author: Branch, Judge.

text:
    A13A1040.
    ATKINSON v. CITY OF ATLANTA.
    (752 SE2d 130)
   Branch, Judge.

A municipality is protected by governmental immunity from suit for negligence, but as an exception to its immunity, a municipality is liable for damages resulting from operating or maintaining a nuisance. In this suit, Denis S. Atkinson, Jr., contends the City of Atlanta is liable in nuisance arising out of a water main break that damaged his property. Because we find that Atkinson has not shown that the City operated or maintained a nuisance, we affirm summary judgment entered in favor of the City.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Atkinson, the record shows that on April 11, 2007, a water main broke next to Atkinson’s property located at 605 West Wesley Road in Atlanta, which caused a substantial amount of water to flood Atkinson’s yard, thereby damaging Atkinson’s yard, trees, shrubs, driveway, and 35 feet of an ornamental fence. The City of Atlanta was notified, responded that night, and began efforts to stop the flow of water and repair the water main. Although the City did not stop the water flow the first night, Atkinson could not recall how long it took. Atkinson’s yard was covered with debris from the event, including two downed magnolia trees. The water dug out a large pit (30 feet x 40 feet and 5 to 6 feet deep) and settled on the north side of his house and on his neighbor’s property. Atkinson testified, “we literally had a lake out there for quite some time.” When further questioned, Atkinson did not recall how long the water was present, but he stated that the water had “completely subsided” before he met with William Brigham, a city official, about the incident, which he described as happening “several days” after the incident. Other evidence in the record shows that by April 16, 2007, only five days after the incident, Brigham had completed an assessment of the work needed to repair Atkinson’s property to its original condition. And that document, upon which Atkinson relies, states that Brigham visited the site on April 12 and 13, 2007.

The City eventually filled in the large pit and repaired the fence, but Atkinson does not recall when the fence was repaired. The two downed trees were removed, but Atkinson does not recall who removed them. Atkinson had the driveway and the yard repaired himself. The trees and shrubs have not been replaced. During the time that the fence was down, some cars from Northside Drive would occasionally drive through his property to make a right-hand turn onto West Wesley Road. Because Atkinson was not satisfied with the City’s pace of addressing the damage on his property, on August 15, 2007, he filed a claim with the City.

After the City denied his claim, Atkinson filed suit in the State Court of Fulton County against the City and a contracting company, asserting claims of nuisance, negligence and breach of contract. The breach of contract claim was based on a contract between the City and a contractor, and Atkinson eventually dismissed the contractor. Atkinson later abandoned his claim of negligence. The trial court then granted summary judgment in favor of the City on the remaining claim of nuisance. Atkinson appeals, and his brief makes clear that the only issue on appeal is whether the trial court erred by granting summary judgment on his claim of nuisance. No evidence has been introduced in an attempt to show that the water main failed due to negligent maintenance.

Atkinson’s claim is that the City created and maintained a continuing nuisance on his property that resulted in loss of use and enjoyment of his property. In response to the City’s motion for summary judgment, Atkinson asserted that he had two nuisance claims:

(1) the failure of the City to respond in a timely manner to the leaking water main, resulting in Plaintiff’s yard, fence, trees, shrubs, and driveway [having] sustained extensive water damage; and (2) the failure of the City to respond in a timely manner to repair the damage resulting from the water main leak, resulting in the creation of a hazardous and dangerous condition affecting Plaintiff’s property for an extended period of time.

Finally, at oral argument, Atkinson’s counsel added:

[O]ur claim is that the nuisance arises from not the mere fact of the water main break, but the fact that the city, which had a duty to maintain and repair that water main after its break, the fact that the city did not do that in a timely manner.

(Emphasis supplied.)

A municipality is protected by sovereign immunity from liability for negligence while exercising its governmental function. Hibbs v. City of Riverdale, 267 Ga. 337 (478 SE2d 121) (1996). It is well established, however, that “a municipality, whether exercising its governmental or its ministerial functions, is liable for damages resulting from operating or maintaining a nuisance.” (Citations omitted.) City of Columbus v. Myszka, 246 Ga. 571 (1) (272 SE2d 302) (1980); City of Thomasville v. Shank, 263 Ga. 624 (1) (437 SE2d 306) (1993) (“[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state.”); Mayor of Savannah v. Palmerio, 242 Ga. 419, 426 (3) (g) (249 SE2d 224) (1978).

The Supreme Court of Georgia has explained that to be held liable for maintenance of a nuisance,

the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.

(Citations and punctuation omitted.) Palmerio, 242 Ga. at 426 (3) (i). Following Palmerio and other precedent, the Supreme Court later added the following guidelines for determining whether a nuisance exists:

[T]he defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.

(Footnote omitted.) Hibbs, 267 Ga. at 338, citing City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979).

(a) Applying the above guidelines to this case, we first find that Atkinson has not presented any evidence to show how long it took the City to begin work to repair the City’s water main or how long it took to stop the flow of water, let alone that the City failed to do so in a reasonable time. Therefore, with regard to the City’s duty to repair the water main, Atkinson has failed to create an issue of fact regarding whether the City acted within a reasonable time to repair the main. See generally Hibbs, 267 Ga. at 338 (“there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition”).

(b) Next, we hold that Atkinson has failed to show that the City operated or maintained a nuisance on his property. The water main break occurred only once and caused only one incident of flooding on Atkinson’s property. In City of LaGrange v. Whatley, 146 Ga. App. 174 (246 SE2d 5) (1978), this court held that it was error for the trial court to deny summary judgment to the city on a claim of nuisance where the only evidence showed that the sewage backed up into the plaintiff’s home on one and only one occasion. See also Trussell Services, Inc. v. City of Montezuma, 192 Ga. App. 863 (386 SE2d 732) (1989) (“A single isolated act of negligence not continuous or recurrent, is not sufficient to show a negligent trespass constituted a nuisance.”); Restatement (Second) of Torts, § 821D, cmt. (e) (“[T]he flooding of the plaintiff’s land, which is a trespass, is also a nuisance if it is repeated or of long duration.”).

The present case is similar to Goode v. City of Atlanta, 274 Ga. App. 233 (617 SE2d 210) (2005), in which Goode sued the City of Atlanta after a water main break caused damage to his home. This Court held that the trial court properly granted summary judgment on Goode’s claim of nuisance on the ground that even if the City’s negligence caused the main to break, “an isolated act of negligence cannot form the basis of a nuisance claim.” Id. at 236. Furthermore, Goode had not shown that the City failed to respond in a timely manner following notice of a dangerous condition. Id.

Here, although the water ponded on Atkinson’s property initially, Atkinson admits that the water had completely subsided by the time he met with Brigham, only “several” days after the incident about clean up efforts on his property. Thus, Atkinson has not presented any evidence to show that the City performed “a continuous or regularly repetitious act, or creat[ed] a continuous or regularly repetitious condition.” See Palmerio, 242 Ga. at 426 (3) (i). Nor has he presented any evidence to show that water from the broken main stayed on his property for a long duration. Atkinson has therefore failed to show that the flow of water from the broken water main constituted a continuous or regularly repetitious condition on his property. See, e.g., City of Montezuma, 192 Ga.App. 863; Whatley, 146 Ga. App. 174.

Decided November 21, 2013.

Martin & Jones, Elizabeth Y Rodger, Samuel L. Starks, for appellant.

Torrey D. Smith, for appellee.

