R.L.Y., In re

• Decision Date: 20 November 1986
• Docket Number: No. 72664,72664
• Citation: 181 Ga.App. 14,351 S.E.2d 243
• Parties: In re R.L.Y. et al.
• Court: Georgia Court of Appeals

Page 243

351 S.E.2d 243

181 Ga.App. 14

In re R.L.Y. et al.

No. 72664.

Court of Appeals of Georgia.

Nov. 20, 1986.

Franklin E. Remick, Forsyth, for appellant.

W. Ashley Hawkins, Malcolm K. Sullivan, Michael J. Bowers, Atty. Gen., David C. Will, Asst. Atty. Gen., for appellee.

DEEN, Presiding Judge.

This is a direct appeal by the natural father from an order of the juvenile court terminating his parental rights in his three minor children. ¹ Appellant complains that the trial court erred by not applying the "appropriate standard of clear and convincing evidence" in making the determination to terminate his parental rights.

After extensive hearing on DFCS' petition based on deprivation under OCGA § 15-11-2(8)(A), ² at which the natural father was present and represented by counsel and at which the interests of the children were represented by their attorney/guardian ad litem, the court concluded as a matter of law that the three minor children were deprived "in that each is a child without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health or morals--all of which meet the requirements of a 'deprived child' as defined in O.C.G.A. Section 15-11-2(8)(A)"; that "if the children are restored to their father, that each will suffer serious physical mental or emotional harm"; that the father "is suffering from mental illness ... and he will not recover and is not treatable"; that the " 'welfare of the children' is best met in terminating the rights of the father, ..."; and that "the father ... through unintentional misconduct is an unfit parent that resulted in abuse or neglect to these three children in that he is mentally incapable to care for them. Therefore the test of parental unfitness meets the standard set out in Ray v. Department of Human Resources, 155 Ga.App. 81 , and as set out in In the Interest of T.R.G. et al., 162 Ga.App. 177 ." The court also recited OCGA § 15-11-5(a)(2)(C), jurisdiction, and § 15-11-2(8)(A), definition of "deprived child," as applicable. The appellant contends that because the court, in its order of termination did not expressly intone the words of the standard or quantum of proof for termination, i.e., compelling circumstances found to exist by "clear and convincing" evidence, the court did not apply the required legal standard. Held:

Where, as here, the evidence may appear to the appellate court as more than ample to almost overwhelming, does the absence in the findings of fact and conclusions of law of the required standard "clear and convincing evidence" of a parent's unfitness prior to termination of the latter's rights, demand that we remand this case for further determination? Since 1982 the answer seems to be in the affirmative. The Supreme Court's language such as "[r]equiring that the trial court find ..." this quantity of evidence and "demanding that this high burden of proof be met furthers the state's legitimate interest in protecting the child, yet forestalls arbitrary state interference with the integrity of the family unit," would indicate that we have no choice but to make certain this was done. See Blackburn v. Blackburn, 249 Ga. 689, 692, 292 S.E.2d 821 (1982) (emphasis supplied); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

It is noted that in Messex v. Lynch, 255 Ga. 208, 210, 336 S.E.2d 755 (1985), the Supreme Court declared that "[it] is not that the magic words are spoken but what is said and done irrespective of the magic words." Messex, however, was a civil case relating to required medical standards of an expert witness in a malpractice case. Had the trial judge failed to charge the jury that they must find for one party or the other at least by a preponderance of evidence, then that case would surely have been reversed. While the instant case is also a civil proceeding, it may be equated to or elevated above, in importance, to criminal cases, as individual constitutional rights, both state and federal, of parent and child are involved. "Seldom does the state wield so awesome a power as when it permanently cuts the family ties between parent and child." R.C.N. v. State of Ga., 141 Ga.App. 490, 491, 233 S.E.2d 866 (1977). The "tearing of the flesh" of one's offspring is a penalty by the state second in severity, or arguably surpassing in severity, only to depriving a person of his or her liberty. Nix v. Dept. of Human Resources, 236 Ga. 794, 795, 225 S.E.2d 306 (1976). In any criminal case, if it were not clear that the trial judge charged the proper standard on evidence "beyond a reasonable doubt," we would not hesitate to remand for a new trial. Where, as here, the trial judge also acts as finder of fact, our duty is no less in making certain the proper standard was utilized by the court. There is no reference in the trial court's order as to his finding "clear and convincing evidence" of appellant's unfitness or the children being deprived. The only two cases cited in the trial judge's order are Ray v. Dept. of Human Resources, 155 Ga.App. 81, 270 S.E.2d 303 (1980) and In the Interest of T.R.G., 162 Ga.App. 177, 290 S.E.2d 523 (1982). Both of these cases pre-date Blackburn and Santosky, and neither refers to the present required standard of clear and convincing evidence. See OCGA § 15-11-51, as recodified into OCGA § 15-11-80 by Ga.L.1986, pp. 1017 et seq., effective July 1, 1986, which requires that the court find clear and convincing evidence that a child is deprived or that a parent is unfit in proceedings akin to this.

