text:
    A97A1134.
    In the Interest of A. H. et al., children.
    (486 SE2d 412)
   Eldridge, Judge.

The appellant, Kristianna Talley, appeals from an order of the juvenile court terminating her parental rights to her son, A. H., born November 7, 1994, and her two daughters, K. J. F., born January 7, 1986, and S. A. L. F, born November 26,1987. For the reasons which follow, we affirm.

“Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ For purposes of this case, a finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” In the Interest of R. N, 224 Ga. App. 202 (480 SE2d 243) (1997).

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, 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.” (Citations and punctuation omitted.) Id.

Viewed in this light, the evidence showed that all three children have spent the majority of their lives in foster care. A. H., who is two years of age, has spent all but four weeks of his life in foster care, and K. J. F. and S. A. L. F, who are respectively ten and nine years of age, have spent over five and one-half years in foster care.

K. J. F. and S. A. L. F. first came into the control of the Georgia Department of Family & Children Services (“DFCS”) on September 19, 1988, when their parents voluntarily requested a foster home placement for the girls through DeKalb County DFCS, as they were not able to provide for their daily care and supervision, or medical needs. K. J. F. is a special needs child with a chromosomal abnormality, cerebral palsy, and mild retardation.

Between October 14, 1988, when the initial 30 day case plan was implemented, and June 17, 1991, numerous case plans were developed to help implement reunification between the appellant and her daughters. However, the appellant was unable to comply with all the goals set forth in the case plans. Specifically, she was not able to provide necessdry daily care and supervision of the children; she was not able to provide for the specialized physical and emotional needs of the children; and she failed to provide any financial support for the children. For these reasons, several orders were entered extending custody with DeKalb County DFCS. The final order extended custody until October 20, 1988.

On June 17, 1991, a supplemental order of disposition was entered in accordance with OCGA § 15-11-41 (d) and (e). The supplemental order was dated May 31, 1991, and incorporated a Citizens Review Panel report from March 12, 1991. Based on the fact that the children had been in foster care for two and one-half years, one of the recommendations of the Citizens Review Panel was to review the appellant’s progress for the next six months and, if she was unable to comply with the case plan goals, to look for alternative permanent placement for K. J. F. and S. A. L. F. Finally, after the children had spent three and one-half years in foster care, the appellant was able to sufficiently comply with the case plan goals, and K. J. F. and S. A. L. F. were returned to her custody on April 25, 1992.

Gwinnett County DFCS first became involved with the appellant, K. J. F. and S. A. L. F. in March 1994, when DFCS received a CPS complaint which alleged that the children were neglected. At that time, the appellant, K. J. F, and S. A. L. F. were living with the appellant’s mother.

On November 7, 1994, Gwinnett County DFCS received a second referral on the appellant. The appellant had just given birth to a third child, A. H. At the time of birth, both A. H. and the appellant tested positive for marijuana. A. H. was placed in the custody of the Gwinnett County DFCS on November 9, 1994, three days after his birth. On November 29, 1994, the juvenile court entered a final order finding that A. H. was deprived but returned A. H. to the appellant with conditions and under DFCS supervision. Such deprivation order was not appealed.

All three children came into the custody of Gwinnett County DFCS on December 12, 1994, when the maternal grandmother of the children turned the children over to DFCS after the appellant was arrested on a charge of possession of marijuana. An emergency deprivation hearing was held on December 15, 1994; the appellant waived presentation of evidence and consented to all three children being placed in the temporary legal custody of DFCS. An order was entered of record on December 28,1994. The Juvenile Court of Gwinnett County entered a final order on January 9, 1995, dated January 6, 1995, which found that all three children were deprived. This final order was not appealed. All three children have remained in the physical custody of DFCS since December 12, 1994.

Between January 6, 1995, and May 30, 1996, numerous case plans were created and review hearings held. In June 1995, the appellant requested a review hearing under OCGA § 15-11-41 (c) for a more detailed case plan. The juvenile court conducted a review hearing and entered an order on June 26, 1995, which enumerated a more specific case plan for the appellant. In order to comply with the goals set forth, the appellant was to maintain stable housing independent from her mother because of the strained relationship between the appellant and her mother. The appellant was never able to obtain this goal, except for a period of about two months after her marriage. Further, such order required the appellant to complete sleep apnea monitor training, which she failed to do until the court found that such training was unnecessary because A. H. no longer needed the monitor. The appellant was also required to remain alcohol and drug free, to submit to monthly drug screens within 24 hours notice from DFCS, and to attend a weekly AA/NA aftercare support group. The appellant failed to submit to many of the requested drug screens or to obtain verification of them, and never submitted verification of her attendance at weekly AA/NA meetings to the satisfaction of her caseworker. The appellant was further ordered to maintain stable employment to support her children. The appellant testified that she had been employed almost constantly during the time her children were in custody of Gwinnett County DFCS and obtained a job at the Waffle House approximately eight months prior to the hearing terminating her parental rights; however, she never paid any of the court-ordered child support. At trial, the appellant stated both that she could not afford to pay the child support and that she did not feel that she should have to pay any support in that the oldest child received social security benefits which DFCS had been receiving since May 1995.

On September 29, 1995, the court ordered the appellant to meet with A. H.’s speech and occupational physical therapists so that she could be instructed in the type of therapy he required. However, the caseworkers at DFCS testified that the appellant did not attend any sessions; the appellant testified that she attended only one session. At trial, the appellant testified that she had received A. H.’s therapy schedule, but that neither she nor her husband had an automobile, that her driver’s license had been suspended, and that she did not have transportation available to her so that she could attend the sessions.

The Citizens Review Panel met on December 12, 1995, and recommended that DFCS file a petition to terminate parental rights to all three children because the appellant had still not complied with the terms of the case plans and juvenile court orders. On February 26, 1996, the juvenile court conducted a contempt hearing against the appellant and entered an order on March 4, 1996, which reintegrated the previously set forth reunification goals and provided that if the appellant failed to comply with the terms and conditions of the contempt order, DFCS should pursue termination of her parental rights.

On May 30, 1996, the juvenile court entered an extension order, finding that the appellant had wilfully failed and refused to comply with the case plan and to meet the goals of reunification. The court further found that despite numerous very specific orders of the court, contempt actions, insistence by DFCS, and many opportunities, the appellant had wilfully failed and refused to comply with the case plan and to meet the goal of reunification. Specifically, the appellant had not: (a) participated in A. H.’s therapy; (b) provided her work schedule to petitioner to verify her excuses and her alleged stable employment; (c) submitted to required drug screens; (d) corrected her tardiness and participation in visitation; (e) attended her court-ordered psychological evaluation and treatment; (f) paid child support as ordered or shown any ability to support and care for the children. The juvenile court found that the best interests of the children would be served by extending DFCS custody until May 29, 1998. Because the appellant had missed one visitation and had been consistently late for numerous other visitations with the children, the order further limited visitation to once a month and provided that if the appellant was not present at the beginning of time for visitation, no visitation would occur. Further, the foster parents had complained that the appellant was waiting in the parking lot or down the street after visitation, and because of the foster parents’ fear of being followed, the order directed the appellant to leave the premises of DFCS immediately after visitation.

The juvenile court on June 26, 1995, on March 4, 1996, and on May 30, 1996, ordered the appellant to submit to a psychological evaluation. The appellant did not obtain such evaluation until October 2, 1996, the day before a scheduled contempt hearing based on her failure to obtain such evaluation. On July 29, 1996, DFCS filed a petition to terminate the parental rights of the appellant and the children’s putative fathers.

1. In two enumerations of error, the appellant asserts that the State did not prove by clear and convincing evidence that the causes and conditions of deprivation would not likely be remedied and that the deprivation would cause serious harm to the children.

There is sufficient evidence to meet the criteria for determining whether a parent’s rights should be terminated. However, since the appellant does not allege any error in the juvenile court’s order holding that the children were deprived and that the cause of the deprivation was the lack of proper parental control, we will not address these issues, but will only address the issues raised, which are the third and fourth criteria of the first prong of the test in determining whether there is “clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a).

(a) In determining whether the third criterion has been satisfied, “[ajlthough past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995).

In the case sub judice, the juvenile court heard a great deal of uncontroverted testimony regarding the appellant’s past and present relationship to and interaction with the children, as well as the appellant’s long history with the Gwinnett County DFCS since 1994 and with DeKalb County DFCS from 1988 until April 1992. S. A. L. F. and K. J. F. remained in the custody of DeKalb County DFCS and in foster care placement for three and one-half years while the appellant attempted to comply with the requirements of her reunification case plans, which included many of the same goals as the case plans and court orders in the case sub judice. The appellant only managed to complete these goals after the juvenile court held that if the appellant was unable to make progress toward reunification, alternative permanent placement should be sought for K. J. F. and S. A. L. F.

When A. H., K. J. F., and S. A. L. F. were removed from the appellant’s custody by Gwinnett County DFCS in December 1994, the appellant failed to rectify her situation and demonstrate that she could exercise proper care and control of the children. For nearly two years, the appellant failed to comply with DFCS reunification case plans and the juvenile court’s orders. During that time, the appellant was never able to establish independent, stable housing away from the maternal grandmother; failed to attend A. H.’s physical therapy sessions; never obtained sleep apnea monitor training for A. H.; never provided confirmation of her attendance at AA/NA meetings to her caseworker’s satisfaction; did not comply with the terms and conditions of her probation on criminal drug charges; and never paid any court-ordered child support. Further, the appellant did not comply with visitation as set forth in the case plan. Unsupervised visitation with K. J. F. and S. A. L. F. had to be terminated, because at the end of one visitation the caseworker was unable to locate the appellant and the children. Also, the appellant was consistently late for supervised visitation.