(c) Finally, Atkinson contends the City maintained a nuisance on his property by delaying or failing to repair for many months the damage caused by the initial flow of water onto his property. Atkinson’s argument conflates the idea of nuisance with the damage resulting from the initial flow of water, be it a nuisance or a trespass. Atkinson took it upon himself to have his driveway and yard repaired. Likewise, he could have had his fence repaired and replaced any lost trees, shrubs, and bushes, as he was obviously free to do, and sought recompense from the City for his expenses. What Atkinson has not shown is that the City had a proactive duty to repair in a timely manner all the damage to his property rather than compensate Atkinson for his damages. Thus, under the facts in this case, Atkinson’s own failure to take action cannot be converted into a nuisance claim against the city for delay in mending his fence and effecting other repairs. Cf. Ethridge v. City of Lavonia, 101 Ga.App. 190, 191 (112 SE2d 822) (1960) (no nuisance where plaintiff’s property was damaged by a single fire that spread from a city garbage dump to plaintiff’s property; event was “more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration) to plaintiff’s realty as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuous or recurrent act or condition and is of an indirect character”).

In sum, the trial court correctly granted summary judgment in favor of the City of Atlanta on Atkinson’s claim of nuisance.

Judgment affirmed.

Miller and Ray, JJ., concur.

       There have been no other water main breaks affecting Atkinson’s property.

       It appears that the suit is a renewal action.

       Atkinson relies in part on the deposition of William Brigham, but the record does not contain a transcript of that deposition, and Atkinson’s citation to Brigham’s testimony is actually a citation to Atkinson’s brief in the trial court. Atkinson also relies on a series of e-mails between Brigham and other City officials, but those e-mails are only attached as exhibits to Atkinson’s response to the City’s motion for summary judgment. They are not authenticated in any manner.
      The deposition of Brigham and the e-mail evidence are not properly before this court. First, “[ojnly admissible evidence may be considered when evaluating a motion for summary judgment.” (Punctuation and footnote omitted.) Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 7 (679 SE2d 57) (2009). Second,
      [t]he admissibility of evidence on motion for summary judgment, whether contained in affidavits or otherwise, is subject to the rules relating to the admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for summary judgment.
      (Citation and punctuation omitted.) Lance v. Elliott, 202 Ga. App. 164, 167 (413 SE2d 486) (1991). Third, “we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” (Citation and punctuation omitted.) Demetrios v. State, 246 Ga. App. 506, 510 (3), n. 14 (541 SE2d 83) (2000).

       Under OCGA § 41-1-1, a nuisance is defined as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” This statutory definition, however, “was not intended to change the common law definition of a nuisance.” State ex rel. Boykin v. Ball Investment Co., 191 Ga. 382, 389 (2) (12 SE2d 574) (1940).


source: Caselaw Access Project

license: Public Domain

text:
    A13A1532.
    LIMA DELTA COMPANY et al. v. GLOBAL AEROSPACE, INC.
    (752 SE2d 135)
   Branch, Judge.

Global Aerospace, Inc. (“Global”), filed this lawsuit in Fulton County Superior Court against Lima Delta Company, Trident AS, and Socikat, all of whom are named insureds under a broad horizon aviation insurance policy (“the Policy”) issued by Global. Global’s complaint seeks legal and equitable rescission of the Policy, based upon what it alleges are material and fraudulent misrepresentations contained in the application for insurance. Global also seeks a declaratory judgment that no coverage exists under the Policy for the loss currently being claimed by the insureds. Lima Delta, Trident, and Socikat jointly filed a motion to dismiss based on the assertion that Georgia courts lack personal jurisdiction over any of the named defendants. Following a non-evidentiary hearing, the trial court denied that motion. The trial court thereafter certified its order for immediate review, and the insureds filed an application for an interlocutory appeal. This Court granted that application, and this appeal followed. For reasons explained below, we find no error by the trial court in denying the motion to dismiss, and we therefore affirm that order.

Where, as here, a motion to dismiss for lack of personal jurisdiction is resolved based solely upon written submissions, rather than upon evidence presented at a hearing, “the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.” Hyperdynamics Corp. v. Southridge Capital Mgmt., 305 Ga. App. 283, 284 (I) (699 SE2d 456) (2010) (citation and punctuation omitted). In conducting this review, “we resolve all disputed issues of fact in favor of the party asserting the existence of personal jurisdiction,” id., bearing in mind that it is the movants who bear the burden of proving that Georgia courts lack personal jurisdiction over them. Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990).

Viewed in the light most favorable to Global, the record shows that Global has its principal place of business in Parsippany, New Jersey and has a regional office in Atlanta. Lima Delta is a Delaware corporation whose principal place of business is Wilmington, Delaware. Lima Delta describes itself as providing aircraft “owner trust services,” pursuant to FAA regulations that allow non-U. S. citizens, including foreign corporations, “to transfer legal title of an aircraft to a trustee who is a citizen of the U. S. through a vehicle known as an ‘aircraft owner trust.’ ” In addition to the trust agreement, whereby title to the aircraft is transferred, the parties also execute an operating agreement, which allows the beneficiary of the trust (the original, non-U. S. owner of the aircraft) to maintain and operate the aircraft “while the trustee [Lima Delta] holds the legal title and files for FAA registration” of the aircraft.

Trident is a Delaware limited liability company which also has its principal place of business in Wilmington, Delaware; like Lima Delta, its corporate address is the residential address of Dan Piraino, who is a principal in both Lima Delta and Trident. Trident provides aircraft management services, including the provision of pilots and maintenance and navigation services for privately-owned airplanes.

Socikat is the trade name of Societe Commerciale et Industríale Katangaise, a mining company based in the Democratic Republic of Congo (“DRC”) whose principal place of business is in that country. In an affidavit submitted in support of the motion to dismiss, a representative of Socikat acknowledged that “[t]he ultimate owners of Socikat are individuals with personal and business interests in the United States of America, (including Delaware but not including the State of Georgia).” Although it is not clear from the record whether Socikat has ever registered as a U. S. corporation, the address given for Socikat in both the application for insurance and the Policy is the Wilmington, Delaware address of Lima Delta and Trident.

In April 2011, Lima Delta and Socikat executed a trust agreement whereby ownership of a 1989 Gulfstream G-IV airplane (“the airplane”) was transferred from Socikat to Lima Delta. Pursuant to an operating agreement executed by the parties, Socikat remained the beneficial owner of the airplane. Socikat then contracted with Trident to provide pilot services for the airplane using pilots licensed in the United States, to provide maintenance of the airplane and additional flight support services, and to obtain the necessary insurance for the airplane and flight operations.

The record shows that Lima Delta serves as the owner-trustee of approximately 30 aircraft registered with the FAA. Since at least 2008, the Atlanta office of Wells Fargo Insurance Services, USA, Inc. (“Wells Fargo”) has worked with Piraino to procure insurance on at least ten airplanes. On May 13, 2011, Piraino, in his capacity as “Managing Member” of Trident, sent an e-mail to Lauren Hanes, an account manager employed in the Atlanta office of Wells Fargo, and asked whether the then-current insurance policy on the airplane at issue included the “required coverage for flights to [the] EU [European Union]. If not, please advise what must be done [to obtain such coverage].” Hanes responded that the current policy did not include EU coverage and that to obtain such coverage the insureds would need “to move the aircraft to another [insurance] carrier.” Over approximately the next week, Hanes and Piraino corresponded via e-mail regarding an application for a new insurance policy, with Hanes obtaining information from Piraino that was necessary to place such an application. Hanes thereafter corresponded with at least two insurance companies, including Global, in an attempt to procure the required insurance for the airplane. Most, if not all, of Hanes’s contact with Global was through Global’s Atlanta office.

Global eventually issued the Policy, with effective dates of June 22, 2011 through June 22, 2012, and which provided, among other things, $250 million in liability coverage and $8 million in coverage for the airplane itself. The cover page of the Policy states that it was issued through Global’s Atlanta office and that the Policy was brokered by Wells Fargo’s Atlanta office. Global’s invoice for the policy premium bears the address of its Atlanta office, and the invoice was mailed to Wells Fargo’s Atlanta office. The premium payment was made by Trident to Wells Fargo at Wells Fargo’s Atlanta office. The policy itself was received by Wells Fargo at its Atlanta office, and the accompanying correspondence indicates that Wells Fargo was accepting delivery of the Policy on behalf of the insureds and that it would be responsible for forwarding the Policy documents to the insureds. Wells Fargo thereafter mailed the Policy from its Atlanta office to the insureds in Delaware.

