Johnson v. Hauck

• Decision Date: 01 March 2018
• Docket Number: A17A1805
• Parties: JOHNSON v. HAUCK.
• Court: Georgia Court of Appeals

344 Ga.App. 848

812 S.E.2d 303

JOHNSON

v.HAUCK.

A17A1805

Court of Appeals of Georgia.

March 1, 2018

Sherry Herrera Campbell, Houston County, for Appellant.

Kevin Paul Bradley, Macon, for Appellee.

Rickman, Judge.

In this relative adoption case brought pursuant to OCGA § 19-8-10 (b), the biological mother of the minor child at issue appeals from the superior court's final judgment and decree of adoption ("the decree"), which terminated her parental rights and granted the maternal grandmother's petition to adopt the child.¹ The mother contends, among other things, that the adoption petition was legally insufficient and that the superior court violated her due process rights in refusing her request for appointed counsel. We agree that the adoption petition failed to meet the statutory requirements; therefore, we vacate the decree and remand this case for additional proceedings consistent with this opinion. For the purposes of remand, we conclude that the superior court did not violate the mother's due process rights when it denied her motion for the appointment of legal counsel and address two additional procedural errors in order to prevent their recurrence.

On appeal of a decision terminating parental rights, we determine whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. We defer to the [superior] court's findings unless the clear and convincing standard is not met. In matters of adoption, the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse.

(Citations and punctuation omitted.) Ray v. Denton , 278 Ga. App. 69, 70 (1), 628 S.E.2d 180 (2006).

The scant appellate record shows as follows. The mother gave birth to the minor child in August 2013, and both the mother and the child were determined to have illegal drugs in their systems. The juvenile court issued an order stating that "[a]ll the parties agreed it is in the best interest of the child to be in [the grandmother's] permanent custody," and consequently awarded custody to her. In November 2014, the grandmother filed a petition to adopt the child in the superior court.

The superior court conducted a hearing on the adoption petition, during which the mother appeared pro se. As the hearing commenced, the court noted for the record that it had "received numerous phone calls and ... correspondence from [the mother] ... requesting among other things ... that she be given counsel." After recognizing this was an adoption proceeding in the superior court rather than a termination proceeding in the juvenile court—for which the mother would have a statutory right to counsel—the judge denied the mother's request to appoint her an attorney.²

Thereafter, the mother moved for a continuance so that she could retain counsel. The court refused to postpone the hearing after stating that the mother "should have already done that."³

The hearing proceeded. The mother and the grandmother were the sole witnesses,⁴ and the entirety of the substantive information gleaned from them is as follows. The mother had been forbidden from having any contact or communication with the child since his birth.⁵ The grandmother testified that she was given custody of the child at the hospital and had been his sole caregiver since that time. She lived with the child in a rental home with her 11-year-old son, with whom the child had bonded, and the child suffered from neurological and other problems allegedly related to the mother's drug use during pregnancy.⁶

The mother testified that she had been living in an apartment for the last five months with the child's biological father, and that she had been working for three months. She admitted, under questioning by the judge, that of the 12 months immediately preceding the filing of the petition, she had been incarcerated for five months and had not worked or provided any financial support for the child during any of that 12-month period. She offered the superior court copies of harassing emails and facebook posts that allegedly came from the grandmother and allegedly resulted in the child's father losing his job, and a copy of a police report that she filed to stop the harassment.⁷ And she stated that, "I think ... that my child shouldn't be adopted by [the grandmother] because I want to be part of his life. I know that if she does adopt him I will never have contact with him or her or anyone else in my family."⁸ The mother otherwise made no objections, conducted no cross-examination, and called no witnesses.

Based entirely upon the information set forth above, the superior court terminated the mother's parental rights and granted the adoption petition pursuant to OCGA § 19-8-10 (b) (2). In its decree, the court held that the mother, without just cause, failed significantly to support the child during the 12-month period immediately preceding the filing of the adoption petition. The court credited and summarized the grandmother's testimony, then "adopt[ed] the findings of fact made by the [juvenile court] as to the best interests of the minor child as part of its determination that the adoption is in the best interests of the child at issue." This appeal follows.

