Smith, In Interest of, 54252
| Decision Date | 29 September 1977 |
| Docket Number | No. 3,No. 54252,54252,3 |
| Citation | 143 Ga.App. 358,238 S.E.2d 725 |
| Parties | In the Interest of Gwen SMITH et al |
| Court | Georgia Court of Appeals |
Woodrow W. Lavender, Elberton, Walter J. Gordon, Hartwell, for appellant.
James D. Hudson, Elberton, Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., Atlanta, for appellees.
This appeal emanates from the termination of parental rights. In an earlier hearing, the trial court entered a judgment terminating the rights of both parents to the custody, control and parental interests of the two minor children involved. The father apparently understood the context of the judgment of the court and did not desire to pursue any appellate rights. The mother, however, filed an appeal to the termination of her parental rights. Because of confusion in the scope of the earlier hearing and the orders of the court terminating the parental rights, the court agreed to conduct a de novo hearing on the entire matter. Appellant then withdrew her appeal. Though the father had indicated no further interest in the litigation, he was extended the right to participate in the de novo hearing and both parents appeared with counsel. During the hearing, the case investigator was allowed to testify at length as to the circumstances of the two children, her observations and opinions of the condition, both mental and physical, of the parents as well as the children. Additionally, during the course of the trial, the trial court read its earlier orders concerning custody and termination of parental rights and discussed the background of those orders with counsel, apparently in an effort to clarify the testimony of the case investigator. The father again does not pursue an appeal to the termination of his rights, but the appellant mother has brought this appeal enumerating as error the consideration by the trial court of the orders and background circumstances of those earlier orders in a de novo hearing as well as the opinion testimony of the case investigator. Held :
1. Appellant complains in her first enumeration of error in effect that a de novo hearing requires the trial court to insulate itself from all earlier matters dealing with the same hearing. She contends that the trial court must consider the evidence as if it had not been heard before, and as if no decision had been rendered previously. These principles of law, while correct, are incorrectly applied by appellant. A trial de novo brings up the entire record, and all competent evidence material and relevant to the issues, even though once heard, are admissible on the trial in the de novo hearing. It is not the province of the de novo court to review and affirm or reverse the rulings of the original court, but to try the issues anew and pass original judgments on the questions involved as if there had been no previous trial. Mathews v. Mathews, 136 Ga.App. 833, 837, 222 S.E.2d 609 (1975). This does not preclude the trial court from examining the earlier rulings, judgments, evidence or issues raised thereby, but simply precludes the trial court from being bound by those earlier decisions. Knowles v. Knowles, 125 Ga.App. 642, 645(1), 188 S.E.2d 800 (1972). See also Maloy v. Maloy, 134 Ga. 432(2), 68 S.E. 80 (1910).
There is no contention in this case that the orders were not relevant or material to the issues to be decided by the de novo trial court or that the trial court did not exercise its independent judgment in arriving at its new judgment. Appellant has shown no error or prejudice in the procedure followed.
2. In her second enumeration of error, appellant asserts that the investigating case worker was allowed to testify...
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