On February 12, 2012, the airplane was destroyed in a crash in the DRC, and the crash resulted in at least one claim (for the loss of the airplane) being made under the Policy. Following a preliminary investigation, Global filed the current lawsuit seeking to rescind the Policy or alternatively, a declaration that the Policy did not provide coverage for any loss arising out of the February 2012 crash. Lima Delta, Trident, and Socikat now appeal from the trial court’s order denying their joint motion to dismiss the complaint for lack of personal jurisdiction.

A Georgia court may exercise personal jurisdiction over a nonresident defendant where two requirements are met. First, the defendant must have committed some act or engaged in some activity set forth in Georgia’s Long Arm Statute, OCGA § 9-10-91. Second, the exercise of jurisdiction over a particular defendant pursuant to the Long Arm Statute must comport with the requirements of due process. See Hyperdynamics Corp., 305 Ga. App. at 293 (IV).

In this case, if Georgia has personal jurisdiction over the insureds, that jurisdiction rests upon subsection (1) of the Long Arm Statute, which allows the exercise of personal jurisdiction over a nonresident defendant if that party, acting personally or through an agent, “[transacts any business within this [S]tate.” OCGA § 9-10-91 (1). In Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, 279 Ga. 672 (620 SE2d 352) (2005), our Supreme Court clarified that “OCGA § 9-10-91 (1) grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State to the maximum extent permitted by procedural due process,” and overruled all cases that conflicted with this holding. 279 Ga. at 675. Recognizing that “[d]ue process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign,” Sol Melia v. Brown, 301 Ga. App. 760, 763 (1) (688 SE2d 675) (2009), Georgia’s appellate courts have developed a three-part test to determine whether a defendant has transacted business in Georgia so as to subject itself to the personal jurisdiction of the State’s courts. Under that test:

Jurisdiction exists on the basis of transacting business in this [S] tate (1) if the nonresident defendant has purposefully done some act or consummated some transaction in this [S]tate, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this [Sjtate does not offend traditional notions of fairness and substantial justice.

Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517-518 (1) (631 SE2d 734) (2006) (punctuation and footnote omitted). We examine the first two factors “to determine whether [a] defendant has established the minimum contacts [with the forum state] necessary for the exercise of jurisdiction.” ATCO Sign & Lighting Co., LLC v. Stamm Mfg., 298 Ga. App. 528, 534 (1) (680 SE2d 571) (2009) (citation and punctuation omitted). If such minimum contacts are found, we apply the third prong of the test to determine whether the exercise of jurisdiction is “reasonable” — i.e., to ensure that it does not result solely from “ ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” Id. (citation omitted).

1. Lima Delta, Trident, and Socikat argue that the first prong of the test cannot be satisfied with respect to any of them, because they did not consummate any transaction in Georgia. In support of this argument, they point to the fact that Piraino, who was acting on behalf of all three insured entities, was not physically present in Georgia when the insurance was applied for and negotiated. Instead, he corresponded with Wells Fargo and made the application for insurance via the Internet and telephone from locations throughout the United States (but not Georgia) and around the world. Moreover, the insureds argue that they sent payment for the policy to an address in Texas and they accepted delivery of the policy, through Piraino, at the Delaware address given for all three insureds and for Piraino individually, and that these facts show that the contract for insurance was neither made nor delivered in Georgia. We disagree.

As a threshold matter, we note that the fact that Piraino was not physically present in Georgia during the time he was negotiating and applying for the Policy on behalf of the insureds does not preclude us from finding that he transacted business within this State on behalf of the insureds. In Innovative Clinical, our Supreme Court specifically held that “nothing in subsection (1) [ofOCGA § 9-10-91] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” 279 Ga. at 675 (punctuation omitted). As a result of this holding, Georgia now allows the assertion of long-arm jurisdiction over nonresident defendants, based on business conducted by the defendant or its agent “through postal, telephonic, and Internet contacts.” ATCO Sign & Lighting Co., 298 Ga. App. at 534 (1). See also Home Depot Supply v. Hunter Management, LLC, 289 Ga. App. 286, 289 (656 SE2d 898) (2008) (“even where a nonresident defendant has no physical presence in Georgia, intangible contacts, such as telephone communications, can be sufficient to establish ‘minimum contacts’ which meet the constitutional standard for the exercise of personal jurisdiction”).

Moreover, regardless of Piraino’s physical presence in or absence from Georgia, the evidence shows that the Atlanta office of Wells Fargo was acting as the agent of the insureds. It is undisputed that Wells Fargo is an independent insurance broker and, under Georgia law, “independent agents or brokers are generally considered the agent of the insured, not the insurer.” Pope v. Mercury Indem. Co. of Georgia, 297 Ga. App. 535, 540 (3) (677 SE2d 693) (2009) (citation and punctuation omitted). In addition to the presumption of agency created by Georgia law, proof that Wells Fargo was functioning as the insureds’ agent can be shown “by circumstantial evidence, apparent relations, and conduct of the parties.” Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281, 282 (2) (304 SE2d 458) (1983) (citation and punctuation omitted). Here, the evidence shows that Piraino, Lima Delta, and Trident had a longstanding relationship with the Atlanta office of Wells Fargo that spanned a number of years. This office had assisted Piraino in obtaining at least 11 different insurance policies for different corporate entities in which Piraino either had an ownership interest or with whom one of Piraino’s corporations had contracted to provide insurance. Additionally, with respect to the airplane at issue, Wells Fargo had previously assisted Piraino and the insureds in obtaining insurance from a carrier other than Global. In attempting to procure a replacement policy, Wells Fargo contacted at least two different insurers, one of which was Global. These facts show that in procuring the Policy, Wells Fargo was acting as the agent of the insureds, and not as the agent of Global. See Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (2) (445 SE2d 791) (1994) (evidence showing that independent agent who had worked with the insured “for years” and who had contacted several insurers on behalf of the insured “demanded the conclusion” that the agent was acting as the agent for the insured, not the insurer); Pope, 297 Ga. App. at 540-541 (3) (same); Amtrust North America v. Smith, 315 Ga. App. 133, 134-135 (1) (726 SE2d 628) (2012) (where an insurance agent assists the insured in obtaining insurance, he is the agent of the insured).

Acting as the agent of appellants, the Atlanta office of Wells Fargo contacted the Atlanta office of Global and proceeded to negotiate the Policy. As noted previously, the Policy itself reflects that it was issued through Global’s Atlanta office and that the Policy was brokered by Wells Fargo’s Atlanta office. Global’s invoice for the Policy premium bears the address of its Atlanta office, and it was mailed to Wells Fargo’s Atlanta office. The premium payment was made by Trident to Wells Fargo at Wells Fargo’s Atlanta office, and Wells Fargo accepted delivery of the Policy on behalf of the insureds at its Atlanta office. These facts demonstrate that the Policy was applied for, negotiated, paid for, and delivered in Atlanta. Accordingly, the evidence shows that the insureds, through their agent, transacted business in Georgia. See Aero Toy Store, 279 Ga. App. at 516-517.

2. Given that this action is for rescission of the Policy and for a declaration as to its terms, the lawsuit arises out of the parties’ Georgia business transaction. Accordingly, the second prong of the personal jurisdiction test is satisfied. See Paxton v. Citizens Bank and Trust of West Ga., 307 Ga.App. 112,120 (2) (704SE2d215) (2010) (the second prong of the jurisdictional test is satisfied where the plaintiff’s claims arise out of the defendant’s Georgia business transaction); Ga. R.R. Bank & Trust Co. v. Barton, 169 Ga.App. 821, 823 (315 SE2d 17) (1984) (the direct connection between the execution of promissory notes in favor of a Georgia bank by a nonresident defendant and the suit for collection on the notes was “so obvious as to require no elaboration. Suffice it to say that the second prong of the [jurisdictional] test is also satisfied.”).

