In re A.R.A.S., A06A0331.

• Citation: 278 Ga. App. 608,629 S.E.2d 822
• Decision Date: 01 March 2006
• Docket Number: No. A06A0331.,A06A0331.
• Parties: In the Interest of A.R.A.S., a child.
• Court: Georgia Court of Appeals

278 Ga. App. 608

629 S.E.2d 822

In the Interest of A.R.A.S., a child.

No. A06A0331.

Court of Appeals of Georgia.

Reconsideration Dismissed March 23, 2006.

Reconsideration Dismissed March 31, 2006.

Decided March 1, 2006.

COPYRIGHT MATERIAL OMITTED

Michael S. Webb, Lawrenceville, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Charissa A. Ruel, Assistant Attorney General, Cynthia N. Johnson, Cohutta, for the appellee.

ELLINGTON, Judge.

The Juvenile Court of Murray County terminated the parental rights of the mother and legal father of five-year-old A.R.A.S. The child's mother appeals, contending the trial court erred in permitting the petitioner to call her as an adverse witness pursuant to OCGA § 24-9-81 and challenging the sufficiency of the evidence. Finding no error, we affirm.

1. The mother contends that, by permitting the petitioner to call her as an adverse witness, subject to cross-examination, the trial court deprived her of due process in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section I, Paragraph I of the Constitution of the State of Georgia. The mother also argues in terms of constitutional liberty and privacy interests. Although the mother objected at trial to being called as an adverse witness, the transcript shows that the constitutional challenges were not clearly raised in the trial court and distinctly ruled upon;¹ accordingly, we need not transfer this case to the Supreme Court of Georgia, and we do not address the mother's constitutional arguments here. Senase v. State, 258 Ga. 592, 372 S.E.2d 813 (1988); In the Interest of A.A., 253 Ga.App. 858, 862(3), 560 S.E.2d 763 (2002).

We note that OCGA § 24-9-81 explicitly authorizes litigants in all civil cases to call their opponents for cross-examination,² as the mother concedes. It is well settled that parental termination actions are civil cases under Georgia law. In the Interest of A.M.R., 230 Ga.App. 133 136(2), 495 S.E.2d 615 (1998). See also Quire v. Clayton County Dept. of Family etc., Svcs., 242 Ga. 85, 87, 249 S.E.2d 538 (1978) (termination of parental rights does not fall in "the quasi-criminal area"); In the Interest of A.H.P., 232 Ga. App. 330, 334(2), 500 S.E.2d 418 (1998) (termination of parental rights is "more civil in nature than criminal") (citations and punctuation omitted). Furthermore, a child's parent is deemed a "party" to proceedings involving her child. Sanchez v. Walker County Dept. of Family etc. Svcs., 237 Ga. 406, 410-411, 229 S.E.2d 66 (1976). Thus, on its face OCGA § 24-9-81 applies to termination cases.

Despite the plain terms of the Code section, however, the mother argues that in a case to terminate parental rights the petitioner should not be permitted to call a parent to testify on cross-examination until the petitioner first shows clear and convincing evidence of parental misconduct or inability through the testimony of other witnesses. As we have often observed, "no judicial determination has more drastic significance than permanently severing a parent-child relationship." (Citation and punctuation omitted.) In the Interest of T.P., 270 Ga.App. 700, 707(4), 608 S.E.2d 43 (2004).

The United States Supreme Court has held that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment and that state intervention to terminate the relationship between a parent and child must consequently be accompanied by procedures meeting the requisites of the due-process clause.

(Citations omitted.) In the Interest of M.S., 178 Ga.App. 380, 381, 343 S.E.2d 152 (1986). As a result, trial courts apply a heightened standard of proof, the clear and convincing evidence standard, and a parent facing termination of parental rights is afforded some of the protections to which criminal defendants are entitled. OCGA § 15-11-94; In the Interest of A.H.P., 232 Ga.App. at 334, 500 S.E.2d 418 (1998). For example, a parent has a right to confront the witnesses on whose testimony the petitioner's case is based. In the Interest of B.G., 225 Ga.App. 492, 493(1), 484 S.E.2d 293 (1997); In the Interest of M.S., 178 Ga.App. at 381, 343 S.E.2d 152; OCGA § 15-11-7(a). In addition, an indigent parent has a statutory right to effective legal representation. In the Interest of A.H.P., 232 Ga.App. at 334(2), 500 S.E.2d 418; OCGA § 15-11-98(b). But "[n]o state or federal constitutional right to counsel is involved because a parental termination action is a civil matter, not a criminal proceeding." (Citations omitted.) In the Interest of A.M.R., 230 Ga.App. at 136(2), 495 S.E.2d 615.

