text:
    A01A1592.
    In the Interest of A. B. et al., children.
    (555 SE2d 159)
   Ruffin, Judge.

The Carroll County Juvenile Court terminated the parental rights of the natural mother of A. B. and D. B. In two enumerations of error on appeal, the mother challenges the court’s ruling. Because we find no error, we affirm.

In reviewing a juvenile court’s termination of parental rights, we view the evidence in the light most favorable to that court’s decision, and we will affirm if the evidence demonstrates that any rational trier of fact could have found by clear and convincing evidence that the parent’s right to custody has been lost. So viewed, the record shows that the mother gave birth to a daughter, A. B., on April 30, 1996, and a son, D. B., on July 31, 1998. Prior to D. B.’s birth, Tracie Lewis, who works with a parenting program in Carrollton, met the mother when she brought A. B. to day care at the program. Lewis testified that A. B., who was almost two at the time, “always had a strong odor about herself and she was not very clean.”

In March 1998, the Department of Family & Children Services (DFCS) opened a case file on the mother. In October 1998, Lewis received a referral from DFCS to kid the mother in developing parenting skills, in obtaining her GED, in securing housing, and in tapping into community resources. Lewis testified that she often visited the trailer where the mother lived with her children. According to Lewis, “[s]ometimes I would find [the] children there and [the mother] would not be there.” Lewis expressed concern for the health and hygiene of the children. She often would find A. B. inadequately dressed and dirty. She also attended D. B.’s doctor appointments and was concerned because he was not gaining weight, “[h]e was not reaching his developmental milestones,” and “[h]is large and small motor skills were way below average.” Lewis testified that both children ate inappropriate food and drank soured milk.

Lewis discussed the importance of good nutrition and hygiene with the mother. During a visit to the home, Lewis discovered that A. B. was sleeping on a mattress on the floor that was soiled with urine and feces. D. B. slept in a bassinet on the floor that was infested with roaches. According to Lewis, the entire trailer was infested with roaches, including roaches in the refrigerator. Lewis testified, “I was so taken aback by what I had found [at the trailer] that I went straight to DFCS and got the [supervisor] to go out and view the home.” The mother was told to clean the trailer, but subsequent visits showed no improvement. DFCS gave the mother from August 27, 1999, to September 7, 1999, to clean her home, but she failed to do so.

DFCS sought to remove the children from the mother’s care, and the juvenile court entered a detention order on September 9, 1999. Following a deprivation hearing, the juvenile court concluded that the children were deprived and granted temporary custody to DFCS. DFCS developed a reunification plan, which required the mother to “maintain her home free from health and safety hazards” and to “maintain her bond with” her children. The plan contained detailed steps to assist the mother in maintaining a sanitary home and provided for visits with the children.

Margaret Raiden, the mother’s caseworker, discussed the plan with the mother and her attorney. But in October 1999, before Raiden could begin providing parent aid services, the mother moved out of her trailer and in with her grandparents. The mother told Raiden that the move was temporary, and Raiden asked the mother to contact her when the mother was settled so that DFCS could begin in-home services. In January 2000, the mother contacted Raiden to say that she had moved to Atlanta, but was unable to provide an address.

Also in January 2000, Lorie Bell took over as the mother’s caseworker. In February 2000, Bell located the mother in Norcross. By May 2, the mother was back in Carrollton, where she was living in a trailer with two friends. On this date, Bell spoke with the mother about the case plan and gave her several leads for possible apartments. According to Bell, whenever she spoke with the mother, she emphasized the importance of meeting the case plan goals, which Bell described as “very simply housing and employment.”

In June 2000, the mother moved back to Atlanta. In July, the mother moved to Chamblee, and in October, she moved to a trailer on Bankhead Highway, which Bell believed was the residence of the mother’s parents. As a result of the mother’s constant movement, DFCS was unable to begin in-home counseling as required by the case plan.

DFCS filed a petition for termination of the mother’s parental rights, and a hearing was held on February 22, 2001. During the hearing, Raiden and Bell testified regarding the mother’s many moves. Bell testified that, although the mother initially visited with the children weekly, she began missing scheduled visits. The testimony also demonstrated the mother’s failure to find employment. The mother testified that she had obtained a job a month before the termination hearing, which she still held. However, the mother admitted that she had worked for only three days during the previous year.

Based on the evidence presented, the juvenile court entered an order terminating the mother’s parental rights.

1. In the mother’s first enumeration of error, she contends that the juvenile court erred in allowing DFCS “an unreasoned expansion of the evidence beyond that contemplated by” OCGA §§ 15-11-1 and 15-11-81. The mother points to the deprivation petition, filed in February 1999, which alleged that the mother was not cooperating with DFCS. The mother complains that the juvenile court permitted DFCS to question Lewis about events that occurred before DFCS actually became involved with the mother. Thus, the mother appears to assert that the juvenile court relied upon inadmissible evidence in concluding that the children were deprived.

We note, however, that the juvenile court ruled the children were deprived in an order dated October 6, 1999, which the mother never appealed. “[I]t is well established that, when no appeals are taken from juvenile court orders finding that a child was deprived, an appellant is bound by that finding and any challenges to those orders are not preserved for appeal.” It follows that the mother cannot, at this late date, challenge the evidence relied upon by the juvenile court to support its finding of deprivation.

2. In her second enumeration of error, the mother contends that the juvenile court erred in terminating her parental rights, asserting that such termination was not supported by clear and convincing evidence. We disagree.

In a termination of parental rights proceeding, the juvenile court employs a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability, which shall be proved by demonstrating

that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

The unappealed deprivation order discussed above establishes that the children are deprived. Since the mother had been without custody of her children for over a year, the juvenile “court was authorized under [OCGA § 15-11-94 (b) (4) (C)] to determine that the [mother], without justifiable cause, failed to comply with the plan for reunification,” thus showing her lack of proper parental care and control. Here, the record amply supports the juvenile court’s conclusion that the mother failed to comply with the plan.

The main reason DFCS removed the children from the mother’s custody was the mother’s inability or unwillingness to maintain a sanitary home. The primary goal of the reunification plan was for the mother to learn “how to maintain a clean home.” Accordingly, it was central to the plan’s success that the mother actually have a home, which she would then be required to clean. The mother’s many moves and her failure to timely notify DFCS of address changes prevented the caseworkers from monitoring the mother’s cleanliness and completely eviscerated the purpose of the reunification plan.

Moreover, the evidence shows that the deprivation is likely to continue. “A court can consider the past conduct of a parent when determining whether conditions of deprivation are likely to continue. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” Prior to taking A. B. and D. B. into custody, DFCS provided services to the mother to assist her in developing parenting skills. Lewis testified that she spoke with the mother regarding the importance of cleaning both her home and her children, but the mother evidently disregarded Lewis’ advice. Even after Lewis found the children living in filth and squalor, the mother was given an opportunity to rectify the situation, but failed to do so. Once the children were taken into custody, the mother had over a year to demonstrate her ability to maintain a sanitary home. Again, she failed to do so. Under these circumstances, the juvenile court was authorized to find that the deprivation would likely continue. And, in view of the extreme filth in which the children were living, the juvenile court was also authorized to conclude that such continued deprivation would harm the children. The foul fecal environment of this family was not fit for children.

Decided October 10, 2001.

James J. Anagnostakis, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, T. Michael Flinn, for appellee.

Finally, the juvenile court was authorized to conclude that termination of parental rights was in the children’s best interests. “In looking at this second prong, the court may consider the children’s need for a stable home environment and the detrimental effects of prolonged foster care.” The juvenile court may also consider the same factors that supported its finding of parental inability.* Here, the children’s need for a stable, sanitary home coupled with the mother’s failure to demonstrate her ability to maintain such home constitutes sufficient clear and convincing evidence that termination was in the best interests of the children.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See In the Interest of J. M. M., 244 Ga. App. 171 (534 SE2d 892) (2000).

        In the Interest of C. M., 236 Ga. App. 874, 876-877 (1) (513 SE2d 773) (1999).

       See In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).

       (Punctuation omitted.) In the Interest of D. P., 244 Ga. App. 553, 554 (536 SE2d 225) (2000).

       See In the Interest of K. L., supra.

       Id.

       (Citation and punctuation omitted.) In the Interest of D. L. T., 238 Ga. App. 491, 496 (519 SE2d 257) (1999).

       See In the Interest of K. L., supra.

       See id.

        In the Interest of C. T., 247 Ga. App. 522, 524 (1) (544 SE2d 203) (2001).

       See id.

       See id. at 525.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A2059.
    MILESTONE v. DAVID.
    (555 SE2d 163)
   Johnson, Presiding Judge.

In June 1993, Motorcars of Yesterday-Atlanta, Ltd. (a company owned by Scott Milestone) purchased the assets of Formula One Imports, Inc. (a car dealership owned by Irvin David). Milestone, in his capacity as president of Motorcars, issued a $250,000 promissory note payable to Formula One Imports. The parties also executed an allonge to the promissory note. The allonge subordinated the promissory note repayment to the repayment of two loans to Motorcars by Milestone’s mother’s corporation, Milestone Commercial Properties. In addition, the allonge indicates that Milestone personally guaranteed the note.

