FIFTH DIVISION

MCFADDEN, P. J.,

RAY 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

September 20, 2018

In the Court of Appeals of Georgia

A18A1162. IN THE INTEREST OF E. M.

RICKMAN, Judge.

The biological father of E. M. appeals from a juvenile court order terminating

his parental rights to his minor child. For the reasons given below, we affirm.

The record shows that in December 2015, the Juvenile Court of MurrayCounty

entered a dependency removal order for three children, including E. M. (then age

five), arising in part from the children’s mother having tested positive to multiple

controlled substances at the time she gave birth to the youngest of the three children.

The children were placed in foster care. The local Department of Family and Children

Services (“DFCS”) thereafter filed a petition alleging that the children were

dependent, and the court entered a preliminary protective order. At the hearing on the
petition, the mother testified that the appellant, the biological father of only E. M.,

1

was incarcerated for “family violence” and that the couple was not married. The

appellant was not present for the hearing. In January 2016, the court found that the

children were dependent because the appellant was incarcerated, the other two

biological fathers had no bond with their children, and the mother was an

unrehabilitated drug user; the court therefore placed custody of the children with

DFCS. All parents were ordered to contact the office of child support enforcement

immediately to establish an account for the payment of any child support obligation,

which was set, at a minimum, at $45 per week for one child pending further

determination. 

Separately, the appellant was issued a “reunification/adoption” case plan that

required him to complywith numerous conditions, including that he begin supervised

visits with E. M. once he was released from incarceration “if approved by the courts.”

As of a February 2016 case plan review, the appellant had been appointed

counsel, but he remained incarcerated and did not appear; he was expected to come

up for parole in May 2016. In that same month, he moved to legitimate E. M.

1 The appellant is not the biological father of the other two children, and this

appeal concerns the termination of the appellant’s parental rights to E. M.

2
In December 2016, DFCS filed a petition to terminate the parental rights of all

three children. A hearing on the matter was held on June 20, 2017. The appellant was

still incarcerated at the time of the hearing and not present, although he was

represented by counsel. At the termination hearing, DFCS presented two witnesses,

and the court took judicial notice of the entire record with certain exceptions not

relevant here. The mother was not present because she recently had been arrested on

a new drug charge and was incarcerated. The guardian ad litem and the courtappointed special advocate (CASA), who were present at the hearing, did not testify,

but the CASA’s reports are included in the record.

Following the hearing, the juvenile court terminated all of the parents’ parental

rights, including the appellant’s. The trial court found (1) that all parents had

wantonly and willfully failed to comply with orders to support their children; (2) that

the children had been abandoned by their parents; and (3) that the children were

dependent due to a lack of proper parental care or control by their parents, that

reasonable efforts to remedy the circumstances were unsuccessful or not required,

that the cause of the dependency of each child was likely to continue or not be

remedied, and that continued dependency would cause or was likely to cause serious

harm to the children. 

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With regard to the appellant specifically, the court found that he had been

incarcerated during the entirety of the case and had failed to complete any case plan

goals; that he “ha[d] a history of use and abuse of illegal drugs and ha[s]

unrehabilitated substance abuse issues”; that he had a “history of repeated criminal

behavior and incarcerations which have had a demonstrably negative effect on the

quality of relationship with his child”; that he has had no relationship with his child

since she entered care; and that he had sent the child only one card and no gifts or

support.

Finally, the court found that the children were bonded to the current foster

parents and vice versa, that DFCS had made reasonable efforts to finalize the

permanency plan, and that it was in the best interests of the children that termination

of parental rights be granted.

We granted the appellant’s application for discretionary review, and this appeal

followed.

1. The appellant first contends that the trial court lacked personal jurisdiction

over him because he was not personally served with process regarding the termination

of his parental rights. This assertion of error, however, is not properly before this

Court.

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An application for discretionary review must “enumerat[e] the errors to

be urged on appeal,” OCGA § 5-6-35 (b), and so, when we grant

discretionary review, it necessarily is limited to the errors actually

enumerated in the application.

Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013);see also OCGA § 15-

1-2 (“lack of jurisdiction of the person may be waived”). Here, the appellant did not

enumerate lack of personal jurisdiction as an error in his application for discretionary

review, and therefore that enumeration is waived. See, e.g., Lutz v. Lutz, 302 Ga. 500,

502 (1) (807 SE2d 336) (2017).

2. The appellant contends that insufficient evidence was presented to warrant

termination of his parental rights.

On appeal from an order terminating parental rights, we review the

evidence in the light most favorable to the juvenile court’s judgment in

order to determine whether 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 neither weigh evidence nor determine witness

credibility, but defer to the juvenile court’s findings of fact and affirm

unless the appellate standard is not met.

