In re Interest of C. S.

354 Ga.App. 133

840 S.E.2d 475

In the INTEREST OF C. S., a child (father).

A19A2237

Court of Appeals of Georgia.

March 6, 2020

Emily Louise Evett, for Appellant.

Amanda Gaddis Speights, Canton, for Appellee.

Dillard, Presiding Judge.

Chauncy Smith,¹ five-year-old C. S.’s putative father, appeals the juvenile court’s termination of his parental rights, arguing the court erred in finding that clear and convincing evidence established that he legally abandoned C. S. and the child is dependent. Chauncy also contends that his trial counsel rendered ineffective assistance by failing to file a legitimation petition on his behalf and object to inadmissible evidence. For the reasons set forth infra , we affirm.

Viewing the evidence in the light most favorable to the juvenile court’s ruling,² the record shows that Mary Smith and Chauncy, C. S.’s parents, began dating in high school. And while the couple dated "on and off" throughout their relationship, they never married or lived together. On April 17, 2013, the year after they graduated, C. S. was born,³ and between 2013 and 2015, Mary took C. S. to see Chauncy "pretty often." During that time, Chauncy began physically abusing Mary. As one example, on C. S.’s first Thanksgiving, Chauncy, in C. S.’s presence, "jumped on [Mary] and shoved [her] on the bed and started hitting [her]." Mary began screaming, and eventually, Chauncy’s mother came into the room and pulled him off of her. On another occasion, when Mary was driving, Chauncy accused her of talking to one of his friends and punched her in the eye. Mary’s injuries were so significant that she had to go to the hospital for treatment.⁴ C. S. was not with his parents during this altercation, but he witnessed Chauncy’s acts of violence at other times. On one occasion, when Mary and C. S. were at Chauncy’s house, he tried to kick her down the stairs, and to escape the violence, Mary and C. S. hid in a bathroom until Chauncy left. Chauncy also admitted to breaking Mary’s cell phone and damaging the cars of other girlfriends, and he conceded that such property destruction was "kind of a pattern" with the women he dated. Ultimately, when C. S. was two years old, Mary and Chauncy ended their dating relationship.

Initially, following the break up, Mary continued taking C. S. to visit Chauncy, but the last time Chauncy and C. S. saw each other was on Christmas in 2015, when, upon Chauncy’s request, Mary took C. S. to visit his paternal grandmother’s house. But during that visit, C. S. only interacted with Chauncy for about five to ten minutes because Chauncy "was upstairs throwing up the whole time." Chauncy had a history of drug abuse, and Mary suspected that he was "under the influence of something" because his eyes were red and he was slurring his words. Before Mary and C. S. left, she told Chauncy and his mother that she and C. S. "weren’t going to come around anymore until [Chauncy] got clean."

Sometime later, Mary heard that Chauncy had been "getting arrested for drugs[,]" and she offered several times to pay for a drug test if Chauncy would get clean because she did not feel comfortable around him while he was taking drugs. Chauncy declined those offers. And over the years that followed, Chauncy only reached out to Mary "a handful of times ... just at holidays." Indeed, Chauncy’s attempts to contact Mary were "very sporadic[,]" and other than paying a single daycare bill when C. S. was two years old, Chauncy provided no financial support for C. S., either during Mary’s pregnancy or after C. S. was born. Since 2015, Mary answered one or two calls from Chauncy, but she did not answer other calls because she did not realize that the numbers listed were Chauncy calling her from jail. Mary knew that Chauncy had been arrested six times for drug offenses and driving under the influence,⁵ and eventually, she "cut [off] communication" with him entirely. In addition to her belief that Chauncy’s constant drug use posed a danger to C. S., Mary was also concerned about his temper and history of physical violence. Nevertheless, Mary told Chauncy’s mother that his family could be involved in C. S.’s life, but no one ever contacted Mary to accept this offer. Thereafter, Chauncy never initiated any legal proceedings to seek visitation with C. S., nor did he file a legitimation petition.

