In the Interest of J. K.

520 S.E.2d 19, 239 Ga. App. 142, 99 Fulton County D. Rep. 2676, 1999 Ga. App. LEXIS 907
CourtCourt of Appeals of Georgia
DecidedJune 25, 1999
DocketA99A0434
StatusPublished
Cited by43 cases

This text of 520 S.E.2d 19 (In the Interest of J. K.) 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 the Interest of J. K., 520 S.E.2d 19, 239 Ga. App. 142, 99 Fulton County D. Rep. 2676, 1999 Ga. App. LEXIS 907 (Ga. Ct. App. 1999).

Opinion

Ruffin, Judge.

Appellant, the father of J. K., appeals from the juvenile court’s order terminating his parental rights.1 Appellant challenges the sufficiency of the evidence and argues that he was not given notice that his failure to legitimate the child would result in termination of his parental rights. Finding no error, we affirm.

J. K, the biological daughter of appellant, was born in May 1995. J. K.’s mother was — and still is — married to another man, with whom she has three other children. When J. K. was conceived, the mother’s husband was in prison and the mother was living with appellant. By the time J. K. was born, however, appellant was incarcerated, as well. Appellant was released in November 1995, after which he lived briefly with the mother and J. K. However, appellant returned to prison in 1997 and is currently serving an eight-year sentence.

[143]*143In July 1997, while appellant was incarcerated, the Department of Family & Children Services (DFCS) received a report that J. K.’s mother had given her to a relative. DFCS found J. K. in the home of her uncle, which the agency determined to be an unsuitable placement. Following a hearing on September 2, 1997, the juvenile court found that J. K. was deprived and awarded temporary legal custody of her to DFCS. Later that month, a case plan was developed to reunite J. K. with her mother and her mother’s husband, who had been released from prison. Appellant was not included in the case plan because he remained incarcerated, and at the time, DFCS was unaware of how to reach him. On July 2, 1998, DFCS filed a petition to terminate the parental rights of J. K.’s mother, the mother’s husband,2 and appellant. On August 25, 1998, the juvenile court held a hearing on the termination petition.

Appellant, who was present at the hearing, testified that he has spent most of the past eight years incarcerated. In 1990, he pled guilty to burglary and was imprisoned for 16 months. Seven months after his release on parole, appellant was again arrested for burglary and again pled guilty. He was sentenced to eight years in prison, but was paroled in 1993 after serving two and one-half years. In April 1995, one month before J. K. was born, appellant was convicted of theft by receiving and served seven months in jail. In 1997, less than one year after his release from jail, appellant was arrested for felony theft by receiving. He pled guilty and received an eight-year sentence. At the time of the parental termination hearing, appellant had served 15 months of his sentence. Although appellant predicted that “[i]t shouldn’t be very much longer” before he is released, his sentence will not expire until 2005.

Appellant has never been married to J. K.’s mother and, at the time of the hearing, had taken no steps to legitimate J. K.3 Appellant testified that he lived with J. K. and her mother for ten. months in 1996 before he was incarcerated on the felony theft conviction, during which time he financially supported J. K. and fed and bathed her. The mother, however, testified that appellant lived with J. K. and her for only a month or two before he returned to prison. With the exception of this brief period in 1996, appellant has made no effort to support J. K. Appellant does not visit J. K. and presently has no relationship with her.

J. K. has an older sister, M. K., who also was fathered by appellant. Like J. K., M. K. was conceived during a period when the [144]*144mother was living with appellant. Appellant was incarcerated when M. K. was born. M. K. was removed from her mother’s custody in 1995 and currently lives with an uncle. Appellant has never lived with M. K., and there is no evidence that he has ever contributed to her support or had any relationship with her either.

J. K.’s caseworker testified that J. K. currently lives in a licensed foster home. According to the caseworker, J. K. has adapted well to the placement and has bonded with her foster parents, who have expressed interest in adopting her.

Following the hearing, the juvenile court entered an order terminating appellant’s parental rights as to J. K. The court found that lack of proper parental care and control caused J. K.’s deprivation and that her parents, including appellant, were unfit.

1. The standard of review applicable to appellant’s challenge to the sufficiency of the evidence 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.” (Punctuation omitted.) In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). “[W]e defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Punctuation omitted.) In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998). OCGA § 15-11-81 (a) sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines “whether there is present clear and convincing evidence of parental misconduct or inability.” Id. Four factors must be present to establish parental misconduct or inability: (1) the child must be deprived; (2) the lack of proper parental care or control by the parent in question must cause the deprivation; (3) the cause of the deprivation must be likely to continue; and (4) continued deprivation must be likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). If the trial court finds that these four factors exist, then the court determines whether termination of parental rights is in the best interest of the child. In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998).

We agree with the trial court’s determination of parental misconduct or inability on the part of appellant. As for the first factor, J. K. was judicially determined to be deprived and was taken into custody in July 1997. Because appellant never appealed the deprivation order, he is bound by the finding of deprivation and the first factor is satisfied. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

In determining whether J. K.’s deprivation was caused by appellant’s lack of proper parental care or control, the trial court was authorized to consider, among other things, whether appellant’s [145]*145incarceration for a felony “has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). “Although incarceration alone need not always compel the termination of parental rights, it can support such a ruling when sufficient aggravating circumstances are present.” In the Interest of D. A. P., supra. Moreover, an incarcerated parent’s history of repeated imprisonment for criminal offenses “constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Punctuation omitted.) Id.; see also In the Interest of S. N. N., supra at 110 (1); In the Interest of T. B. R.,

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Bluebook (online)
520 S.E.2d 19, 239 Ga. App. 142, 99 Fulton County D. Rep. 2676, 1999 Ga. App. LEXIS 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-j-k-gactapp-1999.