3. We now turn to the question of whether Georgia’s exercise of jurisdiction over the insureds comports with “traditional notions of fairness and substantial justice.” Aero Toy Store, 279 Ga. App. at 518 (I) . In making this determination, we

evaluate [those] factors that impact on the reasonableness of asserting jurisdiction, such as the burden on defendant, the forum state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the states in furthering substantive social policies.

ATCO Sign & Lighting Co., 298 Ga. App. at 534 (1) (citation and punctuation omitted). See also Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U. S. 102, 113-114 (II) (B) (107 SCt 1026, 94 LE2d 92) (1987).

Here, the insureds have identified no logistical or financial difficulties in defending a case in Georgia that would unduly burden them. In this regard, we again note that this case involves the application for the Policy and that the evidence will consist primarily of documents and testimony. As best we can tell from the record, the bulk of the documents relating to the insurance application will be located in the Atlanta offices of Global and Wells Fargo. Additionally, the insureds have identified Hanes and Dean Anderson, two employees in the Atlanta office of Wells Fargo, as “the two most critical fact witnesses in this case.”

We further note that Piraino, who is a principal in both Lima Delta and Trident, is a pilot who routinely flies throughout the United States and internationally. Thus, it does not appear that traveling from Delaware to Atlanta for trial will unduly burden the representatives of Lima Delta and Trident. And although Socikat’s principal place of business is in the DRC, the company has conceded that it has business interests throughout the United States and that jurisdiction over it would be appropriate in Delaware. The company has failed to come forward with any evidence, however, showing that traveling to Atlanta for trial would be more burdensome for its representatives, either logistically or financially, than traveling to Delaware.

We also find that Georgia has a significant interest in adjudicating this dispute, as it appears that Georgia law will apply. In contract actions such as this one, where the contract contains no choice of law provision, Georgia applies the rule of lex loci contractus. Farm Credit of Northwest Florida, ACA v. Easom Peanut Co., 312 Ga. App. 374, 381 (718 SE2d 590) (2011). Under this rule,

when a contract is made and to be performed in one state, its validity, nature, construction, and interpretation are governed by the substantive law of that state. When a contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is to be performed applies.

Id. (citations omitted). Here, the Policy provided worldwide coverage, and it therefore had no particular place of performance. And because “insurance contracts often have no particular place where performance is contemplated,” Georgia generally applies “the law of the place where the contract was made.” Fed. Ins. Co. v. Nat. Distributing Co., 203 Ga. App. 763, 767 (1) (417 SE2d 671) (1992) (citation and punctuation omitted). As discussed supra in Division 1, the insurance contract at issue was made in Georgia, because that is where the Policy was applied for, paid for, and delivered. See Gen. Telephone Co. of Southeast v. Trimm, 252 Ga. 95, 96 (311 SE2d 460) (1984) (under lex loci contractus, a contact is made in Georgia where the “last act essential to the completion of the contract” was performed in this State). See also Gen. Elec. Credit Corp. v. Home Indent. Co., 168 Ga. App. 344, 350 (2) (b) (309 SE2d 152) (1983) (an “insurance contract is constructively made at the place where the contract is delivered”) (citation and punctuation omitted).

Decided November 21, 2013

Samuel S. Woodhouse III, for appellants.

Bovis, Kyle & Burch, James E. Singer, Schiff Hardin, Leah Ward Sears, for appellee.

Finally, the fact that the majority of the relevant evidence and the two “most critical” fact witnesses are located in Atlanta, combined with the fact that in all likelihood Georgia law will control this case, the interests of convenience and efficiency also weigh in favor of finding that Georgia’s exercise of jurisdiction over the insureds is reasonable.

As the foregoing discussion demonstrates, the insureds are not being forced to litigate in Georgia because of random, fortuitous, or attenuated circumstances. Thus, “considering the relevant factors, we find that neither reasonableness nor fair play nor substantial justice would be offended by haling [the insureds] into a Georgia court and exercising jurisdiction over [them].” Noorani v. Sugarloaf Mills Ltd. Partnership of Ga., 308 Ga. App. 800, 804-805 (2) (c) (708 SE2d 685) (2011) (citations and punctuation omitted).

For the foregoing reasons, we affirm the order of the trial court denying the appellants’ motion to dismiss.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Global also named as defendants Trident Aviation Services, LLC and Trident Aviation Services, Inc. Those defendants, together with the named insured Trident AS, are referred to collectively herein as “Trident.” Other defendants named by Global include Socikat, Sokicat-CN Aviation, Socikat-CN Aviation, and CN Aviation. These entities, together with the named insured Sokicat, are referred to collectively herein as “Socikat.”

       This policy provides liability coverage for the operation of the airplane as well as property coverage for damage to or loss of the airplane itself.

       Although appellants assert that Global is a Delaware corporation headquartered in London, England with its principal place of business in New Jersey, the record reflects only that Global’s principal place of business is in Parsippany. There is no evidence indicating in which state Global is incorporated or which indicates that Global is “headquartered” in London.

       Lima Delta thereafter registered the airplane with the FAA, and it was assigned registration number N2SA.

       These policies include the one at issue as well as other policies procured on behalf of Lima Delta, Trident, and companies identified as DTP, LLC, CN Aviation, and November Whiskey, Inc.

       The record shows that several people, including the flight crew, were killed in the crash and that others were injured. There is no evidence, however, that the insureds have sought coverage under the Policy’s liability coverage provisions.

       We reach this conclusion regarding the applicability of Georgia law based on the current record. We recognize, however, that additional evidence which affects this question may come to light during discovery. If such additional evidence is produced, then it will be for the trial court to decide, in the first instance, whether Georgia law controls this case.


author: Phipps, Chief Judge.

text:
    A13A1551.
    In the Interest of T. Z. L., a child.
    (751 SE2d 854)
   Phipps, Chief Judge.

In this discretionary appeal, the father of T. Z. L. contests the termination of his parental rights, claiming insufficiency of the evidence and violation of his due process rights. Because the evidence was insufficient, we reverse the termination, and remand the case with direction.

Four-year-old T. Z. L. came into the immediate protective custody of the Georgia Department of Human Resources Division of Family & Children Services (DFCS) on April 11, 2012, after he was severely injured. At that time, the child was living with his mother and her boyfriend; T. Z. L.’s father had been incarcerated for about ten months.

On April 20, 2012, DFCS filed a deprivation petition, alleging that T. Z. L.’s injuries had been inflicted by the mother’s boyfriend, that the child’s mother had failed to obtain medical treatment for him and had instead attempted to hide the child’s condition from investigating authorities, that the mother was subsequently arrested and charged with child cruelty, and that the father was incarcerated and thus unable to care for T. Z. L. After a hearing, the juvenile court adjudicated T. Z. L. deprived. In the deprivation order entered on May 8, the juvenile court found that the child had been severely beaten by the mother’s boyfriend; that the mother had failed to obtain medical treatment for the child’s injuries, instead absconding with the child and eventually claiming that he had fallen down stairs; that the mother and her boyfriend were in jail in connection with the child’s injuries; and that “[t]he causes of deprivation as to the father are his current incarceration, substance abuse, and extensive criminal history.” The juvenile court placed T. Z. L. in DFCS’s temporary custody, ordered an assessment of the child and his family, and ruled, “Until further Order of this court, the parents shall have NO VISITS with the child.”