We cannot follow in this case the proposition that even though the trial judge omitted an affirmative finding of the correct standard in his order, we must affirm since " 'judges are presumed to know judicially what the law is' " ³ Winston Corp. v. Park Elec. Co., 130 Ga.App. 508, 203 S.E.2d 753 (1973), ⁴ citing Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324 (1), 58 S.E.2d 559 (1950). Where a trial judge, as here, is also a factfinder, we can generally always presume he separated the wheat from the chaff. However, where the cases and the statute now require and demand use of proper standard in such an awesome exercise of state power, as in the instant case, the better rule is to tolerate no doubt and make crystal clear that the court observes this mandate of affirmative action of ascertaining and asserting in every parental termination case the clear and convincing ⁵ evidence standard. Accordingly, because the trial court did not make it clear that it applied the required standard in this case, the order of termination must be reversed and the case remanded for further findings by the trial court applying the correct standard.

Judgment reversed.

McMURRAY, P.J., and SOGNIER and BENHAM, JJ., concur.

BIRDSONG, P.J., and CARLEY, J., concur in the judgment only.

BANKE, C.J., and POPE and BEASLEY, JJ., dissent.

BEASLEY, Judge, dissenting.

OCGA § 15-11-51(a)(2), then in effect, provided "that the court may order the termination of parental rights of a parent with respect to his child if '[t]he 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; ...' In a case such as this, the judge sits as trier of fact. Decisions as to credibility of witnesses rest solely with the judge, and if there is any evidence to support his findings, they will not be disturbed. Powell v. Dept. of Human Resources, 147 Ga.App. 251, 253 (248 SE2d 533) (1978).... The evidentiary standard for termination of parental rights is compelling facts to establish the necessary lack of proper parental care or control. Brown v. Dept. of Human Resources, 157 Ga.App. 106, 108 (1) (276 SE2d 155) (1981). ' "Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship." ' In the Interest of H.L.T., 164 Ga.App. 517, 520 (298 SE2d 33) (1982). Clear and convincing evidence of the elements of deprivation in OCGA § 15-11-51(a)(2) is required to authorize the termination of parental rights. OCGA § 15-11-33(b); In re L.A., 166 Ga.App. 857, 860 (305 SE2d 636) (1983); In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982)." In the Interest of D.S., 176 Ga.App. 482, 483 (1), 336 S.E.2d 358 (1985).

Appellant's argument is that because the court in its order of termination did not expressly intone the words of the standard or quantum of proof for termination, i.e., compelling circumstances found to exist by "clear and convincing" evidence, the court did not apply such legal standard. I cannot agree that the court's detailed order is fatally defective because it does not track the language of the standard nor that for this reason, the order shows on its face that the proper legal standard was not used.

To begin with, that it did not explicitly write this in its order is not fatal, as the standard of proof is neither "a finding of fact" nor "a conclusion of law." Instead, it is the measure, the yardstick, employed to find the facts. I do not discern a requirement to state that this was the measuring device used, in the cases cited.

Second, it is clear from a complete reading of then-applicable OCGA § 15-11-51, the statute providing grounds for terminating parental rights and other disposition, that the trial court must find from clear and convincing evidence that the child is a deprived child. Though such language appeared only in subsection (b) of the statute, which directly addressed alternatives to termination of parental rights following the judicial determination that a child is "deprived," it would be inharmonious to construe the statute in a fragmented fashion so that the express high quantum of proof be held to apply only in those...