text:
    A98A1399.
    In the Interest of N. J. W. et al., children.
    (503 SE2d 366)
   Eldridge, Judge.

Alton Wooten appeals the juvenile court’s termination of his parental rights to N. J. W, A. W. Ill, J. D. K., and R. W, claiming that the evidence was insufficient to support the termination. We affirm.

“On appeal, this Court must determine 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.” (Citation and punctuation omitted.) In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

In February 1994, while the Wooten family was living in Monroe County, A. W. Ill swallowed some hot ashes and damaged his trachea. The family subsequently moved to Butts County, and the Butts County Department of Family & Children Services (“DFACS”) first came into contact with the Wooten family in June 1994, when it received a report that A. W. Ill’s parents were not giving him proper medical attention, i.e., that he was not keeping his appointments with the nurse and he was not getting his medication. The case was confirmed for medical neglect and DFACS also found that the home was unsanitary. There was dog feces in the house and the home was dirty. Emergency custody of A. W. Ill was granted to DFACS until the parents cleaned up the home. A. W. Ill was then placed back in the home. The family was unable to pay their rent and utilities because of Mr. Wooten’s sporadic employment. DFACS assisted the Wootens in payment of their rent and utilities and provided counseling services and parenting aid services in the home. The case was closed in June 1995.

In August 1995, DFACS received a report that the children were not receiving proper medical attention, i.e., R. W. was reported to have severe diaper rash and J. D. K. had an untreated dog bite on his face. It was reported that there was no food in the home and that there was drug use in the home. DFACS found that R. W. did, in fact, have severe diaper rash and that J. D. K. had been bitten by a dog. A. W. Ill’s immunization shots had not been updated. DFACS instructed the parents to take J. D. K. and A. W. Ill to the doctor. The house was filthy and DFACS instructed the parents to clean it.

In October .1995, DFACS received a report that R. W. had severe diaper rash, the children were improperly dressed for the weather, and there was drug use in the home. The investigation revealed that R. W. did, in fact, have a severe diaper rash. The family moved to another home in Butts County during this time, and the case was closed and unconfirmed for neglect.

In January 1996, DFACS again received a report that the home was dirty, the children had head lice, the children were dirty, N. J. W. was not attending school, and the children were sick. The investigation revealed that the children were sick and had not been taken to a doctor, the children had been wearing the same clothing for several days, and the home was very dirty and unsafe.

During its investigation of the January 1996 report, DFACS received another report on February 1, 1996. N. J. W. was attending school dirty, smelling of fecal matter, and hungry. It was reported that N. J. W. was falling asleep in class. The case was opened for services, and a safety plan was developed with the parents which advised them to take the children to the doctor. Eight days passed before the parents complied with the safety plan and took the children to the doctor.

Subsequently, in February 1996, the mother was hospitalized with hepatitis which she contracted from the well that provided the family’s drinking water. On her release from the hospital on February 8, 1996, the doctor instructed her to have the children tested. When the parents failed to follow the doctor’s instructions, another case plan was developed on March 8, 1996, directing that all the children be taken to the doctor to be tested for hepatitis. The children were taken to the doctor on March 11, 1996.

On April 10, 1996, at DFACS’ request, the juvenile court conducted a hearing, and the case plan set up by DFACS was made an order of the court. The court-ordered case plan required the parents to: provide a stable, clean, and safe home for the children in which no other family lived, with the exception of Mr. Wooten’s mother and her son; do the family’s laundry at least twice a week; provide necessary medical care for the children and to participate with the Transitional Family Services to acquire the skills necessary to recognize when one of the children’s health required medical attention; locate employment and provide support for themselves and their children; provide for N. J. W.’s educational needs by sending her to school on a regular basis dressed in clean neat clothes, making sure she was in bed by 9:00 p.m., and attending all school conferences; and to cooperate with DFACS. Mr. Wooten was further required to remain alcohol and drug free and obtain treatment for substance abuse.

Even though DFACS provided the parents with financial assistance, assisted them with employment searches and in obtaining treatment for substance abuse, and provided therapists in their home to assist them with parenting skills, the parents failed to comply with any provisions of the court-ordered case plan.

On June 12, 1996, after a juvenile court hearing, the children were placed in the temporary custody of DFACS, and a new case plan was entered. This case plan required the parents to cooperate with the agency; obtain income that meets their children’s needs; obtain a hazard-free residence with enough room for all the children and maintain that residence for at least six months; apply and demonstrate appropriate parenting skills which insured the safety and health of the children; maintain regular contact with the children; provide child support for the children while in foster care; and maintain sobriety and remain drug free.

After temporary custody was awarded to DFACS, DFACS attempted to place the children with relatives. DFACS did not consider the paternal grandmother’s home appropriate because she had lived with the Wootens during the time the children were neglected and she had a history of alcohol abuse. The children were placed in foster care. After two days, the foster parents requested the children be moved because of the children’s behavior. Two of the children, N. J. W. and J. D. K, were then placed with a relative, Ms. Shannon. The paternal grandmother continuously interfered with their care and took the children home with her, even though DFACS had requested that she not do so. N. J. W. and J. D. K. were then placed with Mr. Wooten’s half-brother, Mr. Herring, and his wife on August 13, 1996. Within the week, the Herrings were expressing concern about being able to properly care for the children because of interference by the parents and the paternal grandmother. N. J. W. and J. D. K. were placed back into foster care.

