In re Marks, A09A1897.

• Decision Date: 25 September 2009
• Docket Number: No. A09A1897.,A09A1897.
• Citation: 300 Ga. App. 239,684 S.E.2d 364
• Parties: In re Petition of Morgan MARKS.
• Court: Georgia Court of Appeals

684 S.E.2d 364

300 Ga. App. 239

In re Petition of Morgan MARKS.

No. A09A1897.

Court of Appeals of Georgia.

September 25, 2009.

James Jeffries Hopkins, Newnan, for appellant.

Doris C. Orleck, Newnan, for appellee.

ELLINGTON, Judge.

In this stepparent adoption case, Morgan Marks filed a petition to terminate the parental rights of Michele Marks, the biological mother of ten-year-old G.M.M., and to adopt the girl. The Superior Court of Carroll County granted the petition after finding that Michele Marks had abandoned her daughter by failing to communicate with her in a meaningful and supportive manner and by failing to pay child support while she (the mother) was incarcerated. Michele Marks appeals, contending that there was insufficient evidence to support the termination of her parental rights. Because we find that there was insufficient clear and convincing evidence to show that Michele Marks' failure to communicate with and support G.M.M. was without justifiable cause, or that the circumstances which caused G.M.M.'s deprivation were likely to continue, we reverse the court's order terminating Michele Marks' parental rights. In light of this ruling, the court's grant of Morgan Marks' petition to adopt G.M.M. is reversed by operation of law. On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court's ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent's rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court's factual findings and affirm unless this standard is not met.

(Citations and punctuation omitted.) Johnson v. Taylor, 292 Ga.App. 354, 665 S.E.2d 49 (2008).

So viewed, the relevant evidence showed that Michele Marks (hereinafter, "the mother") married Jeffrey Marks ("Marks") in 1993, and their daughter, G.M.M., was born in July 1999. The couple divorced in June 2002, and the court granted custody of G.M.M. to Marks. The court granted the mother supervised visitation with the child and ordered her to pay Marks $40 per week for childcare costs in lieu of child support. Instead of having the mother pay for childcare, however, Marks allowed the mother to watch G.M.M. on weekdays while he worked.

It is undisputed that both the mother and Marks used illegal drugs until 2002, when G.M.M. was three years old. Marks testified that he stopped using illegal drugs in 2002, but the mother continued to abuse drugs. Even though Marks knew about the mother's drug abuse, he continued to allow her to visit with G.M.M. from 2002 to 2004.

In January 2004, the mother was arrested and charged with trafficking in methamphetamine and other crimes. Two months later Marks married Morgan Smith (hereinafter, "the petitioner"). Marks subsequently filed a petition for modification of the mother's visitation rights because he was concerned about the effect of the mother's drug use and lifestyle on G.M.M. The trial court granted the modification in April 2004, suspending the mother's visitation rights until she demonstrated that she was drug free for six consecutive months. The court also ordered her to pay at least $40 per week in child support.

In August 2005, the mother pled guilty to possession with intent to distribute methamphetamine, OCGA § 16-13-30(b); four counts of possession of a controlled substance, OCGA § 16-13-30(a); and possession of a firearm during the commission of a crime involving the possession of a controlled substance, OCGA § 16-11-106(b)(4). She was incarcerated from August 2005 until January 2009. Although the mother had no contact with G.M.M. during the first few months of her incarceration, it is undisputed that, between February 2006 and her release from prison in January 2009, the mother sent cards or letters to G.M.M. approximately four times a month.

Marks admitted, however, that he did not tell G.M.M. about all of the cards and letters that her mother had sent to her because, in his opinion, "to tell [G.M.M.] that her mother is trying to come back in her life after she knows that her mother's never been in her family is very detrimental to a nine-year-old, her stability and her mental thoughts." He further testified that there was "no way" he would show her the cards and letters at this time because, in his opinion, it was not an appropriate time to tell a nine-year-old girl that her mother had been trying to communicate with her when "the only thing she knows is the family that she has now," meaning him, his wife (the petitioner), and their family. In addition, he admitted that, when G.M.M. asked him why her mother was not involved in her life, he told her that "her mother had problems with drugs and she chose a lifestyle, that lifestyle, over her."

The evidence also shows that, at the time of the February 3, 2009 hearing on the adoption petition, the mother had been out of prison for only two weeks. The mother admitted that she had acted very foolishly and made very poor choices prior to her arrest, and she stated that she took full responsibility for her mistakes. It is undisputed that, during her three and a half years of incarceration, the mother completed extensive occupational training, parenting classes, and several months of rehabilitation for substance abuse. Specifically, she became certified as a First Class firefighter, earned several other firefighting certifications, including training as a first responder, in first aid and CPR, and in accident victim extrication, assisted the local fire department, and helped fight wildfires in south Georgia in 2007. She also completed Middle Georgia Technical College's 15-credit-hour course in computer technology and customer service. In addition, she completed nine months of intensive drug rehabilitation, which culminated in training on how to re-enter society and look for employment.

Following the hearing on the adoption petition, the trial court granted the petition, finding that the mother had effectively abandoned G.M.M. by failing to communicate with her in a meaningful and supportive manner and by failing to pay child support while incarcerated. Although the court acknowledged that the mother had regularly sent three or four letters per month to the child during her incarceration and that Marks had withheld the letters in an exercise of "parental discretion," it made no finding as to whether the mother's failure to communicate with and support G.M.M. was without justifiable cause.

On appeal, the mother contends that the trial court erred in terminating her parental rights and granting the petition for adoption, arguing that there was insufficient evidence to support the court's findings. For the following reasons, we agree.

Generally, a stepparent may adopt his or her spouse's child only if the biological parent whose rights will end 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). If the biological parent refuses to surrender his or her parental rights, OCGA § 19-8-10 provides that the court may still grant the stepparent's petition to adopt the child if it finds, inter alia, that there is clear and convincing evidence that the parent has abandoned the child or 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[.]

(Emphasis supplied.) OCGA § 19-8-10(a)(1), (b). See also Johnson v. Taylor, 292 Ga.App. at 354, 665 S.E.2d 49 (this Court applies the clear and convincing evidence standard when considering the sufficiency of evidence in adoption cases involving the termination of parental rights). "It is the petitioner['s] burden to prove that termination of the mother's parental rights is warranted, including the lack of justifiable cause." (Punctuation and footnote omitted.) Smallwood v. Davis, 292 Ga.App. 173, 175(1), 664 S.E.2d 254 (2008).

If the petitioner meets that burden of proof and the court finds that one of the above situations exists, then the court must also determine whether the proposed adoption is in the best interest of the child. OCGA § 19-8-10(a)(1), (b). With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. Bateman v. Futch, 232 Ga.App. 271, 274(2), 501 S.E.2d 615 (1998). However, "[a] court is not allowed to terminate a parent's natural right because it has determined that the child might have better financial, educational or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship." (Citation and punctuation omitted; emphasis in original.) Blackburn v. Blackburn, 249 Ga. 689, 694(2), 292 S.E.2d 821 (1982). The requirements of Georgia's adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship. Coleman v. Grimes, 250 Ga.App. 880, 890(2), 553 S.E.2d 185 (2001).

1. There is insufficient clear and convincing evidence to support a finding that the mother abandoned G.M.M. under OCGA § 19-8-10(a)(1). In order to authorize a finding of abandonment under OCGA § 19-8-10(a)(1), there must be clear and convincing evidence of an "actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental...