Brown v. Fulton County Dept. of Family and Children Services, No. 51363

• Decision Date: 23 October 1975
• Docket Number: No. 51363,No. 3
• Citation: 220 S.E.2d 790,136 Ga.App. 308
• Parties: Christopher BROWN et al. v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES
• Court: Georgia Court of Appeals

Page 790

220 S.E.2d 790

136 Ga.App. 308

Christopher BROWN et al. v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES.

No. 51363.

Court of Appeals of Georgia, Division No. 3.

Oct. 23, 1975.

Hill, Jones & Farrington, E. Lundy Baety, Atlanta, for appellants.

Kennedy, Bussey, Sampson & Spalding, John J. Kennedy, C. Samuel Rael, Atlanta, for appellee.

DEEN, Presiding Judge.

1. The appellants, parents of the child, cite as error the court's refusal to dismiss the complaint as being without authority to hear and determine the issues. Code Ann. § 24A-1701(a) provides in part: 'After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than 10 days after the filing of the petition.' The petition here alleging the child to be 'deprived' was filed on April 30, 1975, but the hearing was not held until June 3, 1975, after an interval of time greater than the 10 days contemplated by the statute. We quite agree with appellants' contention that the language of Code Ann. § 24A-1701(a) is mandatory and that the time for the hearing must be set for a time not later than 10 days after the petition is filed. However, the record reveals that the hearing on this matter was originally set for May 8, 1975, and was continued at the request of the appellee because of the absence of a necessary witness, the child's attending physician. "All applications for continuances are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused as the ends of justice may require.' On numerous occasions the appellate courts have ruled that the discretion vested in the trial court in this respect will not be disturbed unless manifestly, flagrantly, or clearly abused.' Smith v. Davis, 121 Ga App. 704, 705 175 S.E.2d 28, 30. The hearing having been fixed for a time within 10 days from the filing of the petition and the court in its discretion having granted a continuance due to the absence of a material witness, we find Code Ann. § 24A-1701(a) to have been fully complied with and the Juvenile Court of Fulton County to have been within its authority to hear and determine the issues under this petition.

2. Appellants urge that appellee's petition should have been dismissed because a prima facie case of deprivation was not established. Code Ann. § 24A-401(h) provides in part: "Deprived child' means a child who: (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . . ..' Code Ann. § 24A--2201(c) requires that the evidence of deprivation be 'clear and convincing.' The thrust of appellants' argument is that there was no showing that the child was physically abused by them. What this argument fails to consider is that the comments to Code Ann. § 24A-401(h) made it clear that the definition of 'deprived child' focuses upon the needs of the child regardless of parental fault. The record reveals expert medical testimony that the child had a blackened left eye, bruises over her right eye, and numerous scars on her back, chest, stomach and legs. The testimony of appellants was somewhat conflicting and confusing as to how the child had received the injuries, though they did agree that no one other than themselves had the care and control of the child. In light of this evidence and the comment to the Code section we are compelled to conclude that there was a prima facie showing that the child suffered...