Lanthripp v. Lang, 38809

• Decision Date: 28 April 1961
• Docket Number: No. 38809,No. 1,38809,1
• Citation: 120 S.E.2d 59,103 Ga.App. 602
• Parties: Sara J. LANTHRIPP v. T. P. LANG
• Court: Georgia Court of Appeals

Page 59

120 S.E.2d 59

103 Ga.App. 602

Sara J. LANTHRIPP v. T. P. LANG.

No. 38809.

Court of Appeals of Georgia, Division No. 1.

April 28, 1961.

Syllabus by the Court

It was reversible error for the trial judge, in an adversary proceeding to determine the custody of illegitimate minor children, to admit in evidence ex parte affidavits to show unfitness of the mother to regain custody, where she had previously consented to place the children as wards of the juvenile court and where the court's judgment was not based entirely on the mother's consent.

Appellant, Sara Jane Lanthripp, signed an agreement by consent on February 19, 1960, placing her three minor children as wards of the juvenile court, under Code § 24-2408. Judge Robert H. Humphrey, Judge of the Superior Court of the Middle Circuit, presiding as juvenile court judge under Code § 24-2403, placed said children in the temporary custody of appellee, T. Powell Lang. Appellant petitioned the court to regain the custody of her children on October 20, 1960, alleging facts tending to show her financial ability to support them. A hearing was set down on appellant's petition for November 19, 1960, but the matter was continued for final determination at a later date, and a hearing of the rule nisi on January 16, 1961, was held to determine whether appellant's rights of parenthood should be terminated as to her three children. Appellant objected immediately to four unsworn letters and two exparte affidavits which were offered into evidence by respondent, T. P. Lang, upon the ground that appellant's right to cross-examine and confront the signers of the letters and affidavits was denied. The court then entered a final judgment terminating the parental rights of appellant and transferring the custody of her children to respondent, and ordering him to place them for adoption. The court's judgment was silent as to the effect of the mother's written consent for the juvenile court to have custody of the children. Appellant's bill of exceptions assigns error on the court's judgment on the ground that it was based on inadmissible evidence to which proper objection was timely made.

Thomas A. Hutcheson, Sandersville, for plaintiff in error.

Walter C. McMillan, Jr., Sandersville, for defendant in error.

FELTON, Chief Judge.

Appellant's bill of exceptions raises the issue of whether the admission in evidence of ex parte affidavits in the final hearing of a proceeding to regain custody of her three illegitimate minor children was a denial of her right of cross-examination. Code § 38-1705 provides: 'The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him * * *' The issue before the court was the custody of these three children, and in order to determine this custody, it was considered necessary by the court to investigate the relative fitness of the parties. Code § 24-2412 provides: 'Prior to the hearing of a case of any child, the judge may cause an investigation of all the facts pertaining to the issue to be made. Such investigation shall consist of an examination of the parentage and surroundings of the child, his age, habits, and history, and shall include also an inquiry into the home conditions, habits and character of his parents or guardian * * *' This section would seem to grant some latitude to the trial judge in his investigation of the facts preparatory to making the final determination of custody. We do not feel, however, that this latitude, which the legislature has seen fit to allow the judge, can be used so as to abrogate the basic rules and safeguards of adversary judicial proceedings, and we must be careful in the construction of such statutes, where the intention is not clear, not to construe them as denying any rights guaranteed by our constitutional judicial system.

The general rule as to admission in evidence of ex parte affidavits is, that 'in the absence of an authorizing statute or rule of court, affidavits cannot be read or considered to prove material issues of fact, except where the objection is waived, or in purely administrative proceedings.' 2 C.J.S. Affidavits § 28. 'Ex parte affidavits are commonly regarded as weak evidence, to be received with caution, and not to be used where better evidence is obtainable.' 32 C.J.S. Evidence § 1032. 'Ex parte affidavits are inadmissible in the trial of habeas corpus cases involving the custody of minor children.' Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125, which specifically overrules the decisions in Robertson v. Heath, 132 Ga. 310, 64 S.E. 73; Porter v. McCalley, 146 Ga. 594(3), 91 S.E. 775, 93 S.E. 405; Landrum v. Landrum, 159 Ga. 324(1), 325, 125 S.E. 832, 38 A.L.R. 217, and Vincent v. Vincent, 181 Ga. 355(3), 182 S.E. 180, holding that such affidavits are admissible. 'It is an established rule of evidence in this State that, in a judicial trial in a court of law, where evidence is finally adjudicated and final judgments are rendered, ex parte affidavits are inadmissible, and their admission in such a case over proper objection constitutes reversible error.' Tamiami Trail Tours, Inc. v. Georgia Public Service Commission, 213 Ga. 418, 99 S.E.2d 225, 232, citing Camp v. Camp, supra.

Cases allowing certain reports in evidence can be distinguished from the case at bar. Where no attack was made in an adoption proceeding upon the constitutionality of the statutory provision (Code § 74-413) that the trial court consider the report of the Department of Public Welfare containing their investigation and recommendation in the case, such statute was presumed to be constitutional and binding and the trial court was held to have properly considered such report. Cox v. Bohannon, 86 Ga.App. 236, 71 S.E.2d 440. Since there was no constitutional attack made on Section 21 of the Juvenile Court Act (Ga.L.1951, pp. 291, 303; Code § 24-2420), which provides: 'The probation officer's investigation, along with other evidence submitted in court...