Ray v. Department of Human Resources
| Decision Date | 02 September 1980 |
| Docket Number | No. 59869,59869 |
| Citation | 155 Ga.App. 81,270 S.E.2d 303 |
| Parties | RAY v. DEPARTMENT OF HUMAN RESOURCES. |
| Court | Georgia Court of Appeals |
Joan C. Stoddard, Mary R. Carden, Gainesville, John L. Cromartie, Jr., Atlanta, Roy Sobelson, Brunswick, for appellant.
Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., William M. House, Sp. Asst. Atty. Gen., for appellee.
Parental termination. Wilma N(ix) Ray and the Department of Human Resources (DHR) have had a protracted and litigious relationship over the past five years. When Mrs. Ray was sixteen years of age, she gave birth to a girl child (R. C. N.) At that time she was unmarried and living in precarious financial circumstances. At the request of DHR, Mrs. Ray (Nix) consented to relinquish custody of the infant, and the child was placed in foster home care. When the infant was four months old (in July, 1975), DHR sought a juvenile court ruling that the child was deprived, and sought to have Mrs. Ray's parental rights terminated. The Juvenile Court of Hall County held the requisite hearing and terminated those rights. This court considered the appeal of Mrs. Ray and reversed the termination decision on the grounds that DHR had not established that the child was a deprived child or that such alleged deprivation was likely to continue. R. C. N. v. State, 141 Ga.App. 490, 233 S.E.2d 866). This decision was rendered in March, 1977. During the interim between the judicial termination of parental rights in July, 1975, and the setting aside of that judgment in March, 1977, the mother, Mrs. Ray, had little or no contact with the child. Between March, 1977 and July, 1979, investigators (case workers) of the protective services of the DHR sought to reestablish contact with the mother (who had married a man named Ray) for the purpose of attempting restoration of rapport between the mother and the child. These efforts proved difficult because Mrs. Ray was not in constant contact with the local office of the DHR. During these two years, the child remained in custody of DHR and apparently was in one particular foster home. A series of home visits were made by DHR investigators with Mrs. Ray with a view toward returning the child to her mother's custody and control. Also a number of home visits were arranged between the child and her mother. During this time, the mother, Mrs. Ray, gave birth to two children by her husband, Ray. However, the marriage was punctuated by marital discord and some degree of violence manifested by the husband, including physical violence to the wife and a shooting incident at the home involving some unidentified male. There was evidence that throughout this entire period, Mrs. Ray did not contribute financial support to the little girl or the foster family, did not give the child any clothes or presents on her birthday or at Christmas, and apparently showed little interest in the welfare of the child. It was shown through testimony of the case workers that on most of their contacts with Mrs. Ray, she rarely, if ever, asked about or discussed her daughter, but talked about financial assistance, her marital problems, or the welfare of her other two children. In her defense, Mrs. Ray gave evidence that she did not bother the child at the foster home because, in effect, she felt that would get her in trouble with the DHR or the juvenile court; she did not give presents to her child because when she had first attempted to do so, the foster parents had rejected the idea and discouraged her from doing so, indicating that the child would not be allowed to receive them; and that she had not contributed to the support of the child because she had not been asked to do so and did not know she could. On two occasions between 1977 and 1979, Mrs. Ray voluntarily signed papers relinquishing all her parental rights to DHR. On each occasion, within the 10-day period provided by law, Mrs. Ray withdrew the waiver, thus indicating her desire to regain custody of her daughter. Mrs. Ray offered testimony that she always felt pressure from the case workers to release her parental control and did so on one occasion because of financial stress and on the other, because of her marital problems. Furthermore, DHR offered evidence that Mrs. Ray had moved more than ten times within a very short period and had not developed a very satisfactory employment record. Mrs. Ray countered with evidence that she was either divorced or getting a divorce and that her marital problem had been the primary cause of her frequent moves (an attempt to get away from the harassment from her husband) and that her employment problems were basically from the same cause. The evidence showed that Mrs. Ray was satisfactorily caring for her two younger children, sired by Ray, and that DHR had never shown any desire to remove either of these children from the care and custody of Mrs. Ray. Also, DHR offered evidence that to move the child (R. C. N.) from a well-established foster home and from the custody of people the child considered her parents, would be a significant trauma to the child's psyche. However, no evidence was presented to show that Mrs. Ray was "unfit" or that she did not love the child, would not make a bona fide attempt to support the child emotionally and financially, or that she was an abuser or drugs, alcohol or had a criminal record. In fact, DHR successfully convinced the juvenile court only that Mrs. Ray had made little or no contribution to the support of and had shown little interest in the welfare of her daughter (which the trial court characterized as "virtual abandonment") and that Mrs. Ray could not offer as stable or comfortable or as safe a home as could be furnished through DHR and that Mrs. Ray had a poor employment record. Most of the other evidence reflected Mrs. Ray's actions and experiences when she was a teenager under severe marital stress.
