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In re M. R. B.

Court of Appeals of Georgia, Third Division

June 19, 2019


          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         Jason Gasca, the father of M. R. B., appeals from the Whitfield County Juvenile Court's order terminating his parental rights to his daughter, [1] arguing that the decision was not supported by clear and convincing evidence. For the reasons explained below, we agree and reverse.

         "On appeal, we view the evidence in the light most favorable to the juvenile court's disposition to determine whether any rational trier of fact could have found by clear and convincing evidence that the father's parental rights should have been terminated." In Interest of E. G. L. B., 342 Ga.App. 839, 839-840 (805 S.E.2d 285) (2017) (punctuation and footnotes omitted). In applying this deferential standard of review, we are mindful that "there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously." Id. Accordingly, it is not sufficient if the record merely contains some evidence to support the juvenile court's factual findings. Rather, the record must contain evidence that is "clear and convincing." Id.; see also Santosky v. Kramer, 455 U.S. 745, 748 (102 S.Ct. 1388, 71 L.Ed.2d 599) (1982) ("Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires the State support its allegations by at least clear and convincing evidence."). "[U]nder Georgia law, clear and convincing evidence is an intermediate standard of proof which is greater than the preponderance of the evidence standard ordinarly employed in civil proceedings, but less than the reasonable doubt standard applicable in criminal proceedings." In Interest of K. M., 344 Ga.App. 838, 847 (2) (811 S.E.2d 505) (2018) (citation and punctuation omitted). To be clear, "the juvenile court's preference that custody of a child remain with someone other than her natural parents is wholly without consequence, where the court lacks clear and convincing evidence to support that decision." Id. (citation and punctuation omitted).

         Viewed in the light most favorable to the judgment, the record reflects that the mother and Gasca were not married, and M. R. B. was born on February 21, 2014. In May 2014, Whitfield County's Division of Family and Children Services ("the Department") became involved with the mother based on the mother's alleged drug use and unstable housing. In July 2014, when M. R. B. was five months old, she was removed from her mother's custody, and the Department filed a dependency petition. In relevant part, the dependency petition noted that Gasca had been arrested four years prior for theft by taking and possession of methamphetamine. Subsequently, in October 2014, the juvenile court found that it was in the best interest of M. R. B. for Gasca to have legal and physical custody.[2]

         In early May 2015, the Department removed M. R. B. (then 14 months of age) from Gasca's home and filed a new dependency petition based on concerns regarding Gasca's alleged alcohol abuse, his lack of cooperation with the Department's investigation, and concerns over physical altercations between M. R. B.'s mother and M. R. B.'s paternal grandmother in M. R. B.'s presence. The following month, the juvenile court dismissed the dependency petition and entered a protective order, returning M. R. B. to Gasca's custody, and ordering "[t]he father to cooperate with the efforts of [the Department] to prevent or eliminate further removal of the child from the home," and the Department to "continue services with the family on an ongoing basis in as necessary to insure the child's safety."[3]

         Approximately two years later, on July 31, 2017, the Department took custody of M. R. B. (then age 3) and thereafter filed a new dependency petition, alleging, in relevant part, that (1) both the mother and Gasca were incarcerated; (2) Gasca left M. R. B. with a relative who was not suitable for placement and failed to provide direct care of M. R. B. for several months; (3) Gasca had refused to cooperate with the Department in its efforts to prevent removal of M. R. B.; and (4) M. R. B. was without medical insurance and was not up to date on her physical examinations or her vaccines. Following a hearing in August 2017, the juvenile court entered an order finding M. R. B. dependent and ordering Gasca to pay $45.00 per week in child support.[4] Gasca did not appeal.

         Two months later, in October 2017, the case came before the juvenile court for a case plan review, initial judicial review, and permanency planning hearing. The father was not present, but was represented by counsel. The juvenile court adopted the Department's recommended "Nonreunification/Adoption" permanency plan. The court explained that there was no plan for reunification with either parent, and

[i]n order to be considered for a return of custody the father would need to complete a [Comprehensive Child and Family Assessment] and follow any recommendations therein. The father would need to obtain and maintain stable, sufficient housing and income for a period of at least six consecutive months. He would need to complete a psychological evaluation and follow any recommendations therein. He would need to complete a parenting/nurturing class approved by [the Department] and provide proof of the same. He would need to undergo an alcohol and drug assessment and complete any recommendations. The father would need to maintain visitation with the child as long as same is beneficial to the child and pay support for the child in the amount of at least $45.00 per week until an account has been established with Child Support Enforcement. . . .
The compliance of the father has been: The father has attended visitation twice and completed a negative drug screening on September 8, 2017. There was an incident at the first visit wherein the father's ex-girlfriend[5] called police. On the date of this hearing [the father] is incarcerated on multiple charges. . . .
The current visitation between the mother, father and the child is: Each parent had attended two visits with the child prior to this hearing. As of the date of this hearing, both parents are incarcerated. There was an incident at the father's first visit, where his ex-girlfriend called police. The child is experiencing nightmares and bedwetting surrounding the visits. The Court hereby suspends all visits between the child and parents until further Order of this Court. The Court finds that visitation with the parents is not in the best interest of the child at this time.

