Griffith v. BrooksGriffith v. Brooks
- Reporters:
- , , ,
- Before:
- Andrews
Griffith, thе biological father of T. S. G., appeals from the order granting Brooks’ adoption petition, thereby terminating his parental rights, after the retriаl required by Griffith v. Brooks, 193 Ga. App. *402 762 (389 SE2d 246) (1989). 1 Griffith was present at the second trial and testified. The facts as set out in Griffith, supra, except for those attested to by the paternal grandparents who did not testify in the current case, are supported in the record before us and will be supplemented only as necessary for this opinion.
T. S. G. was born on January 13, 1985. The mother and Griffith, married at the time, lived together only four-and-one-half months before she left him. On July 1, 1985, the mother married Brooks and T. S. G. has lived with them ever since and been voluntarily supported by Brooks. T. S. G. is now ten years old. Griffith was incarcerated on January 26, 1987 and last paid support in December 1986 with a check which bounced. At the time of his incarceration, Griffith was $1,150 in arrears on court-ordered child support of $50 per month. He had been employed, making $14,000 to $15,000 per year, before being incarcerated. Griffith was again directed, by a subsequent separate order, to pay $50 per month child support beginning March 13, 1987. No payments have been made. Griffith testified that “I don’t have no means of suрport while I’m in. I sent support until I got incarcerated.” 2 The record supports the trial court’s conclusion that, in fact, when he was imprisoned, Griffith was at least six months behind on his support obligations.
1. Following
Thorne v. Padgett,
259 Ga. 650 (386 SE2d 155) (1989),
3
the legislature enacted current
The trial court found that the father had fаiled to provide any child support for over seven years and that “[t]he biological father has not presented the Court with any act(s) sufficiеnt to establish a familial bond between himself and his child. The father has had a period of seven years to establish a familial bond with his child and has failеd to do so.” Griffith testified that, since his incarceration, his only contact with his son has been a telephone call every other week during the child’s visits with his paternal grandparents. Griffith had never requested the mother and Brooks to accept his calls from prison so he could contact his son at other times, nor had he sent any written communications to his son during the prior seven years. The court further concluded that the failure to suрport the child was without justifiable cause under
Griffith relies on Jones v. Sauls, 213 Ga. App. 55 (443 SE2d 693) (1994), for his argument that imprisonment is, in and of itself, a “justifiable cause” under the statute and his argument that the court’s reliance on Curtis was improper.
Both
Curtis
and
Chandler v. Cochran,
247 Ga. 184 (275 SE2d 23) (1981), cited in
Curtis,
supra at 906 (1), were decided during the period when the “without justifiable cause” requirement had been removed from the statute. In
Chandler,
the biological father was incarcerаted and contended that the statute, then
Both Curtis and Chandler are cited by the Thorne opinion, but neither is expressly overruled regarding the above quoted language. Chandler is distinguished because “the constitutional attack presented by this case was not squаrely before the court. . . .” *404 Thorne, supra at 652.
In Jones, supra, the trial court concluded that the incarcerated father’s failure to pay support was with justifiable сause. There, however, with money supplied by his mother for the year prior to the filing of the petition to adopt, Jones had made monthly pаyments toward his substantial child support arrearage. He had also applied to his arrearage a refund which he had received from his rеtirement plan. He made frequent attempts to contact his son and maintain a close father-son relationship, including sending weekly letters tо the child. This court affirmed the trial court’s conclusion that, in that case, Jones had not failed to communicate with his son, had significantly failed to provide for the care and support of his child, but that this failure was not without substantial justification.
In so doing, we stated that “[f]or purposes of determining the existence of ‘justifiable cause,’ . . . incarceration is merely one relevant factor to be considered by the trial court; incarceration does not per se give rise to justifiable cause, although in certain circumstanсes, justifiable cause can be shown to arise therefrom. Each case must be decided on its own circumstances.” (Emphasis supplied.) Jones, supra at 58 (3c).
This cоnclusion is consistent with our similar finding that considering a parent’s mental condition as one factor is appropriate. In re B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427) (1990).
Considering the evidence in the light most favorable to Brooks, we conclude that any rational trier of fact could have found by clear and convincing evidenсe that Griffith’s failure to substantially pay support was without justifiable cause. In re W. W. C., 210 Ga. App. 492 (436 SE2d 685) (1993); In re J. L. Y., 184 Ga. App. 254, 256 (1) (361 SE2d 246) (1987). Griffith’s first enumeration is without merit.
2. Because of the conclusion reached in Division 1, it is unnecessary fоr this court to consider the second enumeration.
Judgment affirmed.
Beasley, C. J., and Johnson, J., concur.
Notes
There, this court reversed the trial court’s conclusion that Griffith had
abandoned
the child as then set out in former
Griffith’s parents, who have grandparent visitation rights, did pay $200 toward T. S. G.’s support in December 1987.
In that case, the Supreme Court found the 1979 amendment to then