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Docket Number

A00A2467.

Attorney(S)

Michael R. McCarthy, for appellant. Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Waycaster, Morris, Johnson Dean, Cynthia N. Johnson, for appellee.

Judges

Gary Blaylock Andrews

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Smart Summary

Case Summary — In the Interest of C. T. D. T., children (A00A2467)

Factual and Procedural Background

This is an appeal from the juvenile court's order terminating the father's parental rights. The Court of Appeals of Georgia decided the appeal on January 10, 2001 (A00A2467). The juvenile court proceeding occurred in Whitfield Juvenile Court before Judge Blaylock.

The pertinent facts, stated by the juvenile court and accepted on appeal, are:

C. T. (born January 9, 1996) and D. T. (born June 28, 1998) were placed in the custody of the Department of Family and Children Services on February 17, 1999 because the children's mother suffered from Huntington's Disease and was unable to care for them. The mother surrendered her parental rights on November 19, 1999.
The father is an undocumented immigrant who had been incarcerated since August 1998 and, at the time of the termination hearing, was awaiting deportation to Mexico. The father wrote the Department only once during the children's placement and never attempted to communicate with the children; he provided no support or evidence as to when he could care for the children.
The father's criminal history includes convictions for simple battery, aggravated assault, and family violence, each involving attacks on the children's mother.
The children were in a foster home where the foster parents desired to adopt them and the children had bonded with the foster parents.

The juvenile court terminated the father's parental rights. The father appealed, contending (1) the Department failed to present clear and convincing evidence required to terminate his rights and (2) the court erred by not securing his presence at the termination hearing, either in person or by telephone. The Court of Appeals affirmed.

Legal Issues Presented

Whether, under OCGA § 15-11-81 and the controlling two-step termination test, there was clear and convincing evidence that parental misconduct or inability existed such that termination of the father's parental rights was warranted.
Whether termination of parental rights was in the children's best interest under the second prong of the statute and relevant precedent.
Whether the juvenile court erred by failing to secure the father's presence at the termination hearing, either in person or by telephone, and whether any error was reversible.

Arguments of the Parties

Appellant's Arguments

The evidence was insufficient, as required to terminate parental rights by clear and convincing proof, because there was no evidence the father was violent toward the children and no evidence that case plans were developed and communicated to him; therefore the deprivation was not shown to be likely to continue or to cause serious harm.
The juvenile court should have secured the father's presence at the termination hearing—either physically or by telephone—so he could participate and present evidence.

The opinion does not contain a detailed account of the appellee's separate arguments beyond the Department's presentation of evidence supporting deprivation, the children's placement, and the foster parents' suitability and intent to adopt.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In the Interest of C. L. R.	Describes the two-step procedure required by OCGA § 15-11-81(a): first, determine clear and convincing evidence of parental misconduct/inability under OCGA § 15-11-81(b); second, consider whether termination is in the child's best interest.	Used as the governing framework for the court's analysis of both the existence of parental misconduct/inability and the best-interest inquiry, and for stating the appellate standard of review.
In the Interest of J. M. C.	Permits consideration of a parent's past conduct when determining whether conditions of deprivation are likely to continue; also cited concerning considerations of a child's need for a stable home.	Supported the court's reliance on the father's past and present unfitness and the children's need for a stable home as factors showing deprivation likely to continue and supporting best-interest finding.
Blackburn v. Blackburn	Recognizes that evidence may demonstrate present as well as past parental unfitness.	Supported the court's conclusion that there was present unfitness in addition to past unfitness.
In the Interest of L. F.	Holds that imprisonment alone does not automatically authorize termination but can support termination where adequate aggravating circumstances exist.	Authorized treating the father's incarceration as support for termination when combined with aggravating circumstances (e.g., lack of support, lack of contact, deportation).
In the Interest of J. K.	States that an incarcerated parent's history of repeated criminal offenses may be considered an additional factor showing the child lacks proper parental care and that the condition is likely to continue.	Used to treat the father's criminal history as an aggravating circumstance supporting the conclusion that deprivation was likely to continue.
In the Interest of R. N.	Explains that if the first prong is met, the trial court must then consider whether termination is in the child's best interest.	Guided the court's separate inquiry into whether termination was in the children's best interest.
In the Interest of G. K. J.	Permits use of the same factors that show parental inability to also support a finding that termination is in the child's best interest.	Supported the court's use of evidence of parental inability (and aggravating factors) as also satisfying the best-interest requirement.
In the Interest of T. R. G.	Provides authority for concluding that the need for a stable home and related factors can establish that termination is in the child's best interest.	Reinforced the court's finding that the children's need for stability and the father's inability to care for them supported termination as being in the children's best interest.
In the Interest of M. G. F.	Holds that there is no constitutional entitlement to personal appearance in civil proceedings where the inability to appear is the consequence of a party's own actions; also addresses counsel's role in protecting the absent party's rights.	Applied to reject the father's claim of error in not being physically present and to support the conclusion that the father's counsel's participation prevented reversible harm; the court also found no authority requiring telephone participation under the circumstances.