Motorcars began making payments on the note beginning in July 1993. On March 18, 1994, Formula One Imports assigned the note to David, the sole owner, director, and shareholder of Formula One Imports. Formula One Imports was dissolved on August 23, 1994. Motorcars continued making payments on the note until January 1995. On April 25, 1995, David made a demand for payment on the balance of the note. When he received no response, he filed the present action. In its answer, Motorcars admitted that it signed the note and admitted that it had not made any payments under the note since February 1995.

David filed a motion for summary judgment in May 1996. However, on June 17, 1996, Motorcars filed for Chapter 11 bankruptcy, and the action was stayed until confirmation of Motorcars’ reorganization plan on April 20, 1998. David then moved for summary judgment against Milestone. The trial court granted David’s motion for summary judgment and denied Milestone’s cross-motion for summary judgment, finding (1) the senior loans are no longer outstanding, (2) David, as the trustee for Formula One Imports, is the proper payee under the note, and (3) Milestone personally guaranteed the note.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence.

On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt. The movant has the burden to prove the non-existence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence.

Here, the current record reveals a genuine issue of material fact as to the continued existence of the senior loans. We, therefore, reverse the grant of summary judgment to David.

1. The promissory note and allonge in the present case specifically provide that Formula One Imports’ right to receive payments on the note is subordinated to

any rights of Milestone Commercial Properties or any substitute party which accrue under that certain Promissory Note in the principal sum of Three Hundred Thousand Dollars ($300,000) or that certain Revolving Line of Credit Promissory Note in the principal sum of One Million Dollars ($1,000,000) pursuant to which funds were loaned to the Maker.

Subsequently, Motorcars entered into a loan agreement with NationsBank in which NationsBank agreed to issue a “floor plan” line of credit to Motorcars in the amount of $2,500,000. In consideration of the NationsBank loan, Motorcars agreed to grant Nations-Bank a superior security interest in a $1,000,000 certificate of deposit established by Motorcars with proceeds from the $1,000,000 Milestone Commercial Properties loan.

In support of his contention that the senior loans no longer exist, David points to three documents given to him during discovery by either NationsBank or Milestone. The first is an assignment of account dated November 30, 1993, whereby Milestone used the $1,000,000 senior loan as collateral in exchange for a loan of $2,500,000 from NationsBank. In the document, Milestone stated that the collateral being used in consideration for the extension of credit was “free of all security interests and other encumbrances.” Milestone contends Motorcars was merely asserting to NationsBank that no prior security interests existed with respect to the Motorcars’ certificate of deposit that had been assigned as collateral for the NationsBank loan. He further argues that the document does not make any representations about the existence or nonexistence of the underlying $1,000,000 Milestone Commercial Properties loan whose proceeds were used to fund the Motorcars’ certificate of deposit, and that the document does not address the $300,000 senior loan.

The second document David points to is a letter dated November 30, 1993, in which Motorcars’ attorney represented to NationsBank that a June 16, 1993 Uniform Commercial Code (UCC) statement, filed between Motorcars and Milestone Commercial Properties, was issued in error. Specifically, the letter stated that “no loan or security interest exists in favor of Milestone Commercial Properties.” The final document is a termination of the referenced June 16,1993 UCC statement, filed on December 1, 1993. These documents do not show that they refer to the senior loans. And, according to Milestone, even if the documents do refer to the senior loans, the UCC statement of termination merely made the senior loans subordinate to Nations-Bank’s security interests; it did not satisfy the senior loans.

In support of his assertion that the senior loans still exist, Milestone offers bankruptcy court documents and his own affidavit. The bankruptcy court documents show that Milestone Commercial Properties (later known as Laurel Pace Partnership) was listed in Motorcars’ bankruptcy schedules as having undisputed unsecured claims of $2,456,625. According to the bankruptcy schedules, these claims represented loans evidenced by promissory notes. Pursuant to Bankruptcy Rule 3003 (b) (1), the schedule of liabilities filed by Motorcars constituted prima facie evidence of the validity and amount of the claims of creditors. While it is unclear from the bankruptcy documents whether the loans listed are, in fact, the same senior loans mentioned in the allonge, Milestone avers in his affidavit that the senior loans referenced in the allonge are among the loans listed in the bankruptcy documents.

Given the current record in this case, we find that a question of material fact exists as to the continued existence of the senior loans. David provides evidence that the senior loans do not exist through documents provided to him during discovery by Milestone and NationsBank. Milestone argues that the trial court’s conclusions are not supported by the documents. Milestone then provides evidence that the senior loans still exist through bankruptcy court documents and his affidavit. The trial court makes no mention of these documents or their impact on its decision, and we cannot determine from the trial court’s order whether it even considered these documents. Based on the conflicting documents in the record, the trial court erred in granting summary judgment to David.

2. David argues that the trial court was not obligated to consider evidence submitted by Milestone because he did not timely file his response to David’s motion for summary judgment. The record shows that David filed his amended motion for summary judgment on December 27, 1999. On December 29, 1999, the trial court granted Milestone a leave of absence and an extension of discovery until three weeks following the adjournment of the Georgia House of Representatives. This stay expired on April 12, 2000. On April 12, 2000, David moved for oral argument, and argument was set for July 24, 2000. Four days before oral argument, on July 20, 2000, Milestone filed a responsive brief to David’s motion for summary judgment, as well as an affidavit in support of his opposition and bankruptcy court documents purportedly showing the existence of the senior loans.

Decided October 10, 2001.

Phillip J. Walsh, for appellant.

Fellows, Johnson & La Briola, Stephen T. La Briola, Eric A. Kane, for appellee.

Uniform State Court Rule 6.2 states: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.” In contrast, OCGA § 9-11-56 (c), provides that “[t]he adverse party prior to the day of hearing may serve opposing affidavits.” David contends that although Milestone’s affidavit was timely, the trial judge was not obligated to consider other evidence submitted by Milestone in light of the delinquent filing of his response. While the trial judge was not obligated to consider Milestone’s responsive filings, this fact does not appear to help David’s case. All documentary evidence submitted by Milestone was properly before the trial court as attachments to Milestone’s timely filed affidavit.

David also argues for the first time on appeal that Milestone’s affidavit is not credible because it is self-serving. However, since this objection was not raised in the trial court, we are precluded from consideration of the issue on appeal.

3. Because we reverse the trial court’s ruling for the reasons discussed in Division 1, we need not address Milestone’s remaining enumerations of error.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       An allonge is a piece of paper attached to a promissory note on which parties write endorsements for which there is no room on the instrument itself. Black’s Law Dictionary (5th ed. 1979).

        Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993).

       (Citations and punctuation omitted.) Boland v. Ga. Eye Institute, 235 Ga. App. 492, 495 (2) (509 SE2d 342) (1998); see also Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).

       See Bell v. Norfolk Southern R. Co., 222 Ga. App. 788, 789 (1) (476 SE2d 3) (1996) (OCGA § 9-11-56 (c) controls over Uniform State Court Rule 6.2, and the trial court should have considered affidavits filed five days before the hearing on the motion).

       See Coastal Plains Trucking Co. v. Thomas County Fed. Sav. &c. Assn., 224 Ga. App. 885, 886-887 (482 SE2d 493) (1997) (physical precedent only).

       See Neese v. Britt Home Furnishings, 222 Ga. App. 292 (1) (474 SE2d 44) (1996).


author: Andrews, Presiding Judge.

text:
    A01A0868.
    BARNETT BANK OF SOUTHEAST GEORGIA v. HAZEL.
    (555 SE2d 195)
   Andrews, Presiding Judge.

Following a jury trial resulting in a judgment for Hazel of $75,000, Barnett Bank of Southeast Georgia appeals, contending that the trial court erred by denying its motions for directed verdict, judgment notwithstanding the verdict, and in limine and in its charge to the jury. Finding no error, we affirm.

1. The bank’s second, third, and fifth enumerations, that the trial court erred in denying its motions for directed verdict made after the close of plaintiff’s case and at the close of all the evidence and in denying its motion for j.n.o.v., are addressed together.

The standards for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant [or denial] of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the verdiet. Id. Pendley v. Pendley, 251 Ga. 30-31 (302 SE2d 554) (1983).

Wesleyan College v. Weber, 238 Ga. App. 90, 92 (517 SE2d 813) (1999).

So viewed, the evidence was that in October 1989, Hazel and he then husband Johnson obtained a home equity credit line of $28,00; from Barnett Bank. Hauss, the bank officer handling the matter, wain business with Johnson, who was also his brother-in-law. Thej owned two liquor stores, and the proceeds of the loan were used as operating capital for the stores. Although Johnson and Hauss knew that the businesses were in bad shape, they did not share this information with Hazel. Johnson also obtained a credit card from Barnett in connection with his Barnett Premiere Account one or two months after establishment of the home equity line of credit. Although the card was issued jointly to him and Hazel, Hazel did not sign an application for it, never had a card, and was unaware of this account until she began receiving collection calls on it in 1991 and 1992. Johnson, who had charged the $5,000 limit on the card, filed for bankruptcy and was discharged in 1994. Thereafter, he executed a quitclaim deed of the residence to Hazel.