The record contains a “Case Plan Report,” which was dated and filed with the juvenile court on May 11, 2012. It stated that the “Plan Type” was “Nonreunification” and that the “Permanency plan” was “Adoption.” The “Case Plan Report” set forth “Non-reunification Goals,” specifying actions for DFCS that included “completing] the necessary documentation to assure the adoption is finalized in a timely manner.” Steps for “All Parents” included “attending] all hearings, appointments with DFCS, Case Plan reviews, and scheduled visits with children,” although another page that was included in the “Case Plan Report” noted that the juvenile court had “SUSPENDED AT THIS TIME” parental visits with T. Z. L. and noted further, as an additional “barrier[ ] to visitation,” that “[the father] is incarcerated.” The final pages of the “Case Plan Report” set forth blank lines reserved for the parents’ signatures for acknowledging having “received a copy of this case plan report, [that] the plan has been explained to me,” and that “this case plan will become part of the court order unless I request a hearing within five (5) days after I receive it.” Notably, none of the reserved lines contained any signature; the sole signature upon the “Case Plan Report” was that of a DFCS case manager. Attached to the “Case Plan Report” were two pages entitled “Recommendations.” Thereupon was stated that “[the father] is presently incarcerated and may be in jail for an extended time. He reported he would be in jail for thirteen to fourteen weeks.” The attached document further enumerated that the father, inter alia: “should maintain employment”; “should have stable housing for six months”; and “should be provided a psychological assessment and address all recommendations.”

On June 5, 2012, the juvenile court entered an order concerning that case plan, which order set forth:

The goals of the plan were not reviewed with the mother or the father. Both are incarcerated. Both parents were given a copy of the case plan. The permanency plan was established as: non-reunification/tpr/adoption. It is hereby ORDERED, ADJUDGED, AND DECREED that said plan ... is incorporated into this order.

Seemingly in contradiction to that language, however, the order also stated, “The Court finds that reasonable efforts are being made to make it possible for the child to safely return to the home.” The order concluded:

[T]he parents are notified that they will need to complete the following in order to be considered for a return of custody: obtain/maintain stable income sufficient to meet the needs of the family; obtain/maintain stable housing with sufficient space to meet the needs of the family; complete a parent/ nurturing class; have a psychological evaluation and follow through with all recommended treatment; pay support; the father will need to have a DNA paternity test and legitimate the child if same is positive. [] There will be no visitation until further order of the court.

Meanwhile, the mother had surrendered to DFCS her parental rights to T. Z. L. on or about June 4, 2012. About a month thereafter, on July 6, 2012, DFCS filed a petition to terminate the father’s parental rights under OCGA § 15-11-94, alleging that he remained incarcerated, was unable to care for T. Z. L., had a history of drug abuse, and had an extensive criminal record.

On August 21, 2012, the juvenile court entered a “Supplemental Order Following Citizen Panel Review and Permanency Hearing Order,” which stated the following. A “Citizen Panel review meeting [was] held on August 9,2012.” “Upon review of the recommendations of the [Citizen] Panel,” the court found that “[Returning [T. Z. L.] to the home would be contrary to the welfare of the child because: Child is a victim of physical abuse. Neither parent was present at panel. Panel supports [DFCS’s] motion for a termination of parental rights.” Further, the juvenile court found that “adoption” (as opposed to “reunification”) was in the best interest of the child and was the “Permanency plan.”

On September 11, 2012, the juvenile court granted DFCS’s motion to appoint a process server and directed that specially appointed individual to serve the father with a summons in the termination action at the correctional facility where the father was incarcerated.

On November 27, 2012, the juvenile court convened a hearing on the termination petition, which concluded on December 4, 2012. T. Z. L. had turned five years old. Still incarcerated, the father attended no part of the hearing, but was represented at the hearing by counsel. T. Z. L. was represented by a guardian ad litem.

A therapist who had conducted part of the court-ordered assessment of T. Z. L.’s family testified that she had interviewed the father shortly after the child was taken into DFCS’s custody. During their interview, she had asked the father about his drug and alcohol use, and he had told her that at about age 16 he became involved with drugs, which evolved into substance abuse problems for a period of time. The father had also admitted to having a criminal history; the therapist recalled that the father had said that he was then serving a 14-week sentence. Additionally, the father had briefly mentioned that, years earlier, he had been in a serious automobile accident. However, the therapist recounted, during most of their interview, the father had expounded upon his anger that T. Z. L. had been beaten.

DFCS called as a witness the child’s maternal grandmother, who was asked to describe the relationship of T. Z. L.’s parents. She responded, “They drank, drugs, never stable, neither one of them ever held a job. I think the longest •— [the father’s] held one — the child’s father was maybe three to six months.” Throughout their relationship, as she recollected, “They either lived with me or [the father’s] mother. They could never hold their own place.” She had observed the father use methamphetamine in 2009, but had not seen him since 2010 or 2011; she was uncertain of which year.

DFCS tendered certified copies of four convictions for the purpose of showing the father’s pattern and history of criminal activity as had been alleged in the termination petition. Those showed that: (i) in 2001, the father pled guilty to theft by taking and was ordered to serve 30 days of a 12-month sentence in jail; (ii) in 2003, the father pled guilty to a drug charge and was ordered to serve 120 days of a seven-year sentence in jail; (iii) on October 26, 2011, the father pled guilty to theft by taking and was ordered to serve eight months of a five-year sentence in jail; and (iv) in early 2012, the father pled guilty to theft by taking and was sentenced to four years of confinement.

The father was 34 years old at the time of the termination hearing in 2012. His lawyer called to the stand the father’s mother, who testified that he had used drugs from about age 17 through about age 26 or 27. During those years, the father had been in and out of jail. In 2003, the father was driving under the influence of alcohol and lost control of the car; the ensuing wreck left him with five fractures to his skull, fifteen hairline fractures to the back of his skull, and a permanent loss of hearing in one ear. DFCS’s lawyer asked her, “He has not been the same since the accident, correct?” She answered, “Some things have been — he has short term memory loss. He forgets things easily. He gets confused easily. His hands will shake sometimes, but that’s not the case anymore. He — He has gotten a lot better. He’s a lot better.” As of about 2006, she recalled, the hand tremors and short term memory issues ceased. And none of the injuries sustained in the car wreck had caused the father any difficulty in caring for T. Z. L., who was born in 2007.

When T. Z. L. was born, the father was 29 or 30 years old. Thereafter, the child’s paternal grandmother recalled, the father, the mother, and T. Z. L. had lived primarily with her. She testified that she had encouraged that living arrangement, elaborating that she had purchased a five-bedroom house so that all her children could live with her. While T. Z. L.’s mother and father were living with her, the paternal grandmother had witnessed verbal altercations between the two, but none were physical and none occurred in the presence of the child. She testified that T. Z. L. was close to his father and called him “Daddy,” that the father and child loved each other and enjoyed playing together, and that the two had bonded. She had never observed the father harm T. Z. L. Since T. Z. L.’s birth, the paternal grandmother had seen no evidence that the father was using drugs. She testified that he was no longer experiencing a problem with drugs or alcohol. She summarized, “I’ve seen nothing that [the father] has done to ever lose his son forever.”

After the father was most recently incarcerated, the mother moved out of the paternal grandmother’s residence in about December 2011 to live with her boyfriend, taking T. Z. L. with her. And at some point prior to the termination hearing, the paternal grandmother lost her five-bedroom house to foreclosure, after which she moved in with individuals for whom she was providing care. As of the time of the termination hearing, the paternal grandmother had been residing there for eight months. She testified that the residence had adequate room available for T. Z. L. and that she therefore had insisted that DFCS conduct a home evaluation. She testified that she cleaned homes to earn her income. Meanwhile, she was working to again become independent so that the father and T. Z. L. could live with her. The paternal grandmother was asked whether she had been “the source of [the father’s] support most of his life,” and she answered, “Most of it.”

The paternal grandmother testified that T. Z. L.’s father would be released from his incarceration in six to eight months. She described that her other son, the father’s 31-year-old brother, had established a residence where he lived alone; that upon his release, the father would live with that brother; and that the brother had already “lined up” a job for the father.