Both of the appellant’s caseworkers testified that the appellant was uncooperative, very hostile, and resistant toward intervention. Moreover, Dr. Runo, the psychologist who evaluated the appellant, determined that she had a history of problems with drugs and alcohol; that she has the psychological profile of a substance abuser; and that she is prone to erratic behavior and significant mood swings because she suffers from a mood disorder and a personality disorder, both of which would affect her ability to parent and which would be difficult to treat. Dr. Runo further testified that successful treatment of the disorders would be very unlikely if the appellant continued to deny that she has a problem, and that successful treatment would require more than just the appellant’s attendance at sessions and would require a bona fide effort on her part to cooperate. Dr. Runo went on to testify that the appellant often felt easily overwhelmed by the demands placed upon her by her children, even though they were not in her custody, and that he felt that the appellant lacked insight and was more likely to indulge her own needs, possibly at the expense of others.

Although the appellant contends she is willing to try and rectify any parenting concerns, and that she should be given the opportunity to follow through with treatment by Dr. Runo prior to the termination of parental rights, “judging the credibility of her good intentions was a task for the juvenile court. The decision as to [the children’s] future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of R. N., supra at 205. Further, this Court has held that “[t]he trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court. [Cit.]” In the Interest of J. R., 201 Ga. App. 199, 200 (410 SE2d 458) (1991).

Thus, based on the appellant’s past behavior, her untreated psychological difficulties, the length of time her problems have existed, and the evidence of the appellant’s current actions toward the children, the evidence supports a finding that the children’s deprivation is likely to continue.

(b) It is also evident from the evidence that the deprivations these children have suffered is likely to cause physical, mental, emotional, or moral harm to the children. All three children have special needs. S. A. L. F. has required individual counseling to help her adjust to living in foster care and to assist her with concerns about her future. K. J. F. is mentally retarded, has a chromosomal abnormality, and has a limp, as well as mild cerebral palsy for which she receives therapy and S.S.I. benefits. A. H. was diagnosed as developmentally delayed and has a host of medical problems which require intensive treatment and therapy.

The children’s foster parents testified that the appellant’s visits with the children caused A. H. to become “over-stimulated”; caused S. A. L. F. to experience diarrhea, vomiting, nightmares, and stomachaches; and caused K. J. F. to have to be “re-potty trained,” to suck her thumb, and to pick her nose until it bled. In addition, Dr. Alexander, S. A. L. F.’s psychologist, related that the appellant’s visits were very stressful for S. A. L. F. and that S. A. L. F. exhibited regressive behaviors after visits with the appellant, including baby talk, putting her fingers and thumb in her mouth, and becoming very shy and withdrawn.

The children have not established a bond with the appellant due to the lengthy time they have been in foster care; they separate easily from the appellant after visitation. Unless some permanency is introduced into their lives, they will become subject to “foster-drift.” Dr. Alexander testified as to S. A. L. F.’s need for permanency, her need to be able to bond with a family, and her desire to be adopted into her foster family. The need for permanency in the lives of these children is enhanced by their special care needs that have been set forth previously.

S. A. L. F. and A. H. are in the same foster home, and their foster parents have indicated that they would be willing to adopt both children. Further, the foster family has shown a willingness to meet the special needs of both of these children. K. J. F. is in a separate foster home, and while her foster parents are not willing to adopt her, DFCS has been contacted by a family with whom K. J. F. has established a relationship and who have expressed an interest in adopting K. J. F, if she were to become available for adoption.

The appellant has not raised as error the juvenile court’s finding on the second prong of the test, i.e., whether the termination of parental rights is in the children’s best interest. Therefore, this Court will not address this issue.

Accordingly, DFCS presented more than sufficient evidence at the termination hearing below to establish that the appellant’s parental rights to these children should be terminated.

2. Appellee’s motion to dismiss this appeal is denied.

Decided April 28, 1997.

Before Judge Elbaz.

Anne M. Couch, for appellant.

Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Kathryn C. Reeder, Karen S. Davenport, Edgar J. Perkerson III, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concurs in judgment only.

       The parental rights of the putative fathers of these three children were also terminated, but they have not appealed.

       On May 31, 1995, the appellant was convicted on this charge of possession of marijuana and received a probated sentence of 12 months, as well as a fine of $400 and a monthly'probation fee of $25.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1154.
    ANDERSON v. THE STATE.
    (486 SE2d 410)
   Eldridge, Judge.

On January 22, 1996, appellant Roy Hulon Anderson entered a plea of guilty to seven counts of forgery related to a construction bid and subsequent contract between his fictitious corporation, Ellis-Anderson, and Gwinnett County to build a public park. As part of the plea bargain, appellant agreed to be subject to a restitution requirement as a condition of probation; the plea bargain limited such restitution to no more than $200,000. The trial court sentenced appellant to a 15-year probated sentence and, following two days of restitution hearings, ordered the appellant to pay the county $112,125.50 as a condition of probation. Appellant challenges the sufficiency of the evidence supporting the amount of restitution. Held:

According to Cheeks v. State, 218 Ga. App. 212, 213 (460 SE2d 860) (1995), three things are required in order to impose restitution as a condition of probation: (1) a restitution hearing; (2) consideration of the factors outlined in OCGA § 17-14-10; and (3) findings of fact. See also OCGA § 42-8-35 (7); Murphy v. State, 182 Ga. App. 791 (357 SE2d 147) (1987). Under OCGA § 17-14-9, “[t]he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined in OCGA § 17-14-2 (2) as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” “Thus[,] the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence.” Lawrenz v. State, 194 Ga. App. 724, 725 (391 SE2d 703) (1990).

In the case sub judice, the evidence showed that the appellant and a co-conspirator created a fictitious corporation, Ellis-Anderson, with fictitious officers; that appellant also created a fictitious insurance corporation, which issued forged security bonds; that Ellis-Anderson successfully bid to build a public park in Gwinnett County; that Gwinnett County contracted with Ellis-Anderson to build the park; that Ellis-Anderson contracted with subcontractors, who performed the actual work on the project; that Ellis-Anderson submitted several payment requests to the county; that Ellis-Anderson was paid upon such requests; that Ellis-Anderson failed to make some payments to subcontractors for work performed; and that, once appellant’s forgery was discovered, Ellis-Anderson was dismissed from the project and the county had to pay the subcontractors directly, effectively paying a second time for the same work. The evidence further indicated that Gwinnett County paid $650,000 over the contract price to complete the project and that the county suffered losses of at least $297,000, and perhaps as much as $355,410, as a direct result of the fraudulent conduct of appellant and the co-conspirator.

During two days of restitution hearings, the trial court heard from four witnesses for the State and reviewed numerous documents which established the cost to the county to complete the project following the dismissal of Ellis-Anderson; appellant presented no evidence. The trial court heard evidence regarding the original contract price of the project, payments made to Ellis-Anderson, and the total cost to complete the park. Appellant’s counsel had the opportunity to cross-examine the witnesses and present its own recommendations as to how damages should be calculated in this case.

Following the hearing, the trial court considered the factors outlined in OCGA § 17-14-10, resolved issues of fact in favor of appellant, and arrived at the amount of restitution to be required of appellant. See Cheeks, supra at 214 (failure of defendant to present evidence regarding factors outlined in OCGA § 17-14-10 acts as a waiver to their consideration by the trial court in determining the amount of restitution). In so establishing restitution, .the trial court expressly considered what damages would have been in a civil breach of contract claim, subtracting the bargained-for contract price from the actual cost to the county to complete the project. Further, recognizing that the restitution ordered was significantly less than the county’s actual loss, the trial court noted that the county would have to pursue civil remedies for the remainder.

Decided April 28, 1997

Before Judge Clark.

Harrison & Harrison, Gresham H. Harrison, Samuel H. Harrison, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

The amount of restitution ordered was within the amount agreed upon by the appellant and the State as part of the plea bargain, and was certainly within the amount of damages recoverable by appellee in a civil action. See OCGA §§ 17-14-2 (2); 17-14-9. The fact that appellant presented other methods by which a factfinder could have arrived at an amount of restitution goes only to the weight of the evidence before the trial court, not to its sufficiency. In such a situation, it is well established that review of evidence by this Court is limited to questions of sufficiency. Jenkins v. State, 216 Ga. App. 433 (454 SE2d 543) (1995). After reviewing the record, we conclude that there was sufficient evidence before the trial court to support the amount of restitution ordered.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       As this case did not involve allegations of damage to property, appellant’s references to Gaskin v. State, 221 Ga. App. 142 (470 SE2d 531) (1996) and Revis v. State, 223 Ga. App. 470 (477 SE2d 880) (1996) are misplaced, as both cases involve the failure of the trial court to consider the fair market value of damaged property, including the effect of depreciation. Further, Lovell v. State, 189 Ga. App. 311 (375 SE2d 658) (1988) is inapplicable, since the objection to evidence in Lovell regarded an approximation by a store owner of damages to property during a burglary; such approximation was based on the cost price and was unsupported by evidence regarding the condition of the property upon purchase versus at the time of the damage. In the case sub judice, there was no damage to property and sufficient supporting evidence to elevate appellee county’s determinations of costs and expenditures beyond mere conjecture.


text:
    A97A1243.
    MICHAEL v. STATE OF GEORGIA.
    (486 SE2d 406)
   Eldridge, Judge.