In November 1994, Hazel filed suit to enjoin foreclosure on the "house by Barnett, as a result of the fraud of Johnson and Hauss. Hazel and Barnett agreed that Hazel would refinance the house, and Hazel’s suit was dismissed in December 1994. Hazel testified that she had agreed to refinance the home but “would not be responsible for any credit card debts that went with this loan.” The original home equity deed to secure debt was satisfied pursuant to the refinancing. Both the original home equity deed to secure debt and the refinancing deed to secure debt stated that each secured “any and all further indebtedness now owing or which may hereafter be owing, however incurred, to Grantee.”

Don Jackson, on behalf of Barnett, then began calling Hazel at aer job at Fort Stewart regarding the credit card indebtedness. Jackson was initially professional, but, after Hazel told him that the matter had been settled and to contact her attorney, his calls became more rude. Finally, Jackson threatened to garnish her wages, have aer served with papers at work by the military police, and said he vould come to court so he could laugh her out of court.

The credit card debt was then assigned to Barnett Recovery Cor-oration and turned over to attorney Robin, who filed suit in March 996. The account document attached to Barnett Recovery’s comlaint listed the address of Hazel’s former husband Johnson as that ’ the account holder. Hazel counterclaimed, and Barnett Recovery ,reed to dismiss the action and to “remove or cause to be removed e adverse credit information regarding [Hazel] in this case ported by Barnett Bank or its affiliates or successors from [her] edit reports within thirty days from the date of entry of this dismisd.” The mutual dismissal was signed by the attorneys on May 9, 997, and entered by the court on August 7,1997, “nunc pro time.” A ocument itemizing the statements to be removed was attached to hat dismissal. They were that the original line of credit loan which Hazel had refinanced and paid off had been discharged in bankruptcy; that a line of credit loan opened on January 3,1990, had been ; discharged in bankruptcy; that a joint credit card account opened December 1, 1989, was her obligation and that it had been charged off; and that her refinanced real estate loan “was/is” 180 days past due.

During trial, Barnett’s attorney Robin acknowledged that the several-month delay in the finalizing and entry of the mutual dismissal was attributable to his firm.

This suit was filed by Hazel on May 14, 1998, initially seeking specific performance of the mutual dismissal and punitive damages. Prior to trial, however, the court and counsel all agreed that the matter was controlled by the Federal Fair Credit Reporting Act, 15 USCA § 1681 et seq. and that damages were available under OCGA § 51-12-6. In fact, three of the four requests to charge the jury filed by Barnett dealt with provisions of the Federal Fair Credit Reporting Act.

Pursuant to that Act, Hazel had to show that Barnett had provided false information to credit reporting agencies with malice or wilful intent to injure her. In addition to the evidence set out above, Hazel introduced evidence that, as late as December 7, 1998, the incorrect information was still contained in credit agency reports and that some of it remained as of the date of trial in May 1999.

A number of the arguments made here by Barnett were not made below and will not be considered here for the first time. Beasley v. Paul, 223 Ga. App. 706, 711 (2) (478 SE2d 899) (1996). Because the evidence did not demand a verdict for Barnett, the trial court’s denial of the motions for directed verdict and j.n.o.v. was not erroneous. St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998); Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 341 (1) (537 SE2d 397) (2000). Compare Vidrine v. American Professional Credit, 223 Ga. App. 357, 358 (1) (477 SE2d 602) (1996), with Gibson v. Decatur Fed. Sav. &c., 235 Ga. App. 160, 164 (2) (508 SE2d 788) (1998), and Nicholl v. NationsBank of Ga., 227 Ga. App. 287, 290 (2) (488 SE2d 751) (1997).

2. Barnett contends, in its first enumeration of error, that the trial court improperly denied its motion in limine which sought to exclude from evidence all transactions between the parties prior to entry of the mutual dismissal.

Although Barnett’s brief states that it “filed its Motion in limine,” there is no written motion in limine contained in the record before us, nor is there any transcript of any pretrial discussion of an oral motion. The sole reference to it prior to trial is the trial court’s denial of it which states that the motion “to prevent the introduction of evidence concerning the prior case in Superior Court is DENIED and such evidence gets to be presented to the jury.” The purpose of the evidence, according to the court’s order, was to prove the existence of the agreement to remove the incorrect references from credit agencies’ records and to show that the bank’s actions and inactions were not the result of negligence, but of malice or wilful intent to make a false credit report. “[I]t is incumbent upon [Barnett], as appellant [ ], to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon [its motion], and mere assertions of error in [its] brief do not suffice. In the absence of a sufficient record, we must assume that the trial court’s ruling was proper.” (Footnote omitted.) Galloway v. Linnell, 242 Ga. App. 221-222 (1) (529 SE2d 226) (2000). See also Mazdak Auto Towing &c. v. Midcontinental Group, 231 Ga. App. 859, 860 (2) (501 SE2d 44) (1998).

Decided October 11, 2001.

Kenneth R. Carswell, for appellant.

Leaphart & Johnson, James G. Johnson, Jr., for appellee.

3. The fourth enumeration of error is not supported in the brief by citation of authority or argument and is deemed abandoned. Court of Appeals Rule 27 (c) (2).

4. Finally, we consider Hazel’s motion for imposition of sanctions for frivolous appeal, to which no response has been filed by Barnett.

We agree with Hazel that the only arguments presented here consisted primarily of a reargument of the weight of the evidence and witnesses’ credibility, which are matters for the trial judge’s discretion and the jury’s determination. Therefore, we impose a penalty of $1,000 against Barnett, to be imposed upon the filing of the remittitur in the trial court.

Judgment affirmed with direction.

Eldridge and Miller, JJ., concur.

       In addition to the cases cited by the trial court, see also, e.g., Langlois v. Wolford, 246 Ga. App. 209, 212 (2) (539 SE2d 565) (2000); Time Warner v. Six Flags, supra at 351 (3) (c).


author: Mikell, Judge.

text:
    A01A0947.
    In the Interest of D. T. et al., children.
    (555 SE2d 215)
   Mikell, Judge.

Appellants, the natural mother of D. T. and D. T. and the putative father of the younger child, appeal from the termination of their parental rights. They contend that the trial court erred by admitting evidence of prior deprivation orders and case plans and by not requiring the Carroll County Department of Family & Children Services (the “Department”) to place the children with a family member. The appellants also challenge the sufficiency of the evidence. We affirm the termination order of the juvenile court.

On appeal, we view the evidence in the light most favorable to the judgment of the juvenile court and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights have been lost. In the Interest of A. D., 243 Ga. App. 727, 728 (534 SE2d 457) (2000); In the Interest of D. B., 242 Ga. App. 763 (531 SE2d 172) (2000).

So viewed, the record shows that D. T. and D. T. are half-brothers who are eleven and seven years of age. They are the youngest of six children bom to appellant mother. The Department became involved with this family in February 1996 when appellant mother was briefly incarcerated for driving with a suspended license, and D. T. and D. T. were left in the care of their then 14-year-old sister, who contacted the Department for assistance. The Department kept the children for several days, until appellant father arrived to retrieve them. The record shows that shortly after appellant mother was released from jail on bond and was reunited with D. T. and D. T., she and appellant father burglarized a home in Haralson County and used the proceeds of the burglary to buy drugs.

The Department made an unannounced visit to the family’s residence at the West Georgia Lodge on July 18, 1996. The caseworker found the children alone in filthy conditions with inadequate food and wearing soiled clothing. The juvenile court granted the Department temporary custody of the children in an order filed on July 30, 1996. The court held a deprivation hearing on August 8, 1996; however, the appellants did not appear. Service was attempted at their last known residence, but appellants had moved without providing a forwarding address. Neither the Department nor her court-appointed counsel knew appellant mother’s whereabouts. Appellant father later admitted that he had fled to Alabama and Texas to elude law enforcement in Georgia around the time of the hearing. The juvenile court entered a deprivation order and placed the children in the custody of the Department.

The record shows that appellant mother worked with the Department to develop a case plan for reunification requiring her to maintain a bond with the children, to obtain and maintain a stable home environment and employment, and to cooperate with the Department by participating in recommended programs and services. However, appellant mother failed to maintain a stable home or steady employment, and she refused to complete a substance abuse program. Instead, she moved to Texas to join appellant father, failing to notify the Department or her family of her whereabouts. While in Texas, appellant father was stabbed in the neck during a drug deal. The appellants subsequently returned to Georgia after they were apprehended by the authorities. Appellant father was extradited to Alabama for an outstanding theft by receiving charge. He served six months in prison there. Appellant mother was allowed to return to Georgia on probation.

Appellant mother contacted the Department in March 1997, approximately seven months after her children were placed in the Department’s custody and the deprivation order was entered. She obtained employment at a Waffle House restaurant and found a place to live. In April 1997, she attended a panel review and signed a new case plan, whereby she was required to obtain a psychological evaluation and to follow counseling recommendations made by the panel.

