted.) In the Interest of C. S. , 354 Ga. App. 133, 136, 840 S.E.2d 475 (2020). In applying this deferential standard, we are mindful that "there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously." (Punctuation and footnote omitted.) In the Interest of E. G. L. B. , 342 Ga. App. 839, 840, 805 S.E.2d 285 (2017).

Guided by this standard of review, we turn to the pertinent statutory framework. The decision to terminate parental rights is a two-step process. First, the juvenile court must determine whether one of five statutory grounds for termination has been met. See OCGA § 15-11-310 (a). If one of the five grounds for termination has been established, the juvenile court then must determine whether termination of parental rights would be in the best interest of the child after considering certain factors. OCGA § 15-11-310 (b).

Here, the juvenile court found that termination was warranted because the father had subjected H. A. S. to aggravating circumstances by abandoning him. One of the five statutory grounds for termination is that "[t]he parent has subjected his or her child to aggravated circumstances." OCGA § 15-11-310 (a) (2). "Aggravated circumstances" include the circumstance where a parent has "abandoned" the child. OCGA § 15-11-2 (5) (A). And OCGA § 15-11-2 (a) defines "abandonment" or "abandoned" as "any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims." The statute then provides examples of conduct by the parent that can be considered by the juvenile court,⁶ but "[s]...