                            FOURTH DIVISION
                              DILLARD, C. J.,
                        DOYLE, P. J., and MERCIER, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    February 7, 2019




In the Court of Appeals of Georgia
 A18A1927. WOODALL v. JOHNSON.                                                DO-070

      DOYLE, Presiding Judge.

      Beau Phillip Woodall (“the father”) appeals an order from the Superior Court

of Henry County granting James W. Johnson’s (“the stepfather”) stepparent petition

to adopt the father’s son, B. M. W., and terminating the father’s parental rights to the

child. The father argues that: (1) the superior court abused its discretion by denying

his motion to supplement the record; (2) the court erred by failing to set forth

sufficient facts to authorize termination of parental rights as required by former

OCGA §§ 19-8-19 and 19-8-181; (3) there was insufficient evidence to support the

      1
        We note that a new version of Article 1 of Chapter 8 of Title 19 (including
OCGA §§ 19-8-6, 19-8-10, 19-8-18, 19-8-19, and 19-8-26) with substantive changes
was enacted in 2018, with the changes effective September 1, 2018. See Ga. L. 2018,
p. 285, § 4-1; p. 474. Because the petition and judgment in this case predate the
enactment of the revised Code version, we apply the prior version in effect at the
termination of his parental rights under former OCGA § 19-8-10; and (4) the trial

court erred by failing to properly apply the clear and convincing evidence standard.

For the reasons that follow, we reverse.

      “On appeal from an order severing parental rights based on an adoption

petition, we view the evidence in the light most favorable to the trial court’s findings

and determine whether a rational trier of fact could have found by clear and

convincing evidence that the biological parent’s rights have been lost.”2

      B. M. W. was born on September 29, 2010, as issue of the marriage between

the father and Lauren Alicia Johnson (“the mother”). On January 7, 2013, the parents

divorced, and the superior court entered a final order requiring the father to pay $400

per month in child support and incorporating a parenting plan. On May 3, 2014, the

mother and the stepfather married.



time. See Nathans v. Diamond, 282 Ga. 804, 808-809 (654 SE2d 121) (2007) (“[T]the
rule is that laws that affect substantive rights may operate prospectively only.
Substantive law is that law which creates rights, duties, and obligations. Procedural
law is that law which prescribes the methods of enforcement of rights, duties, and
obligations.”) (punctuation omitted); Nathans v. Diamond, 235 Ga. 820, 821 (221
SE2d 813) (1976) (noting that “[a]doption is a right which did not exist at common
law [and is purely] statutory in nature”).
      2
       (Citations omitted.) Smallwood v. Davis, 292 Ga. App. 173 (1) (664 SE2d
254) (2008).

                                           2
      On September 10, 2015, the superior court entered an order finding the father

in contempt and requiring him: to pay $7,450 in back support and $562 for unpaid

medical expenses; to comply with a parenting schedule recommended by counselor

Pam McMichen; and to submit to a drug screen by July 24, 2015, with the caveat that

the father “shall have no visitation with [B. M. W.] until he has provided a clean . .

. drug test to the [mother].” McMichen’s parenting plan set forth a detailed schedule,

which included initial supervised visitation gradually working up to unsupervised

overnight visits twice a month after over a year. As a sub-set of the final part of the

schedule providing for overnight visits, the parenting plan provided, among other

things, that: “[s]hould problems arise,” the mother should notify her attorney or

McMichen and that “[s]hould problems occur during visits,” the mother could take

B. M. W. for counseling at her discretion; the father “shall participate in individual

counseling throughout the step down process; and “[t]he [father] shall attend

counseling at least once a week.”

      On January 25, 2017, the stepfather filed a petition for adoption, attaching

thereto the mother’s written consent pursuant to former OCGA § 19-8-26 (l). The

stepfather alleged that the written voluntary surrender of the father was not necessary

because the father,

                                          3
      for a period of one year or longer immediately prior to the filing of the
      petition for adoption, without justifiable cause ha[d] failed to
      communicate or make a bona fide attempt to communicate with that
      child in a meaningful, supportive parental matter [sic] and ha[d] further
      failed to provide care and support of the child as required by law or
      judicial decree as contemplated in OCGA § 19-8-10.


