In the Interest of M. D. N.
In the Interest of M. D. N.
Opinion of the Court
M. N., the biological father of five-year-old M. D. N., appeals the Gwinnett County Juvenile Court’s order terminating his parental rights to M. D. N.
On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or determine the credibility of witnesses, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.2
So viewed, the record shows that the Gwinnett County Department of Family and Children Services (the “Department”) gained temporary protective custody of M. D. N. on May 11, 2005, after the police
Shortly thereafter on June 13, 2005, the Department filed its initial case plan, recommending nonreunification and setting forth secondary goals for appellant to: (1) legitimate M. D. N.; (2) pay child support; and (3) remain in contact with the Department. The court issued its 30-day review order on July 1,2005, which incorporated the Department’s case plan. However, contradicting the case plan, the court’s order indicated that the goal was reunification. This order was not appealed. Nonetheless, recognizing the conflict created, the guardian ad litem requested a hearing to determine the status of the case on December 12, 2005.
The next hearing was held on or about March 8, 2006. Presumably as a result thereof, on March 15, 2006, the court issued three orders, an emergency hearing order, a final hearing order, and an order permitting M. D. N. an extended visit with relatives Ken and Renee Murphy, who were interested in adopting him. In both the emergency and final hearing orders, the court found that M. D. N. was deprived; that custody would remain with the Department; and that M. N. would have no rights until he legitimated M. D. N. The court also ordered appellant to follow the same case plan as the mother after he legitimated M. D. N., which according to the court’s order, included submitting to a psychological evaluation and attending alcohol and drug and domestic violence counseling. In the final hearing order, the court permitted the Department discretion to allow M. D. N. to live with his mother’s maternal cousin, Heather Sanders, and noted that nonreunification was the permanency plan for the family. None of these orders was appealed. Appellant legitimated M. D. N. on March 23, 2006.
On April 18, 2006, the Department filed another deprivation complaint alleging that the earlier conditions under which M. D. N.
Five weeks later on August 25, 2006, the guardian ad litem filed a motion for review of permanency plan, stating that appellant had not visited or provided support for M. D. N. during the last 15 months and requesting that the Department file a termination of parental rights petition and that permanent custody be placed with the Murphys to effectuate M. D. N.’s adoption. Two months later, the Department filed a petition to terminate parental rights.
A citizen review panel was held on February 14, 2007, and the panel recommended the termination of parental rights and a permanency plan of adoption. In support of its recommendations, the panel concluded that M. D. N. was deprived due to domestic violence in the home and because both of his parents were arrested on outstanding warrants; that the mother stated that she and appellant were substance abusers; that the father was incarcerated and the mother’s whereabouts were unknown; that M. D. N. was residing with the Murphys and had been living with them for a year; that he had made a lot of progress with the Murphys, was very close to them, and thought of them as his parents; that the Murphys’ niece had adopted one of M. D. N.’s eight siblings; and that M. D. N.’s therapist believed that therapy was no longer necessary because the child was doing well in the Murphys’ care.
On February 22, 2007, the court held the termination hearing. The Department’s social services case manager, Eboni Robinson, testified that the Department filed the petition for termination of parental rights because M. D. N. had been in its care for almost two years and that the Department was concerned about “foster care
Elton Young, M. D. N.’s counselor, testified that he worked with M. D. N. from September 2005 to December 2006 and that during treatment, M. D. N. experienced anxiety, causing bedwetting, because his mother abruptly stopped attending visits with him, and because he was very fearful that someone was going to take him away from the Murphys. Young testified that when he closed M. D. N.’s case, the child had adjusted well and was doing well in school and was very much a part of the Murphy family. Young opined that it would be in M. D. N.’s best interest to remain with the Murphys.
Appellant testified at the hearing that he was with M. D. N. every day until he was arrested in May 2005. Appellant remained incarcerated after the arrest and entered a nonnegotiated plea to one count of burglary in October 2006, for which he was sentenced to fifteen years to serve eighteen months in prison work camp followed by six months in the Gwinnett County work release program and the payment of an $8,000 fine. Appellant explained that he had not seen M. D. N. because he was incarcerated; that he would be getting out of jail on June 8,2007; that while incarcerated, he had obtainedhis GED and planned to attend college to get a heating, ventilation, and air conditioning (“HVAC”) license to open his own business; and that he loved his son and wanted him back. On cross-examination, appellant testified that he sent M. D. N. birthday cards, but they were returned to him; that he had a job as an HVAC mechanic upon his release from jail; and that he had money for a home and could pay for counseling if M. D. N. needed it. Appellant admitted that he had been in a work release program for a month and had saved $1,000 to rent a home but had not provided any financial support for M. D. N. He also admitted that he was sent back to prison work camp from the work release program on two occasions because he tested positive for alcohol, which was a violation of the terms of the program. Appellant explained that each time, the source of the alcohol in his system was over-the-counter cold medicine. The juvenile court entered an order terminating both appellant’s and R. D.’s parental rights. Appellant appeals from that order.
