Brown v. Department of Human Resources, 60917

• Decision Date: 13 January 1981
• Docket Number: No. 60917,60917
• Citation: 157 Ga.App. 106,276 S.E.2d 155
• Parties: BROWN v. DEPARTMENT OF HUMAN RESOURCES.
• Court: Georgia Court of Appeals

Page 155

276 S.E.2d 155

157 Ga.App. 106

BROWN v. DEPARTMENT OF HUMAN RESOURCES.

No. 60917.

Court of Appeals of Georgia.

Jan. 13, 1981.

Certiorari Denied Feb. 25, 1981.

William L. Henderson, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Vivian Davidson Egan, Carol Atha Cosgrove, Asst. Attys. Gen., for appellee.

QUILLIAN, Chief Judge.

This is an appeal by a father of the termination of his parental rights.

In December 1974 Shirley Brown gave birth to twin girls fathered by appellant. It is not clear whether she and appellant were married. She had four older children by a marriage to another man named Brown. She lived with appellant intermittently while pregnant with the twins and until three months after they were born when appellant shot and killed her. As a result appellant was confined in the county jail and the twins placed in a foster home under the court-ordered custody of the county Department of Family and Children's Services (hereafter Department). Appellant remained in jail, was convicted of voluntary manslaughter and was sentenced to 15 years in prison. While in the county jail awaiting trial and appeal, at appellant's request a caseworker from the Department every 4 to 6 weeks took the twins to the jail to visit him for short periods. These visits continued until June 1976 and appellant had no contact with the twins thereafter although he remained in the local jail until November 1977. At the time of the hearing on the termination of appellant's parental rights in January 1980 appellant was an inmate of the state prison at Reidsville and was pending a parole hearing. He was paroled by April 1980. The juvenile court found that the children were deprived, without proper parental care, that the deprivation was likely to continue and result in serious harm if their custody was returned to appellant, and terminated appellant's parental rights. Held :

1. In enumerations 1, 3 and 4 it is claimed that the evidence is insufficient to support the termination of parental rights. While enumerations 3 and 4 also allege constitutional issues, the issues were not raised at the trial level and therefore cannot be considered for the first time on appeal. Cooper v. Ricketts, 135 Ga.App. 346(1), 217 S.E.2d 503.

Code Ann. § 24A-3201 (Ga.L.1971, pp. 709, 747 through 1977, pp. 181, 182) provides: "(a) 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 ..."

Termination of parental rights necessitates consideration of the " 'welfare of the child' test" and "some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or what is tantamount to physical or mental incapability to care for the child." Ray v. Dept. of Human Resources, 155 Ga.App. 81(2), 88, 270 S.E.2d 303. Accord, Chancey v. Dept. of Human Resources, 156 Ga.App. 338, 274 S.E.2d 728.

The following evidence supports termination. Appellant intentionally killed the mother when the twins were three months old, depriving them of their mother and causing them to be placed in foster homes in the custody of the Department. Appellant had minimal personal contacts with the children. He intermittently lived with them and the mother during the first three months of their lives and then had periodic brief visits with them in the jail until they were one and a half years old. Thereafter he had no contact with them of any nature. He did not communicate with the Department about them or send them gifts or in any way provide for their support although he was financially able to do so as the owner of rental property and of several thousand dollars in two bank accounts and had a friend who handled his affairs and disbursed money for him whenever he asked. Up to the time of the mother's death the twins lived with their mother and her other children in unclean homes in conditions of extreme poverty with the mother receiving welfare (Aid to Families with Dependent Children) although appellant was working at Lockheed where he had been employed for over 24 years. A psychologist who examined the twins and the director of the special education program the twins were attending testified that they were developmentally retarded children in need of special education who...