The father filed an objection to the adoption petition, alleging that he had “purged all

issues of contempt,” including paying all past due child support and obtaining the

drug test required in the September 2015 order and that he had “communicated or

reasonably attempted to communicate with the child within the past year.”

      At the August 2017 hearing, the mother testified that after the contempt order

was issued, the father regularly texted her to schedule visitation, but she denied his

requests because he had not provided proof of a clean drug screen. On April 5, 2017,

the father’s attorney wrote to the mother’s attorney, providing proof of the father’s

September 20, 2016 clean drug screen and requesting that the father begin the

graduated visitation schedule. The mother, however, continued to deny the father’s

repeated requests for visitation because “the drug screen took way longer than his

allotted time[,] and we still [had not] done the counseling sessions.” The mother




                                           4
testified that “[they] haven’t really spoken to [the father] since” the adoption petition

was filed, even though he called “every day pretty much. . . .”3

      The mother also testified that B. M. W. saw his paternal grandparents and had

a “good relationship with them,” and they passed along gifts to B. M. W. from the

father. According to the mother, the grandparents and the father attended B. M. W.’s

sporting events up until two years before the hearing. After the adoption petition was

filed, the mother “rejected” the grandparents’ requests to attend B. M. W.’s sporting

events because “they were very upset and angry[,] . . . and it’s not something I need

to bring around [B. M. W.] or myself. I was eight months pregnant at the time”; the

mother told the grandparents that she would take the child out of the game if they or

the father came to watch.

      At the hearing, the father testified that after he and the mother separated, he

spent a lot of time with B. M. W. The father concedes, however, that after the mother

started prohibiting his visitation, he wrongfully stopped paying child support. After

the contempt order, the paternal grandfather sold the family’s only vehicle so the

      3
        The mother testified that B. M. W. (who was six years old at the time of the
hearing) did not want to speak to the father, and she did not make him, explaining that
before the adoption petition was filed, the father told B. M. W. on a phone call: “I’m
sorry your mom won’t let me see you. And I’m going to see you real soon[,] and it’s
her fault.”

                                           5
father could pay the purge amount and avoid jail, and the father worked a second job

to repay him. The father, who is legally blind, worked in construction, making $10

per hour at the time of the contempt order. According to the father, he was initially

unable to pay the $275 for the drug test the court required because he was paying the

arrearage and continuing child support payments, and he had difficulty scheduling the

test because he frequently worked out of state. The father maintained that he did not

understand that his visitation with B. M. W. was conditioned upon him attending

counseling; he believed, until the day of the final hearing, that he could begin

visitation as soon as he obtained a clean drug screen and that he would undergo

family and/or individual counseling when and if the counselor required it.

Nevertheless, he attempted to schedule counseling but was only offered Wednesday

appointments, which he could not attend because of work. The father also testified

that he called the mother’s phone regularly to speak with B. M. W., but he was only

able to speak with him once or twice in the three years before the hearing.4 The father




      4
        The father submitted screen shots from one of his phones showing what he
explained were 58 calls to the mother to speak to B. M. W., as well as texts to the
mother and logs of calls to her in 2016 and 2017. According to the father, the exhibits
do not reflect all of his calls, many of which were made from different phones.

                                          6
denied ever telling B. M. W. that the mother was preventing them from seeing each

other.

         The paternal grandmother testified that she had visited with B. M. W., who said

that he loves the father, and she has passed along gifts to him from the father. Both

paternal grandparents witnessed the father’s repeated unsuccessful attempts to speak

with B. M. W. on the phone.

         Although the attorneys had difficulty determining the precise amounts, they

agreed at the final hearing that the father had been making regular monthly child

support payments since the petition was filed, but was still in arrears in the amount

of approximately $1,100.5

         On October 26, 2017, the superior court entered an “Order Granting Petition

for Adoption and Terminating Father’s Parental Rights.” Therein, the court made

factual findings, including that: on September 10, 2015, the father was ordered to

provide a clean drug screen and maintain counseling to resume visitation with B. M.

W.; he failed to obtain the drug screen until August 2016 or to undergo individual

counseling; his claims that he could not pay for the drug screen were “unpersuasive”

         5
        The father testified that he believed he was current on his child support, but
realized while discussing the matter with the attorneys in the case that “[his] math
may have been off on the original contempt order.”

