Leyva v. Brooks, 55456

• Decision Date: 06 April 1978
• Docket Number: No. 2,No. 55456,55456,2
• Citation: 145 Ga.App. 619,244 S.E.2d 119
• Parties: Barbara K. C. LEYVA v. J. R. BROOKS, Jr., et al
• Court: Georgia Court of Appeals

Page 119

244 S.E.2d 119

145 Ga.App. 619

Barbara K. C. LEYVA v. J. R. BROOKS, Jr., et al.

No. 55456.

Court of Appeals of Georgia,Division No. 2.

April 6, 1978.

Eric B. Drewry, Columbus, Eve B. Biskind, Douglasville, John L. Cromartie, Jr., Atlanta, for appellant.

Howell, Johnson & Lanier, Glenn Howell, Fayetteville, for appellees.

WEBB, Judge.

Barbara Kay Christley Leyva, the natural mother of two minor children, appeals from an order of the Juvenile Court of Fayette County permanently terminating her parental rights and awarding temporary custody to the Fayette County Department of Children and Services.

At the hearing culminating in the termination order the following history of the case emerged. Mrs. Leyva, who is deaf and mute, first met the appellees, Mr. and Mrs. James Brooks in Daytona Beach, Florida in 1971. Mrs. Leyva was working for Mr. Brooks' step-father as a peddler, which is not an uncommon vocation for deaf-mutes, selling trinkets in public places. Mrs. Leyva at that time was married to Kelley Christley and the family residence was in North Carolina. When she returned from Florida she discovered that her husband had turned the children over to a welfare agency. She retained a lawyer, went to court and regained custody of the children. Because Christley not only had neglected the children but also had been abusing her, she came to Georgia in June of 1971 "to get a fast divorce." Peddling was the only gainful activity that she knew, and in order to keep her husband away from the children she made an agreement with the Brooks to provide child care for $25 a week while she worked.

Receipts introduced in evidence show that Mrs. Leyva paid a total of $831 over an eight-month period beginning June 14, 1971. That amount covered child care through the end of January 1972, although temporary custody of the children was awarded to the Brooks on January 12, thus ending her financial obligation. Mrs. Leyva testified that she stopped paying on the advice of friends with whom she was staying in Statesville, North Carolina. The Brooks did not ask for further financial help because they did not need it and they claimed not to "know where she was after that." ¹

Mrs. Leyva had retained an attorney to file her petition for divorce and child custody. Prior to the final hearing the Brooks engaged the same attorney to seek permanent custody of the children in their behalf. Despite the obvious conflict of interest ² he immediately began legal procedures necessary to irrevocably sever all ties of Mrs. Leyva to her children, and on October 4, 1971, the Juvenile Court of Fayette County issued a show cause order granting temporary custody to the Brooks and setting a date for a hearing on termination of Mrs. Leyva's parental rights.

Although Mrs. Leyva signed an acknowledgment of service it is clear from the evidence that she had absolutely no understanding of what she was doing. She did not read or write very well and characterized herself as "very green" and immature at the time. She did not know the difference between custody and adoption, the Brooks did not explain it to her, and she never agreed to let them adopt her children but only wanted to keep them away from Christley. She was urged, moreover, by her employer (James Brooks' stepfather), and by the Brooks, who were also present, to sign the acknowledgment and was told it would help keep her husband away.

Between January 1972 and April 1974 Mrs. Leyva was forced to travel extensively in order to support herself by peddling. She met Leonel Leyva, her present husband who is also deaf, in June, 1974, and they were married the following January 31. Two months later they escaped from their peddler boss and began setting up a life of their own.

In March, 1976, the Leyvas moved to Clarkston, Washington, where they now have a home for themselves and their three children, who are hearing and speaking. He is presently employed in a restaurant and learning to read and write. His employer states that Mr. Leyva, a Mexican alien who desires to become a U. S. citizen, is "one of the finest employees" he has ever had; that "his duties are varied and he does everything that is necessary very well"; that the other employees enjoy working with him "because of his efficiency, enthusiasm and his dynamic personality"; that he has made Mr. Leyva a permanent job offer; and that he has no trouble communicating with him and is now learning sign language. Many other friends and acquaintances submitted depositions speaking in glowing terms of the Leyvas' stable and happy home life, their love and care for their children and the adequate financial, educational and employment arrangements they have made in spite of all their handicaps. ³

Mrs. Leyva has become so skilled at budgeting her husband's salary that they had over $2,000 in a savings account, and are planning to add to their mobile home another bedroom for the Christley children. There is special equipment in the home to compensate for the Leyvas' deafness and Mrs. Leyva can use her voice to get her children's attention. She is teaching the oldest child sign language and he in turn communicates with the younger children both orally and in sign language. An interpreter comes to the home each week to facilitate the learning process.

In addition to the difficulty in maintaining contact with her children since 1972 because of her poverty, the distance, changing addresses and physical handicaps, the Brooks never encouraged such contacts or visits. Mr. Brooks told the children that if their mother came and got them, he "wouldn't know how she'd treat 'em or what she'd do to 'em, and all." He assured the children "nobody going to get 'em until the Court said so."

The court concluded from the above facts that while Mrs. Leyva did not legally abandon her children because an order of temporary custody had been issued, she did in fact abandon them "as she made only a few attempts in the first year to contact or see them and made no attempts after that until a petition for termination of parental rights was filed." It also found that the primary source of income for the family was Mr. Leyva, "a Mexican national, who does not have American citizenship, is of limited educational attainment, is unskilled and is earning a marginal living . . ."; that the Christley children have lived in a stable, well-balanced home environment and received all of their physical, material, educational and emotional needs for six years from the Brooks without support from their mother; and that to remove them from the Brooks to "an alien, unknown and probably unstable environment" was not in their best interest. Whereupon the court concluded that the children were deprived "and that the condition and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof, the children will probably suffer serious physical, mental or emotional harm."

1. We find no basis from the evidence appearing in this record to support...