On September 30, 2017, Mary married Tyson Smith, and they had a child together. Tyson has been involved in C. S.’s life since he was two years old, and in the three years that elapsed since then, C. S. began to view Tyson as his father. According to Mary, Tyson participates in C. S.’s sporting events and helps with discipline and the day-to-day care of C. S., such as feeding him and bedtime routines. Tyson also provides financially for Mary and C. S. by paying for, inter alia , their house, insurance, and groceries. While C. S. "doesn’t know [Chauncy]," he has, in contrast, developed a close relationship with his stepfather. In fact, Tyson is the only father figure C. S. has ever known, and eventually, Tyson would like to adopt him.

According to Courtney Moss, the guardian ad litem, C. S. appears to be a happy, healthy, well-adjusted child, who is full of energy. Moss believes C. S. is thriving in his current environment, and he identifies Tyson as his dad. But when Moss asks C. S. about Chauncy, C. S. does not recognize his name.

At the termination hearing, Moss noted that although Chauncy received notice of the instant action in April 2018, he still had not filed a petition to legitimate C. S. at the time of the termination hearing on November 16, 2018. In Moss’s opinion, Chauncy also has unresolved mental health and substance abuse issues. Moss also believes C. S. needs permanency, and she has no doubt that Mary and Tyson would be able to take care of and provide for him. Ultimately, Moss contended that "there is abandonment in this case[,]" and thus, she recommended that the court terminate Chauncy’s parental rights.

On March 16, 2018, Mary filed a "petition to terminate biological father’s parental rights," asserting that (1) Chauncy has never supported C. S. financially with the exception of a one-time payment of $70.00 for daycare costs; (2) Chauncy has not seen C. S. since Christmas 2015; (3) C. S. does not know Chauncy and considers his stepfather to be his father; (4) it would be in C. S.’s best interest to have no further contact with Chauncy; and (5) Tyson is ready and willing to adopt C. S. and formalize the parental bond and relationship he has with the child.⁶ On the same day, Mary’s attorney sent a letter to Chauncy, notifying him that the petition had been filed and enclosing a copy of same. On December 7, 2018, following a hearing on the matter, the juvenile court granted the petition and issued an order terminating Chauncy’s parental rights.

Thereafter, Chauncy filed a motion for a new trial, which, after a hearing, the juvenile court denied. Chauncy then obtained new counsel and filed a motion to vacate the court’s order denying his motion for a new trial, arguing, inter alia , that the court must address his claims that he received ineffective assistance of counsel in the termination proceedings. The juvenile court agreed, vacated its prior order, and informed Chauncy that he could file an amended motion for a new trial. Chauncy filed such a motion, arguing, inter alia , that the juvenile court’s findings were not supported by clear and convincing evidence and that he received ineffective assistance of counsel in several respects. On March 28, 2019, the juvenile court held a hearing on Chauncy’s amended new-trial motion, and ultimately, denied it. This appeal follows.

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."⁷ 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."⁸ Nevertheless,

this deferential standard of review is tempered by the fact 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. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.⁹

Bearing this analytical framework in mind, we turn to Chauncy’s specific claims of error.

1. Chauncy argues the juvenile court erred in finding that he legally abandoned C. S. and in doing so, established that one parent can "decidedly prevent" the second parent from having a relationship with their child. We disagree.

OCGA § 15-11-310 (a) provides that "[i]n 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 ...[,]" and one of those grounds is when "[a] child is abandoned by his or her parent."¹⁰ Abandonment is defined as

any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims. Intent to forgo parental duties or relinquish parental claims may be evidenced by[,] [inter alia ,] (A) [f]ailure, for a period of at least six months, to communicate meaningfully with a child;

(B) [f]ailure, for a period of at least six months, to maintain regular visitation with a child;

(C) [l]eaving a child with another person without provision for his or her support for a period of at least six months;

(D) [f]ailure, for a period of at least six months, to participate in any court ordered plan or program designed

...