The parents did not comply with the case plan ordered on June 12, 1996, even though DFACS continued to offer the parents counseling sessions on developing parenting skills and transportation for job searches. Mr. Wooten failed to complete either the outpatient or inpatient drug programs he entered. Contempt hearings were held on two occasions due to the parents’ refusal to comply with the case plan. At the second hearing in October 1996, a new case plan was entered which was identical to the case plan of June 12, 1996. The parents did not comply with the October 1996 case plan either, except that Mr. Wooten began visiting with the children on a regular basis.

On December 3, 1996, a judicial citizen’s review panel was held. Both parents attended and signed the case plan. The same goal plans were incorporated, and the panel recommended that the children remain in foster care.

Thereafter, in December 1996, the mother separated from Mr. Wooten. DFACS lost contact with the mother until February 1997, when they located her in Macon living with another man.

On May 6, 1997, a second judicial citizen’s review panel was held. Mr. Wooten attended and signed this review; the children’s mother did not attend. The panel recommended that the children continue in foster care and that parental rights be terminated, as the parents had not met any of the goals. The panel’s recommendations were adopted by court order. Based on the recommendations of the citizen’s review panel, DFACS filed a petition for termination of parental rights on July 17, 1997.

Mr. Wooten entered a guilty plea on September 8, 1997, to two counts of burglary and six counts of forgery in the first degree, offenses which occurred between March 17, 1997 and June 24, 1997. He was sentenced on each count concurrently to fifteen years to serve ten years, balance on probation.

On October 16, 1997, prior to a hearing on the termination of parental rights, the mother of the children voluntarily surrendered her rights to the children and signed a final release for adoption. After a hearing on January 14, 1998, Mr. Wooten’s parental rights were terminated. He appeals.

“The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).” In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

“In determining whether a child is without proper parental care and control, the juvenile court was authorized to consider the conviction of the parent of a felony and imprisonment therefor which as a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii).” In the Interest of T. M. R., 217 Ga. App. 461, 462 (458 SE2d 148) (1995). “A conviction of a crime and incarceration does not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist.” Id.

1. (a) As Mr. Wooten “did not appeal the original order of the juvenile court finding that [his] children were deprived, [he] cannot now complain about that finding. [Cit.]” In the Interest of V.S., supra at 29.

(b) Furthermore, even though Mr. Wooten asserts that he loves his children and his children love him, the juvenile court had sufficient evidence to determine that Mr. Wooten’s inability to adequately care for his children was the cause of their deprivation. It is undisputed that the children were often dirty and had head lice, that they did not receive necessary medical care, that they often went hungry, and that the children’s living conditions were deplorable. After the children were placed in foster care, Mr. Wooten never paid any child support as ordered. Mr. Wooten’s present incarceration, his past record showing his inability to maintain a job, and his failure to admit his addiction to drugs and alcohol and complete the ordered treatment for his addiction provides a clear and convincing basis for the finding that the children’s deprivation was caused by his inability to care for them.

(c) “The evidence also supports the finding by the juvenile court that the deprivation is likely to continue. Although 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. The court was entitled to infer from the evidence that, despite the best efforts of DFACS . . ., the same pattern of deprivation would continue each time the children were reunited with [Mr. Wooten].” (Citation and punctuation omitted.) In the Interest of V. S., supra at 29.

(d) Further, the juvenile court’s finding that the children are likely to be seriously harmed by the continued deprivation is supported by the evidence in the record. The children suffered physical, emotional, and developmental setbacks while under Mr. Wooten’s care. The record shows that the children did not receive adequate medical care and lived in deplorable conditions. Their basic needs went consistently unmet. The three oldest children have learning disabilities, and N. J. W. and J. D. K. have below average performance in school. All of the children exhibited behavioral problems when they were first placed in foster care. N. J. W. and J. D. K. are still exhibiting behavioral problems, but are improving in foster care. Thus, the evidence is clear and convincing that the children have already been harmed and will continue to be harmed unless Mr. Wooten’s parental rights are terminated.

2. Finally, “[i]n determining that terminating the [father’s] parental rights would serve the best interests of the children, the court properly concerned itself with the need for stability in their lives.” In the Interest of R. N., 224 Ga. App. 202, 205 (480 SE2d 243) (1997). The children are presently in foster care and are doing well. All four of the children have realistic prospects for being adopted. Mr. Wooten is presently incarcerated in the prison system serving a sentence of fifteen years to serve ten. At a minimum, he will have to serve 24 months and will emerge as a single parent with no real job skills and a history of drug and alcohol abuse. While Mr. Wooten testified that he is attempting to get his GED and has signed up for counseling in prison in an attempt to straighten out his life, “the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Further, “[t]he same factors which prove a parent’s inability to properly raise [his] children may also serve to show that termination of the parental rights would be in the children’s best interests. [Cit.]” In the Interest of V. S., supra at 30. Thus, there is more than sufficient clear and convincing evidence that termination of Mr. Wooten’s parental rights is in the children’s best interest.

