McKinney v. Jennings

553 S.E.2d 344 (2001)

251 Ga. App. 18

McKINNEY v. JENNINGS.

No. A01A1199.

Court of Appeals of Georgia.

August 1, 2001.

*345 Mark R. Gaffney, Stone Mountain, for appellant.

Morris, Manning & Martin, Atlanta, Latina H. Bryan, for appellee.

MILLER, Judge.

Randy McKinney was incarcerated in a South Carolina prison when another man filed a petition and sought a hearing in a Georgia court to adopt McKinney's natural son. McKinney requested that the Georgia court make arrangements to have him transported to the hearing or to participate by telephone, which request the court denied. The question on appeal is whether due process requires that a court make arrangements to have a party, who is incarcerated in another state, transported to an adoption hearing or present telephonically. We answer this question in the negative and thus affirm the decree granting the adoption. While in jail in South Carolina for sexual offenses, McKinney was served with Alvin Jennings's petition, in which Jennings sought to adopt Brandon, McKinney's natural son. Following the grant of the petition, we vacated the judgment and remanded the matter to conduct a hearing with a 30-day advance notice in accordance with OCGA § 19-8-14.[1] The court gave the proper notice, whereupon McKinney moved the court to make arrangements for him to be transported to the hearing or for him to participate telephonically. The court denied that motion and held the hearing, at which McKinney was represented by counsel who submitted affidavits on his behalf. The court considered all evidence presented and, pursuant to OCGA § 19-8-10(b), granted the adoption petition, effectively terminating McKinney's parental rights. McKinney appeals, arguing that he was denied his Fourteenth Amendment due process rights when the court denied his motion to participate personally or telephonically.

Due process requires that, prior to the termination of his parental rights, McKinney receive notice and an opportunity to be heard.[2] McKinney does not contest that he received proper notice, but complains that his right to be heard was compromised by the refusal of the court to make arrangements to have him transported to the hearing or to have him participate by telephone.

We have repeatedly rejected this argument. "We know of no constitutional entitlement mandating the father's right to appear personally at the termination hearing."[3] Nor is there any authority that he should be allowed to participate by telephone.[4] Rather, he was invited to appear personally at the *346 hearing, and it was "[d]ue to his own inability to conform to the law [that] he was unable to avail himself of the opportunity to appear in person...."[5] The trial court has no obligation to make arrangements for an out-of-state prisoner to attend.[6]

Moreover, an imprisoned out-of-state parent has the opportunity to present testimony to the court by deposition or affidavit.[7] Here McKinney did just that, submitting two affidavits. As McKinney also had the opportunity to be heard through his counsel, who represented him at the hearing, we hold that his Fourteenth Amendment due process rights were not violated.[8]

Judgment affirmed.

ANDREWS, P.J., and ELDRIDGE, J., concur.

[1] McKinney v. Jennings, 246 Ga.App. 862, 863(2), 542 S.E.2d 580 (2000).

[2] In the Interest of C.C.E., 246 Ga.App. 584, 540 S.E.2d 704 (2000).

[3] (Citation and punctuation omitted.) Id. at 585, 540 S.E.2d 704; accord In the Interest of C.T., 247 Ga.App. 522, 525(2), 544 S.E.2d 203 (2001); In the Interest of F.L.S., 232 Ga.App. 100, 101, 502 S.E.2d 256 (1998); In the Interest of M.G.F., 222 Ga.App. 816, 818, 476 S.E.2d 100 (1996); see generally In the Interest of R.J.P., 222 Ga. App. 771, 772-773(3), 476 S.E.2d 268 (1996).

[4] C.T., supra, 247 Ga.App. at 525(2), 544 S.E.2d 203; see C.C.E., supra, 246 Ga.App. at 584-585, 540 S.E.2d 704.

[5] (citation and punctuation omitted.) C.C.E., supra, 246 Ga.App. at 585, 540 S.E.2d 704; see M.G.F., supra, 222 Ga.App. at 817, 476 S.E.2d 100.

[6] See R.J.P., supra, 222 Ga.App. at 773(3), 476 S.E.2d 268.

[7] C.C.E., supra, 246 Ga.App. at 585, 540 S.E.2d 704.

[8] See id. at 584-585, 540 S.E.2d 704.