author: Adams, Judge.

text:
    A12A1249.
    BARRETT et al. v. BRITT et al.
    (736 SE2d 148)
   Adams, Judge.

Jimmy and Marilyn Barrett appeal the trial court’s order granting partial summary judgment to Melanie Willis Britt and William Stacey Britt on the Barretts’ claims for breach of contract, waste and conversion in connection with their purchase of real property formerly owned by the Britts (“the Property”). The Barretts’ complaint asserted that the Britts improperly removed certain property, equipment and/or fixtures from the Property. Because we find that material issues of fact remain on the Barretts’ claims, we reverse the trial court’s grant of partial summary judgment to the Britts.

“In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). So viewed, the record reflects that on July 25, 2006, the Britts, pursuant to a Purchase and Sale Agreement (hereinafter the “Britt Agreement”), sold certain Jackson County real property, with improvements thereon, to their co-defendant Roger Allen Hughes (“Hughes”). The Britt Agreement contained a stipulation providing that “[a] 11 Equipment having to do with the cattle operation still belongs to the seller” but did not identify or define such equipment. One day later, on July 26,2006, the Britts and Hughes executed “Amendment #1” to the Britt Agreement, which provided that

[fjor a period of up to three (3) years, [the Britts have] the right to use the property for the purpose of managing their existing Cattle business. During the time the [Britts] are using the property they agree to maintain same to the condition it is presently in.

Two months later, on August 25, 2006, the parties entered into a formal “Lease Agreement” for the Property, “pursuant to the terms and conditions of” the Britt Agreement as amended. The Lease Agreement provided:

The terms of the [Britt Agreement], as amended, allow the [Britts] to retain possession of the property for a period of up to three (3) years following the date of closing, subject to the provisions of special stipulations set forth in the [Britt Agreement, as amended]. In order to confirm their agreements, the parties hereto have agreed upon and hereby enter into this lease ....

The property covered by the Lease Agreement is identified by the legal description of the Property. And under the terms of the lease, the Britts undertook “to maintain the property in a good condition, substantially the same as at present through the term of this lease,” including any “necessary maintenance on the house or other improvements, and the systems and appliances related thereto.”

During the pendency of the lease, however, Hughes sold the Property to the Barretts, pursuant to a Purchase and Sales Agreement dated September 19, 2007 (the “Barrett Agreement”). Under that agreement, Hughes warranted that at the time the Barretts took possession, the Property “will be in substantially the same condition” as on the day the parties signed the agreement. The Barrett Agreement provided for the sale of the Property “with such improvements as are located thereon . . . together with all fixtures, landscaping, improvements, and appurtenances,” but made no specific reference to Hughes’s earlier agreement entitling the Britts to retain ownership of any equipment “having to do with the cattle operation.” Nevertheless, the sale to the Barretts was specifically made subject to the Lease Agreement between Hughes and the Britts. The Barretts acknowledge that they received a copy of the Lease Agreement prior to closing, and that agreement references the Britt Agreement and the stipulations contained therein, without addressing the content of the stipulations. No other limitations on title were mentioned in the Barrett Agreement. The sale of the Property from Hughes to the Barretts closed on March 31, 2008, and the Warranty Deed Hughes signed that day granted the Barretts title in fee simple.

At the time of closing, the Britts still had 17 months remaining under the lease. When the Barretts took possession of the Property on or about July 31, 2009, at the end of the lease term, they discovered that the Britts had removed “the custom built galvanized steel gates; the custom built steel partitions in the barn for the stables; a grain bin attached to the barn; water meters, devices and water lines; and a cupola and weather vane.” Marilyn Barrett averred that, based upon her experience as a purchaser and owner of “numerous residential and commercial properties,” the property removed by the Britts was not cattle equipment or equipment related to the operation of a cattle business. The Britts concede that they removed “102 pieces of river run panel/gates, river run chute, 1 feed bin, 3 nelson waters, 3 blue automatic waters, 6 fans, 1 barn cupola, 12 feed bunks and 1 fuel tank and pump,” but William Britt averred that this property was associated with their cattle operation.

The Barretts contend that the removal of these items drastically altered the Property from its condition at the time they inspected and purchased it in 2008. And in August 2009, the Barretts sent the Britts correspondence detailing the items that they contended needed to be repaired, replaced or removed pursuant to the Lease Agreement and notifying them of damage caused by the removal of the cupola and weather vane. The Britts replied that they were entitled to remove the property pursuant to Stipulation 7 of the Britt Agreement, and supplied the Barretts a copy of that agreement in September 2009.

This lawsuit ensued, and the Britts filed a motion for summary judgment on the Barretts’ claims. The trial court granted the Britts summary judgment as to the Barretts’ claims regarding the removed property, finding that the Britts had the right to remove such property under the terms of the Britt Agreement and the Lease Agreement. The trial court denied summary judgment, however, on the Barretts’ claims that the Britts breached their duty to maintain the Property as to certain items; that the Britts dumped harmful substances on the Property in violation of the lease, resulting in damages; that the Britts’ removal of property was done negligently, resulting in damage to the Property; and that the Britts are liable for punitive damages and attorney fees.

On appeal the Barretts argue that the trial court erred in finding as a matter of law (1) that the property removed from the Property was “equipment having to do with the cattle operation”; and (2) that the Britts were entitled to remove any fixtures from the Property.

The Barretts correctly argue that fixtures ordinarily pass with the conveyance of underlying real estate, but the parties to a conveyance may alter that general rule by contract:

Where an item is attached to the land it becomes a part thereof and would ordinarily pass in a conveyance of the land. Whether certain articles annexed to the realty shall pass by conveyance or not, as between grantor and grantee, may be controlled by the agreement of the parties. The parties may, by an extrinsic and collateral agreement to the instrument of conveyance, treat such articles as personalty or realty.
Aside from the general rule of physical attachment and removability, the intent of the parties is to be considered when deciding issues of the law of fixtures. Where there is a contract by the express or implied terms of which such fixtures are to be considered as personalty they will be so treated.

(Citations and punctuation omitted.) Hargrove v. Jenkins, 192 Ga. App. 83, 84-85 (383 SE2d 636) (1989). See also Burpee v. Athens Production Credit Assn., 65 Ga. App. 102 (15 SE2d 526) (1941).

Stipulation 7 of the Britt Agreement was an attempt to identify items as to which the Britts retained ownership even after the sale of the Property to Hughes. And the Barretts are bound by the language of Stipulation 7. The Barrett Agreement was expressly made subject to the terms of the Lease Agreement, and that agreement, which the Barretts acknowledged receiving prior to closing, incorporated and affirmed the special stipulations found in the Britt Agreement. It is clear, therefore, that the Barretts purchased the Property subject to the Britts’ rights under the Lease Agreement. Turner Communications Corp. v. Hickcox, 161 Ga. App. 79, 82 (1) (289 SE2d 260) (1982) (“Where one purchases realty from a landlord, he takes with notice of whatever right or title the tenant in possession at the time may have.”) (citation and punctuation omitted). Thus, this appeal turns on an interpretation of the language in Stipulation 7 providing that the “equipment having to do with the cattle operation still belongs” to the Britts.

To determine the parties’ intent in drafting this language, we apply the well-settled rules of contract construction:

[T]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2.

(Citations and punctuation omitted.) Woody’s Steaks v. Pastoria, 261 Ga. App. 815, 817 (1) (584 SE2d 41) (2003).