Decided June 26, 1998.

Kelley S. Powell, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, W. Ashley Hawkins, for appellees.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Eldridge, Judge,

license: Public Domain

text:
    A98A0322, A98A0323.
    SOUTHERN COMPANY et al. v. HAMBURG; and vice versa.
    (503 SE2d 383)
   McMurray, Presiding Judge.

This case first appeared in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5) (470 SE2d 467), cert. denied at 220 Ga. App. 914, after a jury awarded Jeffrey R. Hamburg damages for breach of contract and defamation. The jury also found that The Southern Company (“Southern”), Southern Electric International (“SEI”) and Paul DeNicola are responsible for Hamburg’s attorney fees and expenses of litigation. After a hearing on these damages, the trial court awarded Hamburg $2,009,681 based on Hamburg’s proffer of billing sheets, expense reports and summaries recording time and expenses allegedly provided by Hamburg’s lead attorney and many others. Because most of these billings were purportedly recorded by persons (primarily attorneys) who were not proffered to authenticate their work, this Court held in Hamburg that the billing summaries “ ‘constitute nothing more than “hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32 [(447 SE2d 83)].’ Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1), 738 (458 SE2d 711).” Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. This Court, therefore, remanded the case for an evidentiary hearing to establish the amount of attorney fees attributable to probative evidence offered at the hearing. Id. at 842 (5), supra. The trial court, however, reentered its prior $2,009,681 attorney fees and expenses of litigation award based on the proffer this Court rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. Southern, SEI and DeNicola challenge this judgment in Case No. A98A0322. Hamburg cross-appeals in Case No. A98A0323, contending the trial court erred in failing to allow the introduction of additional evidence supporting his claim for attorney fees and expenses of litigation. We now consider both appeals. Held:

The trial court reasoned that the billing sheet proffers rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, were admissible as business records under Santora v. American Combustion, 225 Ga. App. 771, 774 (3), 775-776 (485 SE2d 34). While Santora held that legal billing sheets are admissible under Georgia’s statutory business records exception to the hearsay rule, Santora injects this conclusion without overruling Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, or speaking to or applying precepts of necessity, trustworthiness and reliability — the fundamental requisites for application of this venerable exception to the rule against the admission of hearsay. See Fielder v. Collier, 13 Ga. 496, 499. Such analysis is not only essential for aligning judicial authority, but is required under OCGA § 24-3-1 (b)’s requirement that “[hjearsay evidence is admitted only in specified cases from necessity.” Nonetheless, while recognizing the trial court’s understandable confusion over what to do in light of the panel decision in Santora, these cases do not control the cases sub judice. Our holding in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, became the law of the case after the Supreme Court of Georgia denied Hamburg’s certiorari application at 220 Ga. App. 914. See Grindle v. Chastain, 229 Ga. App. 386, 389 (2) (493 SE2d 714). It thus follows that the trial court erred in entering a $2,009,681 judgment for Hamburg based on the evidentiary proffer this Court rejected in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra. The only remaining issue, then, is Hamburg’s contention that the trial court erred in failing to allow him to proffer additional evidence supporting his claim for attorney fees and expenses of litigation. To this extent, we find it sufficient to restate our prior citation to Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606), and direct the trial court to conduct an evidentiary hearing to establish the amount of attorney fees and expenses of litigation attributable to probative evidence offered at the hearing. But the trial court’s concern over the basis of this Court’s holding in Southern Co. v. Hamburg, 220 Ga. App. 834, 842 (5), supra, appears to require more than our prior citation to Southern Cellular Telecom v. Banks, 209 Ga. App. 401, supra.

In Banks, this Court rejected that trial court’s award of attorney fees based on a proffer of billing sheets, pointing out that such unimpeachable submissions are insufficient without opportunities at cross-examining the out-of-court declarants (attorneys) who submitted the billings. This Court then remanded Banks with direction for the trial court to conduct an evidentiary hearing to establish the amount of attorney fees. Id. at 402, supra. Since the cases sub judice and Banks pour from the same procedural and evidentiary cup, it was and still is consistent to remand the cases sub judice, as in Banks, with directions for the trial court to conduct an evidentiary hearing and a de novo investigation into probative evidence offered at that hearing to establish the amount of attorney fees. This posture, as well as this Court’s holding in Banks, is consistent with the general rule that the effect of a reversal on appeal is to nullify the trial court’s judgment and return the parties to the same positions they occupied before judgment. Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3, 4 (6) (a) (375 SE2d 848). It follows that the trial court erred in refusing Hamburg’s proffer supporting his claim for attorney fees and expenses of litigation.

Any further confusion attributable to conflicting appellate court opinions on the subject at issue in the cases sub judice may be explained by citations and analysis found in this Court’s recent holding in Schluter v. Perrie, Buker, Stagg & Jones, P. C., 230 Ga. App. 776 (498 SE2d 543).

Judgment reversed and cases remanded.

Blackburn and Eldridge, JJ, concur and also concur specially.

Eldridge, Judge,

concurring specially.

While I concur with both the opinion and judgment of the majority, I feel that further clarification of the proof necessary in attorney fee awards is necessary.

