Cox v. Department of Human Resources, 56269
| Decision Date | 07 November 1978 |
| Docket Number | No. 56269,56269 |
| Citation | 250 S.E.2d 839,148 Ga.App. 43 |
| Parties | COX et al. v. DEPARTMENT OF HUMAN RESOURCES |
| Court | Georgia Court of Appeals |
Baer & Kirbo, J. Dan Baer, Jr., Jonesboro, for appellants.
Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty., Gen. Don A. Langham, First Asst. Atty. Gen., Michael J. Bowers, Senior Asst. Atty. Gen., J. Dunham McAllister, Jonesboro, for appellee.
The Coxes bring this appeal from an order terminating their parental rights with respect to their daughter.
1. In five enumerations of error, appellants contend that procedural defects in the conduct of the litigation which culminated in the order from which this appeal is taken, render the judgment void. Our review of the record and statutory and decisional authority convinces us that none of the asserted errors requires reversal.
A. Two enumerations of error are directed to the failure of the trial court to set hearings within the time limits provided in Code Ann. § 24A-1701(a). The record shows that appellants' factual assertions in that regard are correct: the trial court did fail to follow the mandate of the cited Code section. We do not, however, accept the result appellants insist must follow from the trial court's failure.
Citing Sanchez v. Walker County Dept. of Family etc., Services, 237 Ga. 406, 229 S.E.2d 66, appellants argue that the statutory requirements of Code Ann. § 24A-1701(a) are mandatory and noncompliance requires reversal. That case did hold that the time limits on setting hearings are mandatory, but the Supreme Court also approved of cases holding that the procedural requirements could be waived. Id., p. 408, 229 S.E.2d 66. In that case, they were waived by the appellant's action in agreeing on the day set for the original hearing to a continuance. Id., p. 409, 229 S.E.2d 66. In this case, appellants appeared at the first hearing with counsel and consented to an order placing temporary custody of their daughter in the appellee. We hold that appellants' appearance at and participation in the first hearing, without proper objection, constituted a waiver of the procedural defects enumerated as error on this appeal. Compare Crews v. Brantley County Dept. of Family etc., Services, 146 Ga.App. 408, 246 S.E.2d 426, where the parents, prior to the first hearing, filed a motion to dismiss based on procedural defects.
B. On the authority of J. B. H. v. State of Ga., 139 Ga.App. 199(2), 228 S.E.2d 189, appellants contend that the failure to perfect service on them in accordance with Code Ann. § 24A-1701(a) constitutes a fatal defect rendering all subsequent proceedings nugatory. J. B. H. involved a failure to perfect proper service on the child. This case, involving service on the parents, is controlled, as to this issue, by subsection (e) of Code Ann. § 24A-1701: "A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing." Appellants' voluntary appearance waived any deficiency of service.
C. Certain of the orders issued in the early stages of this litigation contained no findings of fact or conclusions of law. In W. R. G. v. State of Ga., 142 Ga.App. 81, 235 S.E.2d 43, this court held that a juvenile court, in ruling on deprivation petitions, must make findings of fact. See Code Ann. § 24A-2201(a). In that case, there were none, and this court remanded the case with direction that the trial court vacate its order and prepare proper findings of fact and conclusions of law.
There is, however, an essential distinction between that case and this one. There, the order complained of was an order denying a petition alleging deprivation. That order constituted a ruling on the petition. Here, the orders which appellants contend are inadequate were preliminary orders continuing the custody of appellants' daughter in the appellee pending further hearings and orders, and did not constitute rulings on the deprivation petition. We find such orders to be within the ambit of Code Ann. § 24A-2201(e): Accordingly, there was no error in the omission from the interlocutory orders in this case of findings of fact and conclusions of law.
D. Incorporating their arguments on the procedural issues discussed above, appellants contend that the judgment from which this appeal is taken is void because it is inextricably intertwined with earlier defective procedure in this case. The procedural arguments were presented to the trial court by means of a motion to dismiss. Although there appears in the record no order denying the motion to dismiss, it is clear from the transcript of the final hearing on the issue of deprivation that the court overruled the motion, holding that the various procedural errors committed in the early stages of the litigation had been waived or cured by subsequent proceedings. Since, as we have held, there is no basis for reversal in the procedural issues, we find to be without merit appellants' contention that the early errors render void the final judgment.
2. In arguing for reversal of the order terminating their parental rights, appellants contend that the state may not take a child from his parents, alienate the parent-child relationship, and then claim the shock of returning the child to the parents would be contrary to the best interest of the child. Based on the decision of Leyva v. Brooks, 145 Ga.App. 619(2), 244 S.E.2d 119, we agree with the proposition advanced by appellants. We do not agree, however, that the state has taken such a position in this case or that the trial court was influenced by any such consideration. Our review of the record reveals only one reference to potential harm to the child by returning her to her parents after an enforced absence. That reference was in the testimony of a witness for the state while being examined by the trial court. The remark was...
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Chancey v. Department of Human Resources
...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). A......
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