At the hearing, the father’s attorney submitted documentary evidence that the father had completed three courses in prison — life skills training, anger management, and setting boundaries.

The DFCS caseworker, who had been assigned the case in June 2012 and who had sought termination the following month, also testified. She had spoken with the father only twice because “it’s very hard for me to get in touch with him in the jail.” In June 2012, she informed the father that the mother had surrendered her parental rights to DFCS; and in July, she informed him that DFCS was pursuing the termination of his parental rights and that T. Z. L. would then be “free for adoption.” The DFCS caseworker testified that the father told her that he was going to enroll in a parenting class and asked DFCS to allow his mother to have custody of T. Z. L. while he was imprisoned. The father indicated that he could be released from jail in seven or eight months, but as the DFCS caseworker recalled, “he wanted to serve his whole time so that when he got out he would not be on [sic] kind of probation.”

The DFCS caseworker testified that the child’s paternal grandmother had repeatedly contacted her and had been “aggressive” in seeking custody of T. Z. L. She recounted that DFCS had initially refused to consider placing T. Z. L. with her, but that “[w]e have just done the home evaluation for [the paternal grandmother]” in October 2012. But as the DFCS caseworker had discerned, the paternal grandmother had neither income nor “a place to live. She’s living with these people that she — she’s a caretaker for.”

Meanwhile, the DFCS caseworker testified, the father had made efforts to maintain contact with T. Z. L. Since the child was placed in DFCS’s custody, the father had written him 20 to 25 letters, and sent him handmade pictures. The DFCS caseworker had read the letters and described them as “very nurturing” in a parent-to-child sense. When asked whether she knew of any evidence that the father had inflicted the injuries the child suffered in April 2012, she answered, “No. None at all.”

However, the DFCS caseworker identified as problematic that the father had not undergone the requisite drug assessment and had not met imposed housing and employment goals. Additionally, the DFCS caseworker reiterated, DFCS remained concerned about the father’s criminal history, history of drug use, and current incarceration. As she testified, “[J]ust from what I’ve read from the CCFA and his criminal history, he’s been in and out of jail a lot in his life and it — and I just — I’m concerned that when he does get out of jail, who’s to say that he’s going to do right and get his child back.” Furthermore, she explained:

I’m not even sure when Dad’s supposed to be discharged from prison, and we’re already at six months plus, so if he’s discharged in five or six months, then he has to work his, you know, case plan for at least six—I mean, we’re looking at two years down the road and this child’s too young to sit in foster care. . . . We need permanency as soon as we can.

The caseworker reported that T. Z. L. had been moved from his first foster care setting into another foster home. When asked whether it was “a foster home that is interested in possible adoption,” the caseworker answered, “Yes.” The child had been in that placement since late September 2012. Apsychologist who had conducted part of the court-ordered family assessment had observed interactions between T. Z. L. and those caretakers and testified that he seemed to have formed a bond with them. The caseworker reiterated that, if the juvenile court terminated the father’s parental rights, DFCS intended to place the child for adoption.

The guardian ad litem pointed out to the juvenile court that the deprivation petition had been filed in April 2012, that the father was already incarcerated at that time, and that “the [DFCS caseworker’s] testimony was that they believe the father will remain incarcerated, but you can’t be sure about that and there just hasn’t been enough time for him to complete his case plan yet.” The guardian ad litem urged the court to allow the father time and opportunity to complete a reunification case plan.

In an order entered December 12, 2012, the juvenile court terminated the father’s parental rights, relying on OCGA § 15-11-94. Under that Code section:

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability .... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest 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. . . .

The court determines “parental misconduct or inability” by finding that: (i) the child is deprived; (ii) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) such cause of deprivation is likely to continue or will not likely be remedied; and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Further, in determining whether the child is without “proper parental care and control, the court shall consider, without being limited to, the following:

(i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; [and] (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship [.]

And where, as here,

the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, 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 [.]

1. In considering the father’s challenge to the sufficiency of the evidence, “[t]his court views the evidence in the light most favorable to the juvenile court’s ruling to determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.”

In the termination order, the juvenile court recited that T. Z. L. had been adjudicated deprived because, as relating specifically to the father, “[he] was incarcerated and unable to care for the child. He was found to have a ten year history of abusing drugs and a lengthy criminal history.” Citing evidence adduced from the therapist, the court found that the father has an “unrehabilitated abuse of substances which have affected his ability to properly parent the child.” Citing the father’s criminal convictions, the court found that “the father’s repeated incarcerations have impacted his ability to properly parent and provide for the child.” The juvenile court determined that, due to the father’s history of incarcerations and drug use, the cause of the child’s deprivation in that regard was likely to continue and would not likely be remedied. Further, the court determined that the father had suffered a head injury “which has apparently rendered him unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” The court took into account that “[e] ven if the father is released in six to eight months, he would then have to establish ... stability in his life such as to render him fit to parent the child,” determining that “[t]he child should not be required to wait indefinitely for stability and permanency on the mere hope and possibility that this time the father will remain out of jail or prison and complete the requirements of his court-ordered plan so that he may be considered for a return of custody.” The court stated that its findings underlying its determination that the child was deprived and that the deprivation was likely to continue also supported its determination that “continued deprivation would likely cause the child serious harm.” Finally, the court determined:

This court entered a finding via supplemental order of the court, that it was contrary to the child’s best interest to reunite him with either parent and that termination of parental rights and adoption were in the child’s best interest. That order was not appealed and the parents are bound by its finding.

In this appeal, the father acknowledges that he was incarcerated throughout the pendency of this case before the juvenile court and that he was thus “incapable of assuming custody of his child. Therefore the finding of deprivation caused by the Appellant was warranted.” The father does not challenge the juvenile court’s findings that T. Z. L. was deprived or that his lack of proper parental care or control had caused the deprivation. The father does challenge, however, the sufficiency of the evidence to support these three requisite findings: (a) that the cause of deprivation was likely to continue or was not likely to be remedied; (b) that continued deprivation would cause or likely cause harm to the child; and (c) that termination of his parental rights was in T. Z. L.’s best interest.

(a) We turn first to whether there was sufficient evidence to support the juvenile court’s finding that the deprivation was likely to continue and would not likely be remedied. DFCS counters, “It is doubtful that Appellant can provide or maintain a stable home life for T. Z. L. which the juvenile court recognized. He has been incarcerated over half of his adult life, has worked very little, and has rarely lived independently.” But evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his child. “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 also true that “[tjermination of parental rights is a remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” As to that requisite factor, the evidence fell short.

As the father correctly points out, a parent’s incarceration does not always compel the termination of parental rights, but it can support a termination where sufficient aggravating circumstances are present. One such factor that may be considered is “whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive and parental manner.” Here, the juvenile court banned visitation between T. Z. L. and the father; yet, the father communicated with T. Z. L. by writing him 20 to 25 letters and sending him small gifts. The DFCS caseworker testified that the letters were “very nurturing” in a parent-to-child sense.

Another aggravating factor that may be considered is the parent’s “failure to comply with goals in a reunification plan.” OCGA § 15-11-94 (b) (4) (C) expressly contemplates that where, as here, the child is not in the custody of the parent who is the subject of the proceedings, a court-ordered plan be “designed to reunite the child with the parent.” Further, “the time limitation in OCGA § 15-11-94 (b) (4) (C) (iii) is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order.” But here, the only case plan formulated by DFCS, which plan was subsequently incorporated into a court order, was for non-reunification. And although that court-ordered case plan for non-reunification purported to include goals that would lead to the father being reunited with T. Z. L., many of those goals were not achievable given the father’s incarceration.