In Santora v. American Combustion, 225 Ga. App. 771, 774 (2) (485 SE2d 34) (1997), the evidence showed that lead counsel was deposed and “[she] introduced her detailed billing records, explained how she computed the amounts attributable to this unnecessary litigation, and was cross-examined by [opposing] counsel.” “Billing statements are often used to prove actual costs. Subject to the laying of an adequate foundation, these statements are admissible under the business record exception to the hearsay rule, OCGA § 24-3-14. See N. D. T., Inc. v. Connor, 196 Ga. App. 314, 316 (6) (395 SE2d 901) (1990). OCGA § 24-3-14 (c) provides that lack of personal knowledge by the maker of the records does not affect the records’ admissibility but affects only the weight to be accorded this evidence. . . . As we noted in Ogden v. Legacy Ford-Mercury, 222 Ga. App. 666, 668-669 (2) (476 SE2d 43) (1996), at a hearing held to determine the amount of attorney fees recoverable, ‘each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion. See OCGA § 24-3-1. The defendant has the right to cross-examine each witness on the amount and reasonableness of the fees and costs requested.’ Id. at 669 (3). It is clear, however, that the witness need not be the attorneys or paralegals who performed the work [if testifying either as the custodian of the records or as an expert witness as to the reasonableness of the attorney fees charged].” Id. at 774-775.

Thus, the witness laying the foundation for the billing records of all the attorneys and paralegals must lay the foundation for the admission as business records kept in the regular course of business and that it was the regular course of business to make such records. OCGA § 24-3-14. “[T]he Georgia Business Records Act does not require that the person laying the foundation for [the] business records’ admissibility be the custodian of the records, that is, be the person who ‘keeps the records’ under his ‘control and supervision.’ Thus, ‘[n]o particular person, such as a bookkeeper or salesman, is required to be called,’ rather ‘[a]ny person who is familiar with the method of keeping the records and can identify them may lay the necessary foundation.’ Green, Ga. Law of Evid. (3d ed.), Business Entries, § 313. It would appear that the necessary degree of familiarity could be obtained through a number of common business practices, such as being the records’ custodian, making the entries during the usual course of employment, observing the method of record keeping through on-the-job training, experience or observation, or by attending courses of instruction sponsored by the business regarding the method of keeping the particular business records in question. The manner in which familiarity is obtained, like the question of whether the witness has personal knowledge of the particular business entry, goes only to weight and not to document admissibility.” Hertz Corp. v. McCray, 198 Ga. App. 484, 486 (2) (402 SE2d 298) (1991).

“It has long been the accepted rule in Georgia that when the pertinent and essential facts can be ascertained only by an examination of a large number of voluminous entries in books of accounts or business records, an auditor or another familiar with the records who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation. [Cit.]” Dept. of Transp. v. Delta Machine Prods. Co., 157 Ga. App. 423, 426 (3) (278 SE2d 73) (1981); accord DeKalb County v. Beacon Indus., 187 Ga. App. 370, 372 (2) (370 SE2d 191) (1988). “Summarized statements of what books of account and records show are admissible, provided the books and records themselves are accessible to the court and the parties. [Cit.]” Vaughn & Co. v. Saul, 143 Ga. App. 74, 79 (237 SE2d 622) (1977); accord Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (430 SE2d 813) (1993); Tyner v. Sheriff, 164 Ga. App. 360 (2) (297 SE2d 114) (1982).

Decided June 29, 1998.

Jones, Day, Reavis & Pogue, W. Lyman Dillon, David M. Monde, for appellants.

Arnall, Golden & Gregory, Kevin B. Getzendanner, Scott E. Taylor, for appellee.

However, where there has been legal representation in a claim or counterclaim and not all billings are subject to the award of attorney fees, the claimant has the burden of proof and must segregate out the hours that are recoverable from those hours not recoverable. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). In this case where there were successful and unsuccessful claims, the claimant must establish such special damages for attorney fees and expenses with reasonable certainty. Id. Santora v. American Combustion, supra at 776, recognized this in holding: “Our holding in those cases that the proof of attorney fees presented was insufficient are supportable on that ground: failure to separate and identify matters for which fees were recoverable in the cases in issue. [Cits.]... At the hearing on attorney fees in this case, [claimant’s] lead counsel introduced detailed billing records. She explained how she computed the amounts attributable to this litigation, separating out work done on this particular action brought by [the opposite party] from the other suits he had filed. She was cross-examined at her deposition by [opposing] counsel. These statements were clearly admissible as business records. Moreover, although some of the work billed was that of associates and paralegals, lead counsel testified on her deposition that she supervised them and had personal knowledge of and was very familiar with the work they were doing.” Id. at 776. Thus, there must be admissible evidence to prove the work done by each attorney was related to the claims that were successful and was reasonable.

I am authorized to state that Judge Blackburn joins in this special concurrence.


author: Andrews, Chief Judge. Beasley, Judge,

text:
    A98A0582.
    In the Interest of K. W. et al., children.
    (503 SE2d 394)
   Andrews, Chief Judge.

Pursuant to a termination petition filed on behalf of the Georgia Department of Human Resources, the Juvenile Court issued an order terminating the parental rights of Kimberly Whitehead to her children, K. W, M. W, and M. W, ages five, three, and two years respectively at the time of the termination order. Whitehead appeals from the termination order.

