Rokowski v. Gilbert, A05A0993.

Decision Date31 August 2005
Docket NumberNo. A05A0993.,A05A0993.
Citation275 Ga. App. 305,620 S.E.2d 509
PartiesROKOWSKI v. GILBERT et al.
CourtGeorgia Court of Appeals

Vernita L. Lee, Dawson, for Appellant.

Silvis, Ambrose & Lindquist, Douglas K. Silvis, Chris E. Ambrose, Thomasville, Smith, Hannan & Parker, David A. Parker, for Appellees.

MIKELL, Judge.

Jacek Rokowski appeals from the orders terminating his parental rights to his infant daughter, S.E.R., and permitting appellees, Mark Alan Gilbert and Amy Evans Gilbert, to adopt the child. We affirm.

1. The Gilberts have moved to dismiss Rokowski's appeal from the order terminating his parental rights to S.E.R., arguing that we lack jurisdiction because the notice of appeal was filed more than 30 days after the order was entered. We disagree.

The record shows that the final hearing in this case was held on April 13, 2004; the order terminating Rokowski's parental rights was issued on May 21, 2004; and the adoption decree was entered on June 25, 2004. The notice of appeal was filed on July 14, 2004. The Gilberts argue that the termination order was a "final judgment" within the meaning of OCGA § 5-6-34(a)(1), such that Rokowski was required to file the notice of appeal no later than 30 days following the entry of the order.1 The Gilberts are incorrect. Our Supreme Court recently addressed this issue in In the Interest of I.S.2

In direct appeals taken under OCGA § 5-6-34(a)(1), appellate courts must review all rulings rendered in the case that are raised on appeal and which may affect the proceedings below, without regard to the appealability of the ruling standing alone and without regard to whether the ruling was final or appealable by some other express provision of law. Id. at (d).3

In addition, the notice of appeal recites that the order appealed from is the order of June 25, 2004, in which the court entered a "Final Judgment and Decree of Adoption wherein the parental rights of [Rokowski] were terminated to his minor daughter." The June 25 order references the May 21 order in which his parental rights were terminated. Based on In the Interest of I.S. and OCGA § 5-6-34, Rokowski's timely filed notice of appeal from the final judgment and decree of adoption gives this Court jurisdiction to consider previous orders entered in the case. The motion to dismiss the appeal of the order terminating parental rights is denied.

2. Rokowski argues that the order terminating his parental rights is not supported by clear and convincing evidence. We disagree.

Under OCGA § 19-8-10(a),

[s]urrender or termination of rights of a parent pursuant to subsection (a) of Code Section . . . 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent . . . where the court determines by clear and convincing evidence that the . . . [p]arent has failed to exercise proper parental care or control due to misconduct or inability, as set out in . . . Code Section 15-11-94 [(b)], and the court is of the opinion that the adoption is in the best interests of that child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.4

Pursuant to OCGA § 15-11-94(b), the court determines parental misconduct or inability by finding that the child is deprived; that lack of proper parental care by the parent in question is causing the child's deprivation; that the cause of the deprivation is likely to continue or will not likely be remedied; and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.5

In considering the sufficiency of the evidence supporting an order terminating parental rights, this Court views the evidence in the light most favorable to the appellees and determines whether a rational trier of fact could have found by clear and convincing evidence that the natural parent's rights have been lost.6 We defer to the trial court's findings of fact and affirm unless this standard is not met.7 In addition, "[i]n 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. Thus, if there is any evidence to support the judgment entered in an adoption proceeding, it must be affirmed by this court."8

Properly viewed, the record reveals that Rokowski and S.E.R.'s natural mother, Sharon Rokowski ("Sharon"), were married on November 11, 2001, in New Mexico and that, at the time of the adoption hearing, a petition for dissolution of their marriage was pending in that state. A male child, S.J.R., was born to the couple on September 20, 2001, and the New Mexico court permitted him to reside with his father without making "finding . . . as to the appropriateness of the custodial arrangement." S.E.R. was born on October 3, 2003.

