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Steele v. Steele

Court of Appeals of Georgia, First Division

June 11, 2018


          BARNES, P. J., MCMILLIAN and REESE, JJ.


         Stephanie Steele ("biological mother") appeals a judgment that, pursuant to OCGA § 19-8-10 (b), terminated her parental rights to her biological child and granted the adoption petition of the child's stepmother, Sara Steele ("adoptive mother"). The biological mother contends that the trial court erred by failing to inform her of her right to counsel, engaging in ex parte communications, failing to make express findings of fact, and entering judgment against her on insufficient evidence. Because the biological mother has failed to demonstrate any reversible error, we affirm.

         The record reflects that the child was born in wedlock. When her parents divorced on April 21, 2011, she was three years old. The father was awarded physical custody of the child, as well as final decision-making authority. The biological mother was granted visitation that included every other weekend and alternating major holidays; she also was ordered to pay $245 as monthly child support.[1] Each parent was granted telephone contact with the child when the child was with the other parent.

         In 2012, the father married Sara Steele. And about four years later, on March 15, 2016, she filed petitions under Georgia's Adoption Chapter[2] seeking to terminate the parental rights of the biological mother and to adopt the child. The adoption petition was accompanied by the father's sworn consent.

         Generally, a stepparent may adopt his or her spouse's child only if the parent whose rights will terminate 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[.]" OCGA § 19-8-6 (a) (1); see Ray v. Hann, 323 Ga.App. 45, 48 (2) (746 S.E.2d 600) (2013). But if that parent refuses to surrender his or her parental rights, OCGA § 19-8-10 (b) provides that the court may nevertheless terminate the biological parent's rights and grant the stepparent's petition to adopt the child where the trial court finds 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[.]

OCGA § 19-8-10 (b) (1). See Ray, 323 Ga.App. at 48-49 (2). "It is the petitioner['s] burden to prove that termination of the parental rights is warranted, including the lack of justifiable cause." (Citation and punctuation omitted.) Ray, 323 Ga.App. at 49 (2). If the petitioner meets that burden of proof, then the court must also determine whether the proposed adoption is in the best interest of the child. OCGA § 19-8-10 (b). See Ray, 323 Ga.App. at 49 (2).

         In the instant case, given the adoptive mother's petitions, the trial court convened a series of hearings. Notice was sent to the parties that on June 29, 2016, a hearing would be held on the termination petition; the petition alleged, inter alia, that the biological mother had been using methamphetamine; that her last physical contact with the child had been in mid-2014; that her last telephone contact with the child had been in December 2014; and that the biological mother had failed to provide court-ordered support for the child.

         When that hearing convened as scheduled ("Termination Hearing"), the child was 8 years old. The biological mother had not filed any response in the case, but she appeared pro se at the hearing and expressed opposition to the petitions. When called to the stand by the adoptive mother's counsel, the biological mother acknowledged that as part of the divorce decree, she was court-ordered to pay monthly child support, but that she had not done so.[3] She recounted that in early 2012, she began using methamphetamine. And since 2013, she further recounted, she had not been "legally" employed; as she explained at the hearing, "I was work - I was on the streets." She recalled that during that time, she was sometimes "staying at motels, " but otherwise was "homeless on the streets."

         In August 2014, the biological mother testified, her visitation with her child was modified to require supervision. But since June 2014, the biological mother admitted, she had not exercised any visitation rights. She further explained that she had not tried to contact her child because most of the time, "I was either - high or intoxicated - and I didn't want to call her when I was - in that state." In November 2015, she was arrested and jailed until late January 2016; the charges stemmed from violating probation (relating to June 2015 offenses of DUI and giving false information). She relayed that, as part of the disposition of that case, she was ordered to undergo a year of rehabilitation. In January 2016, she moved to Missouri, where she entered a rehabilitation program. At the time of the Termination Hearing, she had completed about six months of the program, and she had begun volunteering at the facility's senior center. The biological mother was asked at the Termination Hearing, "[D]o you feel like you're in a position to be a mother to your child at this time?" She answered, "Not at this point, no." She stated that she was returning to Missouri later that day, but posited that she could "probably travel here to visit with her [child]."

         At the end of the Termination Hearing, the trial judge announced that it planned to "take this part under consideration, " then issue a written order, and thereafter "take the evidence as far as the petition for adoption is concerned."

         In an order entered July 5, 2016 ("Interim Order"), the trial court determined that the adoptive mother had adduced at the Termination Hearing sufficient evidence to satisfy both OCGA § 19-8-10 (b) (1) and (2). The trial court set out its underlying findings: the biological mother had no contact with the child since 2014; this lack of contact was not caused by any circumstance beyond the biological mother's control, but was due instead to her decision to partake in drugs, to live on the streets and in various motels, and to earn money through illegal activities. In addition, the court set forth that the biological mother had been court-ordered to pay child support, but admittedly had not done so; and that such failure was similarly without justifiable cause, ascertaining that the biological mother could have legally earned money and paid child support or that she could have paid child support out of her illegal earnings.[4] Finally, the court noted in the Interim Order that the Termination Hearing had not addressed the best interest of the child prong, and thus concluded its order with: "[T]he Court finds that there is clear and convincing evidence that the parental rights of [the biological mother] may be terminated but holds in abeyance a ruling until there is clear and convincing evidence as to what is the best interest of the child."

         Counsel for the adoptive mother scheduled the next hearing, which convened on August 18, 2016 in the judge's chambers. The biological mother was not present (nor represented). Thereafter, the court entered judgment on October 18, 2016 that granted the adoptive mother's petitions for termination and adoption. It was later determined, however, that the biological mother had not been notified of the in-chambers hearings. The biological mother, who by that time had obtained counsel, filed a motion for recusal of the trial judge and a motion for new trial. Rulings thereon resulted in the trial judge being disqualified, the case transferred, the October 18, 2016 judgment vacated, and the case proceeding with a new evidentiary hearing on the issue of whether adoption was in the child's best interest.

         When the court subsequently convened such hearing on June 29, 2017, the child's father took the stand and reported that the child had turned 9 years old, was going into the fourth grade, was excelling in school, and was enjoying playing sports and engaging in various hobbies. He testified that his wife was a great mother to the child, had supported the child, taken care of her, helped her with her homework, and had "just always been there." He asserted that he very much wanted his wife to adopt the child, that their home had three bedrooms and two bathrooms, that they had transportation, and that their family unit was financially stable.

         The adoptive mother took the stand. She described how she and the child's father coordinated their respective full-time jobs to accommodate the child's needs and schedule. She detailed that she routinely helped the child with her homework, that the child was an honor-roll student, that the child loved school, that she had many friends, and that she participated in dance and soccer. Her pediatric and dental visits showed that she was a healthy child; and she was getting ready for braces. The adoptive mother further expressed that because of their years together, she and the child enjoyed a strong bond.

         The biological mother also took the stand. She updated the court that she had left the rehabilitation program after 10 months. She had not completed the program; nor had she obtained the sentencing court's permission to discontinue the rehabilitation. She further conceded that she had unsuccessfully tried rehabilitation about six times before. She had left the most recent rehabilitation facility, she explained, because she had become romantically involved with a man she had since married; she was pregnant and expecting to deliver the baby in about 6 weeks.

         The biological mother reported that her probationary period would not end for another year, but that she remained in contact with her probation officer in Georgia. She reported that she had not used any drugs since leaving the rehabilitation program, and that her most recent drug tests had been negative. Additionally, she testified, her volunteering at the senior center had led to a part-time job there, where she was assisting the cooks and working with the meals-on-wheels program. When asked, "[D]o you feel at this point ...

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