For example, less than three months after T. Z. L. was placed in its custody, DFCS filed the termination petition. At the termination hearing, the DFCS caseworker conceded that the three-month window had not afforded the father adequate opportunity to complete the expected goal concerning an anticipated drug assessment followed by a likely 12-week substance abuse program. What is more, the juvenile court’s order included additional goals that could not be met while the father was incarcerated ■— e.g., “obtain/maintain stable income sufficient to meet the needs of the family” and “obtain/maintain stable housing with sufficient space to meet the needs of the family.” Without question, the guardian ad litem’s concerns and opinion expressed at the termination hearing find substantial support in the record.

“Aggravating circumstances may also include ‘a history of incarcerations for repeated criminal offenses and a determination that it is likely such criminal activity will continue upon release.’ ” For example, “repeated incarceration preventing one from caring for a child indicates a likelihood of continued deprivation.” Here, DFCS adduced evidence of the father’s four convictions. Two of the crimes were committed years before T. Z. L. was born; neither those two nor the third conviction (in 2011) involved a lengthy period of confinement. The father was convicted a fourth time (receiving a four-year sentence in January 2012). “Although the [juvenile] court made a finding that the deprivation would continue due to the father’s current incarceration, it did not find it likely that the father would engage in criminal activity upon his release.”

In terminating the father’s parental rights, the juvenile court took into account that the father would “remain incarcerated at least six to eight months more,” and the court reasoned that, once released, the father would then have to establish “stability in his life such as to render him fit to parent the child,” during which time the child would potentially remain in foster care. “But this is not a case where the father’s release date is many years away.” Moreover, there was testimony that T. Z. L. was doing well in foster care. There was no evidence, however, that any foster parent stood ready and willing to adopt him.

In its termination order, the juvenile court also found that “[t]he father suffered a head injury several years ago which has apparently rendered him unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” In so finding, the court cited OCGA § 15-11-94 (b) (4) (B) (i), but that Code provision expressly contemplates a “medically verifiable deficiency’ of the parent’s physical, mental, or emotional health of such duration or nature as to “render the parent unable to provide adequately’ for the child’s needs. The juvenile court relied on the therapist’s testimony, but that witness merely relayed that the father had mentioned during their interview that, years earlier, he had been in a serious automobile accident. Neither the therapist’s nor any other witness’s testimony, or any evidence of record, amounted to a “competent opinion as to the [father’s] mental health or how a deficiency therein affected [his] ability to care for [T. Z. L.].”

In In the Interest of J. D. F., we reversed the termination of a father’s parental rights where the evidence was insufficient to establish that the past deprivation was likely to continue. In that case, the children were adjudicated deprived in 2003, at a time when the father was incarcerated. Goals for the father imposed by a court-ordered case plan included maintaining a source of income for the children, maintaining appropriate housing, completing a drug and alcohol treatment program, and attending parenting classes. The juvenile court banned visitation between the father and the children. In 2004, a citizen review panel recommended that the father’s rights be terminated, as he remained incarcerated. Later that year, DFCS petitioned for termination of the father’s parental rights.

In that case, a termination hearing was held in March 2005. Evidence showed that the father, who was still incarcerated, had meanwhile sent the children over 40 letters, as well as other small gifts. According to a DFCS caseworker, the letters showed that the father’s ability to communicate with the children was “beyond above average.” Further, the DFCS caseworker acknowledged that it was difficult for the father to complete the case plan in prison and that she did not know what classes were offered in prison that might have met the requirements set forth in the plan. Notwithstanding, the father submitted documentation at the hearing that he had completed several classes available to him in prison and that he was then enrolled in a family violence class, which he understood was similar to a parenting skills class. Evidence showed that the father was scheduled to be released in December 2006.Although the father had two prior convictions, they were before his children were born and did not involve lengthy periods of incarceration; moreover, the juvenile court did not find it likely that the father would engage in criminal activity upon his release. DFCS focused on the fact that the father was still incarcerated and that it would take time for him to complete a case plan once he was released, during which time the children would remain in foster care. There was evidence that the children were doing well in foster care; there was no evidence, however, that the foster parents were ready or willing to adopt the children. Under those circumstances, we concluded that there was not clear and convincing evidence that the children’s deprivation by the father was likely to continue, “[a]bsent aggravating circumstances, and given the father’s efforts while incarcerated to complete a case plan clearly not designed for him and his scheduled release date of December 2006.”

“Although we are reluctant to reverse a trial court’s determination, 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.” Here, we conclude that there was not clear and convincing evidence that deprivation by T. Z. L.’s father was likely to continue. Termination of his parental rights was therefore error, and the judgment is reversed.

In view of the foregoing, we vacate the June 5, 2012 “Supplemental Order Incorporating a Case Plan,” which plan was for non-reunification and required the father to meet goals he plainly could not achieve while incarcerated. This case is remanded “for the establishment of a reunification plan for the father, subject to whatever disposition is warranted by future events and those occurring since the termination hearing.”

(b) As set forth above, the father challenges also the sufficiency of the evidence to support the requisite findings that continued deprivation would cause or likely cause harm to the child and that termination of his parental rights was in T. Z. L.’s best interest.

Because [DFCS] failed to carry its burden of proving by clear and convincing evidence that the [child’s] deprivation stemming from the father’s misconduct or inability [was] likely to continue, we do not reach the issue of whether continued deprivation is likely to harm the child [ ]. Similarly, it is premature to consider whether termination of parental rights was in the [child’s] best interests.

Therefore, we vacate the August 21, 2012 “Supplemental Order Following Citizen Panel Review and Permanency Hearing Order,” wherein the juvenile court stated that neither parent had attended the panel review meeting, then ruled, “[u]pon review of the recommendations of the [Citizen] Panel,” that “adoption” (as opposed to “reunification”) was in the best interest of the child and was the “Permanency plan.” As shown on the face of the termination order, the juvenile court concluded that the father was bound by those determinations for purposes of terminating his parental rights under OCGA § 15-11-94 — even though those findings were made before any termination hearing took place.

Decided November 21, 2013.

The recommendations of a “citizens review panel” can be afforded no legal weight by the trial court as a substitute for the court’s own findings of fact in compliance with OCGA § 15-ll-[94]. The citizen’s review panel’s findings of fact and recommendations are not legal evidence as the panel is not a court of record and its actions are not necessarily in compliance with regard to legal due process considerations. The court of record in these cases is the juvenile court, and its findings must be based on legal evidence and constitutional considerations.

“[A] juvenile court is required in termination proceedings to follow strictly the provisions of [OCGA § 15-11-94] and to make the determinations therein required. In reaching its determinations a juvenile court must be protective of the constitutional rights of both parent and child.” “Due process under the Fourteenth Amendment requires that ‘before a state may sever the rights of a parent in his natural child, the state must support its allegations of the parent’s unfitness by at least clear and convincing evidence.’ ”

2. Based on our rulings in Division l, we need not address the father’s remaining arguments concerning violation of his due process rights.

Judgment reversed and case remanded with direction.

Ellington, P. J., and Branch, J., concur.

Rodney Q. Quarles, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Cynthia N. Johnson, for appellee.

       See OCGA § 15-11-2 (8) (A) (defining “deprived child”).

       (Emphasis supplied.)

       Nothing in the record, before or after entry of this order, indicated that paternity or legitimation was an issue; nor do the parties on appeal argue that any paternity matter was at issue.

       See, however, Stills v. Johnson, 272 Ga. 645, 651-652 (3) (533 SE2d 695) (2000) (“An incarcerated parent’s claim that parole is a future possibility at which time he or she will be able to care for the child is based entirely on conjecture.”) (punctuation and footnote omitted); In the Interest of M. C. L., 251 Ga. App. 132, 134 (1) (a) (553 SE2d 647) (2001) (same).

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4).

       OCGA § 15-11-94 (b) (4) (B).

       OCGA § 15-11-94 (b) (4) (C).

        In the Interest of D. B., 306 Ga. App. 129 (701 SE2d 588) (2010) (footnote omitted).

       OCGA § 15-11-94 (b) (4) (A) (iii).

