In Re MC

534 S.E.2d 442, 243 Ga. App. 707
CourtCourt of Appeals of Georgia
DecidedApril 26, 2000
DocketA00A0926
StatusPublished

This text of 534 S.E.2d 442 (In Re MC) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MC, 534 S.E.2d 442, 243 Ga. App. 707 (Ga. Ct. App. 2000).

Opinion

534 S.E.2d 442 (2000)
243 Ga. App. 707

In the Interest of M.C., a child.

No. A00A0926.

Court of Appeals of Georgia.

April 26, 2000.
Certiorari Denied October 20, 2000.

*443 Regina E. McMillan, College Park, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Thomas B. Hammond, for appellee.

McMURRAY, Senior Appellate Judge.

Freddy Gresham appeals the termination of his parental rights, contending the evidence was insufficient to support a finding of present parental misconduct or inability to provide for his child, M.C. Held:

1. The evidence was sufficient to support the termination. The standard of review applicable to a juvenile court's decision to terminate parental rights is "whether after reviewing 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." (Citations and punctuation omitted.) In the Interest of A.C., 230 Ga.App. 395, 396(1), 496 S.E.2d 752.

In reviewing the juvenile court's decision, "`[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court's factfinding and affirm unless the appellate standard is not met. [Cit.]'" In the Interest of S.N.N., 230 Ga.App. 109, 495 S.E.2d 602.

OCGA § 15-11-81(a) sets out a two-part test that the juvenile court must apply in determining whether to terminate a parent's rights. First, the court must find "present clear and convincing evidence of parental misconduct or inability." Second, the court must decide whether such termination would be in the best interest of the child. In the Interest of V.S., 230 Ga.App. 26, 27, 495 S.E.2d 142.

Four factors must be demonstrated as a prerequisite to finding parental misconduct or inability: (1) the child is deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. In the Interest of A.N.M., 238 Ga.App. 21, 22(1), 517 S.E.2d 548; OCGA § 15-11-81(b)(4)(A).

We will discuss these factors seriatim.

(a) The evidence of deprivation is clear, convincing, and overwhelming.

A caseworker with the Wilkes County Department of Family & Children Services ("DFACS") testified at the hearing that on August 5, 1997, M.C. and his older brother, T.C., who lived with their mother,[1] had been locked out of their home all day without food. They were dirty, hungry, and disheveled, and T.C. had had a confrontation with his mother. This event capped three years of neglect by their chronically alcoholic mother. On August 22, the juvenile court found the children were deprived and awarded temporary custody to DFACS. M.C., who was then seven years old, was placed in a foster home. DFACS also drew up a plan to reunite the natural mother and children.

*444 Gresham apparently did not learn that he was M.C.'s father until January 1998, when he contacted DFACS and requested a paternity test. Gresham was ordered to pay child support effective July 1. On August 19, 1998, the juvenile court entered a second deprivation order, finding that it was in M.C.'s best interest to remain in foster care. Gresham was personally served with notice of the hearing but failed to appear. Nor did Gresham appeal the deprivation order; thus, he is bound by its finding.[2]In the Interest of L.H., 236 Ga.App. 132, 134(1), 511 S.E.2d 253. Finally, Gresham concedes on appeal that M.C. was deprived.

(b) Similarly, we agree with the juvenile court's finding that the lack of Gresham's proper parental care or control is a significant factor contributing to M.C.'s deprivation.

In determining whether a lack of proper parental care and control exists, the court may consider several factors, including the following:

excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; [and] conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

In the Interest of J.H., 240 Ga.App. 309, 310, 523 S.E.2d 374; OCGA § 15-11-81(b)(4)(B)(ii), (iii).

The juvenile court properly considered Gresham's seven convictions of violating the Georgia Controlled Substances Act from 1990 through 1992, which were based on his sale and possession of cocaine. Gresham's parole officer testified that Gresham has been arrested four times since 1994 for parole violations and is not scheduled to be released from parole until 2007. The arrests have been based on Gresham's alcohol and drug use, changing residences without permission, and stealing his wife's car.[3] At the time of the hearing, Gresham was in an inpatient drug rehabilitation program, with no set release date.

Gresham contends that his "enrollment" in the drug rehabilitation program shows that he is not presently unfit to parent. We disagree. While Gresham claimed he was becoming sober to enable him to care for his child, Gresham's parole officer testified that his placement in the program was essential to avoid parole revocation and incarceration.

Gresham's initiative to establish his paternity may well indicate his sincere desire for a relationship with M.C., but the fact that the original termination hearing had to be continued because Gresham was in jail for absconding with his new bride's car spoke volumes about his present misconduct and inability to care for M.C.

Although [Gresham] contends that he has now changed, "judging the credibility of (his) good intentions was a task for the juvenile court. The decision as to a child's future must rest on more than positive promises which are contrary to negative past fact." (Punctuation omitted.) In the Interest of M.L., 227 Ga.App. 114, 117(2), 488 S.E.2d 702 (1997).

In Interest of K.A.C., 229 Ga.App. 254, 257(3), 493 S.E.2d 645.

Moreover, Gresham admitted on cross-examination that he could not provide for M.C.

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Bluebook (online)
534 S.E.2d 442, 243 Ga. App. 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mc-gactapp-2000.