Joseph Michael appeals from the trial court’s order forfeiting his 1993 red Mercury Capri and $870 to the State. The State initially seized the vehicle after police found three boxes containing approximately forty pounds of marijuana in the Capri; the $870 was found in appellant’s pocket pursuant to a search incident to arrest.

1. Appellant challenges the sufficiency of the evidence to support the judgment and contends that (1) the State failed to prove that he had knowledge about the contents of the boxes and (2) the boxes were found in his car only because the State had entrapped him into placing them there.

On appeal, we view the evidence in a light most favorable to the court’s judgment and will not set aside the trial court’s factual findings unless they are clearly erroneous. Gearin v. State of Ga., 218 Ga. App. 390 (1) (461 SE2d 562) (1995); State of Ga. v. Banks, 215 Ga. App. 828 (2) (452 SE2d 533) (1994). A trial court’s factual findings are not clearly erroneous if there is any evidence to support them. Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996).

In this case, the trial court determined that the State met its burden of proving a prima facie case for forfeiture. This burden required the State to establish, by a preponderance of the evidence, that the Capri and the money fell into one of six categories of property declared to be contraband under OCGA § 16-13-49 (d). Hinton v. State of Ga., 224 Ga. App. 49 (479 SE2d 424) (1997); Pitts v. State of Ga., 207 Ga. App. 606 (2) (428 SE2d 650) (1993). One of these six categories, OCGA § 16-13-49 (d) (2), declares that the Capri and the money would be contraband if they were “directly or indirectly, used or intended for use in any manner to facilitate a violation of [OCGA § 16-13-30 (j)]. . . .” See Hinton, supra. In the case before us, the trial court found “by a preponderance of the evidence that the subject property was used or intended for use to facilitate a violation of the law.”

The evidence showed that a Federal Express driver had attempted to deliver a box to a “Lori Morgan” at 1351 Brays Mill Trace; no one was at home, so the driver left a delivery slip stating that he would return at 2:00 p.m. with the package. Shortly thereafter, the box broke open in the back of the delivery truck; it appeared to contain marijuana, and the Federal Express driver called the police.

The police returned with the driver to 1351 Brays Mill Trace. The slip that had been left there with delivery information on it now included handwritten instructions to leave the package. The package was left, and the police placed the house under surveillance.

At 2:30 p.m., a woman retrieved the package. The police stopped her and she identified herself as Laura Mattox. Ms. Mattox stated that a man named “Joe,” who drove a red Mercury Capri, was to pay her $250 per box to pick up three boxes at different locations and that this box, which was at her mother’s house, was her last pick up. Another box was addressed to “Lori Madden” at 1713-B La Vista Road, Atlanta, and the third box was addressed to “Lori Marden” at 3345 Shannon Circle, Cumming; all of the addresses belonged to relatives of Ms. Mattox.

Laura Mattox further stated that “Joe,” later identified as appellant Joseph Michael, would give her instructions regarding where to pick up boxes and where to deliver them, at which time she would be paid the $250 per box; normally Ms. Mattox delivered the boxes to appellant’s home. This pattern had occurred three times previously.

On the morning of the incident date, appellant called Laura Mattox and told her “it’s a busy day, I have three boxes coming in.” Appellant instructed her that “there was one [box] coming to each of the three addresses that [she] had gotten boxes before” and that she was to pick up the packages for him.

After being detained, Ms. Mattox, in cooperation with the police, called appellant and told him that her truck’s brakes were broken; in order to complete the delivery of the boxes to appellant, she asked him to meet her at Timmers Chevrolet, where her vehicle had allegedly been taken for repairs. This telephone conversation was recorded. Appellant, driving his red Mercury Capri, arrived at Timmers Chevrolet to pick up the boxes. Laura Mattox, wearing a body wire, met him. The police videotaped the meeting. Appellant removed the three boxes from Ms. Mattox’s vehicle and placed two in the trunk and one in the back seat of his Capri. He agreed to pay Laura Mattox the $750 after he had dropped her off at her mother’s house. Thereafter, appellant was arrested.

Under these circumstances, we conclude that there was ample evidence to support the trial court’s finding that the marijuana was to be transported in appellant’s Capri, that $750 of the $870 in appellant’s pocket was to be used to pay his drug courier, Laura Mattox, and that these items were contraband in that they were intended to be used to facilitate a violation of OCGA § 16-13-30 (j). Accordingly, the trial court’s findings were not clearly erroneous with regard to the forfeiture of the Capri and $750. Shook, supra.

Appellant argues that the State failed to prove he had knowledge that the boxes contained marijuana. However, the State proved that: (1) appellant paid a woman $250 per box’, (2) to pick up boxes addressed with false names; (3) which had been delivered to different locations other than appellant’s home; and (4) instructed the woman to deliver the boxes to appellant’s home. We find this circumstantial evidence sufficient to allow a trier of fact to determine that appellant knew what was in the boxes, the pick up and delivery of which he had so painstakingly planned.

Appellant also argues that the boxes belonged to Laura Mattox, and he only placed them in the back of his vehicle because he was “entrapped” into doing so by the State. However, this contention is directly contradicted by the testimony of Laura Mattox. Mattox testified that she had performed “courier services” for appellant several times wherein she delivered boxes directly to appellant’s home. Moreover, Mattox testified as to appellant’s specific statement on the incident date, “I have three boxes coming in,” and appellant’s subsequent instructions regarding her pick up and delivery of these boxes. Mattox’s testimony was sufficiently corroborated by the testimony of the police officers and the introduction of the audio and video tapes, all of which demonstrated that appellant’s appearance at Timmers Chevrolet in the red Capri was for the purpose of retrieving the boxes, which he promptly did; that appellant was carrying sufficient cash to pay Mattox $250 per box; and that appellant registered no protest or confusion at Mattox’s suggestion that he pay her the money after transporting her to her mother’s house. See, e.g., Martin v. State, 209 Ga. App. 720, 722 (434 SE2d 534) (1993).

Decided April 28, 1997.

Before Judge Stark.

Alice C. Stewart, for appellant.

An entrapment defense consists of three elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Gibson v. State, 212 Ga. App. 301, 302 (441 SE2d 803) (1994). Appellant has failed to demonstrate any of these elements, and there is no entrapment where the agent merely furnishes an opportunity to a defendant who is ready to commit the offense. Byrd v. State, 211 Ga. App. 881 (1) (440 SE2d 764) (1994). In this case, the evidence showed that the police officers simply substituted their own location, Timmers Chevrolet, for the delivery of the drugs to appellant, in lieu of appellant’s usual delivery locale, his own home. Appellant’s violation of our laws governing the possession and distribution of marijuana remains the same.

2. While we have determined the trial court’s order was correct in permitting the forfeiture of appellant’s vehicle and $750 of the $870 seized from appellant, we are obliged to find that the State failed to carry its burden of proof with regard to the remaining $120 seized from appellant. The testimony of Laura Mattox was very specific with regard to the amount she was to be paid as a courier of appellant’s drugs: $250 per box for the three boxes, i.e., $750. $870 was seized from appellant, and the State presented no evidence to support its contention that the additional $120 “represented” proceeds from previous marijuana sales. “Though it was properly subject to seizure because it was seized incident to his arrest as contemplated by OCGA § 16-13-49 (g) (2), the state still must prove that it was subject to forfeiture. Because the evidence is insufficient to support such a conclusion, we find that the state failed to carry its burden of showing that this portion of the money was subject to forfeiture under the Act. Therefore, the trial court erred in including the [$120] in the award, and we must reverse as to that portion of the judgment.” Pitts, supra at 608.

Accordingly, we affirm the trial court’s order as to the 1993 Mercury Capri and $750 of the money seized from appellant; we reverse as to the remaining $120 and remand this case for entry of a new. judgment not inconsistent herewith.

Judgment affirmed in part, reversed in part, and remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.


text:
    A97A1336.
    SOUTHTRUST BANK OF GEORGIA v. PARKER et al.
    (486 SE2d 402)
   Eldridge, Judge.

On March 4, 1996, Southtrust Bank of Georgia, formerly known as Bankers First Savings Bank, appellant, sued Curtis C. Parker and Fannie M. Parker, on an installment sales contract and note in the original amount of $14,995, executed on February 7, 1995 by Curtis C. Parker and Fannie M. Parker. Curtis C. Parker was not found to be served, but Fannie M. Parker was served. The original agreement, and note were made between the Parkers and Southeastern Summit Corporation and assigned to appellant as a holder in due course. A. deed to secure debt was signed Curtis C. Parker and Fannie M. Parker and witnessed by an unofficial witness and another witness who went before a notary public to swear that he had witnessed the parties execute the deed to secure debt as well as the other witness but did not reveal whether or not he was a notary public signing the deed as an official witness.

