FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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
February 7, 2019
In the Court of Appeals of Georgia
A18A1927. WOODALL v. JOHNSON. DO-070
DOYLE, Presiding Judge.
Beau Phillip Woodall (“the father”) appeals an order from the Superior Court
of Henry County granting James W. Johnson’s (“the stepfather”) stepparent petition
to adopt the father’s son, B. M. W., and terminating the father’s parental rights to the
child. The father argues that: (1) the superior court abused its discretion by denying
his motion to supplement the record; (2) the court erred by failing to set forth
sufficient facts to authorize termination of parental rights as required by former
OCGA §§ 19-8-19 and 19-8-181; (3) there was insufficient evidence to support the
1
We note that a new version of Article 1 of Chapter 8 of Title 19 (including
OCGA §§ 19-8-6, 19-8-10, 19-8-18, 19-8-19, and 19-8-26) with substantive changes
was enacted in 2018, with the changes effective September 1, 2018. See Ga. L. 2018,
p. 285, § 4-1; p. 474. Because the petition and judgment in this case predate the
enactment of the revised Code version, we apply the prior version in effect at the
termination of his parental rights under former OCGA § 19-8-10; and (4) the trial
court erred by failing to properly apply the clear and convincing evidence standard.
For the reasons that follow, we reverse.
“On appeal from an order severing parental rights based on an adoption
petition, we view the evidence in the light most favorable to the trial court’s findings
and determine whether a rational trier of fact could have found by clear and
convincing evidence that the biological parent’s rights have been lost.”2
B. M. W. was born on September 29, 2010, as issue of the marriage between
the father and Lauren Alicia Johnson (“the mother”). On January 7, 2013, the parents
divorced, and the superior court entered a final order requiring the father to pay $400
per month in child support and incorporating a parenting plan. On May 3, 2014, the
mother and the stepfather married.
time. See Nathans v. Diamond, 282 Ga. 804, 808-809 (654 SE2d 121) (2007) (“[T]the
rule is that laws that affect substantive rights may operate prospectively only.
Substantive law is that law which creates rights, duties, and obligations. Procedural
law is that law which prescribes the methods of enforcement of rights, duties, and
obligations.”) (punctuation omitted); Nathans v. Diamond, 235 Ga. 820, 821 (221
SE2d 813) (1976) (noting that “[a]doption is a right which did not exist at common
law [and is purely] statutory in nature”).
2
(Citations omitted.) Smallwood v. Davis, 292 Ga. App. 173 (1) (664 SE2d
254) (2008).
2
On September 10, 2015, the superior court entered an order finding the father
in contempt and requiring him: to pay $7,450 in back support and $562 for unpaid
medical expenses; to comply with a parenting schedule recommended by counselor
Pam McMichen; and to submit to a drug screen by July 24, 2015, with the caveat that
the father “shall have no visitation with [B. M. W.] until he has provided a clean . .
. drug test to the [mother].” McMichen’s parenting plan set forth a detailed schedule,
which included initial supervised visitation gradually working up to unsupervised
overnight visits twice a month after over a year. As a sub-set of the final part of the
schedule providing for overnight visits, the parenting plan provided, among other
things, that: “[s]hould problems arise,” the mother should notify her attorney or
McMichen and that “[s]hould problems occur during visits,” the mother could take
B. M. W. for counseling at her discretion; the father “shall participate in individual
counseling throughout the step down process; and “[t]he [father] shall attend
counseling at least once a week.”
On January 25, 2017, the stepfather filed a petition for adoption, attaching
thereto the mother’s written consent pursuant to former OCGA § 19-8-26 (l). The
stepfather alleged that the written voluntary surrender of the father was not necessary
because the father,
3
for a period of one year or longer immediately prior to the filing of the
petition for adoption, without justifiable cause ha[d] failed to
communicate or make a bona fide attempt to communicate with that
child in a meaningful, supportive parental matter [sic] and ha[d] further
failed to provide care and support of the child as required by law or
judicial decree as contemplated in OCGA § 19-8-10.