Because the Britt Agreement failed to identify the equipment covered by Stipulation 7, we agree with the trial court that the stipulation’s language is ambiguous. We find, however, that the trial court erred in its application of the rules of contract construction in attempting to resolve that ambiguity and in determining as a matter of law that the items removed by the Britts fell within the terms of the stipulation.

The trial court applied the statutory rules of contract construction providing that “[w]ords generally bear their usual and common signification” and “the rules of grammatical construction usually govern.” OCGA § 13-2-2 (2), (6). But in attempting to determine the “usual and common signification” of the word “equipment,” the trial court erroneously relied upon the definition of that term found in Article 9 of Georgia’s Uniform Commercial Code (UCC), dealing with secured transactions in, inter alia, personal property or fixtures. See OCGA § 11-9-102 (a) (34), (42) and (45). It is well settled that the provisions of the UCC have no application to contracts involving real estate, such as those here. See Gordon v. South Central Farm Credit, 213 Ga. App. 816, 818-819 (446 SE2d 514) (1994) (UCC inapplicable to real estate mortgage contract); Lake Tightsqueeze v. Chrysler First Financial Svc. Corp., 210 Ga. App. 178, 180 (4) (435 SE2d 486) (1993) (UCC inapplicable to agreement for future financing of real estate). Cf. Thogerson v. State, 224 Ga. App. 76, 77 (479 SE2d 463) (1996) (UCC definitions inapplicable in criminal prosecution).

Rather, the plain meaning of “equipment” generally includes any “articles or implements used for a specific purpose or activity (esp. a business operation).” Black’s Law Dictionary 617 (9th ed. 2009); see also Merriam-Webster Online Dictionary (11th ed. 2012), http://www. merriam-webster.com/dictionary/equipment (equipment means “the implements used in an operation or activity . . . .”); see also Beyer v. Rieter Automotive North America, 973 NE2d 318, 320 (Ohio App. 6 Dist. 2012) (“equipment” is defined as “the implements (as machinery or tools) used in an operation or activity”) (citations and punctuation omitted). From these sources, we could interpret the term “equipment” to mean articles, implements or other items of personalty. But these and other sources also provide broader definitions of the term. For example, we note that Merriam-Webster includes a second definition of “equipment” as “all the fixed assets other than land and buildings of a business enterprise . . . .” http://www.merriam-webster.com/dictionary/equipment. See also Random House Unabridged Dictionary 656 (2d ed. 1993) (defining equipment as “anything kept, furnished, or provided for a specific purpose”). Thus, the ambiguity in Stipulation 7 remains even after we apply the rules of construction, and we conclude that a jury must determine the parties’ intent in drafting that language.

Decided November 30, 2012

Bovis, Kyle & Burch, Melanie M. Norvell, for appellants.

Webb, Tanner & Powell, Robert J. Wilson, for appellees.

Moreover, even if we were to settle on one definition as the “usual and common signification” of the term “equipment,” we find that the trial court erred in determining as a matter of law that the items taken from the Property constituted “[e]quipment having to do with the cattle operation” because the record below is conflicting on this point. Marilyn Barrett averred, based upon her prior history as a purchaser and owner of property, that the items taken were not cattle equipment or equipment related to the operation of a cattle business. In contrast, William Britt averred that the items were associated with his cattle operation. Neither party offered any additional evidence to support these blanket statements. “Despite the apparent self-serving nature of the[se] affidavit[s], whether th[e] testimony is credible is not an issue that the trial court can determine on summary judgment.” (Punctuation and footnote omitted.) Shell v. Tidewater Finance Co., 318 Ga. App. 69, 70 (733 SE2d 375) (2012). See also Crossing Park Properties v. Archer Capital Fund, 311 Ga. App. 177, 183 (2) (715 SE2d 444) (2011); Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga. App. 268, 271 (684 SE2d 398) (2009) (trial court cannot discount affidavit because it is self-serving).* Thus, the parties’ conflicting affidavits present an issue of fact as to whether the items removed constitute equipment “having to do with” the Britts’ cattle operation.

On motion for summary judgment, the Britts, as movants, had the burden of “establishing the non-existence of any genuine issue of fact,” and “all doubts are to be resolved against [them].” (Citations and punctuation omitted.) Hadley v. Countrywide Home Loans, 315 Ga. App. 349, 353 (1) (727 SE2d 183) (2012). Because the Britts failed to carry their burden, the trial court erred in granting them partial summary judgment.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       Similarly, we find that the trial court erred in determining as a matter of law that the qualifying language “having to do with the cattle operation,” was not intended to limit the term “equipment” to that used “solely” for the cattle operation. We find that this phrase is ambiguous, and the grammatical analysis employed by the trial court is insufficient to resolve this ambiguity. Moreover, the language of Section 7 must be construed as a whole and in conjunction with the entire agreement between the parties. OCGA § 13-2-2 (4) (“the whole contract should be looked to in arriving at the construction of any part”). We conclude, therefore, that it is for the jury to determine the parties’ intent in drafting Stipulation 7.

       Indeed, if the trial court disregarded the affidavits, the record would be devoid of any evidence regarding the nature of the items removed from the Property, and the trial court would have nothing upon which to decide the issue as a matter of law.


source: Caselaw Access Project

author: BARNES, Presiding Judge. MCFADDEN, Judge,

license: Public Domain

text:
    A12A1275.
    In the Interest of S. M. B., a child.
    (735 SE2d 122)
   BARNES, Presiding Judge.

The father of S. M. B. appeals from the order of the juvenile court terminating his parental rights. He contends that the evidence was insufficient to show that the deprivation was likely to continue or would not be remedied, and that the lawyer who represented him at the termination hearing was ineffective. We are unable to reach the merits of this case, however, because we lack jurisdiction.

“It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citations and punctuation omitted.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995).

Applications for discretionary appeal must be filed within 30 days of entry of the order to be appealed, and we have held that a party’s failure to meet this statutory deadline deprives us of jurisdiction to consider the application. OCGA § 5-6-35 (d). Wilson v. Carver, 252 Ga. App. 174 (555 SE2d 848) (2001), overruled in part on other grounds in Gable v. State, 290 Ga. 81, 85 (720 SE2d 170) (2011). Moreover, we have also held that a trial court lacks authority to extend the time for filing a discretionary appeal. Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d 740) (1983), overruled in part on other grounds in Gable v. State, supra.

Here, the termination order was entered on August 16,2011. The father filed a motion to set aside judgment on September 8, 2011. After a hearing, the motion was denied on November 2, 2011, nunc pro tunc to October 14, 2011. On October 31, 2011, the father filed a pro se motion in the juvenile court to vacate and re-enter the termination order so that he could file a timely application. As an attachment to his motion, the father included a letter from the firm appointed to represent him explaining the rationale for his motion. The letter noted that he had been appointed an appellate counsel, but that the transcript of the termination hearing had not been received until September 22, 2011. It further detailed that the attorneys had agreed that in order to provide the appellate counsel with more time to review, the trial counsel would file a motion to set aside to “toll the 30 day time limit for filing the Application for Discretionary Appeal to the Georgia Court of Appeals.” The letter then explained that the motion to set aside did not extend time for filing the application and that the time to file the application had expired.

After a hearing, the court granted the motion and found that “the procedural deficiency on appeal was due to [the father’s] counsel failing to file the application for discretionary appeal within the time required by OCGA § 5-6-35 (d).” The court explained that it had construed the father’s motion as a motion for an out-of-time appeal, and authorized him to file a discretionary application within 30 days. We granted the application, and instructed the parties to address the juvenile court’s authority to grant an out-of-time discretionary appeal in a parental rights termination case in light of the Supreme Court’s opinion in Gable v. State, supra.

