B.P., In Interest of

• Decision Date: 04 February 1993
• Docket Number: No. A92A2077,A92A2077
• Citation: 427 S.E.2d 593,207 Ga.App. 242
• Parties: In the Interest of B.P., et al., children.
• Court: Georgia Court of Appeals

Page 593

427 S.E.2d 593

207 Ga.App. 242

In the Interest of B.P., et al., children.

No. A92A2077.

Court of Appeals of Georgia.

Feb. 4, 1993.

Robert P. Crossett, Marietta, for appellant.

Michael J. Bowers, Atty. Gen., Margot M. Cairnes, Atlanta, Staff Atty., Douglas D. Middleton, James K. Knight, Jr., and Edwards, Friedewald & Grayson, Robert J. Grayson, Marietta, for appellee.

POPE, Chief Judge.

Appellant brings this appeal from an order of the Juvenile Court of Cobb County terminating her parental rights with respect to her two sons, B.P. and R.P. The juvenile court also terminated the parental rights of the children's fathers, but no appeal has been taken by either father from that portion of the juvenile court's order. In her sole enumeration of error on appeal, the mother contends the juvenile court's order was not authorized by the evidence presented during the hearing on the termination petition.

B.P. and R.P. were born March 8, 1989 and March 5, 1988 and were two and three years of age, respectively, at the time of the termination proceedings. The record shows the Department of Family & Children Services (DFACS) first became involved with the family in September 1989 and that the children were removed from the home in February 1990. The record further shows that while the children were in appellant's care her boyfriend, who lived in the home with appellant and the children, severely physically abused the children and appellant, who testified she was unaware of the abuse, and did nothing to protect her children from the abuse. Testimony was also presented that appellant failed to get prompt medical care for the children's injuries although she should have been aware they were in need of such care, and that she continued to live with the boyfriend after the children were removed from her custody because of the abuse. In March 1990, the juvenile court entered an order, which has never been appealed, finding the children to be deprived. The children were placed in the care of foster parents, and according to testimony presented at the hearing, they have made remarkable physical and emotional improvement during that time.

In December 1990, appellant entered a plea of guilty but mentally retarded to charges of child cruelty and was sentenced to prison. Appellant was released from prison approximately one month prior to the termination hearing. Evidence was presented that the children have no bond with appellant, that during two visits with their mother while she was incarcerated the children treated her as a stranger, and that R.P. had "acted out" for two days after being told he was going to visit his mother. Testimony was also presented that both children had developed a parent-child relationship with their foster parents, who desired to adopt the children.

Although acknowledging her shortcomings as a parent, appellant testified she loved her children. Appellant further testified she had taken some courses in prison to help her learn to care for her children, that upon release from prison she found a job in a sock factory, and that her goal was to become self-sufficient (i.e., get her own apartment and car) and eventually regain custody of her children. She admits the children have not bonded with her, but asserts she has not been provided sufficient opportunity to visit with her children although she requested visitation on several occasions while she was incarcerated.

"The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81(a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. [Cit.] Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81(b)(4)(A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent's mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child's needs; conviction of a felony and imprisonment which has a demonstrable negative effect on the quality of the parent-child relation; [and] physical, mental or emotional neglect of the child. OCGA § 15-11-81(b)(4)(B)....

"The standard of appellate review where a parent's rights to his child have been severed is ' "whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost." ' Blackburn v. Blackburn, 249 Ga. 689, 694, 292 S.E.2d 821 (1982)." In the Interest of B.J.H., 194 Ga.App. 282, 390 S.E.2d 427 (1990). "The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met." In re B.D.C., 256 Ga. 511, 513, 350 S.E.2d 444 (1986).

As to the first criterion, no appeal was taken from the order of the juvenile court entered in March 1990 finding the children to be deprived and thus appellant is bound by that determination. See In the Interest of J.L.Y., 184 Ga.App. 254(1), 361 S.E.2d 246...