(Citation and punctuation omitted). In the Interest of U. G., 291 Ga. App. 404, 404

(662 SE2d 190) (2008).

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Construed in favor of the judgment, the evidence presented to the trial

court—as found in the record of the entire proceedings, for which the court took

judicial notice, and as presented at the termination hearing—is set forth either in the

recitation of the procedural facts above, or as follows.

The children had been in DFCS custody since May 28, 2016. The appellant had

“issues with drugs and alcohol”; had not completed any case plan goals; and had

failed to provide DFCS with proof of stable housing or income, drug treatment,

payment of child support, or psychological evaluations. Further, the appellant had not

had a relationship with the child during the two years that DFCS had been involved

and, in the same two years, the appellant had only sent the child one card, no gifts,

and no money orsupport. The casemanager had written to the appellant once a month

since she had become involved and the appellant had responded perhaps four times.

DFCS performed an exhaustive search for appropriate family members with whom

to place the child but found none. DFCS performed a home evaluation of the

appellant’s mother’s home, but her home was not approved because the appellant had

lived there and he had a “drinking problem,” the appellant and the mother had

unspecified “domestic violence” issues, and DFCS could not confirm that the

appellant’s mother would prevent the mother and appellant from living there in the

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future. E. M. was doing well and strongly bonded with her foster mother but was

receiving counseling due to behavioral issues. Finally, there was testimony that it was

in the children’s best interest to terminate the parental rights of all of the parents.

The court considered the CASA’s reports, which are contained in the record.

The reports show that the appellant never indicated any interest in obtaining custody

of the child, and that the CASA recommended that the appellant’s parental rights be

terminated and that termination was in the child’s best interests.

The court also allowed into evidence certified copies of six criminal multicount convictions of the appellant ranging from 2002 to 2015, including at least three

convictions of family violence (battery), one being a felony, as well as a conviction

of second degree cruelty to children because an incident of violence occurred in the

presence of a child. More specifically, in the first case, the appellant was convicted

of family violence battery for striking his spouse about the head and face and

knocking her to the ground; cruelty to children for doing so in the presence of two

children; and disorderly conduct for breaking the windshield of his spouse’s car. In

the second case, the appellant was convicted of obstruction of a law enforcement

officer by fleeing from the officer; he was sentenced to time served plus probation.

In the third case, the appellant was convicted of family violence battery for striking

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a woman about the head and body and throwing her to the ground. In the fourth case,

the appellant pled guilty to felony family violence battery for striking a woman about

her head and body, dragging her across the floor, and by kicking her. In the fifth case,

the appellant again pled guilty to family violence battery for striking the same victim

about the head and body; in April 2013, he was sentenced to four years to serve two,

with the remainder on probation. Finally, in the sixth case, the appellant was

convicted of two counts of aggravated stalking for violating his previous probation

by having contact with the victim for the purpose of harassing and intimidating her;

he was also convicted of terroristic threats by offering to commit other violent acts

on the same victim. On June 1, 2015, he was sentenced to a total of twelve years to

serve approximately four years and three and a half months (after credit for time

served), with the remainder on probation.

(a) The juvenile code calls for a two-pronged analysis in such a case. See

OCGA § 15-11-310.

2 First, the trial court determines whether one of five statutory

grounds for termination has been met, including the three grounds upon which the

court relied in this case:

2 The current juvenile code went into effect on January 1, 2014, before the

original petition in this case was filed on December 12, 2016. See Ga. L. 2013,

p. 294, § 5-1.

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The parent has wantonly and willfully failed to comply for a period of 12

months or longer with a decree to support his or her child that has been

entered by a court of competent jurisdiction of this or any other state;

A child is abandoned by his or her parent; or

A child is a dependent child due to lack of proper parental care or control

by his or her parent, reasonable efforts to remedy the circumstances have

been unsuccessful or were not required, such cause of dependency is

likely to continue or will not likely be remedied, and the continued

dependency will cause or is likely to cause serious physical, mental,

emotional, or moral harm to such child.

OCGA § 15-11-310 (a) (3), (4), (5).

3 These grounds are independent, and thus, on

appeal, if there is sufficient evidence supporting any one of these grounds, we need

not consider the other grounds in order to affirm.

4 See, e.g., In Interest of B. D. O.,

343 Ga. App. 587, 591 (1) (807 SE2d 507) (2017); In the Interest of S. G. T., 175 Ga.

App. 475, 477 (2) (333 SE2d 445) (1985). Second, if one or more of these criteria has

been met, the trial court then considers whether termination is in each child’s best

interest by considering certain factors as shown below. OCGA § 15-11-310 (b).

3 The statute was amended in 2018 to include additional language. See Ga. L.

2018, p. __, § 3.