Court's Reasoning and Analysis

The court applied the statutory two-step framework derived from OCGA § 15-11-81(a) (as explained in In the Interest of C. L. R.). Under that framework the juvenile court first must find by clear and convincing evidence parental misconduct or inability under OCGA § 15-11-81(b) and, if that prong is satisfied, then determine whether termination is in the child's best interest.

Standard of review: the Court of Appeals reviewed the evidence in the light most favorable to the appellee, deferring to the juvenile court's factfinding and credibility determinations, and asking whether any rational trier of fact could have found by clear and convincing evidence that termination was warranted.

First prong analysis (parental misconduct/inability): the court accepted the juvenile court's factual findings that the children were deprived and that lack of proper parental care caused the deprivation (mother's Huntington's Disease and inability to care for the children). The court relied on evidence that the father was incarcerated, awaiting deportation, had provided no support or meaningful contact, and had a criminal history involving violence against the mother. The court considered the father's past and present unfitness and treated the lack of contact, absence of support, and imminent deportation as "aggravating circumstances" that made the deprivation likely to continue and likely to cause harm.

Second prong analysis (best interest): having found the first prong satisfied, the court evaluated whether termination served the children's best interest. It considered the children's need for a stable home, the detrimental effects of prolonged foster care, the suitability of the foster home, the bonding between children and foster parents, and the same factors showing parental inability. The court concluded those factors together provided clear and convincing evidence that termination was in the children's best interest.

Attendance/presence issue: the court addressed the father's claim that the juvenile court should have secured his personal presence or allowed telephone participation. The record showed a request to transport the father from the federal facility had been denied and that the facility expressly stated the father could not be moved (except for deportation). The court noted precedent holding no constitutional entitlement to personal appearance in civil proceedings where the inability to appear results from the party's own actions. The father offered no authority requiring telephone participation; the juvenile court found such a call would be burdensome and detrimental to decorum and efficiency. Finally, the father was represented by counsel who appeared, cross-examined witnesses, and could have presented any evidence; the court concluded the father suffered no reversible harm from his nonappearance.

Holding and Implications

HOLDING: The judgment of the juvenile court terminating the father's parental rights was AFFIRMED.

Direct consequences for the parties: the father's challenge to the sufficiency of the evidence and to the court's not securing his presence failed; the juvenile court's termination order stands. The opinion notes the children were in a foster home whose occupants wished to adopt and that the juvenile court found termination was in the children's best interest.

Broader implications: the court applied existing precedent concerning the two-step statutory test for termination, consideration of past and present unfitness (including incarceration and criminal history as aggravating circumstances), and limitations on a parent's right to personal appearance when inability to appear is self-caused. The opinion does not announce a new legal rule; it applies established authorities to the facts presented.

Source: Court of Appeals of Georgia, Decided January 10, 2001 — In the Interest of C. T. D. T., A00A2467 (opinion by Andrews, Presiding Judge).

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IN THE INTEREST OF C. T. D. T., children

ANDREWS, Presiding Judge.

The father of C. T. and D. T. appeals from the juvenile court's order terminating his parental rights. He argues there was insufficient clear and convincing evidence to show that his rights should be terminated and also claims the court should have secured his presence at the hearing, either in person or by telephone. We find no reversible error and affirm.

1. Before terminating a parent's rights, a juvenile court, pursuant to OCGA § 15-11-81 (a), must employ a two-step procedure. In the Interest of C. L. R., 232 Ga. App. 134 (1) ( 501 S.E.2d 296) (1998). "First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child's deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A)." (Citations and punctuation omitted.) Id.

On appeal, we must determine "whether, after reviewing 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 right to custody should be terminated. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court's factfinding and affirm unless the appellate standard is not met." (Citations and punctuation omitted.) In the Interest of C. L. R., supra.