The evidence shows that appellant mother failed to complete the psychological evaluation and that she did not attend the six recommended therapy sessions. Additionally, she refused to comply with the condition of her probation that she submit to random drug tests, and she failed to provide the Department with the results of other drug tests she claimed to have taken. Appellant mother followed her visitation schedule with the children for two months; however, she ceased visitation altogether after July 1997. She also was unable to maintain consistent employment and lost the housing she had obtained.

On July 17,1997, a hearing was held to extend the Department’s temporary custody of the children. Another deprivation order was entered, and the court ordered that the Department retain custody of the children. Neither parent was present at the hearing. We note that appellant father was incarcerated at the time.

On July 22,1997, both appellants attended the panel review and signed a new case plan. Appellants stated that they understood the importance of meeting their goals. The panel gave them three months to demonstrate their compliance. Appellant mother was required to do the following: maintain a bond with the children through scheduled visitation; attend counseling twice monthly for a period of six months and follow the subsequent recommendations generated from her psychological evaluation; maintain stable employment and housing for six months and keep her caseworker notified of her status; attend substance abuse counseling twice weekly for six months; submit to drug and alcohol tests when requested; and abide by the terms of her probation. Appellant father was given three months to legitimate his child.

The caseworker did not hear from the appellants again. The evidence showed that they committed several burglaries during the subsequent months and were both incarcerated. The court entered another deprivation order following a hearing held on June 25, 1998, at which both appellants were present.

On February 4, 1999, the Department filed a petition for termination of parental rights against appellant mother and all legal and putative fathers. The court began a hearing on June 17, 1999; however, the matter was continued due to a conflict of interest among counsel. The Department filed a second petition on April 25, 2000. Counsel for appellants stipulated that the children were deprived as both appellants were incarcerated at that time, and the court entered a fourth deprivation order on June 1, 2000.

The termination hearing took place on August 23, 2000. Dr. Linda Eason, a licensed psychologist who performed a full evaluation of D. T. and D. T., testified that the children were in a “very stable and positive environment,” and that they had grown very attached to their foster family during the past four years. She further testified that the younger child’s emotional and behavioral functions had improved significantly since his removal from the appellants’ custody; that he had been with his foster mother since the age of two and had no real recollection of the appellants; that the two children shared an extremely close relationship; and that it would be in their best interests to be adopted by their foster mother.

The children’s foster mother testified that when she first obtained custody of D. T. and D. T, they were “unkempt” and were suffering from untreated head lice. She farther testified that the younger child seemed “really emotionally disturbed” and had difficulty sleeping during the first year he was in her care. She told the court that the boys were doing well at home and at school, that she loved them very much, and that she hoped to adopt them.

Appellant mother admitted at the hearing that she had failed to meet the goals of her case plans; that she pled guilty to committing burglaries on July 17, 1996, and September 29, 1997, for which she was serving a five-year prison sentence; that she also pled guilty to giving false information to a police officer, for which she was sentenced to one year of probation; and that she was involved in five burglaries committed by appellant father in Carroll County. Appellant mother testified that she no longer abused drugs and alcohol, but she conceded that she used drugs and alcohol heavily in the past, that she refused to submit to required drug screens, and that she had not meaningfully sought substance abuse treatment at all during the period from 1992 until her present incarceration. Appellant father admitted at the hearing that he failed to legitimate his son. Both appellants are currently incarcerated. Appellant mother will be eligible for parole in November 2002, and appellant father has a tentative parole date of February 2004.

The juvenile court entered an order terminating appellants’ parental rights on September 12, 2000, and amended that order on October 23, 2000. Appellants filed a motion for an out-of-time appeal. The court vacated its September 12 and October 23 orders and entered a final order terminating appellants’ parental rights on November 10, 2000. This appeal followed.

1. On appeal, appellants first argue that the juvenile court erred in considering certified copies of the four deprivation orders and the case plans because they were not properly served with notice and were not present at two of the hearings. This argument is without merit.

First, with respect to the deprivation orders, appellants have waived the defense of defective service by failing to raise it in any responsive pleadings or motions or at the hearings where they were present. OCGA § 9-11-12 (h) (1) (A), (B). “A party can waive defects in service of process unless an ‘objection is made at the first practicable opportunity.’” In the Interest of D. R. W, 229 Ga. App. 571, 574 (2) (494 SE2d 379) (1997), citing HAP Farms v. Heard, 209 Ga. App. 684, 685 (1) (a) (434 SE2d 118) (1993). The appellants appeared at the June 25, 1998 deprivation hearing and were represented by counsel at the June 1, 2000 hearing; however, they did not raise the defense of defective service of process. In fact, appellant mother actually stipulated that the children were deprived at the June 1998 hearing, and counsel for both appellants stipulated to the deprivation at the June 2000 hearing.

Furthermore, as demonstrated by the evidence summarized above, appellants repeatedly failed to keep the Department or the court informed of their whereabouts. In fact, appellant father admitted at the termination hearing that he moved to Alabama and Texas to evade capture and that it was not the Department’s responsibility to locate him while he was running from the police.

We also find that the case plans were properly admitted into evidence. Appellant mother signed the April 1997 case plan, and both appellants signed the July 1997 plan. All case reviews and panel recommendations were mailed to appellants in jail during their incarceration. “[U]nder [OCGA § 15-11-65 (b), formerly OCGA § 15-11-33 (d)], ‘all information helpful in determining (whether the children are deprived), including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.’ ” In the Interest of M. L. P., 236 Ga. App. 504, 510 (2) (512 SE2d 652) (1999).

Finally, even assuming, arguendo, that the deprivation orders and case plans were inadmissible, reversal would not be warranted because the factual findings contained therein were corroborated by the testimony of the caseworkers and the appellants themselves during the August 23, 2000 termination hearing, where appellants were present and represented by counsel. In the Interest of J. T. S., 185 Ga. App. 772, 774 (2) (365 SE2d 550) (1988).

2. Next, appellants contend that the court erred by not making an exhaustive search for a suitable family member with whom to place the children, pursuant to OCGA § 15-11-103 (a) (1). That statute provides:

If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with a person related to the child by blood or marriage or with a member of the child’s extended family. A thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement. ... A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.

(Emphasis supplied.)

We conclude that the juvenile court did not abuse its discretion by placing the children in the Department’s permanent custody for the purpose of adoption. The record demonstrates that the Department investigated the possibility of placing D. T. and D. T. with relatives; however, the caseworkers were unable to find a suitable placement for both boys. Caseworker Alecia Brooks testified at the termination hearing that the Department initially attempted to place the younger child with appellant father’s sister, but they were ultimately unable to consider any of appellant father’s relatives for placement, because he failed to legitimate the child. There was evidence that caseworkers attempted to locate a relative placement in appellant mother’s family, but none of the relatives were able to take both boys. The Department determined that it was in the best interests of D. T. and D. T. to remain together based on their close relationship. There was considerable evidence that the children were thriving in their foster home and that their foster mother wished to adopt them.

Thus, the record supports the juvenile court’s determination that it was in the children’s best interests to remain together in the custody of the Department for the purpose of adoption. See In the Interest of B. R. W., 242 Ga. App. 232, 240 (3) (530 SE2d 5) (2000).

In light of this evidence, proof that the [children] would remain in a safe and stable foster home upon termination of the [appellants’] parental rights and evidence of the foster mother’s intent to adopt the [children], we find no abuse of discretion in failing to place the [children] with a family member upon termination of the [appellants’] parental rights.

(Citations and punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134, 139 (3) (501 SE2d 296) (1998).

3. Finally, the appellants contend that there was insufficient evidence to support the juvenile court’s termination of their parental rights. We disagree.

The statutory criteria for the termination of parental rights are the two-step procedure provided in OCGA § 15-11-94 (a). The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the children are deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv). If these four factors are satisfied, the court must then determine whether termination of parental rights is in the best interests of the children, considering their physical, mental, emotional, and moral conditions and needs, including the need for a secure and stable home. OCGA § 15-11-94 (a); In the Interest of D. B., supra at 763-764; In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

We conclude that the record summarized above provides ample support for the termination of the appellants’ parental rights. First, there was clear and convincing evidence that D. T. and D. T. were deprived, based on the four unappealed deprivation orders, the testimony elicited at the hearing, and the appellants’ stipulations that the children were deprived in 1998 and 2000. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

Second, the evidence demonstrates that the deprivation was caused by lack of proper parental care or control. It is clear that the appellants’ continued substance abuse has affected their relationship with the children and their ability to parent. Additionally, their repeated criminal convictions and subsequent incarceration constitute “aggravating circumstances” that may be considered in support of the termination of their parental rights. In the Interest of B. C., 235 Ga. App. 152, 154 (508 SE2d 774) (1998).

OCGA § 15-11-94 (b) (4) (C) provides that when the children are not in the custody of the natural parents, the court may consider whether the parents without justifiable cause have failed significantly for a period of one year or longer to develop and maintain a parental bond with the children, to provide for the care and support of the children, and to comply with a court-ordered reunification plan. The evidence summarized above clearly supports a finding that appellants have failed to develop a bond with the children, to support them, or to comply with the goals of their reunification plans. Thus, the juvenile court properly found that lack of proper parental care or control caused the children’s deprivation.

