Johnson v. Hauck.

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 1, 2018

In the Court of Appeals of Georgia
A17A1805. JOHNSON v. HAUCK.

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

1
The superior court also terminated the parental rights of the child’s biological
father; the father, however, is not party to this appeal.
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

SE2d 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

2
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

2
Although the issue was not addressed at the hearing, we will assume for the
purposes of this opinion that the mother was indigent. She was determined to be so
for the purposes of appeal.
3
The hearing at issue was conducted two months before it was originally
scheduled, after the grandmother’s counsel “took advantage” of an opening on an
earlier hearing calendar.

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

4
The biological father attended the hearing and the mother expressed her
intention to call him as a witness, but did not do so.
5
The grandmother refused to allow interaction of any kind between the mother
and child, and the grandmother’s counsel stated that the mother had requested that the
juvenile court grant her visitation, but that request was denied in an unwritten order
during the legitimation proceedings.
6
No affidavits, medical records, or other evidence was presented as to the
child’s medical condition. The grandmother testified that the child’s doctors had
made an initial determination that his health problems were related to the mother’s
drug use during her pregnancy, and therefore referred him to a neuro-behavioral and
drug exposure specialist. The child had just completed the intake process at the time
of the hearing.

4
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

7
None of the documents offered by the mother were included in the appellate
record. At the hearing, the mother also presented documents allegedly reflecting
harassment from the grandmother’s ex-husband, to whom the grandmother was
married throughout most of the pendency of this case but from whom she had recently
divorced. The grandmother’s counsel objected to the evidence and the superior court
excluded it as hearsay.
8
During the hearing, the superior court acknowledged the “very difficult and
sad relationship or lack thereof” between the mother and grandmother.

5
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 SE2d 306) (1976); see In the Interest of

J. M. B., 296 Ga. App. 786, 789 (676 SE2d 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.

6
F., 266 Ga. 294, 296 (3) (466 SE2d 572) (1996); see In the Interest of J. M. B., 296

Ga. App. at 789.

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

9
At the hearing, the grandmother’s counsel argued that the “clear and
convincing” standard of proof applied to allegations made pursuant to subsection (a)
of OCGA § 19-8-10, but that the lesser standard of proof, preponderance of the
evidence, applied to allegations made pursuant to subsection (b) of that statute. The
Supreme Court of Georgia, however, has made clear that “the due process clause of
the Fourteenth Amendment requires that before a state may sever the rights of a
parent in [her] natural child, the state must support its allegations of the parent’s
unfitness ‘by at least clear and convincing evidence.’” Thorne v. Padgett, 259 Ga.
650, 651 (386 SE2d 155) (1989) (citing Santosky v. Kramer, 455 U. S. 745, 768 (IV)
(102 SCt 1388, 71 LEd2d 599) (1982)) (analyzing the predecessor statute to OCGA
§ 19-8-10 (b)). It follows that the clear and convincing standard of proof necessarily
applies to all allegations made in support of a petition for adoption filed pursuant to
OCGA § 19-8-10, regardless of whether the petition is filed under subsection (a) or
subsection (b). See OCGA § 19-8-10 (b); Thorne, 259 Ga. at 651; see also In the
Interest of Marks, 300 Ga. App. 239, 245-46 (2) (b) (684 SE2d 364) (2009) (applying

7
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).

a “clear and convincing” standard to the OCGA § 19-8-10 (b) analysis); Smallwood
v. Davis, 292 Ga. App. 173, 175 (1) (664 SE2d 254) (2008) (same); Sellers v. Sellers,
277 Ga. App. 814, 816-17 (1) (627 SE2d 882) (2006) (same).

8
 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 SE2d 84) (2013); see V. L. v. E.

L., 36 SCt. 1017, 1021 (II) (194 LE2d 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 SE2d 254) (2008); see also In the Interest

of Marks, 300 Ga. App. 239, 246 n.4 (2) (684 SE2d 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

10
The petition also included a reference to OCGA § 19-8-10 (a) (1)
(abandonment) and OCGA § 19-8-10 (4) (2014) (failure to exercise proper parental
care or control due to misconduct or inability), but likewise set forth no factual
allegations supporting those grounds, which were not argued at the hearing.