       OCGA § 15-11-94 (b) (4) (A) (iv).

       OCGA § 15-11-94 (a).

       (Emphasis supplied.)

        In the Interest of J. D. F., 277 Ga. App. 424, 427 (1) (626 SE2d 616) (2006) (citation and punctuation omitted).

        In the Interest of C. S., 319 Ga. App. 138, 145 (1) (735 SE2d 140) (2012).

        In the Interest of K. M., 240 Ga. App. 677, 680 (523 SE2d 640) (1999) (citation omitted; emphasis supplied).

        Stills, supra at 651 (3); see In the Interest of J. D. F., supra.

        Stills, supra (punctuation and footnote omitted); see In the Interest of J. D. F., supra at 427 (1); In the Interest of D. M. W., 266 Ga. App. 456, 459 (2) (597 SE2d 531) (2004).

        In the Interest of J. D. F., supra at 428 (1) (emphasis supplied); see In the Interest of D. M. W., supra at 459.

       OCGA § 15-11-94 (b) (4) (C) (iii) (emphasis supplied).

        In the Interest of B. N. A., 248 Ga. App. 406, 410 (1) (546 SE2d 819) (2001) (punctuation and footnote omitted).

       See generally id. at 410-411 (1) (expressing concern that juvenile court permanently terminated the father’s parental rights, where juvenile court disregarded DFCS’s failure to formulate case plan aimed at reunifying the father with the child).

        In the Interest of J. D. F., supra at 428, quoting Ire the Interest of M. C. L., supra at 134-135 0) (a).

       Ire the Interest of M. C. L., supra (punctuation and footnote omitted).

        In the Interest of J. D. F., supra. Compare, e.g., Ire the Interest ofM. C. L., supra (finding that a long history of incarceration, coupled with misconduct that continued even after DFCS took custody of the children, showed that the past conduct was likely to continue); Ire the Interest of J. E., 309 Ga. App. 51, 56-57 (1) (c) (711 SE2d 5) (2011) (finding evidence sufficient to show that deprivation was likely to continue, where parent never paid child support, never had stable housing or employment, and used cocaine every day in the months preceding the hearing).

       Compare In the Interest of J. D. F., supra at 425-429 (1) (reversing termination in case where, inter alia, father’s scheduled release date was three years after the children were placed in DFCS’s custody), with In the Interest ofD. M. W., supra at 460 (3) (affirming termination upon evidence, inter alia, that mother was incarcerated when the child was six months old and the child would be twelve years old upon her release) and In the Interest of A. T. H., 248 Ga. App. 570,573 (1) (547 SE2d299) (2001) (affirming termination upon evidence, inter alia, that parent was serving two life sentences and would not be eligible for parole until her two children, who had already been in foster care for most of their lives, were fourteen and fifteen years old).

       Cf. In the Interest of D. M. W., supra (foster parents stood ready to adopt child upon termination of his parents’ rights).

        In the Interest of A. M., 306 Ga. App. 358,362(5) (702 SE2d 686) (2010) (citation omitted); cf. In the Interest of J. S. B., 277 Ga. App. 660, 662 (2) (b) (i) (627 SE2d 402) (2006) (finding that medically verifiable mental deficiency rendered a mother unable to provide for her children’s needs, where mother was diagnosed with antisocial personality disorder, anger control problems, and mild mental retardation, where she consistently neglected to take medication prescribed to treat her mental health condition, and where as a result, she had difficulties understanding parenting concepts, as well as communicating with her children, and which circumstances led to mother’s inability to promptly seek medical treatment for one child’s broken leg).

       Supra.

       Id. at 429 (1).

       In December 2002, DFCS had opened a case on the family due to neglect and inadequate housing; during an announced home visit in April 2003, DFCS found the home dirty and roach-infested, and the mother’s whereabouts were unknown. Id. at 425.

       Id. at 424-425.

       Id. at 425-426 (1).

       Id. at 426 (1).

       Id.

       Id.

       Id.

       Id.

       Id. at 428 (1).

       Id.

       Id. at 426.

       Id.

       Id. at 428 (1).

       Id.

       Id.

       Id. at 429 (I).

        In the Interest of R. C. M., 284 Ga. App. 791, 800 (III) (3) (645 SE2d 363) (2007) (citations and punctuation omitted); see In the Interest of D. N. K., 282 Ga. App. 430, 431 (638 SE2d 861) (2006) (explaining that, because of the “high value society places on the integrity of the family unit[,] . .. [ojnly under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship”).

       See In the Interest of R. C. M., supra at 799-800 (III) (3) (concluding that there was not clear and convincing evidence that the deprivation caused by the father was likely to continue, where DFCS adopted a reunification plan for the father with goals which it knew the father could not achieve while incarcerated, the juvenile court repeatedly told the father to contact a caseworker after incarceration to begin work on the case plan, yet DFCS petitioned to terminate parental rights while the father was incarcerated, and the juvenile court severed the parent-child relationship based on father’s previous incarceration and his failure to achieve his reunification case plan goals within 45 days of freedom); In the Interest of J. D. F., supra at 427-429 (1); In the Interest of B. N. A., supra at 410-411 (1) (reversing termination of father’s parental rights, where father had no opportunity to comply with a reunification plan because DFCS never established a plan as court-ordered and only six months elapsed between time juvenile court entered its order requiring the plan and time of the termination hearing; father’s previous drug offense conviction, current criminal charges, and lack of greater initiative in reuniting himself with his child was not clear and convincing evidence that his lack of proper parental care or control was causing, and would continue to cause, his child’s deprivation); In the Interest of K. J., 226 Ga. App. 303, 305-306 (1), 307-308 (2) (486 SE2d 899) (1997) (reversing termination of mother’s parental rights where hearing was held less than four months after the mother was released from prison, although the reunification case plan relied upon by the court required the mother to obtain employment within six months of her release; and reversing termination of father’s parental rights where there was evidence that the father and child had a positive relationship, to the extent permitted by the father’s incarceration, and there was no evidence presented at the hearing that the child was likely to suffer serious harm absent a termination of parental rights).

       See In the Interest of R. C. M., supra; In the Interest of J. D. F., supra at 429 (1).

       See In the Interest of R. C. M., supra; In the Interest of B. N. A., supra.

        In the Interest of J. D. F., supra at 429 (1) (footnote omitted); see In the Interest of C. S., supra at 148 (1) and cits.; In the Interest of K. M., supra at 681.

       OCGA § 15-11-94 (b) (4) (A) (iv).

       OCGA § 15-11-94 (a).

        In the Interest of R. C. M., supra at 800 (III) (3) (citations omitted); see In the Interest of C. S., supra (“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.”).

       See, however, In the Interest of J. H., 273 Ga. App. 424, 426 (615 SE2d 231) (2005) (“Due process requires that, prior to the termination of his parental rights, the father receive notice and an opportunity to be heard.”) (punctuation and footnote omitted); see also In the Interest of B. R., 277 Ga. App. 833, 835-836, n. 2 (627 SE2d 879) (2006) (noting principle that, to take judicial notice of prior order, judge is required to announce on the record intention to do so and give parent an opportunity to be heard).

        In the Interest of M. L. P., 231 Ga. App. 223, 224 (498 SE2d 786) (1998) (citation omitted; emphasis in original). The case of In the Interest ofM. L.P. was decided under OCGA § 15-11-81, which statute was subsequently redesignated as the current OCGA § 15-11-94. See Ga. L. 2000, p. 20, § 1; In the Interest of J. R., 274 Ga. App. 653, 656 (1), n. 7 (618 SE2d 668) (2005).

        In the Interest of J. E. E., 228 Ga. App. 831, 835 (2) (493 SE2d 34) (1997) (citation omitted).

        In the Interest of B. N. A., supra at 407 (1), quoting Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (1989).

       Supra.

       See generally In the Interest of J. D. F., supra at 429 (2).