Gasca did not appeal.

         Four months later (and only seven months after taking custody of M. R. B.), in February 2018, the Department petitioned for termination of parental rights, alleging, in relevant part, that termination of Gasca's parental rights was warranted and was in M. R. B.'s best interest because: Gasca wantonly and willfully failed to provide support for a period of more than six months; M. R. B. (then age four) had been abandoned, was without parental control and dependent and dependency was likely to continue; Gasca was incarcerated with a maximum possible release date of September 25, 2020, and was incapable of adequately providing for M. R. B.'s needs; Gasca was instructed in the October 2017 dependency order as to the goals he needed to complete to be considered for a return of custody and failed to complete these goals; M. R. B. was in a safe adoptive placement and in need of a "stable and secure permanent home, "; and M. R. B. "would continue to be harmed if allowed contact with her parents even on a visitation basis, as the parents have not demonstrated their ability to either care for or protect the child."

         A Permanency Plan Hearing was held in April 2018. Although the record indicated that the father was served with notice at least 72 hours prior to the hearing, he was not present and was not represented by counsel. The Department's recommended permanency plan was "Adoption following Termination of Parental Rights," and the court adopted the recommended plan. Gasca did not appeal.

         The hearing on the Department's petition to terminate parental rights was held in May 2018. Gasca's request to be present at the hearing was denied, as was his request for a continuance based on an upcoming parole eligibility window, but he was permitted to appear telephonically and was represented by counsel. As detailed further below, two witnesses testified at the hearing: M. R. B.'s foster care case manager and Gasca.

         M. R. B.'s foster care case manager, Erin Bennett, testified that Gasca was subject to a non-reunification plan and was instructed as to what he needed to do to be considered for a return of custody.[6] The case manager testified that, at the time M. R. B. was taken into custody, she was living with relatives and Gasca was not providing direct care and had a warrant out for his arrest. She was "not sure" how long M. R. B. had been with the relatives. She stated that Gasca had been incarcerated for the majority of the time in which M. R. B. was in the Department's custody, except "for a month or two" in the beginning during August and September 2017. During that brief time, he had not provided any proof of completion of case plan goals. However, he visited with M. R. B. three or four times at the public visitation center, but the visits were suspended after police were called during a visit.[7] The case manager confirmed that she was not present at the visits, but she concluded based on her review of documentation from the visits that Gasca's anger issues during the visit in which police were called caused M. R. B. to urinate on herself on the way home, and that M. R. B. had experienced bed wetting, and nightmares following visits. The case manager stated that M. R. B. was thriving and happy in her foster home and the foster parents intended to adopt her. She confirmed that the Department was asking the court to terminate parental rights of both parents based on their extensive criminal histories and unstable backgrounds.

         On cross-examination, the case manager testified that she met with Gasca at least two or three times while he was incarcerated and he expressed a willingness to complete his case plan and regain custody of M. R. B., and that he intended to take parenting and substance abuse classes while incarcerated. She acknowledged that those classes were not available at the facility where he was incarcerated, and that it is very difficult for someone to complete a case plan while incarcerated. She stated that, on at least one occasion, Gasca inquired about having telephone contact with M. R. B. and receiving pictures of her, but his request was denied. The case manager also confirmed that, after visitation was suspended, she instructed Gasca that he was not to have any contact or communication with M. R. B. She acknowledged that one of the case plan requirements was for him to have meaningful contact with M. R. B., but stated that "[i]t is not appropriate for a four-year-old to have contact with an inmate. It would not be beneficial."

         Additionally, the case manager testified that she never visited Gasca's home when he had custody of M. R. B., and that, in 2014, when he was given custody, the Department did not have any concerns. She opined that Gasca had not expressed a willingness and desire to be a caregiver for M. R. B. because he had not made any progress on his case plan, but she acknowledged that he loves and cares for the child. She also testified that Gasca had not paid any child support for M. R. B. since the Department took custody in July 2017.

         Gasca, then age 27, testified that, in 2014, upon learning that M. R. B. had been removed from the mother's custody, he hired a lawyer so that he could pursue custody. He explained that he had custody of M. R. B. for most of her life and they bonded during that time. M. R. B. had her own room with her own bed, toys, and enjoyed playing on his phone and tablet and he taught her things, such as colors. He stated that he tried to stay in touch with the mother and encouraged her to maintain a relationship with M. R. B., but was unsuccessful. He confirmed that he took M. R. B. to the doctor when he was supposed to and properly clothed and cared for her, although he admitted that "[t]owards the end [M. R. B.] may have been behind on a couple of her . . . shots." He stated that he asked his ...

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