At the time of the purported loan agreement, Curtis C. Parker and Fannie M. Parker were living together as husband and wife in the subject property. At the time the complaint was filed, the Parkers had separated. Fannie Parker admitted that Curtis Parker signed the instruments without her consent to put siding on the house and cross-claimed against him. Curtis Parker in his answer contended that Fannie Parker was liable since she now has possession of the house.

Fannie M. Parker, appellee, answered and filed a cross-claim against Curtis C. Parker and a third-party action against Southeastern Summit Corporation, raising the issue of forgery of her signature on the installment sales contract, note, and disclosure statement. On June 7, 1996, appellee amended her answer.

On June 7, 1996, appellee filed a motion for summary judgment. In support of such motion, appellee attached her own affidavit in which she states that the deed to secure debt, installment sales contract, note, and disclosure statement all have her forged signature because she never signed these documents. She also denies authorizing anyone to sign for her.

On June 25, 1996, Southeastern Summit Corporation filed an answer, in which it neither admitted nor denied the allegation of forgery.

On July 1,1996, appellant filed its responsive brief in opposition. On August 16, 1996, the trial court granted summary judgment.

On August 27, 1996, Curtis C. Parker answered and admitted by verified answer that he and Fannie M. Parker had entered into and had signed the note.

On September 11, 1996, appellant filed its notice of appeal.

1. Appellant’s first enumeration of error is that the trial court erred in granting summary judgment.

Appellant is a holder in due course within the meaning of OCGA § 11-3-302. (Ga. L. 1962, p. 156, § 1.) Equitable Discount Corp. v. Guest, 103 Ga. App. 258 (1) (118 SE2d 864) (1961); West v. FDIC, 149 Ga. App. 342, 349 (254 SE2d 392), aff’d, 244 Ga. 396 (260 SE2d 89) (1979).

Under OCGA § 11-3-304 (1) (a), there existed no visible evidence of forgery or alteration to put the holder in due course on notice of any forgery. Therefore, under OCGA § 11-3-305 (2), the holder in due course takes the note free from most defenses. The defenses that the status of the holder in due course does not cut off are denominated as “real” defenses. “Unlike those ‘personal’ defenses which the holder in due course takes free from, the real defenses are so quintessential to the obligation that even the very status of holder in due course does not freely elude the grasp of the defenses. As a general rule, any defense which would be sufficient to make a simple contract void, such as illegality or duress or incapacity, is likely also to shut off the sheltered privileged status of the holder in due course.” Squillante, A. M., Fonseca, J. R., II The Law of Modern Commercial Practices, pp. 77-78, § 5:29 (hereinafter “Squillante”). Such defenses are set forth in OCGA § 11-3-305 (2). “Subdivision (c) of § 2-305 draws a familiar distinction between fraud in the factum and fraud in the inducement. Fraud in the inducement is no defense to an attempt by a holder in due course to enforce an instrument against a party to it. The comment to § 3-305 emphasizes that the mere existence of fraud in the factum will not here be a defense; rather, the fraud must have been of a sort that is not reasonably preventable by the obligor under the circumstances. Fraud in the factum most often arises where the obligor is asked to sign a document and he does so because he was deceived into believing that the document is something other than a negotiable instrument. The import of § 3-305 (2) (c) is that if, in the light of the circumstances surrounding the deception which occurred in the transaction, the obligor’s ignorance of what was being signed was excusable, then the holder in due course of the instrument so signed must suffer the defenses of fraud being asserted against him.” Squillante, supra at 78-79.

Under OCGA § 11-3-307 (1), “[u]nless specifically denied in the pleadings each signature on an instrument is admitted.” In the case sub judice, appellee in her answer denied signing either document. Under OCGA § 11-3-307 (1) (a) and (b), when the answer denies that the signature is valid, “[t]he burden of establishing [the signature] is on the party claiming under [it]; but. . . [t]he signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required.” See also Squillante, supra at p. 90, § 5:31. However, such presumption may be rebutted where the purported maker denies both knowledge and signature and produces other evidence separate from the sworn denial of execution in support of the defense of forgery, and there exist irregularities on the face of the negotiable instrument that would place a reasonable person on notice under a reasonable commercial standard. Fabe v. Floyd, 199 Ga. App. 322, 325 (2) (405 SE2d 265) (1991). When the signature on the instrument complies with OCGA § 11-3-401 or § 11-3-403 (3), it is presumed to be valid; a general denial in the answer raises the defense of non est factum and creates a factual question as to the authenticity of the signature and keeps the signature from being deemed admitted under OCGA § 11-3-307. Jones v. Kim, 189 Ga. App. 5, 6 (2) (374 SE2d 820) (1988); Spurlock v. Commercial Banking Co., 151 Ga. App. 649, 652 (2) (260 SE2d 912) (1979); Modern Free & Accepted Masons of the World v. Cliff M. Averett, Inc., 118 Ga. App. 641, 643 (2) (165 SE2d 166) (1968). Until evidence is produced that the signature is forged or unauthorized, the holder is not required to prove the signature’s authenticity even if denied in the answer and the holder in due course has the right to rely upon the presumption of authenticity. Gate City Furniture Co. v. Rumsey, 115 Ga. App. 753 (156 SE2d 221) (1967); Equitable Discount Corp. v. Guest, supra. On motion for summary judgment the movant, who asserts forgery as a defense, has the burden of proof that the signature is not authentic and, if so, not authorized, even though the respondent holder in due course would have such burden at trial. OCGA § 9-11-56; see Massey-Ferguson Credit Corp. v. Wiley, 655 FSupp. 655 (M. D. Ga. 1987).

“The only type of fraud assertable against a holder in due course under subsections 2 (c) of the Georgia statute (OCGA § 11-3-305 (2) (c)) is fraud in factum.” Milligan v. Gilmore Meyer, Inc., 775 FSupp. 400 (S. D. Ga. 1991).

Authorization to sign for the spouse where the funds are spent for home improvements is implied from the relationship and can be rebutted by evidence of lack of actual authority; however, the lack of actual, implied, or apparent authority when denied in the pleading is a question of fact for a jury. Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (1) (400 SE2d 380) (1990); Bank South, N. A. v. Midstates Group, 185 Ga. App. 342, 344-345 (1) (364 SE2d 58) (1987).

While an unauthorized signature cannot bind a party when forged, if the unauthorized signature is ratified, then the signature becomes binding through ratification of the document. OCGA § 11-3-404 (2). For ratification to be effective, the principal must know of the act of the agent, either at the time of making the declaration deemed to be ratified or at the time of doing acts which indicate the ratification; either action or inaction may be evidence of ratification. Hendrix v. First Nat. Bank of Savannah, 195 Ga. App. 510 (394 SE2d 134) (1990); Nat. Bank of Ga. v. Refrigerated Transp. Co., 147 Ga. App. 240, 243 (2) (248 SE2d 496) (1978).

The installment sales agreement, note, and disclosure statement state on its face that siding and thermal wall insulation were installed on appellee’s home; the complaint sets forth that, from February 7, 1995, until January 24, 1996, nothing had been paid on the note, and the appellee continued to live in such home with the improvements at the time of service on March 11, 1996.

“ ‘If the principal, with full knowledge of all the material facts, accepts and retains the benefits of the unauthorized act, [she] thereby ratifies the act.’ (Citation and punctuation omitted.) Hyer v. C & S Nat. Bank, 188 Ga. App. 452, 453 (373 SE2d 391) (1988).” Hendrix v. First Nat. Bank of Savannah, supra at 511-512; see siso Kelley v. Carolina Life Ins. Co., 48 Ga. App. 106, 107 (3) (171 SE 847) (1933). A factual question of ratification is raised by appellee’s accepting the benefits of the work without payment, an issue which appellee did not address in her affidavit.

When OCGA §§ 11-3-404 (1) and 11-3-406 are read in para materia with each other and an instrument is forged, in order to estop or preclude such defense, the holder in due course must show that the neglect of the one whose signature appears comes within OCGA § 11-3-406. Trust Co. of Ga. Bank of Savannah v. Port Terminal &c. Co., 153 Ga. App. 735, 737-742 (1) (266 SE2d 254) (1980). Ratification satisfies OCGA § 11-3-406, as well as negligence. Hendrix v. First Bank of Savannah, supra at 510. A fact question exists as to whether a reasonable person in accordance with reasonable commercial standards would be put on notice of some impropriety appearing either from the form of the instrument and its endorsement or from knowledge of the facts outside the instrument itself. Tifton Bank &c. Co. v. Knight’s Furniture Co., 215 Ga. App. 471, 474 (2) (452 SE2d 219) (1994); Trust Co. of Ga. Bank of Savannah v. Port Terminal &c. Co., supra at 740; Thornton & Co. v. Gwinnett Bank &c. Co., 151 Ga. App. 641 (260 SE2d 765) (1979). Failure of the holder to inquire into the endorsement will not prohibit the holder from asserting a counter defense, commercial reasonableness, to the defense of forgery. Trust Co. of Ga. Bank of Savannah v. Port Terminal &c. Co., supra at 737-742. If the endorsement appeared altered or “a patently irregular endorsement,” appellant would not have complied with reasonable commercial standards under the circumstances. Nat. Bank of Ga. v. Refrigerated Transp. Co., supra at 243-245; see also Trust Co. Bank of Augusta v. Henderson, 258 Ga. 703, 704 (1) (373 SE2d 738) (1988).

Decided April 28, 1997

Before Judge Mather.

