S.G.T., In re, 69764

• Decision Date: 12 July 1985
• Docket Number: No. 69764,69764
• Citation: 333 S.E.2d 445,175 Ga.App. 475
• Parties: In re S.G.T.
• Court: Georgia Court of Appeals

Page 445

333 S.E.2d 445

175 Ga.App. 475

In re S.G.T.

No. 69764.

Court of Appeals of Georgia.

July 12, 1985.

Charles W. Smith, Jr., Gainesville, for appellant.

David Fox, Gainesville, Michael Bowers, Atty. Gen., H. Perry Michael, First Asst. Atty., Carol Atha Cosgrove, Sr. Asst. Atty. Gen., David C. Will, Asst. Atty. Gen., for appellee.

BENHAM, Judge.

Appellant seeks the reversal of a juvenile court order terminating his parental rights with regard to an adopted son, S.G.T. Appellant challenges the severance of parental rights, alleging the insufficiency of the evidence as to deprivation (OCGA § 15-11-51(a)(2)) and wanton and wilful failure to support (OCGA § 15-11-51(a)(4)).

In order to understand fully the precise legal issues, it is necessary to review the facts in some detail. Appellant married S.G.T.'s mother, who brought S.G.T. to the marriage. J.E.T. was born to the marriage, and appellant initiated proceedings to adopt S.G.T. The natural mother of S.G.T. and J.E.T. was killed in an automobile accident in 1977 when S.G.T. was five years old and J.E.T. was approximately one year old. The proceedings to adopt S.G.T. were concluded after the death of his mother. Appellant entered into his third marriage after the death of S.G.T.'s mother, separated from that wife and, in 1981, started living with his former housekeeper, who had two minor children of her own. The original petition to terminate involved both J.E.T., appellant's natural child, and S.G.T., the adopted child.

Reports of physical abuse were made by an undisclosed source to the Hall County Department of Family & Children Services in 1979. An investigation disclosed that S.G.T. had suffered bruises to his face, had had emotional problems at school, and had expressed a desire to go home with his teacher rather than to return to the home of appellant. In testifying as to conditions at the home, the first caseworker observed an attitude by the father of open hostility and ridicule of S.G.T. However, according to the caseworker, the case was closed in 1980 due to a lack of progress.

In February of 1981, the case was reopened at the request of school officials, who reported an injury to S.G.T.'s stomach. On February 3, 1981, S.G.T. ran away from home because he feared punishment for receiving a poor report card. When first contacted on the night of the runaway incident, appellant expressed a willingness to let the 9-year-old child spend the night in jail; when contacted again the same night, he offered in the presence of the child to sign a waiver of his parental rights. On a subsequent occasion, appellant actually signed a consent to adoption, but withdrew it later. The child was subsequently placed in foster care with his maternal grandparents.

After hearing testimony, much of which came from appellant's estranged wife but was corroborated in many features by the children, the juvenile court severed the parental rights as to S.G.T. but refused to sever as to J.E.T.

1. Child abuse and neglect has proven to be one of the awesome enigmas of modern times, and while we have been able to make scientific achievements beyond our wildest dreams, we remain unable to guarantee freedom from abuse for our children. The law and the public policy of this state treasure the bond between parent and child, but, like any other treasure, forfeiture can occur when the conduct of the one who possesses the treasure is inconsistent with the treasured status. Such is the case here.

Where it is alleged that a child is deprived under OCGA § 15-11-51(a)(2), "clear and convincing" evidence as to deprivation is required before termination of parental rights will be authorized. In re L.A., 166 Ga.App. 857, 305 S.E.2d 636 (1983). Cf. also Chancey v. Dept. of Human Resources, 156 Ga.App. 338, 274 S.E.2d 728 (1980). The juvenile court was authorized to find that S.G.T. was emotionally abused and neglected by the father, who fought in the child's presence, dressed him in female clothing, and ridiculed him repeatedly. In addition, the court was authorized to find that the child was subjected to inappropriate and degrading discipline by being locked in the laundry room overnight and by being forced to eat soap and drink beer. The court's finding as to physical abuse is supported by evidence that the father kicked the child, choked him, and banged his head against the wall. The requirements of OCGA § 15-11-51(a)(2) as to deprivation were met, and such evidence was "clear and convincing." This evidence formed a valid basis for the juvenile court's determination of deprivation and thereby authorized the termination of parental rights. Roberson v. Dept. of Human Resources, 148 Ga.App. 626, 252 S.E.2d 57 (1979).

