Suggs, In re

• Decision Date: 04 May 1982
• Docket Number: No. 38404,38404
• Citation: 291 S.E.2d 233,249 Ga. 365
• Parties: In re Richard SUGGS.
• Court: Georgia Supreme Court

Page 233

291 S.E.2d 233

249 Ga. 365

In re Richard SUGGS.

No. 38404.

Supreme Court of Georgia.

May 4, 1982.

David T. Emerson, Tinsley & Emerson, Douglasville, for appellant.

Joseph Fowler, Douglasville, for appellee.

JORDAN, Chief Justice.

This appeal involves the constitutionality of a statute and an order by the Juvenile Court of Douglas County concerning the disposition of a three year old child.

On July 22, 1981, the Georgia Department of Human Resources (Department) brought an action in which it sought the custody of the minor child, Richard Suggs.

The court found that under the standards set forth in Code Ann. § 24A-401(h) the child was deprived. Consequently, though the court left custody in the mother, it made the custody conditional upon the mother meeting certain requirements.

The mother appeals alleging that numerous errors were made by the trial court.

1. The mother first alleges that the trial court erred when it failed to find that Code

Ann. § 24A-401(h)(1) is unconstitutionally vague and indefinite.

She alleges that the Code Ann. § 24A-401(h)(1) fails to adequately define "deprived child". That section provides that a child is deprived who "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals...."

We find no due process violation. A statute, to violate due process, must be so vague that persons of "common intelligence must necessarily guess at its meaning and differ as to its application." Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1972). Furthermore, "All the due process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden." Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975).

We find that Code Ann. § 24A-401(h)(1) provides adequate standards by which a person of common intelligence can regulate his conduct and responsibilities in order to conform with the statute. Cf. In The Interest Of: J. C., et al., 242 Ga. 737, 251 S.E.2d 299 (1978).

2. The mother also alleges that the evidence does not support the trial court's finding that Richard is a "deprived" child. We agree and reverse.

The "any evidence" standard or the "preponderance of the evidence" standard is inadequate in dealing with a finding of the deprivation of a child or termination of parental rights. This was clearly stated by the Supreme Court of the United States on March 24, 1982, in the case of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, (Commissioner) in which the court said "The logical conclusion of this balancing process is that the 'fair preponderance of the evidence' standard (prescribed by New York law) violates the due process clause of the Fourteenth Amendment." The court went on to note that a majority of the states have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the state's legitimate concern. The court then said "we hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process."

This standard is stated in our statute. After defining a "deprived child," our statute requires the court after hearing to find "clear and convincing evidence" before an order of deprivation may be entered. Code Ann. § 24A-2201(c).

Measured by that standard, let us look at the evidence before the Juvenile Court. First, we note that this child was living with his mother and her husband. There was no evidence whatsoever of child abuse or abandonment or neglect. The mother, concerned about the child's "head banging" and problems with discipline, took the child to Grady Hospital for tests and evaluation. He was examined by two clinical psychologists and a psychiatrist.

One psychologist observed the child "45 minutes to an hour" in an emergency facility at Grady Hospital on July 10, 1981, and for about two hours in the hospital on July 14th. After the July 10th meeting this psychologist concluded that Richard was "an extremely active child" and demonstrated "destructive" tendencies by pulling apart the paper roll on the examining table and pulling an electrical cord out of a socket. Though she did not examine the mother, she stated that based on her observation of the mother and child "there was not a healthy mother and child attachment."

As to the two hour meeting in the hospital she stated that "we did not observe him at all in the hospital doing any kind of destructive behavior." She went on to say: "What I was most struck by was the difference between what I saw in the emergency room and in the hospital study. His behavior which was more mannered, he was not at all a manner problem. In the hospital it was very difficult to get any sort of control over his behavior in the emergency room. When he was in the emergency room, for instance, if I tried to tell him "no" when he simply was going to hurt himself by pulling something down, it was almost as if he ignored me. When I told...