When renewal of the allowable two-year custody period became imminent in July, 1977, DHR petitioned not only for continued custody of the child but once again sought to have the mother's parental rights terminated.
At the termination proceedings, counsel for Mrs. Ray sought to take the deposition of the three DHR case workers who had investigated the case between July, 1977 and July, 1979, and to subpoena the records of DHR pertaining to Mrs. Ray's case. Ray sought information which showed the number of visits by case workers to her home, visits by her to DHR, telephone calls made, and other similar information which would have a tendency to disprove allegations by DHR that Mrs. Ray had abandoned her child or failed to show interest in the welfare of her child. The juvenile court initially issued an order directing the depositions. However, on the day the depositions were to be taken, the court issued a protective order on behalf of DHR relieving the case workers from responding to the depositions and protecting DHR records completely from perusal. The court did ultimately make an in-camera examination of the DHR records pertaining to the case and orally released certain information to Mrs. Ray. Upon completion of the termination hearing, the trial court once again terminated all Mrs. Ray's parental rights in R. C. N. Mrs. Ray brings this appeal enumerating numerous errors, but these may be reduced to allegations that the trial court erred in refusing Mrs. Ray discovery by way of depositions or access to the DHR records within the limited scope requested, and in finding that R. C. N. was a deprived child or that deprivation was likely to continue so as to justify termination of Mrs. Ray's parental rights. Held :
1. We will first address the refusal of the juvenile court to allow counsel for Mrs. Ray to take the depositions of the three case workers who had worked with Mrs. Ray during the period from July, 1977 to July, 1979, and the denial of access to records of DHR concerning the case even to the limited extent requested by Mrs. Ray.
We first note that this court has already held that neither the Fourteenth Amendment nor the corresponding provision of our state constitution (Code Ann. § 2-103) mandates pretrial discovery in proceedings to terminate parental rights. In the Interest of L. L. W., 141 Ga.App. 32, 33, 232 S.E.2d 378. Further, this court has held that the Civil Practice Act is not per se made applicable to juvenile courts. Crook v. Dept. of Human Resources, 137 Ga.App. 817, 818, 224 S.E.2d 806. However, we also are aware that the courts of this state have firmly supported the concept of due process in all judicial proceedings and that the provisions of the Civil Practice Act may be adopted by a juvenile court as to procedures for which provision is not specifically made in the juvenile code. English v. Milby, 233 Ga. 7, 209 S.E.2d 603; In the Interest of L. L. W., supra, p. 33, 232 S.E.2d 378. It is generally agreed by the parties hereto that the juvenile code is silent, neither prohibiting nor permitting discovery as such. However, because termination of parental rights is more civil in nature than criminal, we believe it generally to be the legislative intent to grant discovery of evidence relevant to an issue in controversy, except where otherwise barred. See the dissent of the present Chief Judge Deen in G. M. J. v. State of Ga., 130 Ga.App. 420, 424, 203 S.E.2d 608; CPA 37.
Furthermore, Ga.L.1975, pp. 1135, 1136 (Code Ann. § 99-4301) provides in pertinent part: "Each and every record concerning reports of child . . . neglect which is in the custody of the Department of Human Resources . . . is hereby declared to be confidential and access thereto is hereby prohibited except as provided in section 99-4302." Code Ann. § 99-4302, as pertinent, provides: ...
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