Leah M. Dibello Dell v. Sarah Dell

• Court: Court of Appeals of Georgia
• Decided: September 25, 2013
• Docket: A13A1068
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

September 25, 2013

In the Court of Appeals of Georgia A13A1068. DELL v. DELL.

MILLER, Judge.

This appeal arises from Dwain and Sarah Dell’s petition for the termination of

Leah M. Dibello Dell’s parental rights to her natural child, and stepmother Sarah

Dell’s petition to adopt the child. The juvenile court sitting by designation in the

superior court terminated Leah Dell’s parental rights and granted Sarah’s adoption

petition. Leah Dell appeals, contending that (1) the evidence did not support the

termination of her parental rights; (2) she was denied her right to competent legal

counsel; (3) she was discouraged from appealing her case; and (4) she was not

provided with a copy of the final judgment. For the reasons that follow, we vacate and

remand to the superior court. On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court’s factual findings and affirm unless this standard is not met.

(Citation omitted.) Weber v. Livingston, 309 Ga. App. 665 (710 SE2d 864) (2011).

So viewed, the evidence shows that the minor child, E. D., was born on

September 14, 2002. E. D. is the natural child of Dwain and Leah, who were married

at the time of E. D.’s birth. Dwain and Leah separated when E. D. was a toddler

because Leah became addicted to methamphetamine. E. D, was subsequently found

to be deprived, and Dwain was awarded custody of her. In December 2004, Dwain

and Leah divorced, and Dwain was granted permanent primary physical and legal

custody of E. D. Although Leah was properly served in the divorce action and had

notice of the hearing, she did not appear.

Between 2004 and November 2006, Leah regularly visited with E. D. Although

ordered to pay monthly child support, however, Leah made only one payment of

approximately $1,300 after Dwain filed a contempt action. In 2007, Leah moved to

Florida. After she moved, Leah and Dwain lost contact with each other. Since that

2 time, Leah has not contacted Dwain or E. D., paid any child support, or sent any

letters, cards or gifts.

Dwain and Sarah married in June 2007, and had a daughter, A. D., in January

2010. Sarah is a certified pre-K teacher, who works at E. D.’s daycare. Sarah has

lived with and cared for E. D. since 2007, and E. D. considers Sarah to be her mother.

E. D. has no health problems, has progressed appropriately in school and has bonded

with her half-sister, A. D.

On September 3, 2010, Dwain and Sarah filed their petition to terminate Leah’s

parental rights. The petition also requested an order permitting Sarah to adopt E. D.

Although Leah was personally served, attended a mediation and completed a court-

mandated workshop, she did not attend the scheduled trial in this case.

At the trial in this case, Leah’s counsel moved for a continuance, stating that

Leah was without funds to travel from Florida to the scheduled trial. Leah’s counsel

assured the superior court that Leah would be able to attend the trial if it were

continued until the following month. The superior court denied the motion and the

trial was conducted in Leah’s absence.

Following the trial, the superior court terminated Leah’s rights based on her

abandonment of E. D. and her failure to provide for E. D.’s care and support for more

3 than a year.1 The superior court also approved Sarah’s adoption of E. D., finding that

adoption was in E. D.’s best interests.

1. Leah contends that the evidence did not support the termination of her

parental rights. We do not reach this contention because the trial court’s final order

did not include findings of fact and conclusions of law as required to support the

termination of parental rights under OCGA § 19-8-10.

Adoptions in Georgia are governed by the statutory definitions, provisions and

requirements set forth in OCGA § 19-8-1 et seq. This case involves a stepmother’s

petition to adopt a child whose legal father and legal mother, as defined by OCGA §

19-8-1, are both still living and are no longer married to each other, and whose legal

mother has not surrendered her parental rights. Accordingly, our analysis begins with

OCGA § 19-8-6 (a) (1). That statute pertinently provides:

A child whose legal father and legal mother are both living but are not still married to each other may be adopted by the spouse of either parent only when the other parent voluntarily and in writing surrenders all of his rights to the child to that spouse for the purpose of enabling that spouse to adopt the child and the other parent consents to the adoption[.]

