Levi, In re, 49110

• Decision Date: 15 March 1974
• Docket Number: No. 2,No. 49110,49110,2
• Citation: 131 Ga.App. 348,206 S.E.2d 82
• Parties: In re Susan LEVI
• Court: Georgia Court of Appeals

Page 82

206 S.E.2d 82

131 Ga.App. 348

In re Susan LEVI.

No. 49110.

Court of Appeals of Georgia, Division No. 2.

March 15, 1974.

Walter M. Henritze, Jr., Lucy S. McGough, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Timothy J. Sweeney, Dorothy Y. Kirkley, Asst. Attys. Gen., Atlanta, contra.

Syllabus Opinion by the Court

DEEN, Judge.

1. Code Ann. § 24A-3201(a) provides: 'The court by order may terminate the parental rights of a parent with respect to his child if: . . . (2) the child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.' On a petition brought by the Fulton County Department of Family and Children Services seeking termination of parental rights in order to pave the way for adoption of a 16-month-old infant, the juvenile court judge stated at the commencement of the hearing that the only area in which he granted such relief was when 'deprivation is due to physical impairment due to some physical retardation . . . and I don't know legally whether I can grant the order prayed for.' After hearing the evidence the judge also stated, 'As I understand the law, the question in issue in relation to the law is does the evidence sustain a finding that deprivation in this can be expected to continue, or will continue.' He then dismissed the petition with prejudice holding that 'as a matter of law the evidence is insufficient to justify a termination of all parental right.' From this it is obvious that the judge felt the quantum of evidence before him was insufficient as a matter of law to invoke any grounds for separation or any exercise of his discretion in the consideration of the child's welfare.

2. The mother of the infant whose parental rights are sought to be terminated testified freely at the hearing. From her, her probation officer, and case workers, it appeared that she came from a broken home and was raised in state institutions in Arizona and Ohio; she ran away from the latter at least once and from the former some 13 times; at the age of fourteen she left permanently. When four or five months pregnant she married a man she had met subsequent to the pregnancy but lived with him only 10 days. She was admitted to Grady Hospital for psychiatric care and diagnosed as having contracted hepatitis, vaginal disease and heroin addiction. The baby was born at Grady shortly thereafter, and was diagnosed as premature and suffering from symptoms of heroin withdrawal because of the prenatal condition of the mother. The mother was at this time about 15 years of age and admitted to having been on heroin for three years. She falsified her age and, according to her testimony at this hearing, falsified the name of the natural father; she now says the father is a man presently in a penitentiary in Florida, with whom she was arrested and charged with receiving stolen property. She left Grady Hospital soon after the birth without seeing the child. She came back after a period of time and took it away, stayed in some man's apartment for a week or so, left following a fight; engaged a friend as babysitter but did not return at the appointed time and the infant was eventually taken by ambulance to the hospital in an emergency condition.

A hearing was had before a referee following complaint by the Atlanta Police Department; the mother apparently persuaded the referee to return the baby (aged 7 weeks) but again left it with a male acquaintance that same evening and did not return for some time. She was also arrested and pleaded guilty to possession of heroin, and, representing herself as an adult by means of false identification, was given a three-year sentence to be probated at the end of eight months. On October 10, 1972, in a hearing to which she interposed no objections, the infant was adjudicated a deprived child and placed in agency custody for a minimum period of two years. It has since then been in four foster homes. Its present foster parents have had it for some six months and wish to adopt it. The foster father testified that when they took the child at ten months it weighed 13 pounds and could not hold a bottle; that at 16 months it weighs 23 pounds, is normal, walking, healthy, and learning to talk. At this point in the hearing the following colloquy took place: 'Mother: You said he didn't weigh but 13 pounds and couldn't hardly hold his bottle, did the doctor tell you why he was like that? A. I have got a letter from that doctor. Lack of stimulation during the first ten months of life. Q. What does that mean?'

After eight months the mother was released on probation and placed in Renewal House, apparently for guidance and/or drug abuse treatment. She immediately demanded to see the infant; on being told that this would be arranged but would take two weeks she quarreled with the county officer, left Renewal House, and made no further effort to see the baby or to report to the probation officer. When located she had been arrested on a charge of armed robbery and aggravated assault growing out of an incident apparently involving She also had an arrest in another city for prostitution. The probation officer testified that the mother denied the particular charge on which she was arrested but did admit drug thefts from...