Chancey v. Department of Human Resources

• Decision Date: 06 November 1980
• Docket Number: No. 60508,60508
• Citation: 156 Ga.App. 338,274 S.E.2d 728
• Parties: CHANCEY v. DEPARTMENT OF HUMAN RESOURCES.
• Court: Georgia Court of Appeals

Page 728

274 S.E.2d 728

156 Ga.App. 338

CHANCEY v. DEPARTMENT OF HUMAN RESOURCES.

No. 60508.

Court of Appeals of Georgia.

Argued Sept. 4, 1980.

Decided Nov. 6, 1980.

Gina Bailey, Valdosta, Mary R. Carden, Gainesville, John L. Cromartie, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., Roger Dodd, Valdosta, for appellee.

BANKE, Judge.

This is an appeal by the mother of a two year old child from an order terminating her parental rights. The child has lived in foster care its entire life, the Department of Human Resources having applied for and obtained temporary custody less than a month after its premature birth. The application for temporary custody alleged that the child had "special needs" as a result of its premature birth and that the parents had "no suitable plans to insure that the child will receive the proper care and supervision necessary for its physical well-being." The trial court apparently transferred custody without ever holding a hearing on the application.

The petition for termination of parental rights, filed two years later, alleges that the child is deprived for the following reasons: "The mother and the father of the child have failed to support the minor child, since the date the child was placed in foster care. They have failed to maintain suitable housing and furnishings for the return of the child. They have failed to keep regular and full-time employment, but they have visited the child regularly. The mother remains immature and unable to care for the minor child. The father remains irresponsible to assist and support the mother in the care of the child, or provide for the child's needs. (D)espite continued efforts by the Department, the parents have failed to show any consistent degree of desire to raise the child and care for the child."

The only witnesses to testify at the hearing on the termination petition were the parents themselves, both of whom appeared without counsel and testified only under cross examination. The appellant stated that she had been only 14 years old when the child was born, that she had lived in various places since then, sometimes with the father and sometimes not, and that she and the father currently resided together in a motel. She further testified that she had not been employed since the child was born and that she had no prospects for future employment. The father testified that although he had been steadily employed as a pulpwood worker since the child's birth, he had made no contribution to its support other than to purchase clothes and other gifts on occasion. The evidence does not reveal whether or not the parents were married. The juvenile court terminated both their parental rights, and the mother has appealed, contending that the evidence was insufficient to support the termination order and that the court erred in failing to apprise her of her right to appointed counsel in accordance with Code Ann. § 24A-2001. Held:

1. There has been considerable conflict in our decisions over the past several years as to what constitutes proof that a child is "deprived" so as to authorize a termination of parental rights pursuant to Code Ann. § 24A-3201(a) (2) (Ga.L.1971, pp. 709, 747; as amended through Ga.L.1977, pp. 181, 182). Some decisions have held that termination is authorized whenever it appears to be in the child's best interests, regardless of whether the parent has been guilty of any misconduct with respect to the child. See Blair v. DFCS, 135 Ga.App. 312, 217 S.E.2d 457 (1975); Cox v. DHR, 148 Ga.App. 43(5), 250 S.E.2d 839 (1978); Hood v. DHR, 150 Ga.App. 219, 257 S.E.2d 340 (1979); Hainut v. Houston Co. 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 "profoundly detrimental and egregious parental misconduct." See R. C. N. v. State of Ga., 141 Ga.App. 490, 492, 233 S.E.2d 866 (1977); Leyva v. Brooks, 145 Ga.App. 619, 623-625, 244 S.E.2d 119 (1978); Madray v. DHR, 146 Ga.App. 762, 247 S.E.2d 579 (1978); Collins v. Martin, 154 Ga.App. 250, 267 S.E.2d 858 (1980); Patty v. DHR, 154 Ga.App. 455, 269 S.E.2d 30 (1980).

In yet a third, and by far the largest class of cases, the court has paid homage to the "welfare of the child" standard but has upheld termination of parental rights only in the face of evidence showing either gross misconduct or some physical or mental disability which would have authorized a finding that the parent was unfit. See In re Levi, 131 Ga.App. 348, 206 S.E.2d 82 (1974); Spence v. Levi, 133 Ga.App. 581, 211 S.E.2d 622 (1974); George v. Anderson, 135 Ga.App. 273, 217 S.E.2d 609 (1975); Moss v. Moss, 135 Ga.App. 401, 218 S.E.2d 93 (1975); Elrod v. Hall Co. DFCS, 136 Ga.App. 251, 220 S.E.2d 726 (1975); Brown v. Fulton County DFCS, 136 Ga.App. 308(2), 220 S.E.2d 790 (1975); Murray v. Hall County DFCS, 137 Ga.App. 291, 233 S.E.2d 486 (1976); In the Interest of K. C. O., 142 Ga.App. 216, 235 S.E.2d 602 (1977); Watkins v. DHR, 143 Ga.App. 208, 237 S.E.2d 696 (1977); In the Interest of A. A. G., 146 Ga.App. 534, 246 S.E.2d 739 (1978); Childers v. Clayton County DFCS, 147 Ga.App. 825, 250 S.E.2d 564 (1978); Roberson v. DHR, 148 Ga.App. 626, 252 S.E.2d 57 (1979); Wynn v. DHR, 149 Ga.App. 559, 254 S.E.2d 883 (1979); Avera v. Rainwater, 150 Ga.App. 39, 256 S.E.2d 648 (1979); Kilgore v. DHR, 151 Ga.App. 19, 258 S.E.2d 680 (1979); Cox v. DHR, 151 Ga.App. 257(3), 259 S.E.2d 664 (1979); Henderson v. DHR, 152 Ga.App. 74(2), 262 S.E.2d 241 (1979); Shover v. DHR, 155 Ga.App. 38, 270 S.E.2d 462 (1980); Gardner v. Lenon, 154 Ga.App. 748, 270 S.E.2d 36 (1980). Accord In the Interest of J. C., 242 Ga. 737(1, 2), 251 S.E.2d 299 (1978); In the Interest of M. A. C., 244 Ga. 645(5), 261 S.E.2d 590 (1979).

In the recent case of Ray v. DHR, 155 Ga.App. 81(2), 270 S.E.2d 303 (1980), the conflict between the two standards was confronted and resolved in favor of the unfitness requirement. Specifically, the court held that "it is not proper to consider the question of termination of parental rights based solely upon a 'welfare of the child' test, without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or by what is tantamount to physical or mental incapability to care for the child." Ray v. DHR, ...