1. The mother argues that the grandmother's petition was legally insufficient and failed to provide her the statutorily required notice of the nature of the proceedings. We agree.

Because this case ultimately involved a termination of parental rights, we begin by recognizing that "[t]here can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring." Nix v. Dept. of Human Resources , 236 Ga. 794, 795, 225 S.E.2d 306 (1976) ; see In the Interest of J. M. B. , 296 Ga. App. 786, 789, 676 S.E.2d 9 (2009). Terminating a parent's rights to his or her child "is so drastic that it should be attended only by the most stringent procedural safeguards." Sanchez v. Walker County Dept. of Family etc. Svcs ., 237 Ga. 406, 411, 229 S.E.2d 66 (1976), disapproved of on other grounds, In Interest of R. D. F. , 266 Ga. 294, 296 (3), 466 S.E.2d 572 (1996) ; see In the Interest of J. M. B. , 296 Ga. App. at 789, 676 S.E.2d 9.

In order to defend this stringently protected right, Georgia law mandates that ordinarily, the relative of a child who has living parents may adopt the child "only if each such living parent ... has voluntarily and in writing surrendered to that relative ... all of his or her rights to the child for the purpose of enabling that relative ... to adopt the child." OCGA § 19-8-7 (a). The law nevertheless authorizes the superior court to terminate a biological parent's rights and allow a relative to adopt the child in a single action without the parent's surrender if there is clear and convincing evidence⁹ 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 ... [t]o provide for the care and support of that child as required by law or judicial decree," if the court also determines that "the adoption is for the best interests of that child." OCGA § 19-8-10 (b) (2).

To that end, OCGA § 19-8-13 (7) mandates that any petitioner alleging that a parent's rights to his or her child need not be surrendered or terminated prior to the filing of an adoption petition "shall allege facts demonstrating the applicability of Code Section 19-8-10." The law also requires that the parent be personally served with a copy of the conforming petition, and affords the parent the right to "appear in the pending adoption action and show cause why such parent's rights to the child sought to be adopted in that action should not be terminated by that adoption." OCGA § 19-8-10 (c).

Apart from a single reference to OCGA § 19-8-10 (b) (2),¹⁰ the petition in this case was devoid of any factual allegations "demonstrating the applicability" of that statute, as required by the express language of OCGA § 19-8-13 (7). Indeed, the petition failed to mention termination, much less set forth any reasons why the mother's parental rights should be terminated. "It is well settled that adoption laws must be strictly construed in favor of natural parents." (Citation and punctuation omitted.) Hafer v. Lowry , 320 Ga. App. 76, 78, 739 S.E.2d 84 (2013) ; see V. L. v. E. L. , –––U.S. ––––, 136 S.Ct. 1017 (II), 194 L.Ed.2d 92 (2016). Because the petition lacked the statutory requirements, it did not put the mother on notice of what allegations she needed to be prepared to defend against in order to show cause why her rights should not be terminated by allowing the adoption. See OCGA § 19-8-13 (7) ; Smallwood v. Davis , 292 Ga. App. 173, 176-177 (2), 664 S.E.2d 254 (2008) ; see also In the Interest of Marks , 300 Ga. App. 239, 246 n.4 (2), 684 S.E.2d 364 (2009).

As the appellate courts of this State have done repeatedly, "we emphasize that a judgment having such a final, ultimate and significant result as that of severing the rights of a parent to a child must conclusively show compliance with the statutory criteria prescribed as a condition precedent for such termination." (Citation and punctuation omitted.) Dell v. Dell , 324 Ga. App. 297, 301 (1), 748 S.E.2d 703 (2013) ; see In re M. D. F. , 263 Ga. App. 50, 51, 587 S.E.2d 199 (2003). Accordingly, we vacate the superior court's decree and remand this case for a new hearing.

2. Because it will be relevant on remand, we will address the mother's argument that her federal due process rights were violated by the superior court's denial of her request for appointed counsel.

Generally, civil litigants do not enjoy a constitutional right to appointed counsel. See In Interest of B. R. F , 299 Ga. 294, 297, 788 S.E.2d 416 (2016) ; see Turner v. Rogers , 564 U.S. 431, 441(III) (A), 131 S.Ct. 2507,...