1. It is the duty of this Court on its own motion to examine its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. Coles v. State, 223 Ga. App. 491, 492 (477 SE2d 897) (1996); Cole v. Cole, 205 Ga. App. 332 (422 SE2d 230) (1992). Whitehead was a prisoner in the DeKalb County jail when she filed the notice of appeal from the termination order. Accordingly, an issue arises as to whether the present direct appeal filed by Whitehead is controlled by the portion of the Prison Litigation Reform Act of 1996 (OCGA § 42-12-1 et seq.) (the Act) which requires use of the discretionary appeal procedure set forth in OCGA § 5-6-35.

Section 42-12-3 (1) of the Act provides that: “As used in this chapter, the term . . . ‘[a]ction’ means any civil lawsuit, action, or proceeding, including an appeal, filed by a prisoner. . . .” (Emphasis supplied.) This section defines the term “action” as used anywhere in the Act to mean any appeal filed by a prisoner. Elsewhere, the Act specifically refers to appeals in Section 42-12-8 which provides that: “Appeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.” This section plainly requires use of the discretionary appeal procedure in appeals from actions filed by a prisoner but not in appeals from actions not filed by a prisoner. Obviously, the Legislature did not intend for the term “actions” in this section to mean “appeals” since this would require the section to be read as “[a]ppeals of all ‘appeals’ filed by prisoners. . . .” The overall purpose of the Act as stated in § 42-12-2 is to address the rising costs of litigation caused by the filing of meritless and frivolous lawsuits “by prisoners who view litigation as a recreational exercise.”

Reading these sections of the Act together, we conclude the Act requires that the discretionary appeal procedure of § 5-6-35 be used only where the appellant is a prisoner or a former prisoner appealing from an action that was filed by the appellant when he or she was a prisoner. See Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). Since Whitehead is not appealing from an action that was filed by her when she was imprisoned, she properly filed a direct appeal.

2. The decision to terminate parental rights involves a two-step process. First, pursuant to OCGA § 15-11-81 (a), the court must determine “whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of [§ 15-11-81].” Subsection (b) provides in relevant part that “[t]he court determines parental misconduct or inability by finding that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) 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). Second, if the court finds 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, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a); In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). “The standard of appellate review where a parent’s rights to [her] child have been severed is whether after reviewing the evidence in the light most favorable to the appellee [Georgia Department of Human Resources], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of A. Q. W., 217 Ga. App. 13, 14 (456 SE2d 284) (1995). Moreover, in reviewing the evidence on appeal, this Court does not weigh the evidence or determine the credibility of witnesses; rather, we defer to the Juvenile Court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard. Id.

In appealing -under this standard, Whitehead does not contest the Juvenile Court’s determination that the children were deprived as a result of lack of proper parental care or control. Nor does she contest the Juvenile Court’s finding that continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the children. Her sole enumeration of error is that there was a lack of clear and convincing evidence that the children’s deprivation is likely to continue or will not likely be remedied. OCGA § 15-11-81 (b) (4) (A) (iii).

There was clear and convincing evidence to support the Juvenile Court’s determination that the children’s deprivation was likely to continue or was not likely to be remedied. At the time of the termination hearing on April 24, 1996, K. W. and M. W. (age three) had previously been found deprived and placed in the custody of the Department of Human Resources pursuant to the Juvenile Court’s order entered on August 31, 1992, finding that Whitehead’s history of using illegal drugs had rendered her incapable of properly caring for the children. This order, as extended, remained in effect at the time of the termination hearing. M. W. (age two) had also previously been found deprived and placed in the custody of the Department pursuant to the Juvenile Court’s order dated August 30, 1993, finding that Whitehead’s continuing drug use problem rendered her incapable of caring for the child. This order, as extended, also remained in effect at the time of the termination hearing.

A court-ordered plan designed to work toward reuniting Whitehead with the children required her to work toward certain goals, one of which was that she demonstrate the ability to remain drug free. At the termination hearing, Whitehead admitted that she is a drug addict. Although she testified that she had completed drug rehabilitation programs and did not currently use drugs, she provided no evidence of completion of any drug program. The DeKalb County Department of Family & Children Services (DFACS) caseworker assigned to the case testified that when she first began monitoring the case in 1993, Whitehead had to leave one drug rehabilitation program because she tested positive for drug use. She testified that Whitehead then entered another drug program but failed to complete it because, she failed to go for required drug screenings. The caseworker testified that Whitehead had a short period of clean drug screenings around December 1993. Although Whitehead subsequently told the caseworker that she would re-enter a drug rehabilitation program, she never provided the caseworker with any information to verify that she had done so. The caseworker further testified that a drug screening done on Whitehead in February or March 1995 was positive for drug use. Thereafter, Whitehead failed to make regular contact with the DFACS caseworker, and the caseworker lost contact with her.