Warlick, Tritt & Stebbins, Douglas S. Broyles, Edward L. Speese, for appellant.

Maurice J. Bernard III, for appellees.

The trial court erred in granting summary judgment when issues of material fact exist.

2. The issue raised in enumeration of error two is now moot.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

       Ga. L. 1996, p. 1306, § 3 amended Part 3 of the UCC, but is inapplicable because the contract date is February 7, 1995.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2781.
    HUMANA, INC. v. KISSUN et al.
    (485 SE2d 809)
   Blackburn, Judge.

In Humana, Inc. v. Kissun, 221 Ga. App. 64, 69 (471 SE2d 514) (1996), a case involving the use of a subsidiary corporation by a parent corporation, this Court held in Division 2, that: “Standing alone, the lawful uses of a subsidiary corporation by its parent corporation cannot support a claim against such parent under a theory of apparent agency or joint venturer. Such claims must rest upon factors other than those which the law contemplates and approves. Since the law allows a parent corporation to use its subsidiary to promote its own purposes and yet keep its separate identity, to hold otherwise[] would be to allow the very uses approved in ‘piercing the veil’ tests to establish a claim under a theory of apparent agency or joint venturer, thus vitiating the law of parent/subsidiary corporate use.” (Emphasis supplied.)

Our Supreme Court reversed Division 2 of our opinion and held: “Therefore, the Court of Appeals erred when it concluded that the absence of evidence sufficient to create a fact question on piercing the corporate veil between Humana and its subsidiary ended all inquiry, as a matter of law, into whether a fact question remains regarding the existence of an apparent agency relationship or a joint venturer relationship under the facts of this case” (Emphasis supplied.) Kissun v. Humana, Inc., 267 Ga. 419, 422 (479 SE2d 751) (1997).

Decided April 1, 1997

Reconsideration denied April 29, 1997.

Before Judge Baxter.

Smith, Gambrell & Russell, David M. Brown, Samuel D. McLean, Jr., Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Lance D. Lourie, George A. Koenig, for appellant.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Joel O. Wooten, Jr., Floyd & Stanford, Jackson C. Floyd, Jr., Alston & Bird, Judson Graves, Mayfield & Milling, Roberts C. Milling II, for appellees.

Our Supreme Court has misread our opinion which states: “Plaintiffs contend that Humana has not addressed its apparent authority or joint venturer contentions and therefore summary judgment should be denied. Humana however moved for summary judgment as to all of plaintiffs’ claims and pointed out a lack of evidence to support plaintiffs’ contentions. Humana met its burden under Lau’s Corp. v. Haskins, [261 Ga. 491 (405 SE2d 474) (1991)], and it thus fell to plaintiffs to point to specific admissible evidence contained in the record giving rise to a triable issue. Plaintiffs having failed to do so, Humana was entitled to summary judgment and the trial court erred in denying such motion.” (Emphasis supplied.) 221 Ga. App. at 70 (2).

The basis of our opinion was not that stated by our Supreme Court. Under our system, however, our Supreme Court has the final word in this matter, and accordingly, our opinion is vacated as to Division 2, pursuant to the opinion of our Supreme Court. Division 1 of our original opinion, in which we held that the trial court erred in denying Humana’s motion for summary judgment with respect to the issue of piercing the corporate veil, remains unchanged.

Judgment affirmed in part and reversed in part.

Andrews, C. J., and Birdsong, P. J., concur. McMurray, P. J., concurs specially. Pope, P. J., Beasley, Johnson, Smith and Ruffin, JJ, concur in the judgment only.

McMurray, Presiding Judge,

concurring specially.

“The decisions of the Supreme Court shall bind all other courts as precedents.” 1983 Georgia Constitution, Art. VI, Sec. VI, Par. VI. I concur in this Court’s instant judgment, affirming (in part) the trial court’s denial of summary judgment to defendants Humana, Inc. and its wholly owned subsidiary corporation, General Hospital of Galen, Inc., d/b/a Humana Hospital-Newnan. In my view, questions of fact remain whether Humana, Inc. is jointly liable for the alleged torts of the hospital as its joint venturer, or whether Humana, Inc. is vicariously liable as the hospital’s principal. See Kissun v. Humana, Inc., 267 Ga. 419, 422 (479 SE2d 751). I do not join in all that is said in the majority opinion, and so I concur in the judgment only.


author: Judge Harold R. Banke. McMurray, Presiding Judge, Ruffin, Judge,

text:
    A96A2053.
    HALL v. THE STATE.
    (485 SE2d 800)
   Judge Harold R. Banke.

Jerry Stewart Hall was convicted of one count of child molestation involving his daughter. Following the denial of his motion for new trial, Hall enumerates two errors. Held:

1. Hall asserts that the State failed to prove beyond a reasonable doubt that venue was in Catoosa County. Pretermitting whether Hall properly raised and preserved the issue of venue below, we are unable to find merit to this claim.

The threshold question is the applicable standard of proof for venue. As the dissent correctly notes, the Supreme Court of Georgia’s decisions have been inherently inconsistent with respect to the venue question. Minter v. State illustrates the confusion our Supreme Court created by holding: “venue must be established beyond a reasonable doubt. Adsitt v. State, 248 Ga. 237 (282 SE2d 305) (1981). However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. Jones v. State, 245 Ga. 592 (266 SE2d 201) (1980).” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). If venue must be proven beyond a reasonable doubt, then slight evidence cannot possibly suffice.

Even more perplexing is the fact that in issuing its decision in Minter, the Court did not elect to overrule its earlier authority which made no mention of the reasonable doubt standard and, nevertheless, held that where the evidence is not conflicting and where no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. Aldridge v. State, 236 Ga. 773, 774 (1) (225 SE2d 421) (1976); Loftin v. State, 230 Ga. 92, 93-94 (2) (195 SE2d 402) (1973). Further compounding the complexity in conducting appellate review is the fact that the Supreme Court has never overruled its “any evidence” standard for establishing venue. Johns v. State, 239 Ga. 681, 682 (1) (238 SE2d 372) (1977) (holding that the question of venue is to be decided by the jury and the jury’s decision as to venue will not be set aside where there is any evidence to support it). Plainly, these holdings cannot be reconciled. Where the State presents only slight evidence of venue, it has not satisfied the reasonable doubt standard which would have to be applied if venue was an essential element of a crime. See, e.g., White v. State, 193 Ga. App. 428, 429 (1) (387 SE2d 921) (1989) (venue is a jury question, and jury’s decision will not be set aside where there is any evidence to support it).

Currently, the federal courts and a majority of state courts do not consider venue an essential element of a crime which explains why “[t]he federal courts and a substantial number of state courts hold that the facts supporting venue only need be established by a preponderance of evidence.” LaFave & Israel, Criminal Procedure (2nd ed. 1992), § 16.1 (f). These jurisdictions have determined that although venue is a material fact that must be proven by the prosecution, it is not an essential element of the crime which must be established by proof beyond a reasonable doubt. See id. The United States Supreme Court did not determine that venue is an essential element of a crime requiring proof beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Notwithstanding Hall’s claim to the contrary, this is not a close case presenting slight or conflicting evidence of venue, but a case where the proof of venue satisfies the reasonable doubt standard.

Viewing the evidence in a light to support the jury’s verdict, the State presented the following evidence of venue. The victim lived with Hall and her mother, A. M., together in a home on Dietz Road in Catoosa County from April 1992 until late July or August 1, 1993. A. M. testified that during her daughter’s first 14 months, she stayed home to closely watch her child who suffered from apnea and was on a monitor. After the victim no longer required the monitor, Hall’s unwitnessed access to her increased. A. M. testified that she never left the victim with anyone other than Hall or a member of the family.

When Hall, the victim’s mother, and the victim moved to Catoosa County, the victim was approximately one year and ten months old. One of the victim’s aunts, Connie Frank, testified that she was present at the victim’s Catoosa County home at a party for the victim’s second birthday and had made a videotape of the occasion. Although the victim and her mother did move out of the family home in April 1993, for about one month, Hall and the victim never lived anywhere else between April 1992 and August 1, 1993.

The victim’s allegations of sexual abuse began in August and September 1993, almost immediately after she was no longer living with Hall. The victim first reported the abuse to her aunt, Robin Snow, stating that on the night of fireworks (corroborated as being July 4, 1993 while she still lived in Catoosa County with Hall), she woke up, left her bed, and went to find her parents. The victim said on that night she saw her daddy’s “naked butt” and he (Hall) “played games” with her.

The meaning of “playing games” was clarified by the testimony of numerous witnesses to whom the victim spoke over the next few months. Her 15-year-old babysitter testified that the victim disclosed that Hall played the game of Beauty and the Beast with the victim by lying on top of her in a room and in so doing hurt her “tootie” (genital area) “real bad.” Kathy Gallagher, an aunt of the victim, also testified that in August 1993 the victim told her that her daddy (Hall) “tickled her ‘tootie’ when we had fireworks,” and hurt her. A family friend and a Department of Family & Children Services caseworker also corroborated the victim’s revelations concerning Hall’s sexual abuse while he was alone with her.