1 Prior to entry of the order terminating her parental rights, Leah moved the trial court for reconsideration to reopen the matter. Although the superior court referred to a hearing on this motion in its final order, the hearing was not transcribed.

4 (Emphasis provided.); see also In re C. N. W., 274 Ga. 765, n. 4 (560 SE2d 1) (2002).

Where, as here, the legal mother refuses to surrender her parental rights, the superior

court may still grant the stepparent’s petition to adopt the child if the superior court

determines by clear and convincing evidence that the “[c]hild has been abandoned by

the parent . . . and that the adoption is in the best interests of [the] child, after

considering the physical, mental, emotional, and moral condition and needs of the

child . . . , including the need for a secure and stable home.” (Punctuation omitted.)

OCGA § 19-8-10 (a) (1). The superior court may also grant the stepparent’s adoption

petition if it finds

clear and convincing evidence that the parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree.

(Citation and punctuation omitted; Emphasis supplied.) Weber, supra, 309 Ga. App.

at 666; see also OCGA § 19-8-10 (b).

In such a case, the parent must be served with a copy of the petition and the

parent may appear at the trial in the pending adoption action to show why his/her

5 parental rights should not be terminated by that adoption. See OCGA § 19-8-10 (c);

Smallwood v. Davis, 292 Ga. App. 173, 176-177 (2) (664 SE2d 254) (2008).

Moreover, the petitioning stepparent has the burden of proving that termination of the

parent’s rights is warranted, including the lack of justifiable cause. See In re Marks,

300 Ga. App. 239, 242 (684 SE2d 364) (2009).

If the petitioner meets that burden of proof and the court finds that one of the above situations exists, then the court must also determine whether the proposed adoption is in the best interest of the child. With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. However, a court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. The requirements of Georgia’s adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship.

(Citations and punctuation omitted.) Marks, supra, 300 Ga. App. at 242-243.

“In all cases wherein Code Section 19-8-10 is relied upon by any petitioner as

a basis for the termination of parental rights, the court shall include in the decree of

6 adoption appropriate findings of fact and conclusions of law relating to the

applicability of Code Section 19-8-10.” OCGA § 19-8-18 (b). A judgment granting

an adoption and terminating a parent’s rights

must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination. The decree must present more than a mere legal conclusion which is not supported by mandatory findings of fact, or a dry recitation that certain legal requirements have been met.

(Citations and punctuation omitted.) Sauls v. Atchison, 316 Ga. App. 792, 795 (2)

(730 SE2d 459) (2012).

Here, in terminating Leah’s parental rights, the superior court stated only that

Leah has abandoned E. D. and

for a period longer than a year [Leah] has failed to provide for the care and support of [E.D.] as required by law and judicial decrees of record. The Court is of the opinion that the adoption of [E.D.] by Sarah Dell is in the best interests of the child. [Leah] has a history of substance abuse and has demonstrated an inability to be present to care for or provide for the child. . . . Furthermore, [Leah] has not been paying child support for several years, not made efforts to obtain visitation with her child through the courts.

7 In this case, the superior court’s order was deficient because it did not address

any of the criteria for termination of parental rights pursuant to OCGA § 15-11-94,

it did not include specific findings of fact showing that Leah abandoned E. D.,2 and

it did not include specific factual findings showing that she failed to provide care and

support for E. D. without justifiable cause.3 See Maynard v. Brown, 276 Ga. App. 229

(622 SE2d 901) (2005). Compare Ray v. Denton, 278 Ga. App. 69, 72-73 (2) (628

2 A finding of abandonment under OCGA § 19-8-10 (a) (1) requires

clear and convincing evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations growing out of the parent/child relationship, and forego all parental duties and claims.

(Citation and punctuation omitted; emphasis in original.) Marks, supra, 300 Ga. App. at 243 (1). 3 As this Court recently stated,

justifiable cause for the failure to pay child support may be found in situations where the parent has been unable to earn income due to incarceration, mental illness, mental incapacity, hospitalization, or other circumstances beyond his or her control. Each case must be decided on its own circumstances.

(Citation and punctuation omitted.) Ray v. Hann, __ Ga. App. __, *11 (2) (Case Nos. A13A0757, A13A0821, decided July 15, 2013).