The court-ordered reunification plan also required that Whitehead cooperate with and maintain contact with the DFACS caseworker, attend a counseling group, and attend classes to teach her to care for the special needs of M. W. (age three), who was born with cerebral palsy as a result of Whitehead’s drug use during her pregnancy. The caseworker testified that Whitehead did not maintain regular contact with her, did not attend the counseling group as required, and did not complete the classes for M. W.’s cerebral palsy disability. Whitehead failed to attend meetings on the court-ordered reunification plan held in February and August 1995. Prior to the date of the termination hearing, Whitehead had not requested visitation with the children for a period of over one year. She admitted that over a year prior to the termination hearing, she had become frustrated and stopped making regular contact with the DFACS caseworker. Whitehead failed to inform the DFACS caseworker that she was incarcerated from March through August 1995. At the time of the termination hearing in April 1996, Whitehead was incarcerated for violating the terms of her probation on a previous theft conviction.

Although Whitehead testified that she had made efforts to comply with the court-ordered reunification plan and wanted to care for her children when she was released from jail, judging her credibility and weighing the evidence as to her past actions was a task for the Juvenile Court. “[T]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. . . . The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). Accordingly, the evidence was sufficient to support the Juvenile Court’s determination that the children’s deprivation was likely to continue or was not likely to be remedied.

There was clear and convincing evidence to support the Juvenile Court’s finding that there was parental misconduct or inability as defined in OCGA § 15-11-81 and that termination of Whitehead’s parental rights was in the best interest of the children.

Judgment affirmed.

McMurray, P. J., Pope, P. J., Johnson, P. J., Blackburn, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 2. I concur in Division 1 because the action, a petition for termination of parental rights and a petition for extension, was filed not by the prisoner but by the Georgia Department of Human Resources acting by and through the DeKalb County Department of Family & Children Services. Whether or not appellant was a prisoner at any time in which this proceeding was pending, from its initiation onward, is irrelevant to the method of appeal required for such cases. Since the petitions are not actions filed by a prisoner, OCGA § 42-12-8 does not apply.

The question of whether actions filed by prisoners seeking a change in family relationships would be subject to OCGA §§ 42-12-8 and 5-6-35 or would be exempt for some reason must await a proper case for resolution.

The remoteness of the connection between appellant’s status and the proper method of appeal is heightened by the facts in the context of the subject matter. The mother of these children was not incarcerated at the time the combined petitions were filed on October 31, 1995, but was only a prisoner at the time the notice of appeal was filed on May 24, 1996, and for less than a week beyond that. The DeKalb County Sheriff’s Office has advised the court that the appellant was in custody in jail from April 16 to May 30, 1996.

Decided June 29, 1998.

William M. Warner, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Nardone & Read, Robert G. Nardone, Steven J. Matz, for appellees.

It is noteworthy that there is no explanation for the long delay in the transmittal of the appeal to this Court, from May 1996 to November 1997. See OCGA § 5-6-43 (a) and (d). Because of the necessity of assuring that children’s custodial and familial status are legally established as quickly as possible for their welfare, such cases should be expedited through the judicial process, not delayed.

       Under § 42-12-3 (1), the term “action” as used in the Act does not include a petition for writ of habeas corpus or an appeal of a criminal proceeding.


author: McMurray, Presiding Judge.

text:
    A98A0953.
    In the Interest of K. S. W. et al., children.
    (503 SE2d 376)
   McMurray, Presiding Judge.

On April 12, 1996, the Polk County Department of Family & Children Services (“DFACS”) petitioned the Polk County Juvenile Court to terminate the parental rights of appellant-defendant natural father, and his wife, the natural mother, in the three minor children, K. S. W., K. L. W., and T. V. W., alleging the “parents have not completed their case plan[, and] have not maintained contact with the children.” The evidence, construed to uphold the determination of the juvenile court, revealed the following: Theodore Brand, M. D., a pediatric surgeon first saw K. S. W. on March 17, 1991, while the then six-month-old infant was in the Intensive Care Unit at Scottish Rite Hospital. “Upon examination she was seen to be an awake alert child and she had a markedly swollen and edemitis head and face, with ecchymosis [(bruising)] in swelling of the cheeks and especially around the edges of her mouth. . . . There was a big bruise on the back of her head, . . . about two centimeters.or nearly an inch in diameter. . . . There were various scratches and abrasions of the lower extremities. . . .” Various blood tests were “unremarkable except for a CPK level, which was markedly elevated. That’s an indicator of muscle injury and that enzyme level will go very high with severe muscle injury or significant muscle injury. . . . [X-rays] revealed nondepressed skull fracture[, and] a healing fracture in her right clavicle, not a current fracture,. . . but one that was within the stages of healing already.” In Dr. Brand’s opinion, the “most likely cause for the injury was an electrical wire injury which caused burns and swelling around the mouth. . . . [A]s the injury evolved over several days it became apparent that what we were looking at at the corners of the mouth were electrical burns. They have a very typical appearance of an electrical burn and it’s seen very commonly when a child chews or bites on a wire that has current going through it. . . . [Dr. Brand felt the] injury on the back of her scalp may also be part of the same electrical injury, like a grounding point. . . .” It was further Dr. Brand’s opinion that these were “neglectful injuries, [in that,] no child at that age should be allowed to chew on an electrical wire. . . . [T]he fact that she doesn’t have any teeth means she probably couldn’t have chewed through the cord herself, [and] it’s possible it was a frayed cord she got her hands on. . . .” Although “clavicle fractures are very common birth injuries and many bábies break their clavicle during delivery[, Dr. Brand] would expect at six months that it would have been healed a lot more than it was . . ., so it probably was an injury received at some time after birth and a child of that age cannot break their own clavicle without being dropped or struck or something like that.” Dr. Brand did not have a medical opinion whether these injuries were forced or accidental.

