M. A. C., In Interest of
| Decision Date | 06 November 1979 |
| Docket Number | No. 35292,35292 |
| Citation | 261 S.E.2d 590,244 Ga. 645 |
| Parties | In the Interest of M. A. C. et al. |
| Court | Georgia Supreme Court |
Robert A. Izzo, Mary Margaret Oliver, Conyers, Roy M. Sobelson, Brunswick, Mary Carden, Jasper, John Cromartie, Jr., Atlanta, for appellant.
James A. Henderson, Lawrenceville, Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., for appellees.
In this case, the Juvenile Court of Rockdale County terminated the parental rights of the appellant, Kathryn Simms, to her two minor children, M. A. C. and V. L. C. The case is best presented by reviewing the facts giving rise to it, the course of the litigation below, and resolution of the issues presented on appeal.
The Rockdale County Department of Family & Children Services (DFCS) first had contact with the appellant in January of 1975, when she made application for state welfare payments for her two illegitimate minor children, M. A. C. and V. L. C. In February of 1975, the appellant married James Shaw and in December she gave birth to a girl, A. S. 1
In February of 1976, DFCS received a complaint against the appellant and her husband for possible child abuse and neglect. A case worker for DFCS, who made periodic visits to their home, discovered that their house was unsanitary to the point that maggots were found in the children's dirty diapers. The appellant admitted to severely beating M. A. C. to the point of bruising him. She also admitted to pulling M. A. C.'s hair out and injuring his head by hitting it against the bathtub faucet. In addition, she admitted that Mr. Shaw did "strange things" to the children specifically, that he would pass gas into a plastic drycleaning bag and put it over the children's head to punish them. There was also evidence that the appellant consorted with other men while her children were home and her husband was away.
In December of 1976, the appellant left James Shaw and went to Pennsylvania to live with another man. She voluntarily placed the children in foster care in Georgia. Nothing was heard from her for several months. Then, in March of 1977, she contacted DFCS and indicated that she wanted her children back in order to qualify for welfare payments. However, she did not have a job or a place to live, and the children were not returned to her.
In May of 1977, DFCS petitioned the Juvenile Court of Rockdale County for temporary custody of M. A. C. and V. L. C. The appellant was served with the petition, and she appeared at the hearing, although she was not represented by an attorney. The petition was granted by the juvenile court on May 12, 1977.
In the summer of 1977, the appellant returned to Pennsylvania and married James Simms. They began making efforts to re-obtain custody of the children by receiving counseling, establishing a residence, finding jobs, and re-establishing contact with the children. However, they soon abandoned these efforts. The appellant left Simms; she moved to Maryland and began living with another man.
In 1978, the appellant returned to Pennsylvania and moved back in with her second husband, Simms. However, they remained unemployed and subsisted on welfare payments. A Pennsylvania social service worker, who testified at the hearing below, concluded that the appellant and her second husband were unstable, and that the children would be placed at a very serious risk by being returned to them. The children are currently in a foster home in Georgia, and their conditions, particularly M. A. C.'s has improved.
This petition for termination of parental rights was filed in the Juvenile Court of Rockdale County on February 27, 1979. The petition alleges that the children are residents of Rockdale County; that the mother is a Pennsylvania resident; and that the father of the children is unknown. The petition requests that the parental rights of the mother be terminated on the ground that the children are "deprived and neglected and are without proper parental care and control necessary for their physical, mental and emotional health." 2
On February 27, 1979, the mother was served by certified mail in Pennsylvania with a copy of the summons and process. She was notified that the termination-of-parental-rights hearing would be held on April 5, 1979. At the hearing on April 5, the appellant, through her attorney, filed an answer to the petition, denying that the Juvenile Court of Rockdale County had personal jurisdiction over her. She filed three other motions, as well: (1) a motion to dismiss the petition on the ground that service on her was accomplished by means of an unconstitutional statute, Code Ann. § 24A-1702(a) (Ga.L.1971, p. 728); (2) a motion to vacate the 1977 temporary custody order; and (3) a motion to copy physical evidence in the possession of the state. The hearing on the merits of the petition to terminate parental rights was continued until May 8, 1979.
At the commencement of the hearing on May 8, the juvenile court judge agreed that the temporary custody order was void. However, the juvenile court ruled that it nonetheless had jurisdiction in this termination-of- parental-rights proceeding. Following the hearing, the juvenile court ruled that the appellant actively participated in, and allowed within her control, the physical abuse and inhuman punishment of the children; that the appellant has continued to move from place to place with several men and has not provided any stable or suitable home environment for the rearing and growth of the children; that this is a condition that is likely to continue; and that the children have suffered said physical abuse under the care of the appellant, causing them serious mental, moral, and emotional harm, greatly retarding their education and development of their personalities. The court concluded that the children were "deprived" while in the custody of the appellant and that the conditions and causes of deprivation are likely to continue. Accordingly, the parental rights of the appellant were terminated.
1. In the first enumeration of error, the appellant argues that the statute by which service of process was accomplished is unconstitutional. This statute, Code Ann. § 24A-1702(a), provides,
The appellant argues that Code Ann. § 24A-1702(a) affords insufficient notice of the pendency of the action to a nonresident parent and is, therefore, unconstitutional under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which contains the following exegesis of the notice requirement of procedural due process: 339 U.S. at p. 314, 70 S.Ct. at p. 657.
Specifically, the appellant argues that by allowing service of a petition to terminate parental rights to be made five days before the hearing, Code Ann. § 24A-1702(a) does not afford a reasonable time for the nonresident parent to present a defense to the petition. She also argues that by allowing service by registered or certified mail without a return-receipt requirement, Code Ann. § 24A-1702(a) does not provide notice reasonably calculated to apprise the nonresident parent of the pendency of the action. In addition, she advances the argument that Code Ann. § 24A-1702(a) constitutes an equal protection violation insofar as it accords differential treatment to residents and nonresidents.
We find no equal-protection violation in the framework of Code Ann. § 24A-1702(a). This statute provides for service by registered or certified mail within five days of the hearing upon state residents and out-of-state residents whose address is known, but who cannot with reasonable effort be personally served. The statute provides for personal service upon state and out-of-state residents who can be found. Thus, similarly situated residents and nonresidents are accorded equal treatment. "It is only in cases where laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied." Baugh v. City of LaGrange, 161 Ga. 80, 81(2a), 130 S.E. 69, 69(2a) (1925).
The termination-of-parental-rights hearing was not held in this case until some 70 days after service of the petition upon the appellant. The appellant's attorney admitted at the hearing below that the appellant received ample notice. Therefore, the appellant lacks standing to attack the constitutionality of the statute on the ground that service of a petition under Code Ann. § 24A-1702(a) within only five days of the hearing would be untimely.
" 'Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an...
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