Elrod v. Hall County Dept. of Family and Children Services, 50493

• Decision Date: 09 October 1975
• Docket Number: No. 1,No. 50493,50493,1
• Citation: 220 S.E.2d 726,136 Ga.App. 251
• Parties: Jerry ELROD v. HALL COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES
• Court: Georgia Court of Appeals

Page 726

220 S.E.2d 726

136 Ga.App. 251

Jerry ELROD v. HALL COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES.

No. 50493.

Court of Appeals of Georgia, Division No. 1.

Oct. 9, 1975.

Rehearing Denied Oct. 22, 1975.

Ernest V. Harris, Gainesville, John L. Cromartie, Jr., Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Dorothy Y. Kirkley, Asst. Atty. Gen., Atlanta, William M. House, Gainesville, for appellee.

MARSHALL, Judge.

This appeal is from the order of the Juvenile Court of Hall County permanently terminating appellant's paternal rights. The natural mother voluntarily consented to a relinquishment of her maternal rights and is not a party to this appeal.

The facts show that appellant, Jerry Elrod, is the natural father of a five-year-old male child, Joey Elrod. Appellant was involved in two automobile accidents between 1966 and 1968. Both involved head injuries. As a combined result, appellant underwent confined medical treatment for a period of three or four years at the State Hospital in Milledgeville. While undergoing therapy at Milledgeville, he married a female patient in 1969. The minor child, whose interests are in question, was born of this marriage. Appellant was discharged from the hospital in 1971 and has not since been treated there as a patient. Shortly after the birth of their son, Joey, appellant's wife abandoned her family.

The transcript establishes appellant is forgetful of routine matters, has substantial lapses of memory, and his economic condition is most accurately described as unemployable. He draws a small social security pension based upon a total disability. Appellant concedes he is not capable of caring adequately for the child without assistance. Appellant has left the care and custody of the child from the time Joey was a few weeks old to one of two different homes, either with the boy's paternal grandmother in Atlanta, or with the boy's paternal step-grandfather in Yonah, Georgia. The majority of the child's custody seems to have been assumed by the paternal step-grandfather. The paternal grandmother is a woman of approximately 50 years of age, in reasonable health, whose husband is unemployed but drawing social security. The custody assumed by the paternal grandmother was with the approval and under the supervision of the Department of Family and Children Services. When Joey was about four, he went to live again with his paternal step-grandfather. The step-grandfather is a farmer actively engaged in farming activities on a daily basis whose wife was at the time of the transfer of custody in reasonable health. The transfer of custody was approved by the Department of Family and Children Services. Shortly afterward, because of his wife's illness and because of his farming obligations, the step-grandfather was not able to give adequate attention to the child. In effect, therefore, the child was abandoned to his own devices. As a result, and at the suggestion of the Department of Family and Children Services, appellant consented to the temporary placement of the child in a foster home under the supervision of that Department. There is evidence in the transcript that the child reacted very favorably to his new environment, including greater cleanliness, more successful toilet training, better manners, increased sociability, improved social inter-relationships, greater emotional stability and other tangible benefits. Apparently, because of these beneficial effects resulting from the foster home environment, the Department of Family and Children Services brought action to terminate permanently parental control with a view toward improved environment through adoption.

There is no evidence that either appellant or the grandparents with whom the child lived were morally unfit, or that they physically abused or mistreated Joey. There was some question whether the grandparents were economically able to provide support. It is uncontroverted that appellant had furnished little economic support and was unable himself to furnish food, lodging or supervision of his son, leaving these necessities to his mother and stepfather. The evidence indicates a substantial degree of neglect and economic and cultural deprivation. At trial, in spite of evidence of past conduct contravening their assertions, appellant and both sets of grandparents indicated a family interest and affection for Joey and expressed a desire to maintain a home for him and to resume custody and care of the child.

The trial court expressly found that appellant was unable personally to take care of his son; had not lived with the child for most of the child's lifetime, and had contributed little to Joey's financial support. He further found that appellant had not abandoned his son within contemplation of the Juvenile Code (Code Ann. § 24A-401(h)(3)). The trial court concluded that considering the minimal care provided by the grandparents, Joey was a 'deprived child' within the meaning of Code Ann. § 24A-401(h)(1), in that he was not given the necessary degree of parental care and control by his father, the appellant, to effectuate Joey's physical, mental and emotional health. He further found that the reasons and causes of this deprivation were likely to continue whether custody was returned to appellant, appellant's mother or stepfather. Held:

Presented for consideration by this court is an interpretation of the Juvenile Code (Ga.L.1971, pp. 709, 713; Code Ann. § 24A-101 et seq.), and more specifically with the meaning of 'deprived child' as used in §§ 24A-401(h)(1) and 24A-3201(a)(2). The Juvenile Code was enacted in 1971 by the Georgia legislature (Ga.L.1971, p. 709 et seq.), and, because of its newness, there is a paucity of judicial interpretation involving the definition of a 'deprived child' (Code Ann. § 24A-401(h)(1)), or the underlying basis for terminating parental rights because a child is a 'deprived child' and because conditions and causes of deprivation are likely to continue to the mental, moral or emotional harm of the child (Code Ann. § 24A-3201(a)(2)).

Some four appellate cases have touched upon the matter of permanent termination of parental rights because a child or children are deprived. In In re Levi, 131 Ga.App. 348, 206 S.E.2d 82, the mother of infant involved was a heroin addict, had frequently abandoned the child in the care of casual friends or strangers and had a substantial police record. The child was undernourished and had moved through numerous foster homes. This court concluded: 'The Act (Ga.L.1971, p. 709 et seq.) is to be liberally construed toward the protection of the child whose well-being is threatened. Code Ann. § 24A-101. Deprivation of love and nurture is equally as serious as mental or physical disability. Goldstein, Freud & Solnit,...