The father filed an objection to the adoption petition, alleging that he had “purged all
issues of contempt,” including paying all past due child support and obtaining the
drug test required in the September 2015 order and that he had “communicated or
reasonably attempted to communicate with the child within the past year.”
At the August 2017 hearing, the mother testified that after the contempt order
was issued, the father regularly texted her to schedule visitation, but she denied his
requests because he had not provided proof of a clean drug screen. On April 5, 2017,
the father’s attorney wrote to the mother’s attorney, providing proof of the father’s
September 20, 2016 clean drug screen and requesting that the father begin the
graduated visitation schedule. The mother, however, continued to deny the father’s
repeated requests for visitation because “the drug screen took way longer than his
allotted time[,] and we still [had not] done the counseling sessions.” The mother
4
testified that “[they] haven’t really spoken to [the father] since” the adoption petition
was filed, even though he called “every day pretty much. . . .”3
The mother also testified that B. M. W. saw his paternal grandparents and had
a “good relationship with them,” and they passed along gifts to B. M. W. from the
father. According to the mother, the grandparents and the father attended B. M. W.’s
sporting events up until two years before the hearing. After the adoption petition was
filed, the mother “rejected” the grandparents’ requests to attend B. M. W.’s sporting
events because “they were very upset and angry[,] . . . and it’s not something I need
to bring around [B. M. W.] or myself. I was eight months pregnant at the time”; the
mother told the grandparents that she would take the child out of the game if they or
the father came to watch.
At the hearing, the father testified that after he and the mother separated, he
spent a lot of time with B. M. W. The father concedes, however, that after the mother
started prohibiting his visitation, he wrongfully stopped paying child support. After
the contempt order, the paternal grandfather sold the family’s only vehicle so the
3
The mother testified that B. M. W. (who was six years old at the time of the
hearing) did not want to speak to the father, and she did not make him, explaining that
before the adoption petition was filed, the father told B. M. W. on a phone call: “I’m
sorry your mom won’t let me see you. And I’m going to see you real soon[,] and it’s
her fault.”
5
father could pay the purge amount and avoid jail, and the father worked a second job
to repay him. The father, who is legally blind, worked in construction, making $10
per hour at the time of the contempt order. According to the father, he was initially
unable to pay the $275 for the drug test the court required because he was paying the
arrearage and continuing child support payments, and he had difficulty scheduling the
test because he frequently worked out of state. The father maintained that he did not
understand that his visitation with B. M. W. was conditioned upon him attending
counseling; he believed, until the day of the final hearing, that he could begin
visitation as soon as he obtained a clean drug screen and that he would undergo
family and/or individual counseling when and if the counselor required it.
Nevertheless, he attempted to schedule counseling but was only offered Wednesday
appointments, which he could not attend because of work. The father also testified
that he called the mother’s phone regularly to speak with B. M. W., but he was only
able to speak with him once or twice in the three years before the hearing.4 The father
4
The father submitted screen shots from one of his phones showing what he
explained were 58 calls to the mother to speak to B. M. W., as well as texts to the
mother and logs of calls to her in 2016 and 2017. According to the father, the exhibits
do not reflect all of his calls, many of which were made from different phones.
6
denied ever telling B. M. W. that the mother was preventing them from seeing each
other.
The paternal grandmother testified that she had visited with B. M. W., who said
that he loves the father, and she has passed along gifts to him from the father. Both
paternal grandparents witnessed the father’s repeated unsuccessful attempts to speak
with B. M. W. on the phone.
Although the attorneys had difficulty determining the precise amounts, they
agreed at the final hearing that the father had been making regular monthly child
support payments since the petition was filed, but was still in arrears in the amount
of approximately $1,100.5
On October 26, 2017, the superior court entered an “Order Granting Petition
for Adoption and Terminating Father’s Parental Rights.” Therein, the court made
factual findings, including that: on September 10, 2015, the father was ordered to
provide a clean drug screen and maintain counseling to resume visitation with B. M.