                                            7
because he failed to ask to borrow money or to get a second job to pay for it; his

claim that he didn’t understand that the contempt order required him to obtain

counseling “is contrary to the plain reading of [the o]rder and equally unpersuasive”;

from July 21, 2015, through the date of the final hearing, the father had no visitation

with B. M. W.; and although the father “has had telephone contact with [B. M. W.,]

. . . the contact often resulted in the [f]ather making inappropriate comments to [B.

M. W.] and [the f]ather blaming the [m]other for his inability to see [B. M. W.].” The

trial court determined that the father’s telephone contact “has not been meaningful .

. . or supportive for [B. M. W.].” The court then concluded that “[s]urrender or

termination of the [f]ather’s rights were not required as a pre[]requisite to the filing

of this [p]etition because there is clear and convincing evidence that [B. M. W.] has

been abandoned by the [f]ather.” The court also found that the stepfather had been

providing for B. M. W.’s education, health, and welfare and had “developed a

meaningful and parental bond with [B. M. W.], and then concluded “[a]fter

considering the physical, mental, emotional[,] and moral condition and the needs of

[B. M. W.], [that] the granting of this [a]doption is in the best interest of the [c]hild.”

       1. The father contends that the trial court erred by terminating his parental

rights without his consent. We agree.

                                            8
      Former OCGA § 19-8-6 (a) (1) provides that a child whose legal parents are

living, but not married to each other, may be adopted by a stepparent only when the

other parent voluntarily surrenders his rights to the child and consents to the adoption.

Former OCGA § 19-8-10 (a) (1), however, provides that such surrender is not

required if

      the court determines by clear and convincing evidence that the . . .
      [c]hild has been abandoned by that parent . . . and the court is of the
      opinion that the adoption is in the best interests of that 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.


In the alternative, under former OCGA § 19-8-10 (b), a court may grant an adoption

without a parent surrender

      if that parent, for a period of one year or longer immediately prior to the
      filing of the petition for adoption, without justifiable cause, has
      significantly failed: (1) To communicate or to make a bona fide attempt
      to communicate with that child in a meaningful, supportive, parental
      manner; or (2) To provide for the care and support of that child as
      required by law or judicial decree, and the court is of the opinion that the
      adoption is for the best interests of that child.




                                           9
Regardless of which subsection a court applies, “[i]n all cases wherein [OCGA §]

19-8-10 is relied upon by any petitioner as a basis for the termination of parental

rights, the court shall include in the decree of adoption appropriate findings of fact

and conclusions of law relating to the applicability of [OCGA § ] 19-8-10.”6

      Here, the stepfather alleged that the written surrender of the father was not

necessary because the father had for a period of at least a year immediately before the

petition was filed, “without justifiable cause . . . failed to communicate or make a

bona fide attempt to communicate with [B. M. W.] in a meaningful, supportive

parental matter [sic] and has further failed to provide care and support of the child as

required by law or judicial decree as contemplated in OCGA § 19-8-10.” Although

the petition did not specify the subsection of the Code section upon which the

stepfather relied, the language he used precisely tracks that of former OCGA § 19-8-

10 (b).

      The superior court’s order likewise did not mention former OCGA § 19-8-10

specifically. But in the absence of the father’s voluntary surrender, that Code section

is the only possible basis for granting the adoption petition. As previously stated, the

trial court found that “there is clear and convincing evidence that the [c]hild had been

      6
          OCGA § 19-8-18 (b) (2017).

                                          10
abandoned by the [f]ather.” This language tracks subsection (a) of the Code section,

as does the trial court’s conclusion that granting the adoption was in B. M. W.’s best

interest “[a]fter considering the physical, mental, emotional[,] and moral condition

and the needs of [B. M. W.].”7 Thus, the trial court apparently determined that the

father had abandoned B. M. W. as referred to in former OCGA § 19-8-10 (a).

      (a) Former OCGA § 19-8-10 (a). The trial court erred by basing the adoption

on former OCGA § 19-8-10 (a).

