J.L.M., In Interest of
| Decision Date | 22 April 1992 |
| Docket Number | No. A92A0001,A92A0001 |
| Parties | In the Interest of J.L.M. et al., children. |
| Court | Georgia Court of Appeals |
Cowen & Cowen, Martin L. Cowen III, Jonesboro, for appellant.
Michael J. Bowers, Atty. Gen., Margot M. Cairnes, Staff Atty., Atlanta, Stephen F. White, Robert L. Ferguson, Jonesboro, for appellee.
The father of J.L.M. and M.A.M. appeals from the decision of the Juvenile Court of Clayton County terminating his parental rights as to J.L.M., his seven-year-old son, and M.A.M., his six-year-old daughter.
1. In two enumerations appellant contends the juvenile court erred by terminating his parental rights because the evidence did not support the court's finding that the children were deprived. Appellant is incarcerated in the state penal system where he is serving two life sentences imposed after he pleaded guilty to the murder of his estranged wife (the mother of J.L.M. and M.A.M.) and her male companion, and he is eligible for parole in 1997. The termination proceedings were instigated by Sally Weaver, the children's maternal aunt, who was appointed their temporary guardian after appellant's arrest. The evidence adduced at the hearing established that on March 24, 1990, appellant took a gun from his father's truck, broke into his wife's apartment in the middle of the night, and shot her and her male companion. The children were sleeping in the apartment when appellant entered. J.L.M. recalled hearing his mother's screams and finding her body after appellant left. The children remained alone in the apartment with the bodies until appellant's relatives contacted police the next morning. After his arrest, appellant consented to the temporary guardianship, and since that time M.A.M. has lived with Weaver and J.L.M. has resided with Jane Scott, the children's other maternal aunt.
Additional testimony established that prior to the murders appellant had a history of violent and abusive behavior toward his wife. On numerous occasions she sought shelter for herself and her children with relatives or the local battered women's shelter because appellant had beaten her or had left her without providing resources sufficient to enable her to feed and clothe the children. Bonnie McMillan, a caseworker from the battered women's shelter, testified that appellant's wife received Aid to Families with Dependent Children for several years because of appellant's failure to support the family. During the marriage, appellant was hospitalized several times for treatment of alcoholism. Jane Scott testified that she once saw appellant slap J.L.M. so hard that the boy was knocked to the ground. A clinical psychologist who was counselling the children testified that they had experienced nightmares, depression, sadness, and post-traumatic stress disorder as a result of the murder of their mother, although they were improving with therapy and the presence of a stable living situation. He also stated that the children had no desire to see their father or any member of his family and that they were afraid of their father because he killed their mother. The guardian ad litem recommended to the court that appellant's parental rights be terminated and that the children be placed in the custody of their maternal aunts.
Appellant testified that he wanted to care for his children, and that since he had been incarcerated he had attempted to communicate with the children and had asked Weaver and Scott to allow them to visit him, but that they refused to allow him any contact. He stated that he was planning to continue his schooling while in prison and that upon his release he intended to live with his parents and work in his father's sheet metal business.
In considering a petition for termination of parental rights, the court first must determine whether there exists clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81(a). Such misconduct or inability may be found if, inter alia, the child is found to be a deprived child as defined in OCGA § 15-11-2; this deprivation results from a lack of proper parental care or control; the lack of care or control is likely to continue or will not likely be remedied; and this continued deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81(b)(4)(A). A finding of unfitness must center on the parent alone, and must be based on clear and convincing evidence of present unfitness, not merely upon evidence of past unfitness. In the Interest of H.L.T., 164 Ga.App. 517, 520, 298 S.E.2d 33 (1982). Termination of parental rights is a severe measure authorized only under compelling circumstances when demonstrated by clear and...
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