334 Ga. App. 520
Ga. Ct. App.2015Background
- In Dell v. Dell, this Court vacated a prior order terminating Leah Dell’s parental rights and granting Sarah Dell’s adoption for lacking required findings, and remanded for proper findings of fact and conclusions of law.
- After remand, the trial court entered a new order terminating Leah’s rights and approving Sarah’s adoption, prompting Leah to appeal.
- E. D. (born Sept. 14, 2002) is Leah’s natural child; Dwain and Leah were married at E.D.’s birth and later divorced with Dwain retaining custody.
- Dwain and Sarah married in 2007; Sarah has lived with and cared for E.D. since 2007, and E.D. considers Sarah her mother; Sarah and Dwain’s daughter A. D. was born in 2010.
- Leah did not attend the initial trial; a continuance request was denied; on remand Leah testified at a later hearing; evidence showed Leah had no contact or support for years prior to the petition.
- The trial court found Leah abandoned the child (insufficient to support termination under 19-8-10(a)(1)) but found failure to communicate or to provide for the child for over a year without justifiable cause (supported under 19-8-10(b)); these findings supported termination and adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports termination and adoption. | Dell argues abandonment insufficient. | Court found abandonment not shown but other grounds upheld. | Abandonment insufficient; 19-8-10(a)(1) not met; 19-8-10(b) supports termination and adoption. |
| Ineffective assistance of counsel. | Indigent parent entitled to effective counsel; counsel failed to protect rights. | Counsel acted reasonably; no prejudice shown. | No deficient performance or prejudice established. |
| Continuance denial at trial. | denial harmed Leah; absence used to terminate rights. | No reversible harm; subsequent hearing allowed defense. | No reversible error; not harmed. |
| Written judgment issue. | Did not receive original judgment. | Judgment vacated; new judgment entered; no harm claimed. | Harmless; not reversible. |
Key Cases Cited
- Hall v. Coleman, 264 Ga. App. 650 (Ga. App. 2003) (evidence standards for abandonment; intent to sever parental obligations)
- Ray v. Hann, 323 Ga. App. 45 (Ga. App. 2013) (abandonment showing and one-year criteria under 19-8-10)
- In the Interest of A. H. P., 232 Ga. App. 330 (Ga. App. 1998) (ineffective assistance standard; two-prong test)
- Works v. State, 301 Ga. App. 108 (Ga. App. 2009) (abrogation of ineffective assistance without prejudice proof)
- Fletcher v. State, 326 Ga. App. 389 (Ga. App. 2014) (counsel's strategic choices deemed reasonable)