This evidence, combined with the testimony of the victim’s therapist, who testified that this was “one of the most extreme cases of abuse” she had seen in her 17 years of experience, shows that Hall engaged in a sustained and recurring pattern of sexual abuse at the home in Catoosa County. See Woodruff v. State, 191 Ga. App. 338 (381 SE2d 582) (1989) (venue can be determined from totality of circumstances). It is undisputed that at the time of the fireworks display in July 1993, the victim and Hall lived in Catoosa County and nowhere else. Based on the foregoing evidence, even applying the stringent standard of reasonable doubt, a rational trier of fact could have found Hall guilty beyond a reasonable doubt of the offense of child molestation in Catoosa County. Cooper v. State, 200 Ga. App. 560, 561 (3) (408 SE2d 797) (1991).

2. Hall contends that the trial court improperly admitted evidence that he initially entered into a stipulation to submit to a polygraph test but subsequently refused to take the test.

Evidence that a defendant entered into a stipulation to take a polygraph examination but later refused to do so is neither probative nor admissible. Brown v. State, 175 Ga. App. 246, 248 (4) (333 SE2d 124) (1985). It is error to allow evidence of a defendant’s refusal to submit to a polygraph examination. Id. at 249. Reversal is not demanded, however, unless the testimony is prejudicial and significant. See id.

In this case, in an unresponsive answer to the prosecutor’s question, it was Hall who first mentioned a polygraph. Hall testified that he wanted to undergo a sodium pentothal test because it would provide greater accuracy than a polygraph examination. Later, the prosecutor specifically inquired as to whether Hall remembered being asked by an investigator to take a polygraph. The trial court overruled Hall’s objections to the relevancy and admissibility of this line of questioning, based on the fact that Hall had signed a stipulation to undergo polygraph testing. The State then recalled investigator Wes Barrett, a defense witness, who testified without objection, that he and Hall had discussed a polygraph test and that Hall indicated he was afraid to take the test. However, Barrett’s testimony buttressed Hall’s contention that he opposed taking a polygraph test because it would render inaccurate results since he suffered from manic depression and had a poor emotional state.

Even though Hall was afforded the opportunity both on cross-examination and redirect to explain at length about his reasons for electing not to submit to a polygraph, allowing the State to question him on this issue was plainly error. After considering the unobjectedto testimony, as well as the overwhelming evidence of Hall’s guilt, we are unable to conclude that the admission of this evidence so prejudiced Hall’s trial as to necessitate the reversal of the judgment. See Herlong v. State, 236 Ga. 326, 328 (3) (223 SE2d 672) (1976); Knox v. State, 156 Ga. App. 777, 778 (3) (275 SE2d 371) (1980). Compare Lawson v. State, 162 Ga. App. 579, 580 (1) (292 SE2d 421) (1982). Because it is highly probable that the error did not contribute to the judgment, we affirm. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

3. We deny Hall’s motion to file a pro se supplemental brief because he is represented by counsel. Sapeu v. State, 222 Ga. App. 509 (1) (474 SE2d 703) (1996).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Pope, P. J., Blackburn and Smith, JJ, concur. McMurray, P. J., concurs specially. Beasley, J., concurs in the judgment only. Ruffin, J., dissents.

McMurray, Presiding Judge,

concurring specially.

I am compelled to specially concur because I do not believe the inferential evidence of venue in this case is sufficient to authorize the jury’s finding, beyond a reasonable doubt, that defendant committed aggravated child molestation in Catoosa County, Georgia as alleged in the indictment. Because venue was not an issue at trial, however, I believe that slight evidence is sufficient to satisfy Georgia’s venue requirement in the case sub judice and that the circumstantial evidence of venue cited by the majority is more than sufficient to authorize the jury’s finding that venue was proper in Catoosa County, Georgia. I am also compelled to say that the problem of proof over venue highlighted in the case sub judice does not appear to be the result of shoddy police work or prosecutorial oversight. The problem appears because a majority of this Court fails to recognize that children of tender years — such as the three-year-old victim in this case — have difficulty conceptualizing space and time with relation to past events, a natural condition which I believe is compounded by the traumatic memories the young victim in this case must endure as a result of the loathsome incident which is the basis of the crime charged.

Decided March 21, 1997

Reconsideration dismissed April 29, 1997.

Before Judge Log-gins. ,

Michael E. Brush, for appellant.

Jerry S. Hall, pro se.

Ralph L. Van Pelt, Jr., District Attorney, John L. ODell, Assistant District Attorney, for appellee.

“‘Circumstantial, as well as direct evidence, may be used to establish venue. Loftin v. State, 230 Ga. 92, 94 (2) (195 SE2d 402) (1973). Where there is no conflicting evidence, slight evidence is sufficient. Aldridge v. State, 236 Ga. 773, 774 (1) (225 SE2d 421) (1976). Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. (Cits.)’ Taylor v. State, 176 Ga. App. 567 (1) (a) (336 SE2d 832) (1985). See also Woodruff v. State, 191 Ga. App. 338 (381 SE2d 582) (1989).” White v. State, 193 Ga. App. 428 (1), 429 (387 SE2d 921). In the case sub judice, the indictment charged defendant with committing aggravated child molestation “in the County of Catoosa and the State of Georgia on or before the 8th day of September, 1993. . . .” Evidence adduced at trial shows that defendant is the victim’s father; that defendant, the victim and the victim’s mother resided together in Catoosa County, Georgia from April 1992 until July 1993, and that the victim first reported events indicating that defendant had sexually molested her shortly after July 20, 1993, when the victim was three years old. I believe this proof — although circumstantial — is alone sufficient to authorize the jury’s finding that defendant committed the act of aggravated child molestation in Catoosa County, Georgia as charged in the indictment.

Ruffin, Judge,

dissenting.

I agree with Presiding Judge McMurray that the circumstantial evidence of venue in this case is insufficient to authorize the jury’s finding, beyond a reasonable doubt, that Hall committed aggravated child molestation in Catoosa County, Georgia. For that reason, and for the reasons stated in my dissent in Brinkworth v. State, 222 Ga. App. 288 (474 SE2d 9) (1996), I dissent from Division 1 of the Court’s opinion. I concur in the Court’s judgment in all other respects.

       The issue of venue does not appear in Hall’s motion for a new trial, and Hall failed to point to anywhere in the record where he raised it below. Nor has Hall cited any authority for permitting the issue to be raised for the first time on appeal. See LaFave & Israel, Criminal Procedure (2nd ed. 1992), § 16.1 (f).


author: Blackburn, Judge.

text:
    A97A0305, A97A0306.
    In the Interest of K. J., a child (two cases).
    (486 SE2d 899)
   Blackburn, Judge.

In these two cases, the parents of K. J. appeal the juvenile court’s termination of their parental rights.

“OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child.” (Punctuation omitted.) In the Interest of A. T., 187 Ga. App. 299, 301 (2) (370 SE2d 48) (1988). “It is not proper to consider the question of termination of parental rights based solely upon a ‘welfare of the child’ test, without some required showing of parental unfitness.” (Punctuation omitted.) Id. at 300.

In order to find “parental misconduct or inability,” the court must find (1) that the child is a “deprived child,” as defined in OCGA § 15-11-2; (2) that the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) that such cause of deprivation is likely to continue or will not likely be remedied; and (4) that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

Case No. A97A0306

1. In her only enumeration, the mother contends the trial court erred in finding that the cause of the deprivation suffered by K. J. was likely to continue or would not be remedied, which finding is a prerequisite to termination of parental rights. See OCGA § 15-11-81 (b) (4) (A) (iii). “[T]he appropriate standard of review of the trial court’s ruling is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.” In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986).

K. J. was born in November 1990. At the time, his parents were not married and his father was incarcerated. Except for a five-month period between September 1992 and February 1993, the father has remained in prison the child’s entire life. On December 21, 1990, K. J.’s mother was arrested on forgery charges, and K. J. was placed in the temporary custody of the Department of Human Resources (DHR). The mother was released on bond the next day, but the child remained in the custody of a foster parent, Ms. Burnette, with whom he has remained ever since.

Approximately four months after her arrest, the mother was sentenced to four years in prison on the forgery charges. She remained in prison approximately ten months, and was then released on parole. About two years later, in May 1994, she was returned to prison for violating a condition of her parole by failing to attend a required substance abuse class. The mother was released from prison in March 1996.

On July 2, 1996, a hearing was held on termination of both parents’ parental rights. At the conclusion of the hearing, the juvenile court terminated both parents’ rights, finding that the child was deprived, that such deprivation was likely to continue, and that termination was in the best interest of the child.

In finding that K. J.’s deprivation was likely to continue and would not be remedied, the court primarily focused on the fact that, during the two years prior to the mother’s second incarceration, she was not able to develop a stable situation in which to receive the child for a trial placement, and was not able to maintain her personal life in such a way as to prevent the parole board from revoking her parole. However, “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [her] natural child; clear and convincing evidence of present unfitness is required.” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

The evidence showed, and the court found, that the mother had made significant progress toward completion of the DHR’s reunification case plan during and following her second incarceration. She completed drug abuse and parenting classes in prison, as well as a course in sewing machine operation. While in prison, the mother arranged for her fiance to visit K. J. at his foster home and to bring him to the prison for visits. The mother also wrote several letters to the court expressing her conviction that, although she had made many mistakes in her life, she had changed and was ready and able to be a fit parent for K. J.

