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Woodall v. Johnson

Court of Appeals of Georgia, Fourth Division

February 7, 2019

WOODALL
v.
JOHNSON.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Doyle, Presiding Judge.

         Beau Phillip Woodall ("the father") appeals an order from the Superior Court of Henry County granting James W. Johnson's ("the stepfather") stepparent petition to adopt the father's son, B. M. W., and terminating the father's parental rights to the child. The father argues that: (1) the superior court abused its discretion by denying his motion to supplement the record; (2) the court erred by failing to set forth sufficient facts to authorize termination of parental rights as required by former OCGA §§ 19-8-19 and 19-8-18[1]; (3) there was insufficient evidence to support the termination of his parental rights under former OCGA § 19-8-10; and (4) the trial court erred by failing to properly apply the clear and convincing evidence standard. For the reasons that follow, we reverse.

         "On appeal from an order severing parental rights based on an adoption petition, we view the evidence in the light most favorable to the trial court's findings and determine whether a rational trier of fact could have found by clear and convincing evidence that the biological parent's rights have been lost."[2]

         B. M. W. was born on September 29, 2010, as issue of the marriage between the father and Lauren Alicia Johnson ("the mother"). On January 7, 2013, the parents divorced, and the superior court entered a final order requiring the father to pay $400 per month in child support and incorporating a parenting plan. On May 3, 2014, the mother and the stepfather married.

         On September 10, 2015, the superior court entered an order finding the father in contempt and requiring him: to pay $7, 450 in back support and $562 for unpaid medical expenses; to comply with a parenting schedule recommended by counselor Pam McMichen; and to submit to a drug screen by July 24, 2015, with the caveat that the father "shall have no visitation with [B. M. W.] until he has provided a clean . . . drug test to the [mother]." McMichen's parenting plan set forth a detailed schedule, which included initial supervised visitation gradually working up to unsupervised overnight visits twice a month after over a year. As a sub-set of the final part of the schedule providing for overnight visits, the parenting plan provided, among other things, that: "[s]hould problems arise," the mother should notify her attorney or McMichen and that "[s]hould problems occur during visits," the mother could take B. M. W. for counseling at her discretion; the father "shall participate in individual counseling throughout the step down process; and "[t]he [father] shall attend counseling at least once a week."

         On January 25, 2017, the stepfather filed a petition for adoption, attaching thereto the mother's written consent pursuant to former OCGA § 19-8-26 (1). The stepfather alleged that the written voluntary surrender of the father was not necessary because the father,

for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause ha[d] failed to communicate or make a bona fide attempt to communicate with that child in a meaningful, supportive parental matter [sic] and ha[d] further failed to provide care and support of the child as required by law or judicial decree as contemplated in OCGA § 19-8-10.

         The father filed an objection to the adoption petition, alleging that he had "purged all issues of contempt," including paying all past due child support and obtaining the drug test required in the September 2015 order and that he had "communicated or reasonably attempted to communicate with the child within the past year."

         At the August 2017 hearing, the mother testified that after the contempt order was issued, the father regularly texted her to schedule visitation, but she denied his requests because he had not provided proof of a clean drug screen. On April 5, 2017, the father's attorney wrote to the mother's attorney, providing proof of the father's September 20, 2016 clean drug screen and requesting that the father begin the graduated visitation schedule. The mother, however, continued to deny the father's repeated requests for visitation because "the drug screen took way longer than his allotted time[, ] and we still [had not] done the counseling sessions." The mother testified that "[they] haven't really spoken to [the father] since" the adoption petition was filed, even though he called "every day pretty much. . . ."[3]

         The mother also testified that B. M. W. saw his paternal grandparents and had a "good relationship with them," and they passed along gifts to B. M. W. from the father. According to the mother, the grandparents and the father attended B. M. W.'s sporting events up until two years before the hearing. After the adoption petition was filed, the mother "rejected" the grandparents' requests to attend B. M. W.'s sporting events because "they were very upset and angry[, ] . . . and it's not something I need to bring around [B. M. W.] or myself. I was eight months pregnant at the time"; the mother told the grandparents that she would take the child out of the game if they or the father came to watch.

         At the hearing, the father testified that after he and the mother separated, he spent a lot of time with B. M. W. The father concedes, however, that after the mother started prohibiting his visitation, he wrongfully stopped paying child support. After the contempt order, the paternal grandfather sold the family's only vehicle so the father could pay the purge amount and avoid jail, and the father worked a second job to repay him. The father, who is legally blind, worked in construction, making $10 per hour at the time of the contempt order. According to the father, he was initially unable to pay the $275 for the drug test the court required because he was paying the arrearage and continuing child support payments, and he had difficulty scheduling the test because he frequently worked out of state. The father maintained that he did not understand that his visitation with B. M. W. was conditioned upon him attending counseling; he believed, until the day of the final hearing, that he could begin visitation as soon as he obtained a clean drug screen and that he would undergo family and/or individual counseling when and if the counselor required it. Nevertheless, he attempted to schedule counseling but was only offered Wednesday appointments, which he could not attend because of work. The father also testified that he called the mother's phone regularly to speak with B. M. W., but he was only able to speak with him once or twice in the three years before the hearing.[4] The father denied ever telling B. M. W. that the mother was preventing them from seeing each other.

         The paternal grandmother testified that she had visited with B. M. W., who said that he loves the father, and she has passed along gifts to him from the father. Both paternal grandparents witnessed the father's repeated unsuccessful attempts to speak with B. M. W. on the phone.

         Although the attorneys had difficulty determining the precise amounts, they agreed at the final hearing that the father had been making regular monthly child support payments since the petition was filed, but ...


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