1. M. N. argues that there was no evidence to support the juvenile court’s finding that the cause of M. D. N.’s deprivation is likely to continue or will not likely be remedied. In reaching its conclusion, the court relied in part on the fact that M. N. has not been in a position to parent M. D. N. due to his incarceration. Though “[a] parent’s incarceration does not always compel the termination of parental rights, ... it can support a termination when there are sufficient aggravating circumstances present.”
The failure to comply with case plan goals is also considered an aggravating factor.
Appellant’s decision to obtain a GED and his future intentions are commendable. However, courts are authorized to consider the past conduct of a parent in determining whether the deprivation is likely to continue*
“The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.”
2. In his second enumerated error, M. N. argues that the trial court erred in finding that he had been arrested for domestic violence. M. N. is correct because the evidence shows that the police were called to M. N.’s home to investigate domestic violence, but M. N. was actually arrested because of outstanding warrants. The court’s error, however, did not affect its decision to terminate M. N.’s parental rights. Accordingly, we find no merit to this enumerated error.
3. Finally, M. N. maintains that the trial court erred in failing to consider whether his failure to maintain meaningful contact with M. D. N. was wilful or wanton. In support of his argument, M. N. relies on cases discussing the consequences suffered by parents who wantonly and wilfully fail to comply with a child support order for twelve months or more.
Judgment affirmed.
The court’s order also terminates the rights of M. D. N.’s biological mother, R. D., but she is not a party to this appeal.
(Footnotes omitted.) In the Interest of F. C., 248 Ga. App. 675 (549 SE2d 125) (2001).
M. N. remained incarcerated through the termination hearing.
OCGA § 15-11-94 (a); In the Interest of C. F., 251 Ga. App. 708, 711 (555 SE2d 81) (2001).
OCGA § 15-11-94 (b) (4) (A) (i)-(iv); In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).
(Citation omitted.) In the Interest of S. B., 237 Ga. App. 692, 693 (515 SE2d 209) (1999). Accord In the Interest of R. N., supra.
(Footnote omitted.) In the Interest of M. C. L., 251 Ga. App. 132,134 (1) (a) (553 SE2d 647) (2001); In the Interest of A. T. H., 248 Ga. App. 570, 572 (1) (547 SE2d 299) (2001).
(Punctuation andfootnote omitted.) Stills v. Johnson, 272 Ga. 645,651 (3) (533 SE2d 695) (2000). Accord In the Interest of T. A. M., 280 Ga. App. 494, 497 (2) (634 SE2d 456) (2006).
See In the Interest of S. B., 287 Ga. App. 203,213 (2) (651 SE2d 140) (2007) (mother unable to substantiate claims that she called and wrote her children numerous times).
In the Interest of M. C. L., supra at 135 (1) (a). See In the Interest of K. B., 252 Ga. App. 808, 810 (556 ,SE2d 922) (2001) (failure to provide parental care and support considered an aggravating circumstance).
In the Interest of R. D. B., 282 Ga. App. 628, 631 (1) (b) (639 SE2d 565) (2006).
(Punctuation and footnote omitted.) In the Interest of A. C., 280 Ga. App. 212, 217 (1) (c) (633 SE2d 609) (2006).
See In the Interest of D. D. B., 282 Ga. App. 416, 419 (1) (638 SE2d 843) (2006).
(Citation and punctuation omitted.) Id. at 418 (1).
277 Ga. App. 424 (626 SE2d 616) (2006).
Id. at 426.
Id. at 428 (1).
Id. at 426.
Id. at 428 (1).
Id.
(Punctuation and footnote omitted.) In the Interest of S. B., supra, 287 Ga. App. at 213 (2).
(Citation omitted.) In the Interest of R. N. H., 286 Ga.App. 737,742 (1) (c) (650 SE2d397) (2007). Compare In the Interest of R. C. M., 284 Ga. App. 791, 794-795, 799-800 (III) (3) (645 SE2d 363) (2007) (termination of father’s parental rights reversed where father could not complete case plan goals because of incarceration but wrote to his children every week, had one visit with his children post-incarceration that a counselor described as “quite a positive visit,” and the children were closely bonded with their father despite his two-year incarceration and expressed a desire to continue their relationship with him).
See generally In the Interest of K. D., 285 Ga.App. 673, 680 (1) (d) (647 SE2d 360) (2007) (trial court’s finding that domestic violence caused premature labor, if error, was harmless as it would not have changed the ruling on the termination petition).
See In the Interest of M. H. E, 201 Ga. App. 56 (410 SE2d 167) (1991); Kriseman v. Kenmore, 143 Ga. App. 490, 491 (1) (238 SE2d 585) (1977). See also OCGA § 15-11-94 (b) (2) (formerly OCGA§ 15-11-81 (b) (2)).
In the Interest of D. N. B., 258 Ga. App. 481, 484 (1) (574 SE2d 574) (2002).
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