Sharon testified that Rokowski physically assaulted her on numerous occasions during their marriage, beginning in January 2002. She was drinking during each incident. According to Sharon, during the first assault, Rokowski punched her in the face, threw her on the stairs, and broke her rib. She was unable to leave the house for a week and a half. At first, the abuse occurred every two months; then it progressed to every six weeks, to once a month. All the beatings took place in the presence of S.J.R. and Sharon's other two young children by a different father. The two stepchildren, then aged five and seven, were removed from their household on August 6, 2002, and adopted by a relative of Sharon.

Sharon testified that, in addition to abusing her, Rokowski beat and punched their two Labrador puppies and left them chained to poles for long periods of time and that he threw their cats into a pond. Sharon also testified that he threatened to kill her parents and that they have restraining orders against him.

According to Sharon, when her husband beat her again on December 23, 2002, she called the district attorney. However, after Rokowski threatened her, Sharon dropped the charges. Also, at some point in 2002, Rokowski threw her out of the house. She was unable to return because he smashed all of her belongings. Rokowski admitted that he "[b]usted everything that belonged to her" because he was "very angry."

Next, when Sharon informed her husband that she was pregnant in the spring of 2003, Rokowski told her to have an abortion because they could not care for two children. At that time, S.J.R. lived with Sharon. One evening, Rokowski came to Sharon's makeshift home and tried to take S.J.R. Rokowski cornered Sharon and kicked her in the back several times while she was on the floor, telling her he hoped that she would miscarry. He denied kicking her but admitted that he urged her to have an abortion because he was concerned about the effect of her drinking on the unborn child.

Sharon testified that when she went into labor, she called Rokowski and asked him to drive her to the hospital. He drove to her residence, put S.J.R. in his car and drove off, leaving her stranded. Sharon's Alcoholics Anonymous sponsor drove her to the hospital. S.E.R. was born an hour later; she was five weeks premature and suffered from fetal alcohol syndrome. Sharon testified that Rokowski called her the next day and said he did not want to see the baby because he would not take part in raising her. She also testified that Rokowski never provided her or the baby with financial support. According to Sharon, Rokowski stated that he wanted S.E.R. placed in foster care. He was against the adoption because he hoped someday to be able to be a fit parent for her.

S.E.R. remained in the hospital for over two months. Rokowski testified that he visited S.E.R. in the hospital three times and brought S.J.R. to meet her. He introduced into evidence a videotape he took of S.E.R. the day before she was released from the hospital. However, Rokowski admitted that during the entirety of his daughter's hospital stay, he never spent the night with her because he had to work full time. He was self-employed earning $16,000 per year. Rokowski admitted that he has never paid a dime for the support of the child, although he has paid $7,000 in attorney fees and travel expenses to fight for his parental rights. He claimed he was never given a chance to support the baby because she was "kidnapped" from the hospital. Rokowski admitted that he did not sign the child up for Medicaid; did not pay any medical expenses associated with her hospital stay; and does not have health insurance, either for himself or the baby. Finally, he admitted that he told the Gilberts' lawyer that if they helped him with S.J.R., Rokowski would sign the adoption papers for S.E.R.

Amy Gilbert testified that she agreed to adopt S.E.R. immediately after her birth and traveled to New Mexico to meet her when she was four weeks old. S.E.R. was in the newborn intensive care unit of a children's hospital, being fed through a tube in her nose. Mrs. Gilbert stayed for five days during that first visit and never saw Rokowski. She returned to New Mexico while S.E.R. was still in the hospital. At that time, the baby still could not swallow but had gained enough weight for a feeding tube to be inserted into her stomach. S.E.R. was finally released from the hospital on or about December 6, 2003, and Mrs. Gilbert brought her back to Valdosta on December 11. Mrs. Gilbert, a homemaker with three other children, aged seven, five, and four, fed S.E.R. through the feeding tube every three hours and took her to a variety of specialists, including an eye doctor, who prescribed glasses for the infant to help her eyes focus; and a pediatric neurologist, who referred her to a geneticist. In addition, Mrs. Gilbert testified that S.E.R. has clogged tear ducts, which have to be massaged several times daily; that a speech therapist and an...

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