4 Thus, even if aspects of the trial court’s rulings on the other grounds might

be flawed, the appellant cannot show harm as long as the evidence supports the trial

court’s rulings on one ground. See In re M. T. C., 267 Ga. App. 160, 161 (598 SE2d

879) (2004).

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As shown above, the trial court found three independentstatutory grounds for

terminating the appellant’s parental rights in the child, including that he wantonly and

willfully failed to comply for a period of 12 months or longer with a decree to support

his or her child. See OCGA § 15-11-310 (a) (3). The court found as a matter of fact

that the appellant had failed to provide any gifts or support at any time during the

proceedings.

On appeal, however, the appellant references this ground in only one sentence

of his brief: “When asked whether she or anyone at DFCS ever informed [the

appellant] of an amount he was supposed to be paying in child support for his child,

she testified she did not and had no knowledge anyone else with DFCS so informed

him.” The appellant did not otherwise argue or cite any authority to support that the

trial court erred in its finding on this ground. “Any enumeration of error that is not

supported in the brief by citation of authority or argument may be deemed

abandoned.” Court of Appeals Rule 25. Pretermitting whether the appellant

abandoned this argument, however, we conclude that clear and convincing evidence

was presented to support this independent ground for terminating the appellant’s

parental rights.

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First, on January 19, 2016, the appellant was ordered by the court to pay

support of $45 per week pending further determination. Although the DFCS case

manager admitted that she had not personally informed the appellant of the required

amount of support, this order provided the appellant with the required information.

And it is undisputed that the appellant was represented by counsel as of February 22,

2016, if not before. Next, the DFCS case manager testified that the appellant failed

to provide any support for the child through the date of the final hearing on June 20,

2017, well over 12 months after the date of the court order requiring him to support

the child. Thus, the undisputed evidence supports the trial court’s finding that the

appellant failed to comply for a period of 12 months or longer with a decree to

support his child. See OCGA § 15-11-310 (a) (3).

With regard to the finding that the appellant’s actions were wanton and willful,

although it is true that an inability to earn income due to incarceration may constitute

justifiable cause for failing to pay child support, see In re G. W. R., 270 Ga. App. 194,

199 (2) (606 SE2d 281) (2004), here, the appellant failed to offer any explanation

whatsoever for failing to pay any support. Id.;see also In the Interest of M. J. P., 290

Ga. App. 184, 187 (659 SE2d 402) (2008) (“incarceration does not per se give rise

to justifiable cause”). The court therefore was authorized to conclude that the

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appellant’s failure to pay support was wanton and willful. See In re A. D. L., 253 Ga.

App. 64, 68 (2) (557 SE2d 489) (2001) (appellant’s failure to show lack of ability to

pay contributed to trial court’s finding by clear and convincing evidence of wanton

and willful failure to pay court-ordered child support for a period of 12 months or

more); In Interest of J. M. H., 203 Ga. App. 856, 857 (1) (418 SE2d 128) (1992)

(clear and convincing evidence of wanton and willful failure to pay court-ordered

support shown where appellant “offered no evidence of justifiable cause for not

supporting his child”); cf. In the Interest of S. R. M., 283 Ga. App. 463, 468 (2) (a)

(641 SE2d 666) (2007) (imprisoned parent may present testimony to the court by

affidavit or deposition).

Combined with the appellant’s almost complete lack of contact with the child,

we conclude that appellant’sfailure to explain his failure to pay court-ordered support

provided sufficient evidence to show that the appellant wantonly and willfully failed

to comply for a period of 12 months or longer with a decree to support his child. See

OCGA § 15-11-310 (a) (3); In Interest of J. M. G., 214 Ga. App. 738, 739 (3) (448

SE2d 785) (1994) (wanton and willful failure to pay court-ordered support for more

than one year supported termination under prior similar statute); In Interest of G. K.

J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988) (same).

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(b) The appellant also contends that insufficient evidence was presented to

show that termination of his parental rights was in the best interests of the child. The

statute applicable to this case5

provided that when addressing the best interests of the

child, the court consider the following factors:

(1) Such child’s sense of attachments, including his or her sense of

security and familiarity, and the continuity of affection for such child;

(2) Such child’s wishes and long-term goals;

(3) Such child’s need for permanence, including his or her need for

stability and continuity of relationships with a parent, siblings, and other

relatives; and

(4) Any other factors, including the factors set forth in Code Section 15-

11-26,

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considered by the court to be relevant and proper to its

determination.

OCGA § 15-11-310 (b).

The trial court found that termination of the appellant’s parental rights

was in the child’s best interests in part because the appellant “essentially had no

relationship with the child since she entered care”; he sent the child only one

5 The statute was amended in 2018. See Ga. L. 2018, p. _, § 3.

6

“OCGA § 15-11-26 sets forth an additional, non-exhaustive list of factors the

court can consider in determining the best interests of the child.” In Interest of B. D.