Great stock should be placed in those cases which acknowledge the juvenile court judge as the trier of fact and authorize this court to override his findings only in instances of abuse. Powell v. Dept. of Human Resources, 147 Ga.App. 251, 248 S.E.2d 533 (1978). See also In re Creech, 139 Ga.App. 210, 228 S.E.2d 198 (1976).

2. We agree with appellant in his assertion that no "wilfulness" was shown as to his failure to support. The statutory provision in question, OCGA § 15-11-51(a)(4), provides as follows: "The court by order may terminate the parental rights of a parent with respect to his child if ... a decree has been entered by a court of competent jurisdiction of this or any other state ordering the parent, guardian, or other custodian to support the child and the parent, guardian, or other custodian has wantonly and willfully failed to comply with the order for a period of 12 months or longer." Evidence of record shows that appellant regularly made court-ordered support payments until he was involuntarily laid off by his employer. In view of such evidence, appellant's failure to pay support cannot be characterized as wilful and wanton throughout the entire 12-month period. In addition, the petition to terminate relied on deprivation rather than failure to support. While we find this enumeration meritorious, there was sufficient evidence to terminate on the deprivation issue; therefore, a reversal is not necessary.

Judgment affirmed.

DEEN, McMURRAY and BIRDSONG, P.JJ., and CARLEY and BEASLEY, JJ., concur.

DEEN, P.J., concurs specially.

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

DEEN, Presiding Judge, concurring specially.

While concurring fully with the majority opinion, observations in addition to those outlined in the majority and dissenting opinions should be noted. Testimony was given that for more than a two-year period, appellant would drink "a 6-pack, maybe two 6-packs, maybe more sometimes, a day"; he would require the child to sit on his knees and hold his hands out in front of him for hours at a time; appellant had been paralyzed in part and had to use the back of his hand in slapping at and bruising the child's face and body at least 13 times; he kissed the daughter passionately on the mouth "the way a man kisses a woman"; he abused the dog, Disco, and stated the way to train a dog was to "tie him up and starve him to death and feed him gun powder"; he had lived with a housekeeper in an unmarried state with implications and possibilities of criminal fornication occurring; the housekeeper testified that he placed his hands on her throat, choked her, beat on her, mistreated the children and broke her nose, necessitating that she go to the emergency room at the hospital, and on one occasion she had to be taken to the Gateway House for battered women.

All of this in its totality would add up to at least mental and physical child abuse, as well as abuse to the housekeeper and dog, and would justify and warrant a finding of parental unfitness. I would affirm the action of the Juvenile Court.

BANKE, Chief Judge, dissenting.

It is important at the outset to emphasize that the issue in this case is not whether the appellant should be re-entrusted with physical custody of his adopted son. Custody was already in the DFCS when the termination petition was filed, and no one appears to be questioning the propriety of that disposition. What we are dealing with is instead the complete severance of a 14-year old child's relationship with the only parent he has known since he was three years of age, not to mention the child's relationship with his only sibling.

A complete termination of parental rights is authorized under OCGA § 15-11-51(a)(2) only in the face of clear and convincing evidence of unfitness on the part of the parent, manifested either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or by what is tantamount to physical or mental incapacity to care for the child. Chancey v. Dept. of Human Resources, 156 Ga.App. 338, 340, 274 S.E.2d 728 (1980). "A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent's natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. (Cit.) Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship." Carvalho v. Lewis, 247 Ga. 94, 95, 274 S.E.2d 471 (1981). (Emphasis supplied.) See also Blackburn v. Blackburn, 249 Ga. 689, 692-694, 292 S.E.2d 821 (1982). This strict evidentiary standard is constitutionally mandated in termination cases and is not...