In Gable, our Supreme Court considered whether a trial court has the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel’s failure to timely file a discretionary application. The Court held that extensions of time maybe grantedfor discretionary applications pursuant to OCGA § 5-6-39 (a) (5), but that the extension request must still be timely under OCGA § 5-6-39 (d). Id. at 84-85 (2) (a). The Court further held that “[b]ecause a discretionary application must be filed only in an appellate court, see OCGA § 5-6-35 (d), a trial court may not grant an extension ofthe time to file the application pursuant to OCGA § 5-6-39.” Id. Thus, the authority to grant an extension of time to file a discretionary application is vested only in the appellate courts, and only if the motion for an extension is timely filed. Id. In this circumstance the trial court lacked jurisdiction to grant the father authority to file the application for review of the termination order beyond the statutory period.

The Court further explained that appellate courts are limited in their ability to grant extensions beyond statutorily prescribed times. Our Supreme Court held that

courts have no authority to create equitable exceptions to jurisdictional requirements imposed by statute. Instead, Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal.

Gable v. State, 290 Ga. at 85 (2) (b). Thereby, an appellate court may, at its discretion, permit an out-of-time discretionary appeal where a constitutional right is at stake.

Although the dissent correlates the father’s right to an out-of-time appeal on ineffectiveness grounds to that of a criminal defendant,

[o]ut-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. . . . However, for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal.

(Citations and footnote omitted; emphasis supplied.) Stephens v. State, 291 Ga. 837 (2) (733 SE2d 266) (2012). The father did not have the right to file a direct appeal in this case, and so no out-of-time appeal is available on ineffective assistance grounds.

Here, the father’s motion to vacate, which the trial court interpreted as a motion for an out-of-time appeal, was not filed within 30 days of the August 16, 2011 order terminating his parental rights. The father had no right of direct appeal of the order, and any challenge to the termination order was required to be through application for appellate review pursuant to OCGA § 5-6-35 (a) (12). Further, the trial court had no right to grant an extension of time to file an application to appeal, which had to be filed in this court within 30 days of the order.

Although the father contends that this is an issue of “constitutional significance” because trial counsel deprived him of his right of first appeal, the father did not have a constitutional right to such an appeal. While our Courts have recognized the fundamental nature of parental rights, particularly in regard to the right to appointed counsel during termination proceedings, see In the Interest of J. M. B., 296 Ga. App. 786 (676 SE2d 9) (2009),

if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review, even in termination of parental rights cases. Indeed, there is no right to appeal granted by either the State or Federal Constitutions to civil litigants.

(Citations and punctuation omitted.) In the Interest of N. A. U. E., 287 Ga. 797 (700 SE2d 393) (2010).

Thus, as the trial court had no authority to grant the father an out-of-time discretionary application from the termination of his parental rights, the father’s application is dismissed. Cf. Crosson v. Conway, 291 Ga. 220, 220-221 (728 SE2d 617) (2012) (where no constitutional right of appeal or of counsel is implicated, the Court is without authority to waive compliance with OCGA § 5-6-35 after failure to meet statutory deadline for discretionary appeal of habeas petition).

Appeal dismissed.

Miller, P. J., Doyle, P. J., Ray and Branch, JJ., concur. Adams and McFadden, JJ., dissent.

MCFADDEN, Judge,

dissenting.

I would hold that Georgia courts have the authority to grant permission to file out-of-time discretionary applications to appeal from orders terminating parental rights. I therefore respectfully dissent.

I agree with the majority that, to the extent the father sought an extension of time, under OCGA § 5-6-39, to file his discretionary application, his request was ineffective, because it was neither timely filed nor filed in the appellate court. Gable v. State, 290 Ga. 81, 85 (2) (a) (720 SE2d 170) (2011). But the trial court treated his request as for an out-of-time appeal and granted that relief. I would uphold the trial court’s decision to grant that relief and hold that the grant of such relief entitles a parent to pursue a motion for new trial and all other remedies normally available after the entry of an order terminating parental rights. See Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991) (the grant of an out-of-time appeal “should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal”).

“[W] resting a child away from the care and custody of its parents is ... so drastic that it should be attended only by the most stringent procedural safeguards.” Sanchez v. Walker County Dept. of Family &c., 237 Ga. 406, 411 (229 SE2d 66) (1976).

The General Assembly wisely acknowledged the serious and often devastating consequences involved in terminating parental rights when it adopted the Juvenile Code . . . [which] provides that a parent is entitled to have counsel appointed to represent that parent in the proceeding if counsel cannot be employed without undue financial hardship.

Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976). We have repeatedly emphasized that state intervention to terminate the relationship between a parent and child implicates fundamental liberty interests, that the procedures the state employs in an action to terminate those rights must reflect their fundamental importance, and that parents facing termination are therefore afforded some of the protections afforded criminal defendants:

[N]o judicial determination has more drastic significance than permanently severing a parent-child relationship. The United States Supreme Court has held that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment and that state intervention to terminate the relationship between a parent and child must consequently be accompanied by procedures meeting the requisites of the due-process clause. As a result, trial courts apply a heightened standard of proof, the clear and convincing evidence standard, and a parent facing termination of parental rights is afforded some of the protections to which criminal defendants are entitled.

(Citations and punctuation omitted.) In the Interest of A. R. A. S., 278 Ga. App. 608, 609 (629 SE2d 822) (2006). Among the protections to which criminal defendants are constitutionally entitled, and which parents facing termination are afforded by statute, is the right to effective assistance of counsel. Id. An established corollary of that right, for criminal defendants, is the remedy of an out-of-time appeal.

It is true, as the majority holds, that “[n]o state or federal constitutional right to counsel is involved because a parental termination action is a civil matter, not a criminal proceeding.” (Citations omitted.) In the Interest of A. M. R., 230 Ga. App. 133, 136 (2) (495 SE2d 615) (1998). See also Lassiter v. Dept. of Social Svcs., 452 U. S. 18 (101 SC 2153, 68 LE2d 640) (1981) (United States Constitution does not require the appointment of counsel for indigent parents in every proceeding for the termination of parental rights).

Nevertheless it is a violation of a parent’s right to due process of law to dismiss an application to appeal the state’s termination of parental rights because of ineffective assistance of counsel. See Santosky v. Kramer, 455 U. S. 745, 753 (II) (102 SC 1388, 71 LE2d 599) (1982) (imposing a “clear and convincing evidence” standard of proof in proceedings to terminate parental rights because “state intervention to terminate the relationship between a parent and the child must be accomplished by procedures meeting the requisites of the Due Process Clause”) (citations omitted); Rowland v. State, 264 Ga. 872, 873 (1) (452 SE2d 756) (1995) (“[A] state court’s dismissal of a criminal defendant’s appeal of right due to the ineffective assistance of appellate counsel may violate the defendant’s right to due process of law” but is remedied by granting out-of-time appeal.).

In order “to avoid . . . [this] constitutional violation concerning the appeal,” Gable, 290 Ga. at 85 (2) (b), I would hold that Georgia courts may excuse compliance with OCGA § 5-6-35 (d)’s time requirement by granting permission to file out-of-time discretionary applications to challenge orders terminating parental rights.

