Michael Boots Hafer v. Terry Bryson Lowry, Jr.

• Court: Court of Appeals of Georgia
• Decided: March 1, 2013
• Docket: A12A2549
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

March 1, 2013

In the Court of Appeals of Georgia A12A2549. HAFER v. LOWRY.

MCFADDEN, Judge.

The father of a minor child appeals from a trial court order terminating his

parental rights and granting a petition for stepparent adoption of the child. Because

the trial court violated the father’s right to be heard and show cause why his parental

rights should not be terminated, we vacate the order and remand for further

proceedings.

Appellant Michael Hafer and Tara Hafer Lowry were formerly married. During

the marriage, in November 2007, Tara gave birth to the couple’s child, M. Q. H. The

couple divorced in September 2008, and the divorce decree awarded sole custody of

the child to Tara. In August 2011, Tara married Terry Lowry, Jr. A month later, in

September 2011, Terry Lowry filed a petition for stepparent adoption pursuant to OCGA § 19-8-10 (b), claiming, among other things, that Hafer’s parental rights

should be terminated because for more than a year he had failed to communicate with

the child or provide for the child’s care and support as required by the divorce decree.

Hafer filed an objection to the petition.

On March 22, 2012, the trial court held a hearing on the petition. Lowry’s

attorney called Hafer as the first witness for purposes of cross-examination. Hafer

was questioned by opposing counsel and his own attorney. Then, while he was on re-

cross-examination, the trial judge intervened, stopped all presentation of the evidence,

and announced his ruling. As Hafer’s counsel was in the midst of an evidentiary

stipulation, the trial judge interrupted him and declared, “At any rate, though,

regardless of all that, I think I’ve heard enough of this case and I’m ready to make a

ruling in the case.” The judge then ruled that Hafer had lost his parental rights and

granted the step-parent adoption. Counsel for Hafer immediately objected, stating, “I

have not been able to present my case fully and just for the record I object to that.

There’s other witnesses I was going to call; there’s other evidence. I’ve been cut short

all day today.” The trial judge disregarded the objection, moved on to other matters

and subsequently entered its final order granting the step-parent adoption.

2 Generally, a stepparent may adopt his or her spouse’s child only

if the biological parent whose rights will end with the adoption

voluntarily and in writing surrenders all of his or her rights to the child

to the stepparent for the purpose of enabling the stepparent to adopt the

child. If the biological parent refuses to surrender his or her parental

rights, OCGA § 19-8-10 (b) provides that the court may still grant the

stepparent’s petition to adopt the child if it finds, inter alia, that there is

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.) Weber v. Livingston, 309 Ga. App. 665, 666 (710

SE2d 864) (2011).

In such a case, it is the stepparent petitioner’s burden to prove that termination

of the biological parent’s parental rights is warranted. In re Marks, 300 Ga. App. 239,

3 242 (684 SE2d 364) (2009). And OCGA § 19-8-10 (c) further provides that the

biological parent must be served with a copy of the petition and that such parent “may

appear in the pending adoption action and show cause why such parent’s rights to the

child sought to be adopted in the action should not be terminated by that adoption.”

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

In this case, Hafer was properly served with a copy of the petition, objected to

it and appeared at the hearing to show cause why his parental rights to M. Q. H.

should not be terminated. However, during the presentation of the petitioner’s

evidence, the trial court sua sponte ended the matter and refused to allow Hafer to

present his witnesses and other evidence to show cause why his parental rights should

not be terminated. “It is well settled that adoption laws must be strictly construed in

favor of natural parents. [Cit.]” McKinney v. Jennings, 246 Ga. App. 862, 863 (2)

(542 SE2d 580) (2000). Moreover, “‘[t]he fundamental idea of due process is notice

and an opportunity to be heard.’ [Cit.]” Gottschalk v. Gottschalk, 311 Ga. App. 304,

312 (5) (715 SE2d 715) (2011). Here, by foreclosing Hafer’s right to show cause why

his parental rights should not be terminated, the trial court deprived him of a

meaningful opportunity to be heard. See generally Thorne v. Padgett, 259 Ga. 650,

651-652 (386 SE2d 155) (1989) (finding that former termination statute deprived

4 parent of meaningful opportunity to be heard and thus denied due process).

Accordingly, we vacate the decree of stepparent adoption and remand the case to the

trial court to conduct a hearing consistent with this opinion. See McKinney, supra.

Judgment vacated and case remanded with direction. Barnes, P. J., and

McMillian J., concur.