Likewise, the third factor, whether the cause of the deprivation is likely to continue, is satisfied by the record. OCGA § 15-11-94 (b) (4) (A) (iii). The court may consider past conduct of the parents in making its determination that such conditions of deprivation are likely to continue. In the Interest of C. W. D., 232 Ga. App. 200, 204 (501 SE2d 232) (1998). “Such an inference is appropriate, since the juvenile court is not required to reunite [D. T. and D. T] with appellant [s] in order to obtain current evidence of deprivation or neglect.” In the Interest of E. C., supra at 16. Appellant mother’s history of criminal behavior, failure to complete her psychological evaluation or attend her six counseling sessions, refusal to submit to random drug tests, and failure to comply with her other reunification goals demonstrate that the same pattern of deprivation would likely continue if the children were reunited with their mother. In the Interest of J. M. S. M., 240 Ga. App. 294, 296 (523 SE2d 357) (1999). Similarly, appellant father’s criminal history, pattern of substance abuse, failure to legitimate his child, and prolonged lack of interest in being a parent to his son show that the pattern of deprivation would likely continue. Id.

That same evidence supports a finding that continued deprivation would cause serious physical, mental, or moral harm to the children. In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998); OCGA § 15-11-94 (b) (4) (A) (iv). Thus, the fourth factor in determining parental misconduct or inability has been satisfied.

Finally, the court’s conclusion that termination of parental rights is in the best interests of the children is supported by clear and convincing evidence. OCGA § 15-11-94 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citation and punctuation omitted.) In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999). The ample evidence of appellants’ parental inability coupled with evidence that D. T. and D. T. are thriving in their foster home supports the determination that termination of appellants’ parental rights is in the best interests of the children.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Decided October 11, 2001.

Robert A. Kunz, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, T. Michael Flinn, for appellee.

       The other four children are over the age of eighteen or live with their father, who is not a party to this appeal. They are not at issue in this case.

       The legal father of D. T. and D. T. acknowledged at the hearing that he was not the biological father of either child. The juvenile court terminated the parental rights of “the fathers, both biological and legal.” Only appellant mother and appellant father appeal the court’s order.


author: Phipps, Judge.

text:
    A01A1125.
    YOUNG et al. v. FAULKNER et al.
    (555 SE2d 221)
   Phipps, Judge.

W. D. Young, Mark Lott d/b/a Lott Timber Company of Irwin County, and Southern Timber Products, Inc. appeal the trial court’s grant of summary judgment, contending that the ruling was improperly based solely on opinion evidence. We agree and reverse.

Seeking damages for alleged trespass on real property and wrongful cutting and conversion of timber, Ebson Faulkner and Mary Young sued W. D. Young, the adjoining landowner, Lott Timber Company, who cut the timber, and Southern Timber Products, who purchased it. This appeal is the third appearance of this case in this court. In the first appearance, we affirmed the trial court’s grant of partial summary judgment to plaintiffs, determining that they had proved ownership of the land in issue. In the second appearance, we affirmed the trial court’s grant of partial summary judgment to the plaintiffs, determining that the trespass was wilful.

On remittitur, plaintiffs moved for summary judgment on the only remaining issue, the amount of damages. They supported their motion for summary judgment with the affidavit of a forestry consultant who sought to establish the full value of the harvested timber based on his education, experience, and familiarity with timber products. He opined that the trees cut would have been converted into certain quantities of various timber products which, using “industry standards” and economic data, he calculated had a value of $18,086.83. Defendants argued summary judgment could not be granted based solely on opinion evidence. The trial court granted plaintiffs summary judgment, thus establishing damages in that amount. Defendants appeal.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The movant is not entitled to judgment as a matter of law unless, construing the evidence most favorably to the nonmoving party, the movant shows a prima facie case. Unless and until the movant meets this initial burden, no evidentiary burden shifts to the nonmovant. On appeal of a grant of summary judgment, we conduct a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party.

Defendants contest the amount of damages set by the trial court’s grant of summary judgment. They rely on Ginn v. Morgan for the proposition that summary judgment can never issue based solely upon opinion evidence. Ginn has been modified to the extent that in cases where a plaintiff must produce an expert’s opinion to prevail at trial, when the defendant moves for summary judgment and produces an expert’s opinion in the defendant’s favor and plaintiff fails to produce a contrary expert’s affidavit in opposition, summary judgment may be granted to the defendant. However, “ ‘Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned.’ [Cits.]” Ginn is applicable here, where expert testimony is admissible, though not required.

“The question of the value of property is peculiarly one for the jury. Jurors are not required to accept as correct opinion evidence of value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion. [Cits.]”* A jury must make the factual determination whether to accept the opinion evidence in this case in whole or in part and what weight and credibility to give it. Therefore, the trial court erred in granting the plaintiffs’ motion for summary judgment on the issue of damages.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

Decided October 11, 2001.

John T Croley, Jr., for appellants.

Rogers & McCranie, Murphey Rogers, for appellees.

       See Young v. Faulkner, 217 Ga. App. 321 (457 SE2d 584) (1995).

       See Young v. Faulkner, 228 Ga. App. 587 (492 SE2d 331) (1997).

       OCGA § 9-11-56 (c).

        Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617 (1) (501 SE2d 497) (1998).

       Id. at 617-618.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       225 Ga. 192, 193 (167 SE2d 393) (1969).

       See Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 746 (285 SE2d 689) (1982); Wilson v. Norfolk Southern Corp., 200 Ga. App. 523, 526 (5) (a) (409 SE2d 84) (1991).

        Wilson, supra.

       See Ginn, supra; Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978).

        Hoard v. Wiley, 113 Ga. App. 328, 334-335 (3) (147 SE2d 782) (1966); Varnedoe v. Singleton, 154 Ga. App. 332, 333 (268 SE2d 387) (1980).

        Ginn, supra.


author: MEKELL, Judge.

text:
    A01A1230.
    COVINGTON v. THE STATE.
    (555 SE2d 204)
   MEKELL, Judge.

Millard Covington was charged with murder, felony murder, and possession of a firearm by a convicted felon. A Fulton County jury convicted him of voluntary manslaughter and possession of a firearm by a convicted felon. Covington was sentenced to fifteen years confinement on the voluntary manslaughter offense and five years on the possession charge to run consecutively. On appeal, Covington seeks the reversal of his conviction and sentence on several grounds. Specifically, he argues that the trial court erred by: (1) instructing the jury that it could reduce the charges of malice murder and felony murder to voluntary manslaughter; (2) allowing the state to elicit testimony from an officer that bolstered the credibility of the eyewitness; and (3) sentencing Covington separately for the possession charge when it could not determine the basis for the jury’s verdict. Covington also contends that he was denied effective assistance of counsel. For the reasons stated below, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that at approximately 3:30 a.m. on April 6,1994, Officer David Quinn, Jr. of the Atlanta Police Department was approached by Robert Ponder and Rita Hillis at a gas station. Hillis told him that someone had been shot and was lying in a wooded area. After locating the body, Officer Quinn notified the homicide department. He turned the case over to the homicide officer, Investigator Sheila Cumberworth, once she arrived at the scene.

Investigator Cumberworth testified that the victim was found at 408 Bass Street in Fulton County, in a large lot east of Mike’s Body Shop. She did not find any weapons around the outside of the garage or near the body, and there was no indication that there had been a fight or scuffle in the garage. After talking to Hillis and obtaining her statement, Investigator Cumberworth secured an arrest warrant for Covington and notified the fugitive squad that Covington had fled the area.

Hillis was the state’s sole eyewitness at trial. Hillis testified that on the evening before the shooting, she purchased crack cocaine from the victim, whom she called “Buster.” At approximately 11:00 p.m., she, Buster, and Ponder met and began drinking alcohol. After dropping Hillis off on Stewart Avenue, Buster and Ponder returned to pick her up at approximately 2:00 a.m. They went to a crack house to buy more crack cocaine, and when there was none, they continued to drink. Eventually, Hillis bought more crack cocaine, but she decided to go home to smoke it alone because Buster kept begging her for a “hit.”

For two weeks before the incident, Hillis had been sleeping in the garage where Covington lived. Buster followed Hillis to the garage. As Covington opened the door, Hillis told Buster that he could not come in. Buster ignored Hillis and continued to beg for a “hit” of crack cocaine. Hillis testified that Covington, who did not know Buster, asked her what was going on and she explained, “He’s following me in here, keeps asking me about something I don’t have, and I told him he cannot stay.” In a nice manner, Covington asked Buster to leave. After Buster ignored him, Covington told Buster that he was going to have to leave, and when Buster did not move, Covington pushed him. As a result, Buster fell onto the ground outside of the garage.

Hillis testified that when Buster walked back into the garage and was standing just inside the entrance, Covington said, “I told you you had to leave. Wait a minute, I’m going to get my stick.” In the meantime, Hillis told Buster again that he should leave. As Buster was backing away, Hillis recalled that all she saw was orange fire coming from Covington’s gun.

