Opinion
A03A2100, A03A2101
JANUARY 15, 2004
Termination of parental rights. Ben Hill Juvenile Court. Before Judge Hughes.
Hughes Hobby, David T. Hobby, for appellant.
Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Mixon Mixon, Warren L. Mixon, for appellee.
Following a hearing, the juvenile court terminated Arthur Wells' parental rights. In Case Number A03A2100, Wells challenges the court's termination order with respect to R.W. In Case Number A03A2101, he challenges the court's order terminating his rights as to T.J. As both cases involve the same facts and the identical issue, we have consolidated them on appeal. For reasons that follow, we affirm.
The juvenile court also terminated the parental rights of the children's mother, who has not appealed the order.
In reviewing a juvenile court's termination of parental rights, we view the evidence in the light most favorable to that court's decision, and we will affirm if the record demonstrates that any rational trier of fact could have found by clear and convincing evidence that the parent's right to custody has been lost.
See In the Interest of J.M.M., 244 Ga. App. 171 ( 534 S.E.2d 892) (2000).
Viewed in this light, the record reveals that Wells had a relationship with the children's mother beginning in 1993. The mother became pregnant with R.W., who was born in January 1994. Late in the mother's pregnancy, Wells was caught selling cocaine. It was Wells' third drug conviction, and he was sentenced to serve twenty years. Following his conviction, but before being sent to prison, Wells remained free on bond. According to Wells, during this time he continued to work and provide some financial support for R.W., who was eight months old when Wells was incarcerated.
In February 1995, while Wells was in prison, the mother gave birth to T.J. However, Wells was unaware of T.J.'s existence until after his birth. As a result of his continued incarceration, Wells has only seen T.J. once. According to Wells, neither R.W. nor T.J. would recognize him if they saw him.
In 1999, after Wells was imprisoned, the mother voluntarily placed her two children in foster care. The children were eventually returned to the mother's care. However, in late August 2000, the mother had a third child by another man, and both she and the infant tested positive for cocaine. Accordingly, the children were taken into the custody of the Department of Family and Children Services (DFACS) in September 2000 and returned to foster care.
DFACS developed a reunification plan for the mother, but she failed to comply with the plan. In March 2001, DFACS petitioned for termination of parental rights. DFACS employees attempted to ascertain the whereabouts of the children's father, but the mother was evasive. Eventually, DFACS discovered that the father was in prison and served him notice of the termination petition.
The father appeared at the termination hearing and testified on his own behalf. Although the fatehr was sentenced to 20 years in jail, he claims that he has a tentative parole date of February 2004. Wells testified that, until his release from prison, his children could stay with a friend of his. According to the father, he has qualified for social security disability benefits, which he will begin receiving after his release. The father, who was 57 at the time of the hearing, testified that his eligibility for such benefits stems from his status as an insulin-dependent diabetic. The father also said that he tested positive for HIV, but that his "HIV problem" is "not in [his] bloodstream anymore."
Following the hearing, the trial court terminated the father's parental rights. The trial court based its ruling, in part, on the following factors: (1) the father' history drug use; (2) the fact that the father has been incarcerated since R.W. was less than one year old; and (3) the father's failure to register with the putative father registry or to legitimate his children before he was served with the termination petition. In his sole enumeration of error on appeal, the father asserts that the trial court improperly terminated his parental rights based solely on his incarceration. We disagree.
In a termination of parental rights proceeding, the juvenile court employs a two-step process. The court first must determine whether there is clear and convincing evidence of parental misconduct or inability, which shall be proved by demonstrating:
See In the Interest of C.B., 258 Ga. App. 143, 145(1) ( 574 S.E.2d 339) (2002).
1) that the [children are] deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that the [children's] deprivation is likely to continue or will not be remedied; and 4) that continued deprivation is likely to cause serious physical, mental, or moral harm to the [children].
Id. See also OCGA § 15-11-94(a), (b)(4)(A).
Under the second step of the inquiry, the court must consider whether termination is in the best interest of the children.
See In the Interest of C.B., supra at 146; In the Interest of D.P., 244 Ga. App. 553, 554 ( 536 S.E.2d 225) (2000).
In determining whether grounds for termination exist, a juvenile court shall consider the "[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship." Although imprisonment alone does not compel termination of a parent's rights, "it can support such a ruling when sufficient aggravating circumstances are present." "These aggravating circumstances may include, in addition to a history of incarcerations for repeated offenses, whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive, and parental manner."
OCGA § 15-11-94(b)(4)(B) (iii) (a factor "[in] determining whether the child is without proper parental care and control").
In the Interest of B.A.S., 254 Ga. App. 430, 435(3) ( 563 S.E.2d 141) (2002).
(Punctuation omitted.) In the Interest of K.W., 262 Ga. App. 744, 746(1)(b) ( 586 S.E.2d 423) (2003).
Here, sufficient aggravating circumstances are present, which justify termination. Initially, we note that the father's current imprisonment is not his first brush with the law, but his third. Moreover, the length of the father's incarceration has prohibited him from establishing any bond with either of his children. If the father is released from prison in 2004, R.W. will be ten and T.J. will be nine. And both children will be virtual strangers to their father.
Finally, we note that while the father has been in prison, the children's mother has demonstrated an inability to care for the children, which resulted in their being removed from the home and placed in foster care on more than one occasion. At the termination hearing, the State presented evidence that a foster family was interested in adopting the two children, who are deserving of a stable home. Under these circumstances, there is sufficient evidence supporting the juvenile court's conclusion that termination of the father's parental rights is in the best interest of the children. It follows that the juvenile court did not err in terminating the father's rights. Judgment affirmed. Smith, C.J., and Miller, J., concur.
See In the Interest of B.A.S., supra at 435-436(3).
See id; In the Interest of J.R.H., 257 Ga. App. 218, 219-220 ( 570 S.E.2d 652) (2002); In the Interest of S.H., 251 Ga. App. 555, 557-558(1)(b) ( 553 S.E.2d 849) (2001).
DECIDED JANUARY 15, 2004.