9
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 SE2d 703) (2013);

see In re M. D. F., 263 Ga. App. 50, 51 (587 SE2d 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 SE2d 416) (2016); see

Turner v. Rogers, 564 U. S. 431, 441(III) (A) (131 SCt 2507, LEd2d 452) (2011).

And despite the significance of the right involved, “no indigent parent . . . has a

categorical constitutional right to the appointment of counsel” in termination

proceedings.11 In Interest of B. R. F, 299 Ga. at 298; see Lassiter v. Dept. of Social

11
We take this opportunity to note that at first glance, In Interest of C. H., 343
Ga. App. 1 (805 SE2d 637) (2017), may be read to imply a constitutional, as opposed
to statutory, right to appointed counsel in a dependency action (or other termination
proceeding). We caution practitioners, however, not to misread the holding in that
case; In the Interest of C. H. did not involve a request for the appointment of indigent
counsel. Rather, the case involved parents to a dependency proceeding who were
completely deprived of their right to legal representation–whether appointed or

10
Svcs. of Durham County, N. C., 452 U. S. 18, 31-32 (II) (C) (101 SCt 2153, 68 LEd2d

640) (1981).12

Nevertheless, Georgia’s legislature has mandated that, in termination

proceedings conducted under the Juvenile Code, an indigent parent has a statutory

otherwise. See id. at 10-11 (1) (b).
12
Contrary to the mother’s assertion, she was not entitled to appointed counsel
under the holding of Lassiter. The Lassiter Court recognized that, under certain
circumstances, the Due Process Clause of the Fourteenth Amendment may entitle an
indigent parent to representation during a proceeding to terminate his or her parental
rights. See 452 U. S. at 27 (II) (B) (holding that to make the determination as to
whether due process requires the appointment of counsel in a termination proceeding,
the court must conduct a balancing test to weigh “the private interests at stake, the
government interests at stake, and the risk that the procedures will lead to erroneous
decisions”and then “set their net weight in the scales against the presumption that
there is a right to appointed counsel only where the indigent, if he is unsuccessful,
may lose his personal freedom”). Lassiter and its Georgia progeny, however, have
each involved cases initiated by state action. See In the Interest of B. R. F, 299 Ga.
294 (788 SE2d 416) (2016); Miller v. Deal, 295 Ga. 504 (761 Ga. 274) (2014);
Gibson v. Turpin, 270 Ga. 855 (513 SE2d 186) (1999); In Interest of M. G. W., 341
Ga. App. 475 (801 SE2d 102) (2017); In the Interest of J. C., 334 Ga. App. 526 (779
SE2d 734) (2015); In the Interest of S. M. B., 319 Ga. App. 125 (735 SE2d 122)
(2012). Because this case was initiated by the grandmother as a private adoption
action, we do not believe that the due process rights recognized in the holding of
Lassiter were implicated. Further, although the Supreme Court of Georgia has not yet
identified the proper case in which to consider whether the guarantee of due process
under the Georgia Constitution affords more procedural rights–including an indigent
parent’s right to appointed counsel in a civil proceeding–than does the United States
Constitution, the Court has stated in other contexts that “the process due under the
United States Constitution and the Georgia Constitution is the same.” Miller, 295 Ga.
at 514, n.11 (2).

11
right to appointed counsel. See OCGA § 15-11-262 (a) (“A child and any other party

to a proceeding under this article shall have the right to an attorney at all stages of the

proceedings under this article.”); In Interest of B. R. F, 299 Ga. at 298 (recognizing

that, under the Juvenile Code, “the legislature has decided as a matter of statutory law

that a parent is entitled to the appointment of counsel during termination proceedings

if the parent is found to be indigent”); see also Nix, 236 Ga. at 795. As observed by

the superior court, however, that same statutory protection was not extended to an

indigent parent in adoption proceedings conducted pursuant to OCGA § 19-8-10,

despite the fact that those proceedings may ultimately end in the termination of his

or her parental rights. See OCGA § 19-8-1 et seq. But see Dell v. Dell, 324 Ga. App.

297 (748 SE2d 703) (2013) (physical precedent only).