Hillis testified that initially, neither she nor Covington thought that Buster had been shot. They realized that Buster was shot after Covington dragged him outside. Hillis testified that she was absolutely positive that Covington shot Buster and that Buster had not threatened Covington before Covington shot him.

On cross-examination, Hillis admitted that she had been awake for about 24 hours before the shooting. She also testified that before the incident, Buster had been smoking crack for five to six hours, drinking cheap wine, and was “hyper” from the crack cocaine.

Consistent with Hillis’ testimony, Covington testified that Buster followed Hillis into the garage. He recalled that Hillis told Buster to leave her alone and to leave the garage. When Covington also told Buster to leave, Buster grabbed his arm and pushed him, then they fought and fell outside of the garage. Covington testified that he tried to run back into the garage but could not secure the garage door before Buster came back in. Covington realized that there was something in Buster’s hand and tried to shoot over him to scare him. Covington testified that he did not realize that he had shot Buster, that he did not intend to kill him, and that he panicked and left the scene after Hillis said she was going to get Buster’s brother. Covington was arrested on March 10, 1995.

1. During jury deliberations, the jury asked: “Are counts 1 and 2 linked ges [sic]. Need more clarification. Can you be guilty of count 2 and not guilty of count 1? This is relative to malice aforethought. Is it our option -to reduce the count?” After discussing the questions with counsel, the court informed the jury that Counts 1 and 2 were not linked and that a person could be guilty of Count 2, but not Count 1. In response to the question about reducing the count, the court stated: “I assume you mean [by] reduce the count, you mean reduce the malice murder or the felony murder to voluntary manslaughter. Yes, it is your option to reduce those counts, either count to voluntary manslaughter.”

Covington argues that the court’s response was erroneous because it improperly removed from the jury’s consideration the lesser included offenses of involuntary manslaughter, aggravated assault, reckless conduct, simple assault, pointing a gun at another, and simple battery. We disagree.

During its original instructions to the jury, the court properly charged the jury on murder, felony murder, aggravated assault, possession of a firearm by a convicted felon, and voluntary manslaughter. Defense counsel did not request that the jury be charged on any other lesser included offenses. “A trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge.” Thus, the court’s failure to so charge here does not constitute error.

2. In his next two enumerations of error, Covington contends that he was denied his right to effective assistance of counsel because his trial counsel failed to object to the court’s response to the jury question and to request charges on lesser included offenses and elicited testimony from Officer Quinn that bolstered Hillis’ testimony. We disagree.

“[I]n order to prevail on a claim of ineffectiveness of trial counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for the attorney’s errors, there would have been a different outcome at trial.” Furthermore,

a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

“[A] trial court’s finding of effectiveness must be upheld unless clearly erroneous.”

(a) Covington argues that his counsel was ineffective because he failed to object to the court’s response to the jury’s inquiry that was discussed in Division 1 of this opinion. Absent some deficiency or impropriety in the charge which was harmful to Covington, trial counsel was not ineffective because of his failure to object. The court’s response that the jury could reduce the count to voluntary manslaughter was not deficient or improper as it conformed to the jury charge and the verdict form, and it was adjusted to the evidence in the case.

(b) Covington’s argument that his trial counsel was ineffective because he did not request charges on involuntary manslaughter, aggravated assault, reckless conduct, simple assault, pointing a gun at another, or simple battery also fails. Pretermitting the issue of whether Covington’s counsel was deficient in his failure to request these charges, Covington must show that “there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors.” In other words, Covington must show that he would not have been convicted of voluntary manslaughter had the jury had the other offenses to consider. This, he cannot do.

“[Q]ualified jurors under oath are presumed to follow the instructions of the trial court.” The jury was charged that “[a] person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” Covington admits that he shot the victim. There is no dispute that the victim died because of the gunshot wound inflicted by Covington. There is also evidence that Covington was reacting to the victim’s conduct when he shot him. Therefore, the evidence was sufficient to support the jury’s verdict that Covington was guilty of voluntary manslaughter. Consequently, Covington was not prejudiced by his trial counsel’s failure to request the additional charges.

(c) Lastly, Covington contends that his trial counsel was ineffective because he elicited testimony from Officer Quinn that bolstered Hillis’ testimony. Again, we disagree.

During the course of his cross-examination of Officer Quinn, counsel inquired about the aggressive or volatile nature of crack cocaine users. When asked if people who use crack cocaine and alcohol tend to depart from normal character, Officer Quinn asked if he could say something. The following colloquy occurred:

Quinn: If you’re a crack head and you do it every day and something serious happens, you sober up in seconds. It’s just how it is. You do it every day, but if your mother dies and you been doing crack all day, you’re sober.
Counsel: When you say sober, you mean coherent?
Quinn: Coherent, missing no information, understanding everything around you.
Counsel: That’s been your hundred percent experience?
Quinn: I would say so.

In his brief, Covington argues that by this line of questioning, defense counsel encouraged Officer Quinn to vouch for Hillis’ truthfulness.

During the hearing on the motion for new trial, trial counsel explained that when questioning Officer Quinn, who had already admitted that he was not a toxicology expert, it was his intention to show that the officer was not believable. Counsel testified, “I thought that I had discredited him by proving that he would just basically say anything to make his case.” When Officer Quinn made the statement about instantly becoming sober, trial counsel testified that once again, he was trying to show that the officer was not believable.

“[A] matter such as the cross-examination of a witness is most often grounded in matters of trial tactics and strategy and, in those instances, provides no basis for finding counsel’s performance deficient.” Moreover, “[particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.”* Trial counsel’s tactical strategy was not so clearly erroneous as to be ineffective. Accordingly, this enumeration fails.

3. In his next enumeration of error, Covington argues that the state improperly elicited testimony from Officer Quinn that bolstered the credibility of Hillis. Again, we disagree.

During his direct examination, Officer Quinn testified that he had experience with people who were under the influence of either alcohol, crack cocaine or cocaine as a part of his job. When asked whether Hillis was either extremely high or drunk when he first talked with her, he said that she was not. This is not tantamount to asking Officer Quinn his opinion about the truthfulness of Hillis’ testimony, which we agree is prohibited. Instead, the state’s questions inquired about Hillis’ condition when she informed Officer Quinn of the shooting, which is. permissible. Accordingly, this enumeration lacks merit.

4. Finally, Covington contends that the trial court erred in sentencing him on the felon in possession of a firearm offense when it was impossible to determine whether the jury reached the voluntary manslaughter conviction by reducing the malice murder count or the felony murder count. Covington did not raise this argument in his motion for new trial, his amended motion for new trial, or during argument on the motion for new trial. “This Court will not consider issues and grounds for objection, . . . which were not raised and determined in the trial court.” Accordingly, this error is waived.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Decided October 11, 2001.

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Advera A. Wheeler, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

       (Citation and punctuation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       (Citation omitted.) Gadson v. State, 264 Ga. 280, 281 (2) (444 SE2d 305) (1994).

       (Citations omitted.) Butler v. State, 273 Ga. 380, 384 (10) (541 SE2d 653) (2001).

        Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993), citing Strickland v. Washington, 466 U. S. 668, 697 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Green v. State, 240 Ga. App. 650, 653 (3) (523 SE2d 632) (1999).

        Abreu v. State, 206 Ga. App. 361, 363 (1) (425 SE2d 331) (1992).

       (Citation and punctuation omitted.) Tutton v. State, 179 Ga. App. 462, 464 (4) (346 SE2d 898) (1986).

       (Citation and punctuation omitted.) Gomillion v. State, 236 Ga. App. 14, 19 (3) (d) (512 SE2d 640) (1999).

       OCGA § 16-5-2 (a).

        Butler v. State, 273 Ga. 380, 385 (10) (b) (541 SE2d 653) (2001).

       (Citation and punctuation omitted.) Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

       See Bright v. State, 238 Ga. App. 876, 880 (4) (520 SE2d 48) (1999).

       See Lawrence v. State, 157 Ga. App. 264 (2) (277 SE2d 60) (1981).

       (Citation and punctuation omitted.) Couch v. State, 246 Ga. App. 106, 109 (3) (539 SE2d 609) (2000).


author: Miller, Judge.

text:
    A01A1251.
    CITY OF DEMOREST v. CITY OF BALDWIN et al.
    (554 SE2d 824)
   Miller, Judge.

The City of Demorest appeals from the trial court’s order denying Demorest’s claim to enjoin the enforcement of a contract as modified between itself and the City of Baldwin and granting attorney fees to Baldwin. On appeal Demorest challenges the validity of the entire contract between Demorest and Baldwin, the award of attorney fees, and other findings of the trial court. We discern no error and affirm.

Demorest and Baldwin entered a contract to construct a water treatment plant that would provide water to both cities. After three modifications to the contract, Demorest sued Baldwin to enjoin Baldwin from enforcing the contract as modified, and Baldwin filed a counterclaim under OCGA § 9-15-14 for attorney fees.