Following her release from prison in March 1996, the mother took steps to visit and establish a relationship with K. J. The record reflects that the mother visited K. J. approximately every week, as well as calling him on the telephone. After a period of shorter visits, the mother was able to keep K. J. all day on weekends, athough he did not stay overnight. The mother testified that K. J. seemed excited to go with her and did not act like he wanted to leave. The child’s foster parent, Ms. Burnette, testified that K. J. went willingly with his mother, although he complained during the first few visits. Ms. Burnette also testified that K. J. wanted to stay with her but be able to visit his mother. There is no evidence in the record that the mother’s relationship to the child was harmful to the child.

The DHR reunification case plan called for the mother to have a steady, legal income within six months of her release from prison. Shortly after her release, she used the sewing skills obtained in prison to obtain a job at a clothes manufacturing plant. However, because of a previous ankle injury which resulted in a plate and screws being placed in her ankle, she was forced to leave this job after a few days because she was unable to stand for long periods of time. She testified that she was scheduled to have ankle surgery on July 10, 1996, eight days after the termination hearing, and that, after recovery, she anticipated being able to obtain a job at another sewing plant with which she had interviewed. The mother also completed a program in job-seeking skills after release from prison.

The case plan also required the mother to obtain a safe, permanent home within six months of her release. The mother testified that she lived with her fiance in a rented house, and that they had lived there about four or five years. The Department of Family & Children Services (DFACS) caseworker testified that the interior of the house was clean and picked up. but that there was trash in the yard. She said she had spoken to the mother about this problem on June 15, and that the mother had agreed to clean up the yard, although it had not been fully cleaned by the time of the termination hearing on July 2. The mother testified that she and her fiance planned to marry, although they had not set a date.

Under these circumstances, the court erred in relying on the mother’s situation prior to her second incarceration as the basis for terminating her parental rights. See In re N. F. R., supra at 348 (reversing termination of parental rights even though “mother’s life has been marked by a recurring pattern of drug abuse, crime and incarceration”).

The court also predicated its ruling upon its finding that the mother was not able to maintain an independent lifestyle and did not have prospects of doing so in the near future. It appears that this finding was based upon the fact that the mother was not employed at the time of the termination hearing and was dependent upon her fiance for support. However, we have held that the fact that a mother is unemployed, without prospects for future employment, and without any stable living arrangements is not sufficient to terminate parental rights. See Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 340 (1) (274 SE2d 728) (1980).

Moreover, the court’s finding regarding the mother’s prospects for attaining an independent lifestyle was premature and not supported by clear and convincing evidence. The termination hearing was held less than four months after the mother was released from prison, although the reunification case plan relied upon by the court required the mother to obtain employment within six months of her release. As discussed above, the mother did in fact obtain employment shortly after her release, using sewing skills developed in prison, and was unable to maintain such employment only because of a preexisting physical condition. Furthermore, the mother testified that she was scheduled to have ankle surgery eight days after the hearing to correct the problem, and believed she would be able to obtain another job with a manufacturer following her recovery. Under these circumstances, the court’s finding was premature and not supported by clear and convincing evidence.

Although we are reluctant to reverse a trial court’s determination, “[t]here 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.” (Punctuation omitted.) In the Interest of S. M., 169 Ga. App. 364, 365 (1) (312 SE2d 829) (1983). In light of the above-described evidence, the court erred in finding that there was clear and convincing evidence that the cause of the child’s deprivation with respect to the mother was likely to continue or would not be remedied. See In re N. F. R., supra.

Case No. A97A0305

2. (a) With respect to the father, the evidence shows that, except for a five-month period between September 1992 and February 1993, he has been incarcerated for K. J.’s entire life. Although the reason for the five-month interval is not apparent from the record, it appears that the father has been incarcerated on the same forgery conviction for the child’s entire life. The father testified that he was up for early release in either October 1996 or February 1997, and would be on parole for approximately four and one-half years following his release. He also testified that he had housing and a job lined up upon his release. The record does not reflect whether the father has in fact been released.

In addition to the current forgery conviction, the father has been convicted of four other felonies, including two forgery and two burglary convictions, the first such conviction occurring when he was sixteen years old. At the time of the hearing, the father was 47 years old and had spent 16 to 17 years in prison on the various convictions. He has not been out of jail for longer than four years since he was sixteen years old.

In determining whether a child is without proper parental care or control, the court may consider a parent’s felony conviction and imprisonment which has a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii); see also In the Interest of E. N. H., 216 Ga. App. 209 (453 SE2d 778) (1995). “[W]here, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). Given the father’s repeated felony convictions and incarcerations, and the fact that he has been unable to remain out of jail for any significant period of time his entire adult life, we cannot say that the court erred in finding that K. J. was a deprived child, that the lack of proper parental care or control by the father was the cause of such deprivation, and that the cause of K. J.’s deprivation with respect to the father was likely to continue. See OCGA § 15-11-81 (b) (4) (A) (i)-(iii).

(b) However, in order to terminate parental rights, the court must also find by clear and convincing evidence that “[t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iv). The trial court did not include such a finding in its oral ruling following the hearing. In its subsequent written order, prepared by DFACS and issued more than a month after the hearing, the court included a summary statement that “[cjontinued deprivation of the child is likely to cause serious physical, mental, emotional or moral harm to the child.”

We have held that “[a]n order terminating parental rights must contain explicit findings supporting the conclusions that... by reason [of the deprivation] the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” (Punctuation omitted.) Griffith v. Ga. Dept. of Human Resources, 159 Ga. App. 649 (284 SE2d 666) (1981). “[A] dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law. The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.” Beasley v. Jones, 149 Ga. App. 317, 319 (1) (254 SE2d 472) (1979) (reversing trial court where termination order did not specify facts supporting court’s conclusion that child would likely suffer serious emotional harm); see also In the Interest of G. K. J., 187 Ga. App. 443, 445 (3) (370 SE2d 490) (1988) (“juvenile court cannot make a bare recital as to a finding of the existence of parental misconduct or inability”).

Although the order in this case recited that continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child, it did not set forth any facts which would support this conclusion. For this reason alone the termination order must be reversed. See Beasley, supra; McCary v. Dept. of Human Resources, 151 Ga. App. 181, 183 (2) (259 SE2d 181) (1979) (refusing to consider sufficiency of evidence where order did not set out sufficient findings and conclusions).

Moreover, there was no evidence presented at the hearing that the child was likely to suffer serious physical, mental, moral, or emotional harm absent a termination of parental rights. Indeed, there was evidence that the father and child had a positive relationship, to the extent permitted by the father’s incarceration. During the five-month period when the father was out of jail, he visited K. J. regularly at his foster home. Before the father was transferred to a more distant prison, he would call K. J. on the telephone. Although his reading and writing skills were minimal, the father would write to K. J. and send him cards on his birthday and holidays. K. J. knew that he was his father, and referred to him as “daddy” or “dad.”

Neither the child’s foster parent nor the DFACS caseworkers testified that the child was likely to suffer serious harm if parental rights were not terminated. None of the witnesses testified that the child’s relationship with the father was harmful to the child. Indeed, K. J.’s foster parent testified that she did not believe it would hurt K. J. to have visits with his father. There was no expert testimony regarding the effect on the child of his father’s incarceration or the likely effects if parental rights were not terminated. Cf. In the Interest of A. W., 198 Ga. App. 391, 392-393 (401 SE2d 560) (1991) (expert testimony regarding negative effects of prolonged foster care); Childers v. Clayton County Dept. of Family cfee. Svcs., 147 Ga. App. 825, 826 (250 SE2d 564) (1978) (expert testimony regarding children’s mental and emotional regression while in custody of parents). In announcing its ruling, the court noted that both parents were sincerely interested in K. J. and in trying to fashion a future relationship with him.

Decided April 29, 1997.

Before Judge McDonald.

Kristopher Shepherd, for appellant (case no. A97A0305).

Thomas J. Killeen, for appellant (case no. A97A0306).

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Scott, Quarterman & Wells, Russell T. Quarterman, Adrienne R. McFall, Diane M. Riley, for appellee.

Accordingly, we cannot say that the evidence authorized the trial court to find by clear and convincing evidence that the child was likely to suffer serious physical, mental, moral or emotional harm. Therefore, the order terminating the father’s parental rights must be reversed.

Judgments reversed.

Pope, P. J., and Johnson, J., concur.

       The order did set forth certain “examples of misconduct and/or inability of the parents to properly provide for their child.” The court found that reunification had not occurred due to the parents’ failure to meet their case plan goals; that the parents had not maintained regular contact with the child or the DHR, but had sporadically visited the child over the last five years; that the father was unable to provide a stable residence for the child due to his incarceration; and that the father was unavailable due to his incarceration. While such facts may support a finding of deprivation, they are not sufficient to enable the court to find by clear and convincing evidence that there is a likelihood of serious physical, mental, moral or emotional harm to the child. See In the Interest of D. S., 212 Ga. App. 203, 204 (441 SE2d 412) (1994), overruled on other grounds, In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997) (“bare statement of some facts considered does not show that those facts support the conclusions”).

       The foster parent ultimately placed a block on her telephone line, preventing the father from calling. She testified that she did this not because of the father’s calls, but because of her own children.


text:
    A97A0783.
    BROWN v. THE STATE.
    (486 SE2d 429)
   Blackburn, Judge.

