Banks v. Department of Human Resources, 53180
| Decision Date | 08 February 1977 |
| Docket Number | No. 53180,No. 3,53180,3 |
| Citation | 233 S.E.2d 449,141 Ga.App. 347 |
| Parties | Yvette BANKS v. DEPARTMENT OF HUMAN RESOURCES |
| Court | Georgia Court of Appeals |
Jones, Bird & Howell, Joseph W. Crooks, Atlanta, for appellant.
David U. Crosby, Decatur, Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Chief Deputy Atty. Gen., Daniel S. Reinhardt, Atlanta, for appellee.
Appellant raises two issues in this "deprived child" case: (1) whether the juvenile court judge should have disqualified himself because of certain comments he made during the hearing, and (2) whether the evidence was sufficient to show deprivation and that the deprivation would continue. Held :
1. The Department of Family and Children Services of Fulton County filed a petition for termination of appellant's parental rights pursuant to Code Ann. § 24A-3201(a)(2). A hearing was held and the department presented the testimony of caseworkers assigned to appellant's case. During the course of cross examination of a county caseworker, the juvenile court judge commented that based on the witness' testimony, it appeared to him that in the past the child's mother, appellant, had been given the opportunity to improve herself, obtain a job, pay for the child's support and establish a home for the child, but that she had not done so, nor made any effort to do so until the present termination petition was filed. The trial judge commented that such conduct would be considered wilful malfeasance of her duties as a mother toward the child, which could result in his issuing a bench warrant for her arrest and in her being criminally prosecuted. Following these comments, appellant's counsel moved for the judge to disqualify himself on the grounds of bias and prejudice, which motion he denied.
As of January, 1974, bias and prejudice became grounds for disqualification. See Code of Judicial Conduct, Canon 3C(1)(a), 231 Ga. A-1, A-5, which provides: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party." Previously, such was not a ground for judicial disqualification unless based upon either pecuniary interest or relationship to a party. See Code § 24-102; Jones v. State, 219 Ga. 848(1), 136 S.E.2d 358. In Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568, 571, the Supreme Court stated that under this Canon, "where bias or prejudice of a judge has been shown concerning a party, it is error for the judge to hear and decide the case."
There are few cases dealing with this ground of disqualification. In Nix v. State, 236 Ga. 110, 223 S.E.2d 81, the trial judge was alleged to be biased because he had previously heard the case on a guilty plea and because one of the defendants' witnesses had had unfavorable business dealings with a member of the judge's family. The Supreme Court held that such assertions were not "legally disqualifying" grounds under the Code of Judicial Conduct. See also Savage v. Savage, 238 Ga. 16, 230 S.E.2d 851, which evidences a liberal allowance of discretion by the trial judge on this asserted ground of disqualification. See also Clenney v. State, 229 Ga. 561(1), 192 S.E.2d 907, for pre-Code of Conduct attitude toward this ground of disqualification.
We find that the court did not err in refusing to disqualify itself. The trial court certainly exhibited disapproval of the appellant's conduct as shown by the evidence developed up to that point, and such comments, if made before a jury, would constitute an improper expression of opinion on the evidence. Code § 81-1104; Benefield v. Benefield, 224 Ga. 208(1), 160 S.E.2d 895. But any evidence heard by the trier of fact (the trial judge in this case) is bound to engender a certain reaction or attitude as to how the case will be decided, and this attitude may change as the evidence develops. As long as the trier of fact is not prejudiced by extraneous matters not in the evidence, and will decide the case only after all the evidence is heard and considered, then we find no harm in such a comment on the state of the evidence, when the judge sits as the trier of fact. The trial judge, in this case, explicitly stated that his mind was not closed on the subject and that he would hear the rest of the evidence (T. 56, 57, 58). There being no bias or prejudice, the court did not err in denying the motion to disqualify.
2. Appellant further contends that the evidence was insufficient to show deprivation and...
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Chancey v. Department of Human Resources
...DFCS, 154 Ga.App. 556, 269 S.E.2d 61 (1980). Accord Roberts v. State of Ga., 141 Ga.App. 268, 233 S.E.2d 224 (1977); Banks v. DHR, 141 Ga.App. 347, 233 S.E.2d 449 (1977); Powell v. DHR, 147 Ga.App. 251(1), 248 S.E.2d 553 (1978). In other cases, however, the court has insisted on evidence of......
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Madsen v. Prudential Federal Sav. and Loan Ass'n
...the evidence is heard, then disqualification is generally not warranted by a judge's comments. See Banks v. Department of Human Resources, 141 Ga.App. 347, 348-49, 233 S.E.2d 449, 450 (1977), overruled on other grounds, Chancey v. Department of Human Resources, 156 Ga.App. 338, 340, 274 S.E......
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A.M.S., In Interest of, A92A2102
...vested with a broad discretion which will not be controlled in the absence of manifest abuse. [Cit.]' " Banks v. Dept. of Human Resources, 141 Ga.App. 347, 350(2), 233 S.E.2d 449 (1977). Accordingly, we find that the juvenile court did not abuse its discretion in concluding that the termina......
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Childers v. Clayton County Dept. of Family & Children Services
...in the absence of manifest abuse. (Cit.)" In re Creech, 139 Ga.App. 210, 211, 228 S.E.2d 198, 199. See Banks v. Dept. of Human Resources, 141 Ga.App. 347, 233 S.E.2d 449. The evidence supports the juvenile court judge's findings of fact. See Murray v. Hall County Dept. of Family &c. Service......