Moss v. Moss
| Decision Date | 23 June 1975 |
| Docket Number | No. N,No. 3,N,3 |
| Citation | 218 S.E.2d 93,135 Ga.App. 401 |
| Court | Georgia Court of Appeals |
| Parties | J. P. MOSS v. Sara B. W. MOSS. o. 50630 |
Crudup & Howell, John P. Howell, Covington, for appellant.
Arthur K. Bolton, Atty.Gen., Dorothy Y. Kirkley, Asst. Atty. Gen., Atlanta, for appellee.
The appellee mother filed a petition in Newton Superior Court for a writ of habeas corpus to obtain custody of her two minor children, the older of which was already in her custody pursuant to a decree of divorce from the child's father (appellant) and the younger of which was born approximately 8 1/2 months after the divorce decree. After a hearing, the court entered a judgment severing the parental rights of both natural parents. The defendant father moved to set aside the judgment and for a new trial. There being no record of the proceedings, the trial judge declined to rule on the motion, instead appointing a referee pro-tempore of the Juvenile Court of Newton County to hear the matter de novo. Subsequently, pursuant to a petition filed by the Newton County Department of Family and Children Services, alleging the two minors to be deprived and praying for enforcement of the superior court judgment, the temporary referee, following a hearing, ordered the parental rights of both natural parents permanently severed, with custody placed in the Department of Human Resources, Department of Family and Children Services, for the purpose of adoption. The defendant father appeals from the above judgment, which was made the judgment of the superior court.
1. Code Ann. § 24A-3201 () provides in part: '(a) The court by order may terminate the parental rights of a parent with respect to his child if: . . . (2) the child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; . . .' Code Ann. § 24A-401(h)(1) () defines 'deprived child' as a child who, inter alia, 'is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; . . .' Code Ann. § 24A-2201(a) (Ga.L.1971, pp. 709, 732) provides in part: 'After hearing the evidence on any petition alleging delinquency, unruliness and deprivation, the court shall make and file its findings as to whether the child is a deprived child, or, if the petition alleges that the child is delinquent or unruly, whether the acts ascribed to the child were committed by him.' (Emphasis supplied.) Enumerated error 1 is the termination of the appellant's parental rights without first 'finding' that the two minor children were 'deprived children' and that 'the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the (children are) suffering or will probably suffer serious physical, mental, moral, or emotional harm' as it is contended is required by the above statutes.
It is noted that § 24A-2201(a) requires the making and filing of findings as to whether the child is a deprived child 'on any petition alleging delinquency, unruliness and deprivation.' (Emphasis supplied.) The patent reason for an explicit finding of deprivation in a petition alleging multiple conditions, is to indicate the necessity for and to authorize disposition of the deprived child or children under the statute or statutes deemed applicable by the court, viz., Code Ann. § 24A-2301 (Ga.L.1971, pp. 709, 734), § 24A-3201, supra, and § 24A-3204 (Ga.L.1971, pp. 709, 748). Since the present petition by the county department alleged only deprivation, it was unnecessary to make an explicit finding of deprivation. The further finding required by § 24A-3201(a)(2), supra, is not required to be explicit, and was implicit from the disposition made in the order and the evidence adduced at the hearing. Compare A.C.G. v. State of Ga., 131 Ga.App. 156(3), 205 S.E.2d 435, supra.
2. Enumerated error 2 attempts to raise for the first time on appeal the issue of the failure to dismiss the petition on the ground that it did not clearly state the effect of an order for termination of parental rights, hence it presents nothing for review. Reid v. State, 129 Ga.App. 41(3), 198 S.E.2d 358 and cits.; O'Kelley v. Skinner, Wilson & Beals, 132 Ga.App. 792(3), 209 S.E.2d 242 and cit. Furthermore, the appellant is presumed to have been cognizant of Code Ann. § 24A-3203 (Ga.L.1971, pp. 709, 748), which establishes the legal effect of the order. Grady County v. Banker, 81 Ga.App. 701(3), 59 S.E.2d 732.
3. The trial court did not err, as contended in enumerated error 4, in entering its order of disposition without first holding a dispositional hearing, provided for in certain cases by § 24A-2201, supra, since the implicit finding that termination of the parental rights of both parties was authorized, left the court with only the alternatives provided in Code Ann. § 24A-3204, supra, a choice as to which was not available to the appellant, his parental rights (including the right to control his children's disposition) having been terminated.
4. Enumerations of error 5 and 6 complain of the juvenile court's consideration-during the adjudicatory hearing, over objection, and after the appellant had denied the allegations of the petition alleging deprivation-of social studies and written reports by the Department of Family and Children Services of Newton and Jackson Counties concerning the two children, their family, their environment, and other matters relevant to disposition of the case, and allowing the local department's caseworker to read verbatim from her own written report, contrary to the provisions of Code Ann. § 24A-2101(a) (Ga.L.1971, pp. 709, 731).
The caseworker testified that she had made two visits to the children's home herself, contacted other persons and had otherwise conducted the investigation personally. The court excluded evidence from the Jackson County record which was hearsay. The caseworker was available for...
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