Citing Gable, the majority limits this authority to appellate courts. But Gable does not so hold. It is true — as to extensions of time to file applications for discretionary appeal — that Gable limits the authority to grant that remedy to the appellate courts. But as to out-of time appeals, Gable holds, “Georgia courts may excuse compliance with a statutory requirement for appeal... where necessary to avoid or remedy a constitutional violation concerning the appeal.” (Emphasis supplied.) Gable, 290 Ga. at 85 (2) (b). Similarly, the majority’s decision to confine the remedy of out-of-time appeals to cases subject to direct appeal is in conflict with our Supreme Court’s decision in Gable.

Nor is the majority view supported by our Supreme Court’s decision in Stephens v. State, 291 Ga. 837 (733 SE2d 266) (2012). It is true that Stephens identifies as a precondition to an out-of-time appeal that the would-be appellant “must necessarily have had the right to file a direct appeal.” Id. at 838 (2). But that reference to a “direct” appeal is descriptive rather than limiting. William Stephens sought to appeal, nine years after the fact, from his conviction on a plea. The threshold question before our Supreme Court was “whether the issues that [Stephens] raised in his motion for out-of-time appeal and has pursued in this appeal can be determined on the existing record,” id. at 839 (3), because “if the issues that a defendant who pled guilty seeks to appeal cannot be resolved using the existing record, he would have had no right to file even a timely appeal and therefore is also not entitled to an out-of-time appeal.” Id. at 838 (3).

Decided November 30, 2012

Blanton C. Lingold, for appellant.

Cansino, Petty & Stribling, Amanda S. Petty, for appellee.

When the General Assembly enacted OCGA § 5-6-35 (a) (12), which changed the procedure for appeals from orders terminating parental rights from direct to discretionary, its purpose was not to degrade the appellate review afforded parents facing termination. Rather it was to advance the state’s

legitimate interest in not permitting children determined to be deprived to languish in temporary care, but instead, to leave this situation for permanent stable homes as expeditiously as possible. The discretionary appeal process provided in OCGA § 5-6-35 (a) (12) helps accomplish this goal by offering effective appellate review in an expedited manner, yet permitting a full appeal of the termination of parental rights if that is shown to be warranted.

(Citation omitted.) In the Interest of A. C., 285 Ga. 829, 834 (2) (686 SE2d 635) (2009) (rejecting the argument of a father facing termination that OCGA § 5-6-35 (a) (12) “denies him due process, and is violative of equal protection”).

I am authorized to state that Judge Adams joins in this dissent.

       The hearing transcript was not included with the record.

       Gable filed a pro se extraordinary motion for new trial which the court denied. He thereafter filed a notice of appeal, which this court dismissed for failure to follow the discretionary appeal procedure required by OCGA § 5-6-35. Gable then filed a motion for an out-of-time discretionary appeal with the trial court, which the court granted on the ground that his counsel was ineffective in failing to file a timely application for discretionary appeal. Thereafter, Gable filed an application for discretionary appeal with this court, and we dismissed the application as untimely after finding that the trial court did not have the authority to grant an out-of-time discretionary application. Gable v. State, 290 Ga. at 82 (1).

       While the father has the right to seek a discretionary appeal, this court’s Rule 31 (a) establishes that an application for leave to appeal cases subject to appeal under OCGA § 5-6-35 will be granted only when there appears to be reversible error or to establish precedent. At the time of the termination hearing, the father had not seen the child for approximately seven years, had been incarcerated half of the child’s life and was not expected to be released until 2014, had a history of violence toward the mother and S. M. B., had threatened in the past to kill himself and the child, had provided no financial support for the child since 2007, and had not established a parental bond with the child. Under these circumstances it is extremely unlikely that the trial court committed reversible error in terminating the father’s parental rights, and thus providing no basis for the grant of an application for discretionary appeal. See OCGA § 15-11-94 (in terminating parental rights court must determine there is clear and convincing evidence of parental misconduct or inability).

       Although the dissent would permit Georgia courts to excuse compliance with the time requirement for filing a discretionary appeal under OCGA § 5-6-35 (d) in termination cases, our Supreme Court has held that courts are not at liberty "to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to . . . advocate.” Rowland v. State, 264 Ga. at 874 (1).


text:
    A12A1308.
    MILLS v. THE STATE.
    (735 SE2d 134)
   Adams, Judge.

Robert Newell Mills appeals the denial of his motion for new trial after a jury convicted him of two counts of aggravated child molestation, nine counts of child molestation and three counts of enticing a child for indecent purposes. On appeal, Mills contends (1) that the trial court erred in allowing the State to introduce similar transaction evidence and (2) that his motion for new trial counsel rendered ineffective assistance by failing to argue or present an evidentiary basis at the motion hearing for his claims of ineffective assistance of trial counsel. He asks, therefore, that the case be remanded to allow for an evidentiary hearing on these claims. We find that the trial court properly admitted the similar transaction evidence, and we deny his request for a remand because the claims of ineffective assistance of counsel asserted on appeal are procedurally barred.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on various occasions during the summer of 2007, Mills hosted a number of children of both sexes in a camper behind his house, where he would join them in playing “Truth or Dare.” During one of these games, a girl mooned the others on a dare, and during another game, a girl put on a dress with no underpants on a dare from Mills. During yet another game, although not as part of a dare, Mills put on one of his stepdaughter’s dresses, wearing only a green thong under it, and then exposed his penis with some of the girls present. On another occasion, Mills wore a dress with nothing underneath and then jumped on the trampoline. Mills also exposed his penis to the children on other occasions and made some of them touch it. In addition, Mills kissed one of the boys and caused two of the children, a boy and a girl, to perform sexual acts upon one another. During that summer, Mills also showed the children pornographic magazines and movies, provided them with alcohol and cigarettes, showed them condoms, and swam with them in hotel swimming pools when he was unclothed or when the children were unclothed or partially unclothed after Mills removed or loosened articles of their clothing.

Mills took the stand in his defense and denied that he had engaged in any inappropriate sexual conduct with the children.

1. Mills does not contend that the evidence at trial was insufficient to support his convictions; rather, he argues that the trial court erred in admitting similar transaction evidence involving allegations of inappropriate conduct between Mills and children in both Oregon and Tennessee. The trial court admitted this evidence for the limited purpose of showing Mills’s lustful disposition “in the crime charged,” as the court explained in limiting instructions prior to the introduction of the evidence and again during the final jury charge.

It is well settled that the decision whether to admit similar transaction evidence is committed to the trial court’s sound discretion, and we will uphold the decision of a trial court to admit such evidence absent an abuse of that discretion. See Avila v. State, 289 Ga. 409, 411 (2) (711 SE2d 706) (2011). Before the State may introduce evidence of a defendant’s prior acts as a similar transaction,

it first must identify a proper purpose for the admission of such evidence, establish that the defendant, in fact, committed the prior acts, and show enough of a similarity or connection between the prior acts and the crimes charged that proof of the former tends to prove the latter.

(Citations omitted.) Bibb v. State, 315 Ga. App. 49, 50 (2) (726 SE2d 534) (2012). Under the current Georgia evidentiary code, “[i]n crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony.” (Punctuation and footnote omitted.) Butler v. State, 311 Ga. App. 873, 876 (1) (717 SE2d 649) (2011). In fact, “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Footnote omitted.) Id. But even in such instances, the State maintains the burden of establishing the admissibility of this evidence:

In order to introduce evidence of a defendant’s lustful disposition, the State must link those practices to the specific crime charged. And this court has held that sexual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible. To show sufficient similarity, there need only be a logical connection between the independent act and the crime charged.