Tony Brown appeals his conviction of selling cocaine, following his entry of a guilty plea. Brown’s two enumerations of error are as follows: “According to Appellant, he has learned his lesson” and “[according to Appellant, he would accept house arrest.” Neither of these enumerations presents an error of law for this Court to review. Accordingly, the conviction and sentence must be affirmed.

Brown was indicted on two separate counts of selling cocaine, with a possible sentence of five to thirty years or life in prison on each count. Brown had been convicted on a previous occasion of selling cocaine. The State agreed that if Brown would, plead guilty to one count of the present indictment, it would not seek a life sentence and would nolle prosse the second count. Brown pled guilty to one count and was sentenced to six years in prison. He now appeals from his conviction and sentence.

Brown does not address either of his enumerations of error in his brief. Brown’s argument in his brief consists entirely of the following statement: ‘When the validity of a guilty plea is challenged, the burden is upon the State to demonstrate that the plea was intelligently and voluntarily entered. Morgan v. State, 191 Ga. App. 367, 368 [(381 SE2d 583) (1989)].” While this is a correct statement of the law, it is not addressed to Brown’s enumerations. Moreover, Brown does not contend that his guilty plea was not intelligently and voluntarily entered, or point to any facts to support such a contention.

Decided April 29, 1997.

Before Judge Horkan.

T. Mark Thedieck, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Anthony S. Gunn, Assistant District Attorneys, for appellee.

The record demonstrates that Brown was represented by an attorney at the guilty plea hearing, and that he was advised by the court of the rights he was waiving and the possible consequences of his plea. The court explained the nature of the indictment, the terms of the plea bargain, and the range of possible sentences. Brown acknowledged his understanding that, upon his entry of a guilty plea to Count 1 of the indictment, Count 2 would be nolle prossed and Brown would be subject to a sentence of between five to thirty years. Brown also acknowledged that his attorney had explained his rights to him, that he understood such rights, and that his plea was freely and voluntarily given. See Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990) (where record reflects defendant consulted with counsel regarding plea, and no ineffective assistance of counsel claim asserted on appeal, court may presume counsel has adequately advised client regarding meaning and effect of plea). The prosecutor, in stating the factual basis for the plea, informed the court that Brown sold cocaine to an undercover agent on February 6, 1994. Brown acknowledged that such allegation was true. Under these facts, the plea was intelligently and voluntarily made. See Morgan, supra at 367-368 (1).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1054.
    ORAKA et al. v. JARAYSI.
    (486 SE2d 69)
   Eldridge, Judge.

This is an appeal from the grant of a renewed motion for summary judgment for appellee, Lee F. Jaraysi, on his suit on a deficiency on two notes secured by a deed to secure debt and a recorded UCC financing statement and on appellants’ counterclaim for fraud and racketeering. The trial court denied the initial motion for summary judgment.

On July 16, 1994, appellants, Emeka Sammy Oraka and his wife, Chika C. Oraka, entered into a purchase and sale agreement and closed with appellee on the same day for an automobile service station, mini-mart, laundry, and restaurant known as “Jaraysi’s One Stop,” as well as the furniture, equipment, fixtures, inventory, and business assets of the ongoing business. Appellee insisted upon a fast closing because he was leaving the country on family matters. Appellee testified that the parties agreed to allocate the $900,000 purchase price as $820,000 to the improved realty and $80,000 to the personalty. While the sales agreement made the apportionment, such document was only presented to appellants at closing and although they never expressly agreed to such allocation of value, they closed with the documents as drafted. The bill of sale delivered by appellee included substantial business assets not, in fact, owned by appellee but owned by Head Distributing, which demanded and received back its property on September 16, 1994, from appellants.

Shortly after closing, appellants learned that appellee had instituted an action on July 15, 1994, for specific performance in Gwinnett Superior Court against Kyung Ung Kim for an April 18, 1994, lease on the same realty and purchase for $130,000 of the same businesses and personalty, which was sold to appellants on July 16,1994. Upon learning these things, appellants sought to rescind the contract; however, appellee refused.

Prior to the closing, appellants sought to examine the financial records of the businesses, but appellee refused, stating that the records were out of the country.

When appellants failed to make payment on the notes, appellee foreclosed on the deed to secure debt on May 2, 1995. Notwithstanding the $820,000 value assigned to the realty by appellee, appellee at foreclosure intentionally bid only $600,000 for the property, which purchase price created a deficiency; which purchase price at the confirmation hearing approximately one year later was found to be the fair market value; and which price the record does not show was caused by damage to the property or depressing of the real estate market. Appellee did not deem himself bound by the assigned value and intentionally bid the property in for $220,000 less, causing the deficiency. Under the UCC financing statement, appellee gave notice on December 21, 1994, to appellants that he was, under OCGA § 11-9-503, repossessing all equipment and business assets; appellee stated that he would only give credit as a set-off for the deficiency of the purchase assigned value of such property, $80,000, although in his suit for specific performance he claimed such assets had a value of $130,000.

Appellants’ sole enumeration of error is that the trial court erred in granting the motion for summary judgment, because appellee’s claims are barred by his election to retain collateral. OCGA § 11-9-505 (2).

Under OCGA § 11-9-505 (2), Georgia follows “strict foreclosure and rejects any theory of implied election.” See Ricker v. First Fed. of Lacrosse-Madison, 215 Ga. App. 793, 794-795 (452 SE2d 583) (1994); ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 712 (2) (320 SE2d 784) (1984); McCullough v. Mobiland, 139 Ga. App. 260, 262 (2) (228 SE2d 146) (1976); Wade v. Sport Concession Enterprises, 138 Ga. App. 17 (225 SE2d 488) (1976); see also Emmons v. Burkett, 256 Ga. 855, 856 (2) (353 SE2d 908) (1987). All the foregoing Georgia cases stand for the proposition that, under OCGA § 11-9-504, a creditor may take possession of a secured property pending a commercially reasonable sale or an election under OCGA § 11-9-505 (2), but that such possession under OCGA § 11-9-503 does not trigger an implied election under OCGA § 11-9-505 (2), absent a written notice of such election. Id.

An election under OCGA § 11-9-505 (2) or a written objection must satisfy the statute; neither pleadings nor oral negotiations satisfies the statutory requirements. See Edward McGill, Inc. v. Wise, 181 Ga. App. 486, 487 (1) (352 SE2d 809) (1987). Unless the original sales agreement provided that repossession and retention for the creditor’s own use would afford an accord and satisfaction or provide for a specified credit only against any deficiency, or OCGA § 11-9-505 (2) provided such rights and obligations, then such material change in the original agreement would be a nullity, because it lacks consideration. See Barnes v. Reliable Tractor Co., 117 Ga. App. 777, 778 (161 SE2d 918) (1968). Therefore, appellee, in his notice of repossession and intent to retain the business asset, cannot unilaterally impose a condition to use the assigned value for purposes of set-off of the deficiency which was not part of the original agreement. Id. at 778. The fair market value of property at the time of repossession must be credited against any deficiency when there has been no election under OCGA § 11-9-505 (2). See Bradford v. Lindsey Chevrolet Co., 117 Ga. App. 781, 782 (161 SE2d 904) (1968); Ricker v. First Fed. of Lacrosse-Madison, supra at 795.

After default, a creditor cannot, absent express agreement of the debtor, take the collateral at a specific valuation and only give such credit against the deficiency. See S. M. Flickinger Co. v. 18 Genesee Corp., 71 AD2d 382 (423 NYS2d 73, 27 UCC 1232) (1979); accord Barnes v. Reliable Tractor Co., supra at 778.

Decided April 17, 1997

Reconsideration denied April 30, 1997

Before Judge Thompson.

Lefco & Blumenthal, Stanley M. Lefco, Ned Blumenthal, for appellants.

James M. Crawford, for appellee.

While appellee sent a written notice to appellants under OCGA § 11-9-505 (2) stating that appellee was repossessing all the business assets and would retain them for his own use and seek to offset such repossessed property at an artificial value that he had assigned in the contract as a set-off against the deficiency, neither OCGA § 11-9-505 (2) nor Georgia law permits such unilateral action unless the appellants expressly agree to such condition without a new consideration. Appellants’ failure to object is not an express consent to appellee’s demand. Appellee’s written notice of repossession, of intent not to sell at a commercially reasonable sale, and of intent to keep the property for his own use clearly comes within the ambit of OCGA § 11-9-505 (2) and constitutes an election under such act. Appellee is the author of his own misfortune in seeking to do what the law would not permit him to do. Appellee’s deficiency suit is barred by accord and satisfaction under OCGA § 11-9-505 (2).

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

        In re La Roche, 969 F2d 1299, 1303-1304 (1st Cir. 1992); Lamp Fair, Inc. v. Perez-Ortiz, 888 F2d 173, 175-177 (1st Cir. 1989) outline three methods to bring about an accord and satisfaction under UCC § 9-505 (2) by the creditor taking possession of secured personalty: (1) written notice after possession that the creditor will keep the property in satisfaction of the debt under UCC § 9-505 (2); (2) implied election under UCC § 9-505 (2) by holding possession for an unreasonable length of time without either sale or election; and, (3) an unreasonably long holding coupled with some other evidence of an intent to elect so that election may be implied by such action or inaction. See also In the Matter of Deephouse Equip. Co., 38 B. R. 400 (Bkrtcy. D. Conn. 1984).

         In re Leeling, 129 B. R. 637 (Bkrtcy. D. Colo. 1991).