M.M.A., In re

• Citation: 166 Ga.App. 620,305 S.E.2d 139
• Decision Date: 27 April 1983
• Docket Number: No. 66214,66214
• Parties: In re M.M.A.
• Court: United States Court of Appeals (Georgia)

Page 139

305 S.E.2d 139

166 Ga.App. 620

In re M.M.A.

No. 66214.

Court of Appeals of Georgia.

April 27, 1983.

Rehearing Denied May 13, 1983.

Certiorari Denied June 29, 1983.

John R. Rogers, Ashburn, for appellant.

Ralph F. Simpson, Tefton, for appellee.

DEEN, Presiding Judge.

Appellant, the father of the child who is the subject of this appeal, was awarded permanent custody of his daughter, then less than a year old, in an uncontested divorce action in July 1977. She has since lived with him except for periods when he was out of town, primarily for business reasons, during which times she would ordinarily stay with appellant's invalid mother and his stepfather, a licensed practical nurse. After the divorce, appellant's former wife, appellee here, had several sexual liaisons, bore two illegitimate children, lived in a number of different places, and was hospitalized more than once for alcoholism and emotional illness.

Approximately one year before the commencement of the action below, appellee remarried and, according to her brother's wife, "settled down." Appellant has lived at several addresses in the Crisp-Worth-Sumter County area, moving about in the area for job reasons, and is now apparently happily married to a third wife. The present wife testified at trial that he is a good husband and father to her small child as well as his own, and that he no longer uses alcohol and other drugs, as he had done in the past. There was other testimony that appellant enjoys a good reputation in the community and that, from his wages and the proceeds of a trust established by his deceased father, he is well able financially to support a family.

Appellee had made little effort to exercise her visitation rights since the divorce but had visited the child twice during times when she was left in the care of appellant's stepfather. In May or June of 1982 she got in touch with the stepfather to inquire regarding appellant's current address. The stepfather testified that he had provided both address and telephone number and had further informed appellee that appellant was listed in the local telephone directory. Appellee admittedly made no effort to reach appellant, however.

In July 1982 appellant went to Florida for eight or nine days to attend a family funeral and to visit his mother, who had been divorced from the stepfather and was living with a daughter. During this time the child stayed with the stepfather, and appellant telephoned nightly to inquire after his daughter and to tell the stepfather where he could be reached. Appellee telephoned the stepfather to ask about appellant's whereabouts and was informed that he was in Florida. She thereupon filed a petition for temporary custody of the child, alleging that the latter had been abandoned and was in need of proper care and control, and that it would be in the best interest of the child if temporary custody were awarded to her. In an amended petition appellee alleged further that appellant was an unfit parent and that there had occurred a material change of condition (her own remarriage) which justified a change of custody. Appellee received temporary custody, and after an August 1982 hearing, the Worth County Superior Court found both parents unfit, determined that the child was deprived, and awarded temporary custody to the Department of Human Resources through the Worth County Department of Family and Children's Services (DFCS). This action was originally filed in the Worth County Juvenile Court, but at trial the court noted the overlapping jurisdiction, and the order appealed from here was signed by the trial judge in his capacity as judge of the Worth County Superior Court.

On appeal the father enumerates eleven errors. One of these concerns the court's basing its decision in part on evidence outside the record of an instance of an alleged failure to provide needed dental care. Another enumeration challenges the court's denying counsel an opportunity to examine DFCS records which each side had submitted and which the court had examined in camera. The remaining enumerations challenge the court's action in basing its finding of unfitness on past rather than present conduct and on other allegedly incompetent and insufficient evidence, and in taking custody from the father and giving it to a third party, the DFCS. Held:

1. Appellant's enumerations raise issues of the gravest concern, centering as they do upon the parent-child relationship and upon the conditions and circumstances under which the state may make bold to interfere with that relationship. For convenience of discussion, we have grouped related enumerations rather than dealing with them seriation.

When contemplating taking custody of a minor child from his parent or parents and awarding it to a third party, the court must initially face the presumption, firmly embedded in our law, that it is in the child's best interest to be with his natural parent or parents. Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976); Larson v. Gambrell, 157 Ga.App. 193, 276 S.E.2d 686 (1981). In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979); Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975); Larson v. Gambrell, supra. Thus, in order to take custody from the natural parent or parents and award it to a third party, the court must consider not simply the "best interest of the child," which is the appropriate standard when the contest is between the parents, Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981), but the narrower criterion of parental fitness to have the child in his or her custody. Chancey v. DHR, 156 Ga.App. 338, 274 S.E.2d 728 (1980); Childs v. Childs, supra. Proof of parental unfitness must be clear and convincing. Id.; White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976); Larson v. Gambrell, supra. Evidence adduced to achieve this standard of proof must pertain to present rather than past misconduct. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974).

In her petition for temporary custody, filed July 23, 1983, appellee alleged that the appellant father's whereabouts was unknown and that "after a diligent search" she "was unable to locate him and believes him to reside outside the state of Georgia." She further alleged that "[o]n or about July 20, 1982, the father ... left the child with [his stepfather and] ..., has failed to return to pick up the child"; that "the environment in which the child is presently residing is contrary to the best interest and welfare of the child," and that "[t]he said child is in need of proper care, custody, and control." On the same day the petition was filed, the Worth County Juvenile Court entered an order finding that "the conditions and surroundings of the child are endangering ... her health and welfare" and directing the sheriff to "take said child into his protective custody instanter" and deliver her to her mother. The record does not disclose on what evidence this order was based. After a hearing on appellee's petitions for both temporary and permanent custody held August 26, 1982, the superior court found that the child was deprived and that both parents were unfit, and awarded custody to the DFCS.

A parent may lose his right to custody of his child or children if he is found to be unfit or if there is found to exist one of the conditions specified in OCGA § 19-7-1 (Code Ann. § 74-108); namely, voluntarily contracting to release the child to a third person; consenting to the child's adoption; failing to provide necessaries for the child or abandoning him; cruel treatment; or consenting to the child's marrying or receiving the proceeds of his own labor. Bowman v. Bowman, supra; Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943). Custody may also be lost if the child is found to be destitute or suffering, if he is being reared under immoral influences, or if he is found to be deprived and likely to be harmed thereby. OCGA §§ 15-11-34, 15-11-51, 19-7-4 (Code Ann. §§ 24A-2301; 24A-3201; 74-109, 74-110); Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951). See also Gardner v. Lenon, 154 Ga.App. 748, 270 S.E.2d 36 (1980); Patty v. DHR, 154 Ga.App. 455, 269 S.E.2d 30 (1980).

The record is devoid of evidence that any of the conditions enumerated in the statutes exists in the instant case, or that the child was destitute, suffering, or subject to adverse influences. At the August hearing which resulted in the superior court's awarding custody to the DFCS, evidence was presented which showed that, whether the appellant father was at home or away on a job, the child was regularly cared for either by appellant's wife or by his stepfather. Appellee testified that the child had twice in her presence indicated a desire not to see the stepfather, and during the examination of another witness, an intimation was elicited that the stepfather might have sexually molested the child. There was no testimony or other evidence corroborative of either of these allegations, however. Photographs offered in evidence showed that the various quarters in which the child had lived (including those of the stepfather), while by no means elegant, were clean and orderly and offered adequate facilities for her physical and emotional nurture. Testimony offered by appellant's present wife and other witnesses indicated that the child had always received adequate supervision and emotional support. The wife testified that she and appellant had started taking the child to church, and that it was her desire "to get [the child] involved in the church." The stepfather testified that he loved the child as his own, and that she returned his affection. There was also testimony that not only with respect to the July trip to Florida but...