The propriety of that legislative decision is not for this Court to decide. See

generally Commonwealth Inv. Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963)

(“[T]he legislature, and not the courts, are empowered by the Constitution to decide

public policy, and to implement that policy by enacting laws.”). Rather, the only issue

before us is whether the mother had a constitutional or statutory right to the

appointment of counsel during the adoption hearing, and the law dictates that she did

12
not. Consequently, the superior court’s refusal to appoint her an attorney was not

erroneous.13

3. We take this opportunity to address two additional issues in order to prevent

error on remand.

(a) OCGA § 19-8-16 (a) provides that,

[p]rior to the date set by the court for a hearing on the petition for
adoption, it shall be the duty of a child-placing agency appointed by the
court or any other independent agent appointed by the court to verify the
allegations in the petition for adoption, to make a complete and thorough
investigation of the entire matter, including a criminal records check of
each petitioner, and to report its findings and recommendations in
writing to the court where the petition for adoption was filed.

In petitions filed pursuant to OCGA § 19-8-7, involving adoptions in which the

parents voluntarily surrender their child to a relative, the court has the discretion to

13
We note that the mother did have a constitutional right to be represented by
paid counsel if she so chose. See Ga. Const., Art. I, Sec. I, Para. XII (“No person shall
be deprived of the right to prosecute or defend, either in person or by an attorney, that
person’s own cause in any of the courts of this state.”); Nelms v. Georgian Manor
Condominium Assn., 253 Ga. 410, 413 (321 S.E.2d 330) (1984). Because of our
holding in Division 1, we need not address whether the superior court violated the
mother’s right to due process by failing to allow her the opportunity to retain an
attorney after denying her motion to appoint one. See In Interest of C. H., 343 Ga.
App. at 10-11 (1) (b).

13
waive the inspection and report requirements. See OCGA § 19-8-16 (b). An

inspection and report are mandated, however, in cases involving relative adoption

petitions brought pursuant to OCGA § 19-8-10. See Cafagno v. Hagan, 213 Ga. App.

631, 632-33 (1) (b) (445 SE2d 380) (1994) (“OCGA § 19-8-16 (b) provides an

exception only in relative adoptions where surrender or termination of parental rights

has been obtained.”).

Asserting that the adoption petition in this case was filed pursuant to OCGA

§ 19-8-7, the grandmother sought and received a waiver of the inspection and report

requirements. But because this case was actually brought and granted pursuant to

OCGA § 19-8-10, the statutorily-mandated inspection and report were required. See

Cafagno, 213 Ga. App. at 632-633 (1) (b). Consequently, the requirements of OCGA

§ 19-8-16 (a) should not have been waived, and on remand the inspection and report

should be completed. See id.

(b) In accordance with OCGA § 19-8-10 (b) (2), after determining that the

mother significantly failed without justifiable cause to provide for the care and

support of the child during the one-year period immediately preceding the filing of

the petition, the superior court was required to assess whether granting the adoption

was in the child’s best interests. In the decree, the superior court summarized the

14
grandmother’s testimony and accepted it as fact, 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.”

Contrary to the superior court’s holding, the juvenile court never engaged in

any substantive analysis to determine whether the child’s best interests were served

by placing him in the grandmother’s custody. Rather, the juvenile court simply noted

that “[a]ll the parties agreed it is in the best interest of the child to be in [the

grandmother’s] permanent custody.” Because the parties do not all agree that

adoption by the grandmother is in the child’s best interest, the superior court was

required to independently assess that issue. See OCGA § 19-8-10 (b) (2); Ray v.

Hann, 323 Ga. App. 45, 50 (2) (746 SE2d 600) (2013) (vacating trial court’s adoption

decree and remanding case in part because “[t]he court’s conclusion that adoption

was in the child’s best interest [was] lacking in particularity”); Sauls v. Atchison, 316

Ga. App. 792, 795 (2) (730 SE2d 459) (2012) (“The decree must present more than

a mere legal conclusion which is not supported by mandatory findings of fact, or a dry

recitation that certain legal requirements have been met.”) (citation and punctuation

omitted). On remand, the trial court should state with particularity any facts that

15
support its conclusion as to what is in the child’s best interests. See Ray, 323 Ga.

App. at 50 (2); Sauls, 316 Ga. App. at 795 (2).

For these combined reasons, we vacate the superior court’s decree and remand

this case for additional proceedings consistent with this opinion.

Judgment vacated and case remanded. Ellington, P. J., and Andrews, J.,

concur.

16