(Footnotes omitted.) Id.

Here, the State’s similar transaction evidence concerned incidents resulting in three sets of criminal charges against Mills, as follows:

(a) In 1992, Mills, who was nineteen at the time, was playing with his neighbors, a five-year-old girl and her three-year-old brother in the garage of their home in Medford, Oregon. The children, now adults, testified that Mills exposed his penis through a hole in his sweat pants when he performed the splits for them. The girl became uncomfortable and went inside the house, but the boy stayed and Mills again showed his erect penis. The boy testified that he then pulled down his own pants, and Mills and he touched each other’s penises with their hands. The children reported the incident to their mother, who reported it to police. The family moved shortly after this incident, and the charges against Mills were dismissed. The children’s mother also testified as to these incidents at trial.

(b) A former case manager with the Department of Children Services in Rhea County, Tennessee, and a police officer from the Rhea County Sheriff’s Department testified that they had received reports in July 2001, involving Mills and a number of young girls who lived in the trailer park owned by his family. K. W., who was nine at the time, and S. S., who was ten, told the caseworker that Mills had pulled down K. W.’s bathing suit top while they swam together and exposed himself to both girls by removing his bathing suit and asking them to look at his penis. K. W. also reported that Mills had rubbed his penis on her leg and shown her pornographic movies, while S. S. reported that when K. W. and she played Monopoly with Mills, he would touch her breasts and private parts, and on one occasion he engaged in sexual intercourse with her after telling her that it would be more comfortable to play Monopoly while lying on her back. The police later searched Mills’s trailer and discovered a number of girls’ underpants, including one pair belonging to S. S. Two other girls from the trailer park also reported to the caseworker that Mills exposed himself to them while they swam together and that he invited them back to his house to play Monopoly with him. Although Mills was arrested in connection with these incidents, he moved away from the trailer park shortly afterward and was never prosecuted.

K. W., now an adult, testified at trial that Mills was her neighbor and her parents’ landlord at the trailer park where they lived. While swimming with a group of young girls, Mills took off his pants and made her touch his penis. She said that it happened more than once, but she had “blocked out” the specifics of the other incidents. S. S. testified that she had lived in the same trailer park with K. W. and Mills. She said that Mills showed them pornographic movies and would touch their breasts and private parts while they played Monopoly. He also put his private part on her private part.

(c) In a separate incident in Rhea County in 2003, N. J., a five-year-old boy, was playing in an abandoned school bus at a trailer park, when Mills, a neighbor, entered the bus. N. J., who was 12 at the time of trial, testified that Mills removed his own clothes and told the boy to remove his clothing. Mills then placed a roll of toilet paper on his own penis. N. J.’s uncle and a neighbor both testified that they heard voices coming from the school bus at the time. The uncle entered the bus and discovered Mills rolling around with N. J. on the floor. Both were clothed. When the uncle asked N. J. what had happened, the boy told him that Mills had placed his penis in the boy’s mouth, and he later told the police the same thing. He also told them that Mills had “peed” on his back, and used a Kleenex to clean him up. The police found a roll of toilet paper on the bus. Although charges were filed against Mills, N. J.’s father removed him from the state and would not allow him to testify.3 ****

Witnesses at trial identified Mills as the individual involved in each of these incidents. And a logical connection exists between each incident and the crimes in this case. In every case, Mills first joined children at play, then engaged in sexually inappropriate conduct with them, involving exposing his penis and/or inappropriate touching. The fact that the charges arising from the other incidents were never prosecuted does not affect the admissibility of the evidence. “[I]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Whitman v. State, 316 Ga. App. 655, 656 (729 SE2d 409) (2012). In fact, “even when the prior acts of the defendant do not amount to crimes, evidence of those acts may be admissible if it tends to show that the defendant had a lustful disposition with respect to preteen or teenaged [children].” Bibb v. State, 315 Ga. App. at 51 (2) (b). Because the evidence of Mills’s prior actions showed his lustful disposition for engaging in sexually inappropriate behavior with young people of both sexes, the trial court did not abuse its discretion in admitting the similar transaction evidence in this case. See Jackson v. State, 309 Ga. App. 450, 452 (1) (710 SE2d 649) (2011); Cook v. State, 276 Ga. App. 803, 809-810 (6) (625 SE2d 83) (2005). “Furthermore, the trial court acted within its discretion in concluding that the similar transaction evidence was not unfairly prejudicial, in light of the trial court’s limiting instruction to the jury, and because the prior transactions in this case corroborated the victim [s’] testimony and rebutted [Mills’s] defense” that he did not engage in any sexual acts with the child victims in this case. (Citations and punctuation omitted.) Kelley v. State, 308 Ga. App. 418, 422 (707 SE2d 619) (2011).

2. Mills also asserts that he received ineffective assistance from his motion for new trial counsel, and he requests that we remand the matter to the trial court for an evidentiary hearing on his claims.

Mills was represented at trial by Attorney William D. Healan III. Attorneys from the law firm of Kimmey & Associates, P.C., filed a motion for new trial on Mills’s behalf, and an “Amendment to Motion for New Trial,” asserting a claim of ineffective assistance of trial counsel, with 13 pages detailing trial counsel’s claimed deficiencies. The amendment divided these deficiencies into three sections: (a) breach of the duty to investigate; (b) breach of the duty to consult; and (c) breach of the duty to advocate. Section (c), alone, contained 51 sub-parts, each asserting a separate breach of the duty to advocate.

Attorney McNeill Stokes was subsequently substituted as counsel on Mills’s behalf, and he filed a “Second Amendment to Motion for New Trial,” which asserted, inter alia, yet another claim of ineffective assistance of trial counsel. Stokes also filed a third amendment to the motion for new trial raising an evidentiary issue.

At the motion hearing, however, Stokes presented no evidence regarding the claims of ineffective assistance of counsel, asserting instead that he “would stand on the record.” He said the only reason he was submitting a claim of ineffective assistance of counsel was “for cause and excuse under — in case there was some waiver situation.” After making this vague assertion and after the State asked to call Healan as a witness to address the claims of ineffectiveness, Stokes announced that he was abandoning any claims of ineffective' assistance of counsel asserting that Healan failed to investigate or that Healan breached his duty to consult with Mills on important decisions or developments. Stokes did not specifically address the other numerous claims of ineffective assistance, although the State called Mills’s trial counsel as a witness and questioned him regarding his professional experience and his strategy regarding the inconsistent statements of the child victims.

In its order denying Mills’s motion for new trial, as amended, the trial court found that Mills had abandoned

the arguments set forth in his First Amendment to the Motion for New Trial under Paragraph 8, subparagraphs (a) and (b) alleging that trial counsel was ineffective in that he breached his duty to investigate Defendant’s case, and that trial counsel was ineffective in that he breached his duty to consult on important decisions or developments.

The trial court denied the motion on all other grounds.

Mills’s current appellate counsel was not appointed until after the trial court denied the motion for new trial and after the notice of appeal was filed. And on appeal, Mills asserts that he received ineffective assistance of counsel at the hearing on his motion for new trial. Because appellate counsel was not appointed until after the notice of appeal was filed, Mills asserts that this appeal represents his first opportunity to raise the issue of his motion counsel’s ineffectiveness. Although we agree with Mills that this appeal is his first opportunity to address any claim of ineffective assistance of his motion for new trial counsel, we find that he has failed to raise any claim on appeal that is not procedurally barred. Thus, no basis exists for a remand.

