IN RE AW, A99A0906.

• Decision Date: 06 October 1999
• Docket Number: No. A99A0906.,A99A0906.
• Citation: 240 Ga. App. 259,523 S.E.2d 88
• Parties: In the Interest of A.W., a child.
• Court: Georgia Court of Appeals

523 S.E.2d 88

240 Ga. App. 259

In the Interest of A.W., a child.

No. A99A0906.

Court of Appeals of Georgia.

October 6, 1999.

S. Friedman & Associates, Steven J. Best, Atlanta, for appellant.

Land, Cohen & Keon, Stephen A. Land, Atlanta, for appellee.

RUFFIN, Judge.

Appellant, the natural mother of A.W., appeals from the trial court's order terminating her parental rights. Because the evidence supported the trial court's decision, we affirm.

The decision to terminate parental rights involves a two-step process:

First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. This determination is based on a finding that the child is deprived, the lack of proper parental care or control by the parent is the cause of the child being deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. On appeal, we determine whether, viewing the evidence in a light most favorable to the lower court's judgment, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. ¹

Viewed in the light most favorable to the trial court's decision, the evidence showed as follows. A.W. was born to appellant on September 10, 1987. Appellant, who was not married at the time, lived in Columbus, Ohio, and worked the night shift at a job about 40-50 miles away. Kimberly Larraby, a friend of appellant's, would babysit A.W. at church. One day when A.W. was about four months old, Larraby showed him to her cousin, Anne Smith, who was visiting from Georgia. Appellant later gave Larraby permission to take A.W. to Georgia for the summer, where he lived with Smith and her husband from March until August 1988. In September 1988, the Smiths went to Ohio to meet with appellant. Appellant told Mrs. Smith that she did not want A.W. to have any contact with his father. She agreed to let the Smiths raise A.W. in Georgia. According to appellant, the Smiths were to raise A.W. until appellant was able to get off the night shift. Appellant testified that "[m]y main purpose was to get off the night shift and get him back so I could be with him in the daytime."

For the next ten years, A.W. lived in Georgia with the Smiths, who assumed all parental responsibility for the child. When A.W. was about a year old, appellant agreed that he should go by the name of Smith, telling Mrs. Smith that "you are the mommy and [Mr. Smith] is the daddy and I have no problems with that." A.W. has used the name of Smith since coming to live with the Smiths. Appellant has provided no financial support for the child, except for a few hundred dollars during the first few years. As the years went by, appellant would call the Smiths less and less frequently, and usually she would speak not to A.W. but to Mrs. Smith. In early 1997, shortly after appellant got married, the Smiths went five months without hearing from her.

On their own initiative, the Smiths would take A.W. to Ohio during the summers to visit Mrs. Smith's family and to see appellant. In addition, A.W. spent a few Thanksgivings and perhaps one Christmas with appellant. During these visits, appellant never indicated that she wanted A.W. to stay. Appellant never came to Georgia to visit A.W. or the Smiths, except on three occasions when she was passing through on her way to Florida and stopped by for a total of about 30 minutes.

In 1991, appellant had a second child by another man. Although appellant was still unmarried and working the night shift, she personally raised this second child. After the second child was born, Mrs. Smith asked whether appellant wished for A.W. to return and live with her. Mrs. Smith testified that, at that point, A.W. was still young enough to make the transition back to living with his natural mother. However, according to Mrs. Smith, "[appellant] told me that [A.W.] is yours and [the other child] is mine as long as I see [A.W.] from time to time." The Smiths testified that, after they had raised A.W. for a few years and he started attending school, they began to consider the arrangement permanent.

In 1993, about five years after "temporarily" placing A.W. with the Smiths, appellant began working the day shift at a location near her home. Although she claims she wanted A.W. to be returned to her at that time, she did not take any action for the next four years to try and get him back. When asked why she took no action for four years after going on the day shift, appellant testified that she wanted to give Mrs. Smith "time to adjust to the fact.... Whatever she need—if she need to replace [A.W.] she can do that."