8 SE2d 180) (2006) (remand not required where decree included specific findings

regarding father’s failure to pay court-ordered child support and where decree further

stated that conclusions of law were based on trial court’s findings of fact and verified

petition which specifically referenced OCGA § 19-8-10). Moreover, the superior

court’s conclusion that adoption was in E. D.’s best interest also lacked particularity.

Hann, supra, __ Ga. App. at *13 (2).

As set forth above, we emphasize that a judgment “having such a final, ultimate

and significant result as that of severing the rights of a parent to a child must

conclusively show compliance with the statutory criteria prescribed as a condition

precedent for such termination.” (Citation and punctuation omitted.) In the Interest

of M. D. F., 263 Ga. App. 50, 51 (587 SE2d 199) (2003). Since the trial court’s decree

was deficient, we are unable to evaluate whether the superior court erred in

terminating Leah’s parental rights pursuant to OCGA § 19-8-10. See Hann, supra, __

Ga. App. at *13 (2). Accordingly, we vacate the order terminating Leah’s parental

rights, as well as the adoption decree, and remand this case to the trial court for

further proceedings, including entry of a new order with specific findings of fact and

conclusions of law as required by the Georgia legislature in OCGA §§ 19-8-10 and

19-8-18 (b). In so holding, this Court is not unsympathetic with the plight of the

9 father and stepmother in this case. In fairness, however, this Court must note that

Leah, the natural mother, requested reconsideration of the trial court’s order before

this case was appealed to this Court, thereby evidencing a desire to be heard on this

issue. Moreover, it is the law that we afford all the rights of fundamental fairness to

the natural mother before we terminate her rights. We make no comment on whether

the evidence presented could support a finding of abandonment or failure to provide

for the care and support of E. D. without justifiable cause. Following entry of a new

order, the “adversely affected party may enter another appeal upon the entry of such

judgment.” In the Interest of M. D. F., supra, 263 Ga. App. at 52.

2. Leah also contends that she was denied her right to competent legal counsel.

We are unable to reach this contention because the record does not include a copy of

the transcript on Leah’s motion for reconsideration, even though she was entitled to

a paupered copy of the transcript as an indigent parent whose parental rights were

terminated.

In any proceeding for terminating parental rights, if a parent is indigent and

desires to be represented by counsel, “the court shall appoint an attorney for such

parent.” OCGA § 15-11-98 (b). See also In re J. M. B., 296 Ga. App. 786, 789 (676

10 SE2d 9) (2009). An indigent parent has a statutory right to effective legal

representation in termination proceedings. See In the Interest of A. R. A. S., 278 Ga.

App. 608, 609 (1) (629 SE2d 822) (2006). Moreover, “an indigent parent whose

parental rights have been terminated is entitled to a paupered copy of the transcript

for use in appealing the decision of the trial court.” In the Interest of B. C. P., 29 Ga.

App. 111, 115 (3) (493 SE2d 258) (1997).

Here, the record shows that Leah was represented by appointed counsel based

on evidence of her indigency. Following the trial, but prior to entry of the order

terminating her parental rights, Leah moved pro se for reconsideration and to reopen

the matter, contending that her appointed counsel provided ineffective assistance.

Thereafter, the superior court appointed new counsel for Leah and held a hearing on

Leah’s motion for reconsideration. The hearing, however, was not transcribed, even

though Leah was entitled to a paupered copy of the transcript. See Nix v. Dept. of

Human Resources, 236 Ga. 794, 796 (225 SE2d 306) (1976) (holding that indigent

parent’s right to paupered transcript at all stages of any proceeding involving

termination of that parent’s right is implied by law). In the absence of the transcript

we cannot properly review Leah’s claims of ineffective assistance. Accordingly, we

11 direct the trial court on remand to prepare a copy of the transcript or conduct a new

hearing on these claims.

3. In light of our holding in Division 1 that the adoption decree was deficient,

we need not address Leah’s remaining contentions regarding the superior court’s

alleged conduct in discouraging her from appealing her case, and the superior court’s

alleged failure to provide her with a copy of the final judgment.

Judgment vacated and remanded. Barnes, P. J., concurs. Ray, J., concurs fully

in Divisions 2, 3 and in the judgment only as to Division 1.