“To preserve the issue of ineffective assistance of previous counsel, new counsel must raise the issue at the earliest practicable opportunity of post-conviction review or the issue is waived.” Ruiz v. State, 286 Ga. 146, 148 (2) (b) (686 SE2d 253) (2009). And Mills’s first two sets of post-conviction counsel raised the issue of trial counsel’s effectiveness at the earliest practical opportunity, asserting a claim of ineffective assistance of counsel in amended motions for new trial on over 51 separate grounds. But “[w]here the issue of trial counsel’s effectiveness has been raised on motion for new trial, any claims of ineffective assistance by trial counsel not raised at that time are waived. Such claims unasserted at the trial level are procedurally barred.” (Citations and punctuation omitted.) Smith v. State, 282 Ga. App. 339, 344 (4) (638 SE2d 791) (2006).

On appeal, Mills asserts that his motion counsel was ineffective in that he “failed to make a Record concerning the alleged ineffective assistance provided by [Mills’s] trial counsel,” and he asserts that remand is necessary in order for the trial court to determine whether trial counsel rendered ineffective assistance on nine separate grounds. But none of these grounds were raised by Mills’s two sets of motion counsel in the amended motions for new trial below. We find, therefore, that Mills is procedurally barred from arguing that, but for his motion counsel’s failure to create a record, a reasonable probability exists that he would have been granted a new trial on one or more of these nine previously unasserted grounds.

We recognize that even where the issue of ineffective assistance of counsel is raised at the trial level, certain claims of ineffective assistance of motion counsel may not be procedurally barred. “For instance, a claim that [motion] counsel failed to call a witness, or present other evidence, at a motion for new trial hearing is not procedurally barred and may therefore be raised on appeal by new appellate counsel.” (Citations omitted.) Wilson v. State, 286 Ga. 141, 144 (4) (686 SE2d 104) (2009). Although, at first blush, Mills’s argument that his motion counsel failed to make a record on the issue of ineffectiveness of trial counsel may appear to be such a claim, Mills does not assert that his motion counsel failed to create a record on any of the more than 51 claims preserved below. Rather, he asserts that his trial counsel’s failure to create a record prevented him from receiving a new trial on issues that were not raised below, and he now seeks a second bite at the apple in order to raise these claims. But

Decided November 30, 2012

Brian Steel, for appellant.

J. Bradley Smith, District Attorney, Amy M. Carter, Samuel E. Skelton, Assistant District Attorneys, for appellee.

[a] defendant cannot resuscitate claims of ineffectiveness that are procedurally barred simply by bootstrapping them to a claim of ineffectiveness of [motion for new trial] counsel. Once a claim is procedurally barred, there is nothing for this Court to review. To hold otherwise would eviscerate the rule requiring that ineffectiveness claims be raised at the earliest practicable moment.

(Citations and punctuation omitted.) Id. See also Rutherford v. Moore, 774 S2d 637, 643 (Fla. 2000) (“claims of ineffective assistance of [motion] counsel may not be used to camouflage issues that should have been raised... in a ... motion [for new trial]. [Cits.]”). Thus, we conclude that Mills may pursue these claims of ineffective assistance of trial counsel only in a habeas proceeding. Wilson v. State, 286 Ga. at 144 (4). Accordingly, we affirm the trial court’s denial of Mills’s motion for new trial, and we deny his motion for remand.

Judgment affirmed.

Barnes, R J., and McFadden, J., concur.

       The jury acquitted Mills of two counts of aggravated child molestation and one count each of child molestation and enticing a child for indecent purposes.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       The State also introduced similar transaction evidence regarding an unindicted incident from 2007. A 13-year-old boy testified that in the summer of 2007, when he was 11, he was playing ball in a public pool with Mills and some other boys. The boy caught the ball and put it inside his pants, on the side. Mills swam over to the boy and put his hands down the front of the boy’s pants, touching his private parts. Mills apparently does not contest the introduction of this evidence.


text:
    A12A1331.
    In the Interest of C. S. et al., children.
    (735 SE2d 140)
   Adams, Judge.

Following our grant of his application for discretionary review, the father of Ca.S. and Ch.S., who were born on December 12, 2007 and November 24,2008, respectively, timely filed this appeal from an order of the Juvenile Court of Crawford County terminating his parental rights. On appeal, he challenges the sufficiency of the evidence to support the order of termination and also contends the juvenile court erred by finding that it was not in the best interests of the children to be placed with his relatives, Phillip and Patricia Smith.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated.

(Punctuation and footnote omitted.) In the Interest of E. S. K., 299 Ga. App. 35, 35-36 (681 SE2d 705) (2009).

The hearing on the termination petition was held over the course of several days and months, and several different caseworkers from different counties testified because the mother frequently moved. The first hearing was held on January 20, 2011, and the first witness to testify was Centralia Coney, who worked for the Twiggs County Department of Family and Children Services (DFCS). Coney testified that she made several visits to the mother’s home in May 2009 to check on the mother’s compliance with an order issued in Jones County that required the maternal grandmother to be drug tested before she could have contact with the children. Coney further testified that on each occasion she visited, some or all of the children were unsupervised, and the adults in the household were all asleep although it was midday. Further, the maternal grandmother, who still had not been drug tested, was present in the home both times and on one occasion the mother told Coney that the grandmother was supposed to be supervising the children because she was tired from moving. During this time, Coney also received several calls from a neighbor who was in law enforcement concerning his observations of late night parties, men coming in and out of the house, and the possibility of the children being left alone.

In May or June 2009, DFCS received a report that one of the children might have been sexually abused by a mentally challenged maternal relative, and a shelter order for the children was entered in June 2009. A reunification plan was instituted at that time for the mother, but the appellant was not given a case plan because he did not. attend the family team meeting. Coney testified that the appellant did approach her and ask her what he should do, but she could not recall if he actually worked a plan while the case was pending in Twiggs County. Further, she testified that the appellant had transportation issues and problems getting off work to meet with her during this time. She also testified that the appellant tested positive for drugs on one or two occasions, but she could not recall the drug or drugs that were detected on the tests.

The hearing resumed on March 3, 2011. At that hearing, Laquarila Williams, who worked for Crawford County DFCS, testified she became involved with the case after it was transferred there in October 2009 for foster care services. She said a court ordered reunification plan was put into place on October 15 and that both the mother and appellant made some progress on the plan in the following months but that neither the mother nor the appellant achieved all their goals. In April 2010, DFCS decided to seek a concurrent case plan with a primary goal of reunification and a secondary goal of adoption. In August 2010, DFCS sought a nonreunification plan primarily to seek permanency for the children and to allow the foster parents to adopt them. However, Williams also testified that prior to the change to nonreunification the children were being transitioned back to the mother but that the plan was changed after DFCS discovered that the mother was dating a convicted chil d molester and possible gang member, although she did reiterate that the main issue was to provide some stability for the children who at that time had been in foster care for 22 months.