O., 343 Ga. App. 587, 591 n. 6 (807 SE2d 507) (2017). These include “[a]ny other

factors considered by the court to be relevant and proper to its determination.” OCGA

§ 15-11-26 (20).

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card during the pendency of the case; he failed to send any gifts or support; and

he had “a history of repeated criminal behavior and incarcerations that have had

a demonstrably negative effect on the quality of [the] relationship with his

child.”

The evidence cited above supports these findings. The record shows that

the appellant never indicated that he wanted custody of the child; that with one

exception in 18 months, he failed to communicate with the child; that he failed

to pay court-ordered support; that he had been incarcerated repeatedly for

violence, including family violence; that in one incident, he committed family

violence in the presence of a child; that, at a minimum, the appellant had a

drinking problem; that the child was bonded to her current foster parents and

was doing well; and that the CASA opined that it was in the child’s best interests

to terminate the appellant’s parental rights. These findings are sufficient to

support the court’s conclusion that termination of the appellant’s rights was in

the child’s best interests as is evident from best-interest factors found in the

Code. See OCGA § 15-11-26 (2) (“[t]he love, affection, bonding, and emotional

ties existing between such child and each parent”); OCGA § 15-11-26 (4) (the

“[s]uch child’s need for permanence”); OCGA § 15-11-26 (6) (“[t]he capacity

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and disposition of each parent or person available to care for such child to give

him or her love, affection, and guidance”); OCGA § 15-11-26 (8) (“[t]he

stability of the family unit”); OCGA § 15-11-26 (18) (“[a]ny evidence of family

violence, substance abuse, criminal history”); and OCGA § 15-11-26 (19)

(“[a]ny recommendation by a court appointed custody evaluator”). Cf. In

Interest of B. D. O., 343 Ga. App. 587, 592 (2) (807 SE2d 507) (2017) (“the

same evidence that shows a lack of parental care and control can also support a

finding that termination is in a child’s best interests”).

(3) Finally, citing OCGA § 15-11-202, the appellant contends that the trial

court erred by concluding that DFCS used reasonable efforts to reunify the

appellant and his child. He argues further that he was entitled to a case plan that

contained achievable goals and assistance in meeting those goals.

(a) A review of the Juvenile Code shows that OCGA § 15-11-202 pertains

to dependency proceedings, not termination proceedings. Termination

proceedings are a separate matter and are governed by Article 4 of the Juvenile

Code. See OCGA § 15-11-260 et seq. The purpose of a termination proceeding

is to protect children who already have been adjudicated as dependent from

parents unwilling or unable to provide safety and care adequate to protect the

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children, “by providing a judicial process for the termination of all parental

rights and responsibilities.” OCGA § 15-11-260 (a) (1). The “reasonable efforts”

requirement pertaining to termination proceedings is found in OCGA § 15-11-

310 (a) (5), which, as applicable to this case, provided for termination of

parental rights if:

A child is a dependent child due to lack of proper parental care or

control by his or her parent, reasonable efforts to remedy the

circumstances have been unsuccessful or were not required, such

cause of dependency is likely to continue or will not likely be

remedied, and the continued dependency will cause or is likely to

cause serious physical, mental, emotional, or moral harm to such

child.

(Emphasis supplied). Nothing else in Article 4 of the Juvenile Code references

“reasonable efforts” or OCGA § 15-11-202. For the above reasons, we conclude

that OCGA § 15-11-202 is not applicable to the issue of the appellant’s failure

to comply with a support decree. Cf. In Interest of V. S., 230 Ga. App. 26, 30-31

(2) (495 SE2d 142) (1997) (holding that, under prior version of the Juvenile

Code, procedures contained in statute pertaining to orders of disposition

removing a child from the home of his parents and placing him in the State’s

care did not pertain to proceedings to terminate parental rights); In re F. C., 248

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Ga. App. 675, 679 (2) (549 SE2d 125) (2001), disapproved on other grounds by

Miller v. State, 285 Ga. 285 (676 SE2d 173) (2009) (under prior version of the

Juvenile Code, statute regarding reasonable efforts for reunification pertaining

to removal and placement orders did not pertain to termination proceedings).

And, because we are affirming the trial court’s termination order based on

the third of five independent grounds for termination, see OCGA § 15-11-310

(a) (3), we need not address whether the trial court had sufficient evidence to

support termination under OCGA § 15-11-310 (5), which contains the only

“reasonable efforts” clause related to termination proceedings. Similarly,

because our holding does not depend on the trial court’s conclusion that the

appellant failed to meet the requirements of his case plan, the appellant’s

argument that the trial court erred with regard to that holding does not require

a reversal.

Judgment affirmed. McFadden, P. J., and Ray, J., concur.

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