TERESA HOOPER, et al.
DILLARD, P. J., REESE and BETHEL, JJ.
Dillard, Presiding Judge.
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.
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'
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.
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.
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),  or whether she was required to pursue a
third-party adoption under OCGA § 19-8-5
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).
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
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." 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." Nevertheless, as to questions of law, we
"apply a de novo standard of review." With these
guiding principles in mind, we turn now to the Hoopers'
specific claims of error.
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
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." Specifically, former OCGA § 19-8-10
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 ...