The parties prepared a consent order through which they agreed to submit the entire matter to a “modified arbitration,” and they informed the trial court that the case would be “submitted to arbitration with the [trial] court adopting the findings and conclusions of the arbitrator.” The purported “purpose of [the] ‘modified arbitration’ [was] to allow both parties to appeal [the] Court’s order. . . .” Consistent with the prior agreement of the parties, the trial court adopted all of the arbitrator’s findings of fact and conclusions of law, which mandated a judgment in favor of Baldwin and an award of attorney fees to Baldwin.

On appeal Demorest alleges that several of the arbitrator’s findings and conclusions were erroneous and that the trial court therefore erred by making these same findings and conclusions when it adopted the arbitrator’s ruling. However, “it is well settled that when a party has himself induced what he subsequently assigns as error, he will not be heard to complain of it on appeal.” Since the trial court did exactly what the parties themselves requested by simply adopting the findings of fact and conclusions of law of the arbitrator, we disagree with Demorest and discern no error on the part of the trial court.

Decided October 11, 2001.

Freeman, Mathis & Gary, T. Bart Gary, Stuart W. Gray, Christian A. Coomer, James C. Weidner, for appellant.

Hulsey, Oliver & Mahar, R. David Syfan, for appellees.

In this case, the judge did not sit as the trier of fact and did not choose the arbitrator involved. This so-called “modified arbitration” was done entirely by agreement of the parties. As the parties requested, the trial judge simply adopted the findings of the arbitrator. Demorest cannot now claim that the trial court erred in some way by adopting the very same rulings that the parties previously agreed that the trial court would accept without further inquiry.

This is not a case involving an arbitration award that the trial court refused to vacate after a motion by one of the parties. Indeed, in such a case our review for error would be based on the statutory grounds enumerated in OCGA § 9-9-13 (b). Nor is this a case where the judge sat as the trier of fact and chose an arbitrator to assist in the resolution of certain issues. In such a case, we would uphold the findings of the trial judge if there was any evidence to support the judgment. The instant case involves a “modified arbitration” procedure that was invented and controlled by the parties. Here the trial court did exactly as the parties requested, and thus any error in the result was induced by the parties. All of the alleged errors referenced by Demorest in this case were of its own making, and it will not now be heard to complain of those errors here.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       (Citations and punctuation omitted.) Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 34 (6) (392 SE2d 717) (1990).

       See, e.g., Faiyaz v. Dicus, 245 Ga. App. 55 (537 SE2d 203) (2000).

        Greene v. Hundley, 266 Ga. 592 (468 SE2d 350) (1996).

        Dunn v. Lightle, 223 Ga. App. 137 (476 SE2d 776) (1996).


text:
    A01A1321.
    ROSEBERRY v. THE STATE.
    (554 SE2d 816)
   Miller, Judge.

Sandra Jean Roseberry was convicted of one count of harassing phone calls. On appeal Roseberry enumerates as error the grant of the State’s motion in limine to exclude certain testimony and the sustaining of the State’s hearsay objection. Roseberry further argues that the court erred in charging the jury that the word “solely” as used in the accusation was insignificant. Discerning no error, we affirm.

The evidence showed that Roseberry and the victim were sisters-in-law. Roseberry called the victim on several occasions, yelling obscenities and threatening to kill the victim and to take away her children, before hanging up the phone.

1. Roseberry contends that the court erred in granting the State’s motion in limine to exclude extrinsic evidence that the victim was having an extramarital affair with Roseberry’s husband. She argues that this evidence was relevant to show her intent — that she did not intend to harass the victim but to persuade the victim to leave her husband alone. Although the court granted the motion to exclude extrinsic testimony on this issue, Roseberry was allowed to testify that she believed her husband was having an affair with the victim and the basis for that belief.

The testimony that Roseberry desired to elicit went to whether her husband did in fact have an affair with the victim, which was not a triable issue. The issue was whether Roseberry made the phone calls for the purpose of harassing the victim, not whether Roseberry’s motivation for the harassment was based on truth. Even though Roseberry’s motive for the phone calls was to persuade the victim to stop the affair, the method of persuasion was to harass the victim through repeated phone calls. “The admission or exclusion of evidence on the ground of relevance lies within the discretion of the trial court.” Moreover, Roseberry herself was allowed to testify that she believed that the two were having an affair and to give the basis for that belief. We discern no reversible error.

2. During cross-examination of the investigating officer, defense counsel attempted to elicit testimony about what Roseberry’s daughter told the officer. The State objected, arguing that the officer’s response would be hearsay, and the court sustained the objection. Roseberry argues that the court erred in not allowing her to question the officer about these statements because the State (without objection) elicited some of the same testimony on direct examination.

Regardless of whether such testimony was previously given, the statements sought on cross-examination were offered for the truth of the matter asserted and are considered hearsay under OCGA § 24-3-1. As the right to a thorough and sifting cross-examination does not include the right to elicit hearsay, the court did not err in sustaining the State’s hearsay objection.

3. Roseberry argues that the court erred in charging the jury that the word “solely” as used in the accusation is legally insignificant. The accusation charged Roseberry with the offense of harassing phone cedis in that she by means of the telephone made repeated calls, during which conversation ensued, solely to harass the victim. During deliberations the jury requested a definition of solely. The court explained to the jury that the word “solely” has no legal significance. Roseberry argues that the jury may have convicted her of committing the offense in a manner not charged in the accusation.

OCGA § 16-11-39.1 (a) provides that “[a] person commits the offense of harassing phone calls if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person. . . .” Here the State was required to prove only that Roseberry made the repeated calls for the purpose of harassing the victim, not solely for the purpose of harassing the victim. The word “solely” is not descriptive of the manner in which the crime was committed and is mere surplusage. It can be entirely omitted without affecting the charge and without detriment to the accusation.

[M]ere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.

Moreover, there was no reasonable probability that Roseberry misunderstood the charges against her or was surprised or harmed by the words of the accusation^ Thus, the court did not err in its charge to the jury on the insignificance of the word “solely” as used in the accusation.

Decided October 11, 2001.

Richard T. Ryczek, Jr., for appellant.

Richard R. Read, Solicitor-General, Robert D. James, Jr., Assistant Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Roseberry’s husband and the victim’s husband are brothers.

       (Footnote omitted.) Reese v. State, 241 Ga. App. 350, 353 (5) (526 SE2d 867) (1999).

       See Pierce v. State, 176 Ga. App. 795, 796 (2) (338 SE2d 40) (1985) (hearsay on redirect was erroneously admitted even if door was opened to evidence of hearsay on cross-examination).

       See Muse v. State, 160 Ga. App. 272-273 (1) (287 SE2d 224) (1981).

       After the court sustained the State’s hearsay objection, Roseberry called her daughter as a witness and defense counsel thoroughly questioned her as to her statements to police.

       See Callaway v. State, 247 Ga. App. 310, 314 (1) (b) (542 SE2d 596) (2000); Wright v. State, 232 Ga. App. 104, 106 (2) (501 SE2d 543) (1998); Carter v. State, 222 Ga. App. 397, 398-399 (2) (474 SE2d 228) (1996).

       See Carter, supra, 222 Ga. App. at 399 (2).

       (Punctuation and footnote omitted.) Callaway, supra, 247 Ga. App. at 314 (1) (b).

       See Wright, supra, 232 Ga. App. at 108 (2); McBride v. State, 202 Ga. App. 556, 558 (415 SE2d 13) (1992).


text:
    A01A1335.
    In the Interest of D. F. et al., children.
    (555 SE2d 225)
   Mikell, Judge.

The mother appeals the juvenile court’s termination of her parental rights to her children D. F, I. F, and A. F. We reverse because the record does not contain clear and convincing evidence supporting the juvenile court’s finding that the continued deprivation of the children would likely cause them serious harm.

The standard of appellate review is whether “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 Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” However, in reviewing the record of a proceeding for the termination of parental rights, we are mindful that “there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. Accordingly, compelling facts are required to terminate parental rights.”

OCGA § 15-11-94 establishes a two-step process in considering the termination of parental rights. The court is first required to determine whether there is clear and convincing evidence of parental misconduct or inability. If there is parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. Parental misconduct or inability must be shown by clear and convincing evidence that (1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation “will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”

The record shows that the Carroll County Department of Family & Children Services (the “Department”) became involved with the mother and her three children in 1996. The mother was then 16 years old, and she required the Department’s assistance in caring for her children. In 1997, the mother damaged her boyfriend’s car, for which she was convicted of criminal trespass and placed on probation. In May and June 1998, the mother was jailed for violation of probation because she failed to perform community service. No one in the mother’s family was willing to take her children when she was incarcerated, and so the Department assumed emergency custody. After a hearing, the juvenile court found in an unappealed order that the children were deprived and awarded temporary custody to the Department. The children have been placed in foster care. A caseworker testified that, before the mother was jailed, her parenting skills were not so poor that the Department would have been justified in removing the children from her custody.

After the mother was released from jail, she agreed with the Department on a plan for her permanent reunification with the children. Under the plan, the mother’s strengths were noted as “[she] loves her children; no domestic violence; no substance abuse.” Needs were listed as “child needs met; develop relationship with children; maintain emotional stability; maintain stable housing; maintain employment.” The mother’s plan goals included developing and maintaining an appropriate relationship with her children, maintaining emotional stability, maintaining stable housing, and maintaining employment. The mother was also required to cooperate with the child support enforcement division.

