IN THE INTEREST OF M. R. B., A CHILD
DILLARD, C. J., GOBEIL and HODGES, JJ.
Gasca, the father of M. R. B., appeals from the Whitfield
County Juvenile Court's order terminating his parental
rights to his daughter,  arguing that the decision was not
supported by clear and convincing evidence. For the reasons
explained below, we agree and reverse.
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).
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.
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
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. Gasca did not appeal.
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 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.
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
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.
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.
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. 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. 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
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."
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.
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 ...