W.; he failed to obtain the drug screen until August 2016 or to undergo individual
counseling; his claims that he could not pay for the drug screen were “unpersuasive”
5
The father testified that he believed he was current on his child support, but
realized while discussing the matter with the attorneys in the case that “[his] math
may have been off on the original contempt order.”
7
because he failed to ask to borrow money or to get a second job to pay for it; his
claim that he didn’t understand that the contempt order required him to obtain
counseling “is contrary to the plain reading of [the o]rder and equally unpersuasive”;
from July 21, 2015, through the date of the final hearing, the father had no visitation
with B. M. W.; and although the father “has had telephone contact with [B. M. W.,]
. . . the contact often resulted in the [f]ather making inappropriate comments to [B.
M. W.] and [the f]ather blaming the [m]other for his inability to see [B. M. W.].” The
trial court determined that the father’s telephone contact “has not been meaningful .
. . or supportive for [B. M. W.].” The court then concluded that “[s]urrender or
termination of the [f]ather’s rights were not required as a pre[]requisite to the filing
of this [p]etition because there is clear and convincing evidence that [B. M. W.] has
been abandoned by the [f]ather.” The court also found that the stepfather had been
providing for B. M. W.’s education, health, and welfare and had “developed a
meaningful and parental bond with [B. M. W.], and then concluded “[a]fter
considering the physical, mental, emotional[,] and moral condition and the needs of
[B. M. W.], [that] the granting of this [a]doption is in the best interest of the [c]hild.”
1. The father contends that the trial court erred by terminating his parental
rights without his consent. We agree.
8
Former OCGA § 19-8-6 (a) (1) provides that a child whose legal parents are
living, but not married to each other, may be adopted by a stepparent only when the
other parent voluntarily surrenders his rights to the child and consents to the adoption.
Former OCGA § 19-8-10 (a) (1), however, provides that such surrender is not
required if
the court determines by clear and convincing evidence that the . . .
[c]hild has been abandoned by that parent . . . 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.
In the alternative, under former OCGA § 19-8-10 (b), a court may grant an adoption
without a parent surrender
if that 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, and the court is of the opinion that the
adoption is for the best interests of that child.
9
Regardless of which subsection a court applies, “[i]n all cases wherein [OCGA §]
19-8-10 is relied upon by any petitioner as a basis for the termination of parental
rights, the court shall include in the decree of adoption appropriate findings of fact
and conclusions of law relating to the applicability of [OCGA § ] 19-8-10.”6
Here, the stepfather alleged that the written surrender of the father was not
necessary because the father had for a period of at least a year immediately before the
petition was filed, “without justifiable cause . . . failed to communicate or make a
bona fide attempt to communicate with [B. M. W.] in a meaningful, supportive
parental matter [sic] and has further failed to provide care and support of the child as
required by law or judicial decree as contemplated in OCGA § 19-8-10.” Although
the petition did not specify the subsection of the Code section upon which the
stepfather relied, the language he used precisely tracks that of former OCGA § 19-8-
10 (b).
The superior court’s order likewise did not mention former OCGA § 19-8-10
specifically. But in the absence of the father’s voluntary surrender, that Code section
is the only possible basis for granting the adoption petition. As previously stated, the
trial court found that “there is clear and convincing evidence that the [c]hild had been
6
OCGA § 19-8-18 (b) (2017).
10
abandoned by the [f]ather.” This language tracks subsection (a) of the Code section,
as does the trial court’s conclusion that granting the adoption was in B. M. W.’s best
interest “[a]fter considering the physical, mental, emotional[,] and moral condition
and the needs of [B. M. W.].”7 Thus, the trial court apparently determined that the
father had abandoned B. M. W. as referred to in former OCGA § 19-8-10 (a).
(a) Former OCGA § 19-8-10 (a). The trial court erred by basing the adoption
on former OCGA § 19-8-10 (a).