Williams also testified that the appellant had undergone a psychological evaluation as mandated by his reunification plan, but that at the time nonreunification was sought he had tested positive for controlled substances in the preceding months, failed to obtain independent housing, and had not completed substance abuse and domestic violence assessment programs or anger management and parenting classes. Further, as of the date of the hearing, the appellant was $4,066 in arrears on his court ordered child support. Williams also testified that the decision to change the appellant’s case plan to nonreunification was based in part on the fact that he had quit working on his case plan because of his employment situation and because he had gotten into an altercation at his previous job. Although she agreed that the appellant had completed his parenting and anger management classes as well as the drug treatment portion of his plan after the decision to seek nonreunification was made, she said that she had not changed her mind about the decision to seek termination of his parental rights because of the positive drug test and the altercation at work, which occurred just several months prior to his completion of the drug program. She also pointed to the lack of progress on his case plan at the time that termination of his rights was sought and lack of cooperation with DFCS early on and testified that the appellant was not currently employed and reiterated that he was not paying child support. She did agree, however, that appellant interacted well with his children, and also testified that the fact that he resided with his mother was not really a problem because her home had been denied for placement because she had health problems, not because it had been deemed inappropriate. But she also testified that if the appellant’s rights were not terminated it would delay the children having permanency and that she would be concerned with placing the children in an environment where he was still testing positive for drugs.

Williams also testified about possible placement with relatives, and several home evaluations were introduced, including that of the appellant’s relatives Patricia and Phillip Smith, which showed that the Smiths had not been approved after an evaluation conducted by DFCS in Jones County where they resided.

Beth Tillery, a family coach in the visitation program run by Lighthouse for Families at the Methodist Children’s Home in Macon, Georgia, testified concerning the appellant’s visitation with his children. According to Tillery, appellant, along with his mother, visited the children almost every week, and she never observed any inappropriate or dangerous interactions between the appellant and the children, although she did note that he did not always follow through on discipline and was more like a friend to the children than a parent. However, she also testified that the appellant was provided only “regular” supervision during his visits, and that he did not receive the more intensive instruction that was part of the mother’s plan. She also testified that DFCS discontinued Lighthouse’s services after the decision was made to seek nonreunification, and that while Lighthouse supported nonreunification for the mother, Lighthouse did not make a recommendation for either father.

Jeannie Powell, another Lighthouse employee, testified that she also observed the appellant’s visits with his children on several occasions and that the appellant had positive interactions with his children and seemed to assume his parental responsibilities, such as changing the youngest child’s diaper and taking his other son to the bathroom. She also observed him help the oldest child, although she was not his biological daughter. Powell, like many of the witnesses, had primarily been involved with providing counseling for the mother, and she said she thought the mother was making progress on her plan but changed her opinion after she found out that the mother was involved with a convicted child molester and possible gang member. She also testified that the children had formed an attachment to the foster parents and for that reason she felt it would be detrimental for them to be placed with the paternal family members who had been considered as possible placements for the children. Further, she said it would probably be most problematic to remove the appellant’s youngest child, who had been with the foster parents most of his life.

The next, and final, hearing was conducted on June 29, 2011. Williams testified again at this hearing and recounted the drug tests that appellant had failed, although she also acknowledged that he had not been drug tested by DFCS since April 2010. She also testified that her understanding was that he was now employed with a private contractor and that he still resides with his mother. Further, she testified that to her knowledge he had never completed the drug treatment program or been able to refrain from using marijuana as required by his reunification plan. However, on cross-examination she was shown the certificates appellant received after completing all the courses required by his original reunification plan, including a certificate he received when he completed his substance abuse education plan in November 2010. When asked what portion of his case plan had not been completed, Williams pointed to the fact that appellant had not completed the requirements prior to DFCS seeking nonreunification and also said it was possible he had not completed individual counseling and that he had not obtained independent housing. When asked how the children would be harmed if the appellant’s rights were not terminated, she once again cited the need for permanency and how that would be delayed if DFCS had to “start over with drug screens, housing and all that would have to be monitored for another six months period.” She also reiterated that the Smiths would not be considered for placement because their original home evaluation was denied by Jones County DFCS.

Williams also testified that it would be in the best interests of the children for them to remain with their current foster parents because their current environment was safe, stable, drug free and they had been there for two years and were bonded to the foster parents and accustomed to the structure they provided. Further, she testified that the foster parents were willing to adopt the children and said that if the children were given to the appellant, it would be yet another removal from what they had come to consider as their home.

When asked how the appellant was currently depriving the children, Williams pointed to her lack of knowledge concerning his income, her lack of knowledge concerning his current drug use and his lack of independent housing. She also testified that the appellant owed $4,525 in back child support as of the date of the hearing, but noted that he had made several child support payments since the March hearing, and the record reflects that appellant had paid $1,691 in child support during the preceding three months.

Appellant also testified at the hearing, and the certificates showing that he had completed anger management and parenting classes as well as a drug education course were introduced into evidence. Further, he testified he thought the treatment center would send those certificates to DFCS and that was why he had not previously provided them to the agency. He also testified that he had been employed full time by Charles Bass Roofing for 12 to 13 months, and that he was hired by Charles Bass about a week after he left his previous employment. Further, he testified that he attended both Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings at the Phoenix Center for seven months, and that he quit using drugs after he started going to the Phoenix Center.

Appellant also testified that he now had a roommate and no longer lives with his mother. He admitted he got behind on his child support, but explained that was because he was taking time off work to attend classes and said he had been trying to catch up for the last several months. He also testified that he visits his children every other Monday as scheduled, and that he only missed a few visits right after he started working for his former employer, who would not let him off work at lunch. He also said that he requested a case plan from the beginning when the children first went into foster care in Twiggs County, although he was not given a case plan at that time because the case was transferred to Crawford County.

Dr. Joan Allison Lanum, a clinical psychologist, also testified. She had provided therapy for the oldest child, but did not provide therapy to the appellant’s biological children. She testified that Ca.S. and Ch.S. would have a difficult time transitioning from foster care because they were removed from their mother at such an early age. However, she further testified that she “assumed” that the boys viewed the foster mother as their mother, and she did not offer any testimony concerning the children’s relationship with appellant. Like several of the other witnesses, her testimony pertained primarily to the children’s relationship with the mother.

Based on the foregoing, the juvenile court concluded that the parental rights of the mother and both fathers should be terminated. Specifically, concerning appellant, the juvenile court made the following findings: that appellant visited with his children and that the visits had gone well, although “some testimony showed that he plays with the children as a friend but shows equal attention to all the children.” The court further found that the appellant did not have independent housing, and noted that he moved from his mother’s home about four months before the final hearing “but failed to notify any parties about his move.” The court also noted that appellant had completed his parenting class prior to the filing of the termination petition, and that he had completed a substance abuse program and an anger management class after the petition was filed but that he had failed to furnish his completion “certificates to DFCS as previously required . . . when he had a reunification case plan.” The court further noted the appellant’s positive drug screens and that he had been dismissed from his employment in September 2010 because of a positive drug screen, although, as the court noted, the appellant disputed that he had tested positive for drugs, attributing his dismissal to alcohol instead.

The juvenile court concluded that “no bonds ever existed” between the appellant and his children, and that the appellant had failed to maintain a bond with them in the 12 months prior to the filing of the termination petition. Further, the court found that appellant had failed to support his children as required by law for a period in excess of 12 months, and that he had failed to complete any case plans “as originally prepared by DFCS when the original reunification plans were formulated.” The juvenile court also found that the children were currently deprived because none of the parents had suitable housing or employment to care for the children, that appellant was “unstable” and that he and the other father had “untreated” drug issues that would prevent them from being able to parent the children. After making additional findings concerning the children’s bonds with the foster parents and the foster parents’ willingness to adopt them, the juvenile court concluded that, based on clear and convincing evidence, the appellant’s parental rights, as well as the parental rights of the mother and the other father, should be terminated.

