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Hooper v. Hedgepath

Court of Appeals of Georgia, Fifth Division

February 7, 2017

TERESA HOOPER, et al.
v.
AARON HEDGEPATH.

          DILLARD, P. J., REESE and BETHEL, JJ.

          Dillard, Presiding Judge.

         Timothy and Teresa Hooper filed a petition to adopt S. B. H. a little more than one year after his birth and nearly nine months after they obtained physical custody of the child. In filing this petition, the Hoopers also sought to terminate the parental rights of S. B. H.'s biological father, Aaron Hedgepath. Following a hearing, the trial court denied the Hoopers' motion to terminate Hedgepath's parental rights and their adoption petition. The Hoopers appeal, arguing that the trial court erred by applying OCGA § 19-8-10 (b) instead of § 19-8-10 (a) in determining whether to terminate Hedgepath's parental rights, finding that Hedgepath had not failed to provide support for S. B. H., and failing to consider the best interests of the child. Because we agree that the trial court applied the wrong subsection of OCGA § 19-8-10 in determining whether to terminate Hedgepath's parental rights, we vacate its order and remand the case for further proceedings consistent with this opinion.

         The record shows that on August 23, 2013, Hedgepath's girlfriend at the time, Jessica Dickson, gave birth to S. B. H., the couple's only child. Then, approximately three months later, Dickson moved out of state, leaving Hedgepath as S. B. H.'s sole guardian and caregiver. In early December 2013, Teresa Hooper, who believed herself to be the half-sister of Hedgepath's mother and, thus, S. B. H.'s great-aunt (and who is married), agreed to take the child into her home for a couple of weeks so that Hedgepath could seek steady employment. But shortly thereafter, Hedgepath was incarcerated for a probation violation. And because S. B. H. was now without a legal custodian, Bartow County DFCS took custody of the child and placed him in foster care for a few weeks while they conducted a home evaluation and background check on the Hoopers. Upon completion of the evaluation, DFCS approved the Hoopers as suitable custodians, and on January 23, 2014, the probate court issued the Hoopers a temporary letter of guardianship of S. B. H., to which Hedgepath consented. As a result, on January 24, 2014, S. B. H. returned to the Hoopers' custody.

         While incarcerated, Hedgepath provided no financial support for S. B. H., but he did write several letters for the Hoopers to read to the child. In March 2014, Hedgepath was released from incarceration, but he still provided no financial support and, in fact, did not visit S. B. H. because the Hoopers requested that he submit to a drug-screening before doing so. Instead, on March 19, 2014, he filed a petition for the termination of the Hoopers' temporary guardianship of S. B. H. But before his petition could be heard, in May 2014, Hedgepath was again incarcerated for yet another probation violation. Consequently, on May 14, 2014, Hedgepath dismissed his petition. He was released from incarceration for his May probation violation on November 26, 2014.

         On September 18, 2014, the Hoopers filed a petition in the Superior Court of Bartow County for the adoption of S. B. H., and the consequent termination of Hedgepath and Dickson's parental rights on the grounds that they abandoned the child. Hedgepath filed a response, in which he asserted, inter alia, that Teresa Hooper was not related to S. B. H. by blood or marriage, and thus, she could not seek to terminate his parental rights under OCGA § 19-8-10 (b), which, he argued, only applied to relatives.

         On January 14, 2015, the trial court held a hearing, during which it first addressed the issue, raised in Hedgepath's response, of whether Teresa Hooper was actually related to S. B. H. and, therefore, could adopt the child under OCGA § 19-8-7 (a), [1] or whether she was required to pursue a third-party adoption under OCGA § 19-8-5 (a).[2] And after hearing the testimony of several witnesses, including Teresa, Hedgepath, and Hedgepath's mother, the trial court found that there was insufficient evidence to show that Teresa was related to S. B. H., and thus, she would have to pursue the adoption under OCGA § 19-8-5 (a).

         The hearing then proceeded on the issue of whether Hedgepath's parental rights should be terminated. And at the conclusion of the hearing, the trial court found that Hedgepath had attempted to communicate with S. B. H. during the past year prior to the Hoopers filing their petition. The court, therefore, stated that it was denying the petition. Two weeks later, the trial court issued a written order, declining to terminate Hedgepath's parental rights and denying the Hoopers' petition for adoption. This appeal follows.

         At the outset, we note that in an adoption case, the trial judge "sits as both judge and jury and is vested with a broad range of legal discretion."[3] And on appeal, we construe the evidence to "uphold the trial court's findings and judgment and affirm if there is any evidence to support the findings."[4] Nevertheless, as to questions of law, we "apply a de novo standard of review."[5] With these guiding principles in mind, we turn now to the Hoopers' specific claims of error.

         1. The Hoopers first contend that the trial court erred by applying OCGA § 19-8-10 (b) instead of § 19-8-10 (a) in determining whether to terminate Hedgepath's parental rights. We agree and, thus, vacate the trial court's order.

         Broadly speaking, OCGA § 19-8-10 "delineates the circumstances when surrender or termination of parental rights of [a] nonconsenting parent is not required as a prerequisite to the filing of an adoption petition."[6] Specifically, former OCGA § 19-8-10 (a)[7] provided as follows:

Surrender or termination of rights of a parent pursuant to subsection (a) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13 when the court determines by clear and convincing evidence that the:
(1) Child has been abandoned by that parent;
(2) Parent cannot be found after a diligent search has ...

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