A parent in Georgia who has abandoned, neglected, abused, or failed to support a child can lose his or her parental rights by voluntarily surrendering them, or upon entry of a court order terminating those parental rights in certain juvenile court proceedings and in superior court actions involving child custody, legitimation, paternity, or adoption. This first article of a two-part series explores the legal standards governing termination of parental rights in such cases. The second part of the series will discuss specific parental conduct which has resulted in loss of parental rights as well as conduct found insufficient to justify termination of parental rights.

Historically, the juvenile courts of Georgia had exclusive jurisdiction to terminate the legal parent-child relationship and rights of a biological father who was not the legal father of a child, except in adoption cases and certain other limited situations.(1) Since May 5, 2015, however, Georgia’s superior courts have possessed exclusive jurisdiction to terminate the parental rights of a legal father, or of a biological father who is not the legal father of a child, in petitions for legitimation, petitions to establish paternity, divorce proceedings, various designated custody proceedings, and also in adoption cases.(2)

To terminate a father or mother’s parental rights, a court must determine by clear and convincing evidence that termination is warranted.(3) The State or individual party seeking to terminate parental rights bears the burden of proof under the clear and convincing evidence standard.(4)

In dependent child and other juvenile court proceedings, the court employs a two-step process in deciding whether to terminate parental rights.(5) First, the court determines whether one of the following statutory grounds for termination of parental rights has been met:

(1) The parent has given written consent to termination which has been acknowledged by the court or has voluntarily surrendered his or her child for adoption;

(2) The parent has subjected his or her child to aggravated circumstances;

(3) 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;

(4) A child is abandoned by his or her parent; or

(5) 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 in the reasonably foreseeable future, and: (A) Returning such child to his or her parent is likely to cause serious physical, mental, moral, or emotional harm to such child or threaten the physical safety or well-being of such child; or (B) Continuation of the parent and child relationship will cause or is likely to cause serious physical, mental, moral, or emotional harm to such child.(6)

Second, if any of the statutory grounds for termination has been met, the court then determines whether termination is in a child’s best interests after considering 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;

(4) Any benefit to such child of being integrated into a stable and permanent home and the likely effect of delaying such integration into such stable and permanent home environment;

(5) The detrimental impact of the lack of a stable and permanent home environment on such child’s safety, well-being, or physical, mental, or emotional health;

(6) Such child’s future physical, mental, moral, or emotional well-being; and

(7) Any other factors, including the factors set forth in [Juvenile] Code Section 15-11-26, considered by the court to be relevant and proper to its determination.(7)

The statutory factors of Juvenile Code Section 15-11-26, which a juvenile court may consider in analyzing a child’s best interests in the context of his or her age and developmental needs, include:

(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;

(2) The love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;

(3) The love, affection, bonding, and emotional ties existing between such child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(4) Such child's need for permanence, including such child's need for stability and continuity of relationships with his or her parent, siblings, other relatives, and any other person who has provided significant care to such child;

(5) Such child's sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;

(6) The capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;

(7) The home environment of each parent or person available to care for such child considering the promotion of such child's nurturance and safety rather than superficial or material factors;

(8) The stability of the family unit and the presence or absence of support systems within the community to benefit such child;

(9) The mental and physical health of all individuals involved;

(10) The home, school, and community record and history of such child, as well as any health or educational special needs of such child;

(11) Such child's community ties, including church, school, and friends;

(12) Such child's background and ties, including familial, cultural, and religious;

(13) The least disruptive placement alternative for such child;

(14) The uniqueness of every family and child;

(15) The risks attendant to entering and being in substitute care;

(16) Such child's wishes and long-term goals;

(17) The preferences of the persons available to care for such child;

(18) Any evidence of family violence, substance abuse, criminal history, or sexual, mental, or physical child abuse in any current, past, or considered home for such child;

(19) Any recommendation by a court appointed custody evaluator or guardian ad litem; and

(20) Any other factors considered by the court to be relevant and proper to its determination.(8)

In proceedings in which stepparents, grandparents, or certain other designated relatives seek adoption of a child, parental rights may be terminated when a court determines by clear and convincing evidence that the 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.

Parental rights also may be terminated in stepparent and relative adoption proceedings, as well as in other types of adoption proceedings, when a court determines by clear and convincing evidence that the:

(1) Child has been abandoned by that parent;

(2) Parent cannot be found after a diligent search has been made;

(3) Parent is insane or otherwise incapacitated from surrendering such rights;

(4) Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the biological mother of his child or when the biological mother is less than ten years of age; or

(5) Parent, without justifiable cause, has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section 15-11-310.

After applying either of the above statutory lists, a court in an adoption case also must be “of the opinion that the adoption is in the best interests of [the] 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.”(11)

In contrast to juvenile court and adoption proceedings, no specified procedures and analyses exist for termination of parental rights in superior court actions for divorce, legitimation, to establish paternity, or involving child custody. The governing statute for those cases simply provides that a superior court may terminate the parental rights of the legal father or the biological father who is not the legal father of a child, “provided that such termination is in the best interest of such child[.]”(12) Unfortunately, Georgia’s appellate courts have yet to address, in a published opinion, the meaning of that statute and the standards it imposes for termination of parental rights. Therefore, it remains unclear whether a superior court can or would apply the process utilized in adoption or juvenile court cases (as described in this article), or instead merely would determine if the statutory best interest factors governing child custody proceedings in general warrant termination of a mother or father’s parental rights.(13)

(1) Mathenia v. Brumbelow, S19G0426, *11-14(3)(a) (Ga., May 18, 2020). (2) O.C.G.A. § 19-7-1(b)(8); see also Brumbelow, supra. (3) See O.C.G.A. § 19-8-11(a)(3)(A); Interest of M.R.B., 829 S.E.2d 848, 856(1) (Ga. Ct. App., 2019) (physical precedent only); and Interest of E.M., 347 Ga.App. 351, 354(2), 819 S.E.2d 505 (2018); and Sauls v. Atchison, 326 Ga.App. 301, 756 S.E.2d 577, 578 (2014). (4) Santosky v. Kramer, 455 U.S. 745, 748, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); M.R.B., supra, 829 S.E.2d at 856(1); Ray v. Hann, 323 Ga.App. 45, 49(2), 746 S.E.2d 600 (2013); and McCollum v. Jones, 274 Ga. App. 815, 821(3)(a)(1), 619 S.E.2d 313 (2005). (5) Interest of E.M., supra, 347 Ga.App. at 355. (6) O.C.G.A. § 15-11-310(a). (7) O.C.G.A. § 15-11-310(b). (8) O.C.G.A. § 15-11-26. (9) O.C.G.A. § 19-8-10(b). See also Atchison, supra, 756 S.E.2d at 580(2). (10) O.C.G.A. § 19-8-10(a). See also O.C.G.A. § 19-8-11(a)(3)(A); and Hann, supra, 323 Ga.App. at 48(2). (11) O.C.G.A. § 19-8-10(a) and (b). (12) O.C.G.A. § 19-7-1(b)(8). (13) See O.C.G.A. § 19-9-3(a)(3).