      (i) First, the evidence does not support a finding of abandonment. “It is well

settled that adoption laws must be strictly construed in favor of natural parents.”8

Because the superior court based the adoption upon the legal conclusion that the

father had abandoned B. M. W., there must be in the record “clear and convincing

evidence of an “actual desertion, accompanied by an intention to sever entirely, as far

as possible to do so, the parental obligations growing out of the [parent/child




      7
         Former OCGA § 19-8-10 (b) requires that the court determine “that the
adoption is for the best interests of that child,” omitting any language about the
“physical, mental, emotional, and moral condition and needs of the child.” We note
that OCGA § 19-8-10 (b) (2018), effective September 1, 2018 (which does not apply
to this case), does include such language.
      8
          (Punctuation omitted.) Smallwood, 292 Ga. App. at 177 (2).

                                          11
relationship], and forego all parental duties and claims.”9 Here, the father paid child

support (albeit at times late and/or pursuant to the contempt order), ultimately

provided proof of a clean drug screen a year before the final hearing, sent gifts to B.

M. W. through the grandmother, requested through counsel to begin visitation, and

attempted to contact B. M. W. on an almost daily basis for the year preceding the final

hearing.

      The relevant undisputed evidence in this case, as recounted above, does
      not support a finding that the [father] ever acted, or failed to act, with
      the intention to sever entirely [his] parental obligations and claims to [B.
      M. W.] Thus, the trial court was not authorized to grant the adoption
      petition, pursuant to OCGA § 19-8-10 (a) (1), based upon a finding that
      the [father] had abandoned [B. M. W.]10


      (ii) Furthermore, the stepfather’s adoption petition neither referenced nor

tracked the language of former OCGA § 19-8-10 (a), and therefore, the father

      received no notification that [he] must be prepared to show cause why
      [his] parental rights should not be terminated pursuant to subsection (a).


      9
        (Punctuation omitted; emphasis in original.) In re Marks, 300 Ga. App. 239,
243 (1) (684 SE2d 364) (2009), quoting Hall v. Coleman, 264 Ga. App. 650, 653 (1)
(592 SE2d 120) (2003).
      10
        Marks, 300 Ga. App. at 243 (1). See also Griffith v. Brooks, 193 Ga. App.
762, 766 (1) (389 SE2d 246) (1989).

                                          12
      . . . By . . . basing its adoption decree on grounds that [the father] was
      never properly notified of, the trial court failed to strictly construe
      [former] OCGA § 19-8-10 in favor of [the father], and such an erroneous
      decree must be reversed.11


      (b) Former OCGA § 19-8-10 (b) (1). “To the extent that the trial court’s order

could be read to imply that the adoption was authorized under a separate provision,

[former] OCGA § 19-8-10 [(b) (1)], we find that there is insufficient clear and

convincing evidence to support such a conclusion.”12

      The adoption order did not include a specific finding that the father’s failure

to communicate with B. M. W. in a meaningful, supportive, parental manner was

“without justifiable cause” as required by former OCGA § 19-8-10 (b) (1). More

importantly, the evidence did not support such a finding. There was unrefuted

evidence that the father called the mother’s phone on an almost daily basis in an

attempt to speak with B. M. W., but his efforts were thwarted by the mother, who

neither required nor encouraged the child to speak to the father. The mother similarly




      11
           Smallwood, 292 Ga. at 177 (2).
      12
           (Emphasis omitted.) Marks, 300 Ga. App. at 246 (3).

                                            13
refused to allow the father to have visitation with the child.13 Thus, she “has failed to

demonstrate that the [father’s] failure to communicate with the child for the requisite

statutory period was without justifiable cause.”14

      Accordingly, the superior court erred by terminating the father’s parental rights

and granting the stepfather’s adoption petition over the father’s objection.

      2. Based on our holding in Division 1, we need not address the father’s

remaining enumerations.

      Judgment reversed. Dillard, C. J., and Mercier, J., concur.




      13
         To the extent that the trial court and/or the counselor intended to require that
the father undergo counseling before beginning visitation, that requirement was not
clearly stated in the September 2015 contempt order; instead, the provision of the
parenting plan addressing counseling was included in the section regarding
circumstances arising after overnight visitation began. Even assuming, however, that
the father was required to obtain counseling before beginning visitation, his failure
to do so did not prohibit him from having telephone contact with B. M. W., which he
repeatedly attempted to do, as conceded by the mother.
      14
           Id. at 244 (2) (a).

                                           14