The evidence at the hearing, viewed in the light most favorable to the juvenile court's judgment, was as follows. C. T. was born on January 9, 1996, and D. T. was born June 28, 1998. The children have been in the care of the Department of Family and Children Services (Department) since February 17, 1999, because the children's mother had Huntington's Disease and was unable to care for them. The father, who is an illegal alien, had been in prison since August 1998, and was awaiting deportation as a convicted felon at the time of the termination hearing. The father wrote the Department only one time while the children were in its care and never attempted to communicate with the children. In addition, the father has a criminal history of one conviction for simple battery, one conviction for aggravated assault, and one conviction for family violence, all involving attacks on the children's mother.

The children's mother surrendered her parental rights on November 19, 1999.

The children are currently in a foster home and the foster parents wish to adopt them. The home is suitable for the children and the children have bonded with the foster parents.

With regard to the juvenile court's finding on the first prong, clear and convincing evidence of parental misconduct or inability, the father does not dispute that the children are deprived and that lack of proper parental care is the cause of the deprivation. But, he argues there was not clear and convincing evidence that the deprivation was likely to continue and the continued deprivation will cause serious harm to the children. In support of this claim, the father contends that there was no evidence that he was violent with the children or that any case plans were developed and communicated to him.

In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 ( 410 S.E.2d 368) (1991). In this case, there was not only evidence of past unfitness, there was present unfitness also.Blackburn v. Blackburn, 249 Ga. 689, 692 ( 292 S.E.2d 821 (1982). While imprisonment alone does not automatically authorize a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of L. F., 203 Ga. App. 522 ( 417 S.E.2d 344) (1992). Moreover, an incarcerated parent's history of repeated criminal offenses "constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue." In the Interest of J. K., 239 Ga. App. 142, 145 ( 520 S.E.2d 19) (1999).

Here, the evidence is uncontradicted that the father is unable to provide a home or any other necessities of life for the children. At the time of the final hearing, he was awaiting deportation to Mexico. He provided no evidence of when, if ever, he would be able to care for the children. In addition, he has provided no support for the children while in prison, has not attempted to communicate with them, has not inquired about them and has no relationship with them.In the Interest of J. K., supra. We find these factors to be "aggravating circumstances" supporting the termination of the father's parental rights. Id.

In light of the above, the juvenile court correctly concluded that there was clear and convincing evidence that the pattern of deprivation is likely to continue and to cause harm to the children.

If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the children's best interest. In the Interest of R. N., 224 Ga. App. 202 ( 480 S.E.2d 243) (1997). Although appellant does not argue that the juvenile court erred in finding that termination was also in the best interest of the children, we will address this issue.

In looking at this second prong, the court may consider the children's need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175. The court may also look at the same factors which show parental inability to care for the child to support a finding that termination of parental rights would be in the child's best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 ( 370 S.E.2d 490) (1988). The same evidence showing parental misconduct may, and in this case does, satisfy this requirement. In the Interest of C. L. R., supra at 138.

Accordingly, the children's need for a stable home environment, the father's past and present unfitness to care for them and his failure to put forth any evidence that he will ever be able to provide for them, were sufficient clear and convincing evidence that termination was also in the best interest of the children. In the Interest of J. M. C., supra; In the Interest of T. R. G., 162 Ga. App. 177 ( 290 S.E.2d 523) (1982).

2. The father also argues that the trial court erred in not securing his presence at the termination hearing. There was evidence in the record that a request had been made to the facility where the father was being held that he be "transported for the Hearings on his children." The response was that "under no condition could [appellant] be moved from the facility (except for deportation)." Because the father's inability to be present at the hearing was the consequence of his own actions, "we know of no constitutional entitlement mandating the right to appear personally in civil proceedings under such circumstances." In the Interest of M. G. F., 222 Ga. App. 816, 818 ( 476 S.E.2d 100) (1996). Nevertheless, the father argues that he should have been allowed to participate via telephone. He cites to no authority in support of this argument and we find none.

The juvenile court judge, addressing this issue in her order, noted that the father was being held in a federal penitentiary in Alabama and the court had been denied a similar request by the federal government in a previous case. The court further stated that such a call "would be unduly burdensome, expensive, and onerous to the decorum and efficiency of these proceedings."

Moreover, the father was represented by counsel who appeared in his stead and who could have introduced any evidence appellant wished to put before the court. Counsel argued on the father's behalf and had the opportunity to cross-examine and did cross-examine the Department's witness. In the Interest of M. G. F., supra at 817. Accordingly, we conclude the father suffered no harm in not participating in the hearing and, therefore, has shown no reversible error in the trial court's decision. Id.

SECOND DIVISION, ANDREWS, P.J., RUFFIN and ELLINGTON, JJ. (Court of Appeals Rules 4 and 37, December 14, 2000)

Judgment affirmed. Ruffin and Ellington, JJ., concur.

IN THE INTEREST OF C.T