(i) First, the evidence does not support a finding of abandonment. “It is well
settled that adoption laws must be strictly construed in favor of natural parents.”8
Because the superior court based the adoption upon the legal conclusion that the
father had abandoned B. M. W., there must be in the record “clear and convincing
evidence of an “actual desertion, accompanied by an intention to sever entirely, as far
as possible to do so, the parental obligations growing out of the [parent/child
7
Former OCGA § 19-8-10 (b) requires that the court determine “that the
adoption is for the best interests of that child,” omitting any language about the
“physical, mental, emotional, and moral condition and needs of the child.” We note
that OCGA § 19-8-10 (b) (2018), effective September 1, 2018 (which does not apply
to this case), does include such language.
8
(Punctuation omitted.) Smallwood, 292 Ga. App. at 177 (2).
11
relationship], and forego all parental duties and claims.”9 Here, the father paid child
support (albeit at times late and/or pursuant to the contempt order), ultimately
provided proof of a clean drug screen a year before the final hearing, sent gifts to B.
M. W. through the grandmother, requested through counsel to begin visitation, and
attempted to contact B. M. W. on an almost daily basis for the year preceding the final
hearing.
The relevant undisputed evidence in this case, as recounted above, does
not support a finding that the [father] ever acted, or failed to act, with
the intention to sever entirely [his] parental obligations and claims to [B.
M. W.] Thus, the trial court was not authorized to grant the adoption
petition, pursuant to OCGA § 19-8-10 (a) (1), based upon a finding that
the [father] had abandoned [B. M. W.]10
(ii) Furthermore, the stepfather’s adoption petition neither referenced nor
tracked the language of former OCGA § 19-8-10 (a), and therefore, the father
received no notification that [he] must be prepared to show cause why
[his] parental rights should not be terminated pursuant to subsection (a).
9
(Punctuation omitted; emphasis in original.) In re Marks, 300 Ga. App. 239,
243 (1) (684 SE2d 364) (2009), quoting Hall v. Coleman, 264 Ga. App. 650, 653 (1)
(592 SE2d 120) (2003).
10
Marks, 300 Ga. App. at 243 (1). See also Griffith v. Brooks, 193 Ga. App.
762, 766 (1) (389 SE2d 246) (1989).
12
. . . By . . . basing its adoption decree on grounds that [the father] was
never properly notified of, the trial court failed to strictly construe
[former] OCGA § 19-8-10 in favor of [the father], and such an erroneous
decree must be reversed.11
(b) Former OCGA § 19-8-10 (b) (1). “To the extent that the trial court’s order
could be read to imply that the adoption was authorized under a separate provision,
[former] OCGA § 19-8-10 [(b) (1)], we find that there is insufficient clear and
convincing evidence to support such a conclusion.”12
The adoption order did not include a specific finding that the father’s failure
to communicate with B. M. W. in a meaningful, supportive, parental manner was
“without justifiable cause” as required by former OCGA § 19-8-10 (b) (1). More
importantly, the evidence did not support such a finding. There was unrefuted
evidence that the father called the mother’s phone on an almost daily basis in an
attempt to speak with B. M. W., but his efforts were thwarted by the mother, who
neither required nor encouraged the child to speak to the father. The mother similarly
11
Smallwood, 292 Ga. at 177 (2).
12
(Emphasis omitted.) Marks, 300 Ga. App. at 246 (3).
13
refused to allow the father to have visitation with the child.13 Thus, she “has failed to
demonstrate that the [father’s] failure to communicate with the child for the requisite
statutory period was without justifiable cause.”14
Accordingly, the superior court erred by terminating the father’s parental rights
and granting the stepfather’s adoption petition over the father’s objection.
2. Based on our holding in Division 1, we need not address the father’s
remaining enumerations.
Judgment reversed. Dillard, C. J., and Mercier, J., concur.
13
To the extent that the trial court and/or the counselor intended to require that
the father undergo counseling before beginning visitation, that requirement was not
clearly stated in the September 2015 contempt order; instead, the provision of the
parenting plan addressing counseling was included in the section regarding
circumstances arising after overnight visitation began. Even assuming, however, that
the father was required to obtain counseling before beginning visitation, his failure
to do so did not prohibit him from having telephone contact with B. M. W., which he
repeatedly attempted to do, as conceded by the mother.
14
Id. at 244 (2) (a).
14