S.E.H., In re

Citation350 S.E.2d 833,180 Ga.App. 849
Decision Date17 November 1986
Docket NumberNo. 72571,72571
PartiesIn re S.E.H.
CourtUnited States Court of Appeals (Georgia)

Howard G. Sokol, Mary R. Carden, Gainesville, for appellant.

Michael J. Bowers, Atty. Gen., David C. Will, Asst. Atty. Gen., Rebecca P. Dally, for appellee.

BENHAM, Judge.

This appeal follows an order of the Juvenile Court of Newton County finding S.E.H. to be a deprived child and awarding temporary custody of the child to her maternal grandmother. The child's father applied for discretionary review of the trial court's decision, and we granted his application.

S.E.H.'s father was awarded custody of her by virtue of a divorce decree entered in March 1983. According to the grandmother's testimony, appellant surrendered physical custody of the child to the maternal grandmother in March 1984 due to problems with his new wife. S.E.H. returned to her father's home approximately one week later, but her father brought her back to her grandparents' home because of illness at his home and his desire that S.E.H. avoid contracting the illness. When the next school year commenced, the grandparents enrolled S.E.H. in the school in their district. Her father returned for S.E.H. and removed her from the grandparents' school, intending, according to the grandmother, to enroll her in her former school. However, he soon again asked the grandparents to care for S.E.H. because he was to be hospitalized. The grandparents, with S.E.H. in tow, then moved from Macon to Newton County without informing S.E.H.'s father. By means of a habeas corpus petition, the father sought the return of his child. Three weeks later, the Newton County Department of Family and Children Services (DFCS) filed a petition in juvenile court, alleging that S.E.H. was a deprived child as defined in OCGA § 15-11-2(8)(A) and requesting that temporary custody of S.E.H. be awarded to her maternal grandmother. The juvenile court did so, finding that S.E.H. had lived with her maternal grandparents since her father's remarriage; her stepmother did not want her in the home; neither her father nor her stepmother had helped S.E.H. with her personal hygiene or homework; her father disciplined her by cursing her; and her father had allowed his new wife to dictate the way S.E.H. was to be treated and regarded in the home. The court concluded S.E.H. was deprived "as a result of the father's unwillingness to accept responsibility for her and maintain a suitable home environment for her mental, physical, and emotional well-being ..."

"When contemplating taking custody of a minor child from [her] 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 [her] natural parent or parents. [Cits.] 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. [Cits.] 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 [cit.], but the narrower criterion of parental fitness to have the child in his or her custody. [Cits.] Proof of parental unfitness must be clear and convincing. [Cits.] Evidence adduced to achieve this standard of proof must pertain to present rather than past misconduct. [Cits.]" In Re M.M.A., 166 Ga.App. 620(1), 305 S.E.2d 139 (1983).

"[T]he appropriate standard of appellate review ... is 'whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody have been lost.' This standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination 'on a few isolated instances of unusual conduct or idiosyncratic behavior.' [Cit.] '... Only under compelling circumstances found to exist by clear and convincing...

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  • In re V. G.
    • United States
    • United States Court of Appeals (Georgia)
    • October 22, 2019
    ...that should be infringed upon only under the most compelling circumstances." (Citation and punctuation omitted.) In re S. E. H. , 180 Ga. App. 849, 851, 350 S.E.2d 833 (1986).[I]n order to justify even a temporary transfer of custody, the [dependency] must be based upon the unfitness of the......
  • Brooks v. Parkerson
    • United States
    • Supreme Court of Georgia
    • March 17, 1995
    ...262 Ga. 389, 393(2), n. 6, 418 S.E.2d 3 (1992); In re Baby Girl Eason, 257 Ga. 292, 297(1), 358 S.E.2d 459 (1987); In re S.E.H., 180 Ga.App. 849, 851, 350 S.E.2d 833 (1986); In re L.H.R., 253 Ga. 439, 445, 321 S.E.2d 716 (1984) (" 'the law's concept of the family rests on a presumption that......
  • In re V. G., A19A0966
    • United States
    • United States Court of Appeals (Georgia)
    • October 22, 2019
    ...right that should be infringed upon only under the most compelling circumstances." (Citation and punctuation omitted.) In re S. E. H. , 180 Ga. App. 849, 851, 350 S.E.2d 833 (1986).[I]n order to justify even a temporary transfer of custody, the [dependency] must be based upon the unfitness ......
  • In re CDE, No. A00A1914
    • United States
    • United States Court of Appeals (Georgia)
    • March 6, 2001
    ...574, 577, 512 S.E.2d 690 (1999). See also OCGA § 15-11-56(b)(1). 9. (Citations and punctuation omitted.) In the Interest of S.E.H., 180 Ga.App. 849, 850, 350 S.E.2d 833 (1986). See also In the Interest of D.S., 217 Ga.App. 29, 31, 456 S.E.2d 715 (1995) (physical precedent 10. The court gave......
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