One result of this classification as a civil proceeding is that, if a parent is called as a witness in a termination proceeding and that parent refuses to testify, even to avoid self-incrimination in a pending criminal proceeding, the trial court is authorized to draw a negative inference from the parent's silence and may infer that the parent's truthful testimony would help the petitioner's case. In the Interest of M.V., 253 Ga.App. 669, 671-672, 560 S.E.2d 125 (2002). See also In the Interest of S.B., 242 Ga.App. 184, 186-187(1), 528 S.E.2d 278 (2000) (negative inference drawn from mother's refusal to testify in a deprivation case). It follows that a parent in a termination case does not share a criminal defendant's right not to be cross-examined unless and until the defendant opts, after the prosecution's case-in-chief, to exercise his right to testify in his own behalf. See Jack Goger, Daniel's Georgia Criminal Trial Practice, § 21-3 (2006 ed.).

It is fundamental that matters of public policy are entrusted to the General Assembly, not this Court;³ we consider only whether the juvenile court committed an error of law in allowing the Department to call the mother for purposes of cross-examination. Finding no authority to exempt termination proceedings from OCGA § 24-9-81, we can only conclude that the trial court ruled correctly.

2. The mother contends the juvenile court's findings that the child's deprivation was due to parental misconduct or inability that was likely to continue and that termination of her parental rights was in the best interest of the child were not supported by clear and convincing evidence.

On appeal, we must determine whether, after reviewing the evidence in a light most favorable to the lower court's judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather we defer to the trial court's fact-finding and affirm unless the appellate standard is not met.

(Citation omitted.) In the Interest of C.R.G., 272 Ga.App. 161, 161-162, 611 S.E.2d 784 (2005).

The Georgia Code sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines "whether there is present clear and convincing evidence of parental misconduct or inability." OCGA § 15-11-94(a). Four factors must be present to establish parental misconduct or inability: (1) the child must be deprived; (2) the lack of proper parental care or control by the parent in question must cause the deprivation; (3) the cause of the deprivation must be likely to continue; and (4) continued deprivation must be likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-94(b)(4)(A)(i)-(iv). If the trial court finds that these four factors exist, then the court determines whether termination of parental rights is in the best interest of the child, "after considering the physical, mental, emotional, and moral condition and needs of the child . . . . including the need for a secure and stable home." OCGA § 15-11-94(a).

Viewed in the light most favorable to the juvenile court's judgment, the record shows that, when the child was barely one month old, the mother ended her relationship with the child's father, who had abused and threatened her, and essentially abandoned the child to the care of friends. A year later, the mother demanded the child be returned to her and sought help from law enforcement. The Georgia Department of Human Resources, by and through the Murray County Department of Family and Children Services, asked for custody to ensure the child's protection, and the child was placed in foster care on April 23, 2001. The friend who had been caring for the child filed a private deprivation action. Although the juvenile court declined to adjudicate the child deprived and dismissed the complaint, the court continued temporary custody; the child remained in foster care for the following year. The mother agreed to a reunification case plan, which required her, inter alia, to maintain contact with the Department and submit to drug screens. When the Department first asked her to take a drug screen, however, she "disappeared" and did not see the child again, or have any contact with the Department or the child's guardians, for three years. At the hearing on the termination petition, the mother explained her three-year absence from the child's life by saying that her abusive, drug-dealing boyfriend kept her in hiding and on the move.

In April 2002, the court awarded legal custody to the child's maternal great-aunt. Six months later, the Department discovered that the legal guardian had given the child to the child's father without court approval and that the father was subsequently incarcerated. On October 17, 2002, the juvenile court adjudicated the child deprived. The initial deprivation finding was repeated in orders entered December 19, 2002, October 23, 2003, February 17, 2005, and April 21, 2005, which continued custody with the Department. The mother did not appeal these orders and is thus bound by the deprivation determination. In the Interest of A.C.O., 269...