On May 10, 1991, the defendant natural father entered a negotiated guilty plea to a single count of cruelty to children, and was sentenced to 15 years on probation, during which probationary period, defendant was “to obtain [a] GED[, and] attend Parenting Class as directed by the Probation Office.” In pleading guilty, the defendant natural father admitted he did “unlawfully and maliciously by their criminal negligence cause [K. S. W.], a child under 18 years of age cruel and excessive physical pain ... [by allowing] said child to have access to frayed, live electrical cords and [by allowing] said child to sleep in a crib which had a number [of] siderails missing which allowed said child to fall out of said crib repeatedly, which resulted in various injuries to said child including but not limited to skull fractures and electrical burns. . . .”

Nancy Melton was the DFACS caseworker for the children from March 1991 to October 1994. The defendant natural father and his wife, the natural mother, showed some initial success in attempting to meet the goals of the first six-month case plan, in that they did visit with their children and attended a parenting class. A subsequent case plan established the goals that defendant and his wife “will lead a lifestyle that is free of alcohol and drugs; . . . will attend mental health counseling as deemed necessary by their counselor; . . . will maintain a stable home and regular employment; [and] will visit with their children on a regular basis.....” But the natural mother “was laid off from her job at Tip Top because they found marijuana in her system during a routine drug test.” The parents had been requested to attend “AA” meetings, which had not been completed. In Nancy Melton’s opinion, defendant and his wife, the natural mother, were not able to maintain a stable home and regular employment. Similar goals were identified in subsequent case plans but by October 1994, “they had not requested any visits in the past six months. [Tjhey had moved around town at that time. They had not attended AA; had not completed the GED; they had scheduled a counseling appointment but did not attend. And [defendant] had started an out-patient program [for alcohol] but had not completed it.”

In May 1993, “there was a problem during one of the visits. When [Nancy Melton] went to pick the children up, [defendant] had become upset and he and [his wife] had had an argument, and he had started throwing things and yelling, breaking windows, and the police had to be called while the children were there. And at that time [defendant] was taken to [jail]. . .for disorderly conduct and he tested positive for marijuana.”

Patti Stewart, the DFACS social services case manager thought that adoption was in the best interests of the children, who have been in foster care since March 1991, “because it’s been long enough. [The parents] haven’t done anything or made any progress. They’ve [both] been in and out of jail. . . . [The children need] some type of permanency, and [she] would not recommend any more time.” Specifically, “[t]wo of the children have been moved from one foster home to another. [T. V. W.] is having a lot of — his behavior problems are getting worse. . . . We would not want to separate those two children because they have been together, and [DFACS] would be looking at an adoptive placement for them together. . . .” Patti Stewart had no contact with defendant since she took over the case. Defendant’s last documented visit was in August 1996.

Defendant has been incarcerated since March 1997 because his probation was revoked for five years. In 1994, defendant and his wife, the natural mother, separated, and defendant stayed with another woman or with friends “one or two weeks, in and out.” At present, defendant is self-employed as a house painter. His income varies from “a hundred dollars one week and seven or eight hundred the next.” He “checked into [an out-patient drug and alcohol counseling program in Thomasville] and went to a couple of meetings, and then . . . just quit going.” Although the natural mother admitted her own alcohol problems caused conflicts between her and defendant, she did not believe defendant had an alcohol or drug problem. Jean Campbell, the natural mother’s grandmother, described visits at her home between defendant and the children, who “were on Cloud 9 to see [their parents]. . . .” But Jean Campbell’s home has “one bedroom, a living room, and a smaller room, and then a bath, and a kitchen.” Five adults and one child already reside there. They “have some things to make beds in the living room and the carpet, like sleeping bags and like that.” Ms. Campbell conceded there is no room in her house for three more children. Defendant has not filed a tax return in the last 12 years, and admitted he has not paid any child support since the children have been in the care of DFACS. Nevertheless, he spent $100 on a “Chinese SKS 7.62. It is an assault rifle, but [defendant is] a frequent deer hunter and they make excellent deer rifles,” knowing he “wasn’t supposed to own a[ny] firearm.”

The associate juvenile judge ordered termination of both parents’ rights in the three children. After de novo consideration by the Polk County Juvenile Court Judge, it was again determined that the parental rights of both parents should be terminated, and only the defendant natural father appeals from that order. In two related enumerations, defendant challenges the sufficiency of the evidence to terminate his parental rights. Held:

1. “The standard of review on appeal from a termination of parental rights is whether, after reviewing the evidence in the light most favorable to the [juvenile court’s disposition], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. [Cit.] On appeal, ‘(t)his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the [juvenile] court’s factfinding and affirm unless the appellate standard is not met.’ [Cit.]” In the Interest of R. D. S. P., 230 Ga. App. 205 (495 SE2d 867).