1. Appellant first challenges the sufficiency of the evidence to support the juvenile court’s order.

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 natural parent’s right to custody has been lost. We proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. “(T)he right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” (Punctuation omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). In the Interest of T. E. T., 282 Ga. App. 269, 269-270 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

[T]he juvenile court must find by clear and convincing evidence both that there is parental misconduct or inability and that termination is in the best interest of the child. The first requirement is satisfied when the juvenile court finds that (1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(Punctuation and footnotes omitted.) In the Interest of M. A., 280 Ga. App. at 856. Further, OCGA § 15-11-94 (b) (4) (B) sets forth several conditions that a juvenile court may consider in determining whether the child is without proper parental care and control. And since the children were not in the appellant’s custody, pursuant to OCGA § 15-11-94 (b) (4) (C)

the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents [.]

Without belaboring the point here, we will assume that the evidence was sufficient to show that the children were deprived and that the mother and both fathers were responsible for that deprivation at the time the children were placed in the custody of DFCS. However, we do not believe that the evidence clearly and convincingly showed that, as to the appellant, the deprivation was likely to continue.

Although it is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue, “it is equally true that evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [his] natural child; clear and convincing evidence of present unfitness is required. Moreover, the record must. . . contain clear and convincing evidence that the cause of deprivation is likely to continue.” In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009).

A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere.

Id.

In our view, even construing the evidence in the light most favorable to the judgment below, the juvenile court’s order made several pertinent findings that were either contrary to the evidence or not clearly and convincingly shown. First, we are simply hard pressed to discern how the juvenile court concluded that the father had failed to maintain a bond with his children when every witness who testified concerning the appellant’s relationship with his children showed that he had maintained regular, scheduled visitation with his children, and that except for some indication he needed to be more of a father figure to his children instead of a friend, that all his interactions with his children were positive and appropriate. Thus, the juvenile court erred by concluding that the father had failed to maintain a bond with his children.

Further, while it is true, as the juvenile court found, that none of the parents completed the requirements of their case plan prior to the time that the decision was made to seek termination of their parental rights, it is also true that the evidence showed that at the time that decision was made the appellant was making progress on his case plan. Indeed it appears to us that efforts to reunify appellant with his children would have continued if not for the mother’s activities which caused DFCS to decide to discontinue its efforts to return the children to her. And even after DFCS made that decision, and thus was no longer required to offer any of the parents any assistance to continue their progress on their case plans, appellant, on his own, completed many of the requirements in his reunification plan including completing parenting and anger management classes, and the requirement that he address his substance abuse issues. And although the juvenile court found that appellant had “untreated drug issues” the uncontradicted evidence showed that the appellant had attended both NA meetings and AA meetings for many months, and had been drug free since he finished that program. Yet, the juvenile court seemed to entirely discount the appellant’s significant progress in reaching the goals of his case plan simply because he had not provided the appropriate documentation to DFCS. Although full compliance with a reunification plan is obviously important, we simply do not believe that a parent’s rights should be lost simply because of a failure to meet what we view as a “procedural requirement” when in fact a parent has completed much of the substance of the plan.

Also, contrary to the juvenile court’s finding that none of the parents had employment or suitable housing, the undisputed evidence showed that the appellant had maintained suitable employment for a long period of time, and there was nothing to show that appellant’s current housing was unsuitable. And in fact there was nothing to show that there was anything wrong with appellant’s previous living arrangement with his mother, and the DFCS caseworker admitted as much in her testimony. And it is clear that, even when the reunification plan was still in place, DFCS never considered whether a suitable placement for the children might be to place the children with the appellant in his mother’s home, and the DFCS caseworker’s testimony indicated that she knew of nothing that would be wrong with that placement.

Although the evidence did support the juvenile court’s finding that the appellant failed to support his children for a significant part of the time they had been in DFCS’s custody, appellant had made recent significant efforts to meet his support obligations and catch up on the arrears. Further, in light of the appellant’s other significant progress and the numerous findings of the juvenile court that were not supported clearly and convincingly by the evidence, we do not believe that this failure is sufficient to support the finding that the deprivation was likely to continue, especially in light of the appellant’s explanation that he had been unable to meet his support obligations because of the classes he had been attending to meet his case plan. See In the Interest of A. A., 252 Ga. App. 167, 173 (2) (c) (555 SE2d 827) (2001) (delayed compliance with goal of case plan, standing alone, not always sufficient to support termination).

In sum, although the evidence here does not demonstrate that the appellant acted at all times in an exemplary manner, we cannot say that this is a case where the “evidence” consisted of merely “positive promises” by a parent that he or she would change and rectify past failures to meet case plan goals or support their child. Further, the appellant’s efforts to create and maintain a bond with his children was consistent throughout, and the worst that was said about those visits was that he needed to be more firm in his discipline.

As we have stated, termination of parental rights is a . remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, (t)he evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue. While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship. Accordingly, we reverse the judgment and remand the case for establishment of [a] reunification plan[ ] for [the appellant], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.

(Punctuation and footnote omitted.) In the Interest of D. L. T. C., 299 Ga. App. at 771 (1). In the Interest of M. A., 280 Ga. App. at 857 (1); In the Interest of S. M. W., 287 Ga. App. 288, 290 (1) (651 SE2d 211) (2007); In the Interest of B. N. A., 248 Ga. App. 406, 407 (1) (546 SE2d 819) (2001). Compare In the Interest of J. E., 309 Ga. App. 51, 56-57 (1) (c) (711 SE2d 5) (2011) (deprivation likely to continue when mother never paid child support, never had stable housing or employment and used a gram of cocaine every day in the months preceding the hearing); In the Interest of J. J. J., 289 Ga. App. 466, 469-470 (657 SE2d 588) (2008) (deprivation likely to continue when appellant had medically verifiable deficiency of mental or emotional health, failed to support the child, comply with reunification plan and failed to establish bond).

Because we have found the evidence does not support a determination that the deprivation is likely to continue, we need not consider whether the children were being harmed by the deprivation and do not reach the second stage of the inquiry concerning the best interests of the children.

2. Appellant also argues that the juvenile court failed to give proper consideration to relative placements, in particular Patricia andPhillip Smith. Although “[w]e cannot substitute our judgment for a juvenile court’s judgment that relative placement was not in the best interest of a child,” In the Interest of S. R. C. J., 317 Ga. App. 699, 704-705 (3) (b) (732 SE2d 547) (2012), in light of our reversal of the termination of the appellant’s parental rights, it would seem appropriate for the juvenile court to now reconsider its finding that the appellant’s relatives, particularly the Smiths, were not suitable placements.

Decided November 30, 2012.

Robert M. Bearden, Jr., for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, W. Ashley Hawkins, for appellee.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       The mother had custody of the two children appellant fathered plus a slightly older child who had a different biological father. The parental rights of all three parents were terminated in these proceedings, but only the appellant’s appeal is before us.

       On the first visit Coney observed Ca.S. playing naked in or near a bucket filled with water, in which, Coney testified, he could have easily become submerged and on the second visit all three children were unsupervised in the living room, eating out of a bowl and surrounded by clothes, shoes, food and cigarette butts which littered the floor.

       In so holding we wish to make clear that there is little question that both the Department and the juvenile court were attempting to act in the best interests of the children by keeping them with the foster family, and we note the difficulty in deciding cases of this type at both the lower court and appellate levels. In the Interest of T. E. T., 282 Ga. App. at 275-276.

       We note the evidence showed that the Smiths were willing to take all three children, not just the two children fathered by appellant, a factor that is critical here since the evidence demonstrated that the three children should not be separated if possible.