A.W. continued to live with the Smiths for the next several years. In August 1997, Mr. Smith went to Ohio to pick up A.W., who had been visiting appellant. Smith went to appellant's office and waited for her for two hours, but she would not come out to see him. Smith then went to the house, picked A.W. up, and left "as we have done many, many times before." The next day, appellant drove down to Georgia and unsuccessfully tried to have Smith arrested for kidnapping. She then returned to Ohio and filed an emergency petition in an Ohio court seeking custody of A.W. In an affidavit accompanying the petition, appellant stated that "[i]n the summer of 1997, I brought my son [A.W.] back from Georgia to live with me in Ohio." She later admitted that this statement was not true. The Ohio court initially awarded temporary custody to appellant, but ultimately determined that Georgia had jurisdiction over the matter.

In September 1997, the Smiths filed a deprivation petition in Cobb County Juvenile Court seeking temporary custody of A.W. A deprivation hearing was held on December 5, 1997. In addition to hearing from the Smiths and appellant, the trial court also heard testimony from Dr. Corbett Harold Turner, a child psychiatrist who had interviewed A.W. and the Smiths. Dr. Turner testified that A.W. considered the Smiths to be his parents and was very attached to them. According to Dr. Turner, A.W. said that he was "upset, angry, and disappointed" when he was with appellant. A.W. told Dr. Turner that appellant did not appear to be interested in him and gave him spankings for things he did not do. When Dr. Turner asked A.W. what three wishes he would like to come true, A.W.'s first wish was "not to have to go back to [appellant's] house." Dr. Turner testified that taking A.W. away from the Smiths and returning him to appellant "would have a disastrous effect on his emotional and mental health." Under the circumstances of this case, Dr. Turner testified that "you can only draw the conclusion that the biological mother has in fact abandoned the child and has not displayed responsibility, has been indifferent, has not been a parent." He testified that, at A.W.'s age, it would be impossible for appellant to establish a psychological parenting relationship with him.

After the hearing, the trial court entered an order finding that A.W. was deprived and awarding temporary custody to the Smiths. On June 4, 1998, the Smiths filed a petition for termination of appellant's parental rights. A hearing on the petition was held on October 8, 1998. The transcript of the deprivation hearing was admitted into evidence, and the trial court also heard evidence from the parties. Dr. Turner testified that he had interviewed A.W. on two occasions since the deprivation hearing. He testified that A.W. did not want to have any interaction whatsoever with appellant. A.W. told Dr. Turner that appellant had told him the reason she wanted him to live with her was so that he could watch her other child while she was at work. According to Dr. Turner, if A.W. was required to have continuing contact with appellant it would be a "traumatic experience" for him.

Mrs. Smith testified that she had no contact with appellant for seven months after the December 5, 1997 deprivation hearing. According to Mrs. Smith, appellant called her on July 25, 1998, and then did not call again until October 7, 1998, the day before the termination hearing. She said appellant sent A.W. a card in November 1997, shortly before the deprivation hearing, but did not send him anything for Christmas. Appellant also sent A.W. a birthday card in September 1998, about a month before the termination hearing. Appellant testified that she had sent A.W. three other cards and letters in July and August. Appellant did not come to Georgia after the deprivation hearing to try to visit A.W. On October 20, 1998, the trial court issued an order terminating appellant's parental rights.

As discussed above, in order to terminate parental rights, the trial court must find that there is clear and convincing evidence of parental misconduct or inability and that termination is in the best interest of the child.² In order to find parental misconduct or inability, the trial court must find (1) that the child is deprived, (2) that the lack of proper parental care or control by the parent is the cause of the deprivation, (3) that the cause of the deprivation is likely to continue or will not likely be remedied, and (4) that continued deprivation will cause or is likely to cause serious harm to the child.³

With respect to the first required finding, the trial court's unappealed deprivation order establishes that A.W. is deprived within the meaning of OCGA § 15-11-81(b)(4)(A)(i). ⁴ With respect to the second required finding, the evidence authorized the trial court to conclude that the lack of proper parental care or control was the cause of A.W.'s deprivation. In determining whether a child...