The mother never successfully completed her case plan, although the evidence shows at least some level of cooperation and effort in each area. The mother visited her children more than 60 times, which was more than 98 percent of the scheduled visitations. The mother attended ten sessions with a psychological counselor, as the Department recommended. The Department asked the mother to attend joint counseling with the children’s father, and she appeared for the counseling session, although he did not. And although the Department maintains the mother is deficient in her parenting skills, she did complete a required course in parenting.

The mother’s satisfaction of her employment, housing, and child support goals was more problematic. She abandoned her apartment in October 1999 and moved in with her grandmother, who has never agreed to take in the mother’s children. The mother also had difficulty securing permanent employment. She was employed at a fast food restaurant from August 1998 through May 1999, when she was fired. She started another job in June 1999 and was laid off after six weeks. She had a seasonal job at Honey Baked Ham around Thanksgiving of 1999. At the time of the hearing in May 2000, the mother was eight months pregnant and unemployed. The mother was unable to maintain her child support payments. However, she attended school as a part of an agreement with the child support enforcement division.

In September 1999, the mother had an altercation with the children’s father (who did not live with the mother at the time and is currently incarcerated) and was jailed for a day. It was after this incident that the Department sought to terminate the mother’s parental rights. The caseworker testified that she filed the petition because there had been no change in the mother’s situation since 1996, and because she failed to make further progress on her case plan.

The mother claims on appeal that the evidence was insufficient to support the juvenile court’s decision to terminate her parental rights. Clear and convincing evidence does support the juvenile court’s findings that (1) the children were deprived, (2) the deprivation was caused by lack of parental care and control, and (3) the deprivation was likely to continue. The mother was in jail and her children had no place to stay when they were placed in temporary state custody. The mother did not complete her case plan for the return of the children. Despite her undeniable efforts to maintain close contact with her children, the mother has been unable to provide stable housing, maintain long-term employment, or honor her child support obligations. She is no longer making progress on her case plan. The mother is living in her grandmother’s home, and there is no competent evidence that her grandmother would be willing to provide shelter for the mother’s children as well. By the time of the termination hearing, the mother was again pregnant and she was not working.

Nevertheless, clear and convincing evidence does not support a finding that the children were likely to suffer serious harm if their deprivation were to continue. With respect to this requirement, the juvenile court made the following findings:

Such actions are likely to cause serious harm to the children. The mother although having a concern for the children does not have the parenting skills and ability to keep them safe from harm and properly care for such children. The children are in a stable environment at the present time as to [sic] which the mother could not supply both from an emotional and physical perspective. Concern for your children regardless of how great that is cannot provide the ability to properly care for them. The mother would make, perhaps, a good baby sitter to care for the children on an occasional basis but not as an ongoing parenting figure and influence.

These findings fail to support the juvenile court’s conclusion that the children were likely to suffer serious harm if their deprivation were to continue. The mother’s inability to care for her children does not necessarily mean that her current relationship with them is detrimental. We find no expert testimony with regard to the effect on the children if the mother’s parental rights were not terminated; there is no testimony that the children’s relationship with their mother was harmful; and there is no testimony that the children are currently suffering due to their placement in foster care or that without a permanent placement that they would suffer serious harm. We note that the Department presented no identifiable prospects for adoption, and the current foster parents do not want to adopt the children. It appears to us that the Department wishes to terminate the children’s existing relationship with their mother, which they cannot show is likely to cause serious harm, in return for the possibility that the children will be placed in an as yet unidentified permanent home.

The Department did not present evidence which would satisfy the statutory requirements for termination. We are mindful that the mother exhibits poor parenting skills and interacts with her children more like an older sibling than a mother, and that she has experienced a sometimes violent relationship with the children’s father, but there is nothing in the record that shows that continuing the legal relationship of parent and child is inherently harmful to the children. It follows that the juvenile court’s order terminating the mother’s parental rights must be reversed.

In view of our decision, the mother’s arguments with regard to the Department’s introduction of evidence beyond the scope of the proceedings are moot.

Judgment reversed.

Blackburn, C. J., and Pope, P. J., concur.

Decided October 11, 2001.

Robert A. Kunz, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, P. Brian Campbell, Assistant Attorneys General, for appellee.

       (Citation and punctuation omitted.) Sims v. Sims, 171 Ga. App. 99, 100 (318 SE2d 805) (1984).

       (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491-492 (507 SE2d 226) (1998).

       (Citation and punctuation omitted.) In the Interest of K. J., 226 Ga. App. 303, 306 (1) (486 SE2d 899) (1997).

        In the Interest of C. D. A, 238 Ga. App. 400, 401 (519 SE2d 31) (1999).

       OCGA § 15-11-94 (b) (4) (A).

        In the Interest of J. M., 251 Ga. App. 380, 383-384 (554 SE2d 533) (2001); In the Interest of K. J., supra, 226 Ga. App. at 307 (2).


text:
    A01A1606.
    TIDWELL v. TIDWELL.
    (554 SE2d 822)
   Phipps, Judge.

In this action to recover title to a car, the trial court determined that the statute of limitation for conversion barred the claim and granted summary judgment to Alvertia Tidwell. Marion Tidwell (Tidwell) appeals, contending that the ground upon which summary judgment was granted had not been asserted and that, therefore, he did not have full and fair notice and opportunity to controvert it. While the record is insufficient to review that contention, it does show that the claim was barred by the statute of limitation. We therefore affirm.

Tidwell was a minor when his father died and his grandmother, Alvertia Tidwell, was appointed as his guardian. While serving as guardian, his grandmother purchased an automobile with Tidwell’s funds. In 1992, when Tidwell reached the age of 18, his grandmother filed a final return with the probate court, listing the car as an asset in the estate. Tidwell certified that the return was correct and relieved his grandmother of further liability or accounting. In November 1992, the probate court discharged Tidwell’s grandmother as guardian and granted letters of dismission to her.

In October 1996, Tidwell filed in probate court a petition for a full accounting. As amended, it alleged that his grandmother had fraudulently converted estate property during the guardianship and sought to have the judgment granting the letters of dismission set aside pursuant to OCGA § 9-11-60 (d). The court denied the motion and dismissed the petition, and we denied Tidwell’s subsequent application for discretionary appeal.

In March 2000, Tidwell filed a “complaint in equity” in superior court alleging, among other things, that his grandmother had refused to transfer title to the automobile to him. She answered, asserting various defenses including res judicata and the statute of limitation. She then filed a motion for summary judgment, arguing that Tidwell was required to assert any such claim in the 1992 probate court action and therefore the claim was barred by res judicata. After a hearing, the court granted summary judgment to Tidwell’s grandmother on the ground that the matter was an action for conversion barred by the four-year statute of limitation.

On appeal, Tidwell contends that the trial court did not have authority sua sponte to grant summary judgment on that ground, arguing that it had not been asserted and that he had not been afforded full and fair notice and an opportunity to be heard on it.

Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.

The parties dispute whether the defense of the statute of limitation for conversion was argued at the hearing. Tidwell acknowledges that no transcript was made of the hearing. Without a transcript, we cannot determine that error has been committed as asserted by Tidwell, who has the burden of showing error affirmatively by the record. Under these circumstances, we presume that the trial court’s ruling was proper.

Tidwell further claims that summary judgment should not have been granted because his claim was not one of conversion, but a “complaint in equity.” The gravamen of Tidwell’s cause of action was that his grandmother wrongfully retained title to a car that belonged to him. “[C]onversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. [Cit.]” Thus, Tidwell’s underlying claim against his grandmother was properly characterized as one of conversion and became viable when the grandmother engaged in an act of dominion hostile to his ownership rights. In its order that the four-year statute of limitation for conversion barred Tidwell’s March 2000 claim, the trial court correctly found that the conversion occurred as early as 1992, when the grandmother failed to transfer title to the car to Tidwell.

Decided October 11, 2001.

Gwendolyn F. Waring, for appellant.

Robert E. Falligant, Jr., for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       (Citations, punctuation and emphasis omitted.) Aycock v. Calk, 222 Ga. App. 763-764 (476 SE2d 274) (1996).

        Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143) (1992); see also Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 871 (3) (506 SE2d 145) (1998).

       See Patriot Gen. Ins. Co., supra; Famble, supra. Compare cases where the record demonstrated that the ground was not asserted, and this court concluded that appellants had not had a full and fair opportunity to meet and controvert assertions against them, e.g., Dixon v. MARTA, 242 Ga. App. 262, 266 (3) (529 SE2d 398) (2000); Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (2) (483 SE2d 602) (1997); Aycock, supra at 764.

       (Punctuation omitted.) Gibbs v. Dodson, 229 Ga. App. 64, 68-69 (2) (492 SE2d 923) (1997).

       See id.

       See OCGA § 9-3-32; Logan v. Tucker, 224 Ga. App. 404, 406 (2) (480 SE2d 860) (1997).