“In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. ... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then determine whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home.” OCGA § 15-11-81 (a).

Termination of parental rights based on parental misconduct and inability may be authorized by the juvenile court’s determinations that the child is deprived due to lack of proper parental care or control, subsistence, or education as required by law or as necessary for the child’s physical, mental, or emotional health, or morals (OCGA § 15-11-2 (8)); that such deprivation is likely to continue; and that the continued deprivation will cause serious physical, mental, emotional, and moral harm to the children. OCGA § 15-11-81 (b) (4) (A) (i) through (b) (4) (A) (iv). Lack of proper parental care or control may be shown by conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship, OCGA § 15-11-81 (b) (4) (B) (iii), and also by evidence of past physical, mental, or emotional neglect of the child or of another child by the parent. OCGA § 15-11-81 (b) (4) (B) (v). In addition, where the child is not in the custody of the parent whose rights are in issue, the juvenile court shall consider whether lack of proper parental care and control is demonstrated by proof that the parent, without justifiable cause, failed significantly for a period of one year or longer prior to the filing of the petition to terminate parental rights, to communicate or make a bona fide attempt to communicate with the child in a meaningful supportive way, or fail significantly to comply with a court-ordered plan designed to reunite the child with the parents. OCGA § 15-11-81 (b) (4) (C) (i) and (b) (4) (C) (iii).

2. Defendant first contends the evidence is insufficient to show any deprivation caused by defendant was likely to continue or would not likely be remedied. We must disagree.

The evidence is overwhelming and uncontested that K. S. W, K. L. W. and T. V. W. are deprived due to lack of proper parental care and control. “In determining whether conditions of deprivation are likely to continue, the [juvenile] court may consider the past conduct of the parent. [Cit.] In this case, there [is] not only evidence of past unfitness, there [is] present unfitness also. [Cit.] While imprisonment alone does not automatically authorize a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. [Cit.]” In the Interest of R. D. S. P., 230 Ga. App. 205, 207, supra.

Defendant’s imminent incarceration under probation revocation (and possibly a new felony sentence for possession of a firearm by a convicted felon) will have a demonstrable negative effect on the parent-child relationship. In aggravation of this form of parental inability, the following circumstances support termination of defendant’s parental rights: These children have been in foster care since 1991, when defendant pleaded guilty to criminal neglect of the infant girl, K. S. W. Between that time and the September 1996, evidentiary hearing, defendant’s whereabouts (when he was not incarcerated) were erratic and frequently unknown to DFACS caseworkers. Visitation by defendant (as opposed to his wife) was limited to birthdays. He has never supported his children financially, and has made no bona fide effort to communicate with them, or maintain a meaningful and supportive parental role. During the five years since he was first placed on probation, he was unable to find time to complete a general equivalency diploma, a condition of probation as well as part of the case reunification plans. There is no evidence that defendant, who has never paid child support but can spare $100 for a Chinese automatic weapon, will be any better provider for his children in the future. Thus, pretermitting whether defendant’s itinerant way of life or limited economic circumstances rendered it impracticable to maintain a stable single residence, the evidence authorized the juvenile court’s determination that defendant was unable to offer a safe and stable home environment for his three children, and that this situation was likely to continue. In the Interest of C. W. D., 232 Ga. App. 200 (1) (501 SE2d 232).

Decided June 29, 1998.

Charles E. Pinkard, Jr., for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Gammon & Anderson, W. Wright Gammon, Jr., James S. Astin, Johnny R. Panned, for appellees.

3. The same circumstances that authorized the juvenile court’s determination that these children were deprived due to lack of proper parental control or to parental inability and that such deprivation was likely to continue further provided clear and convincing evidentiary support for the conclusion that such continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A) (iv); In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1108.
    ROMANO v. THE STATE.
    (503 SE2d 380)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single count of theft by taking (motor vehicle), in that “after being in lawful possession of the property of Thomasville Sales Company, to-wit: a 1994 Toyota Camry, [defendant did] unlawfully appropriate said property with the intention of depriving [the] owner of [the] property. . . .” The evidence at defendant’s jury trial, including his custodial statement, revealed the following: James Otis Duke, Jr., the Floor Manager of Thomasville Sales Company, testified that defendant worked there as a salesman. Defendant “requested permission to take [a 1994 Toyota Camry belonging to Thomasville Sales Company] and to show it to a potential customer.” Defendant’s permission or authority to take the car was “[o]nly for the purpose of showing it, . . . in Thomasville, . . . [and not to] drive it anywhere else[.]” Specifically, defendant did not have permission to drive the vehicle to Mississippi or Louisiana or to Mitchell County, Georgia. Randall Vincent Lyons, the Sales Manager, clarified that defendant was to “[r]eturn it [the car] the following morning if he didn’t sell it.” The vehicle was valued at $10,800.

Special Agent John White of the Georgia Bureau of Investigation assisted the Mitchell County Sheriff’s Office in the investigation of a double homicide “right outside of Meigs, Georgia . . . [at] a double wide mobile home that was out in the rural area of the county.” The victims were defendant’s female friend, “Vicki H. White, a . . . female, forty-six years of age. And Michael Rogers, a . . . male, forty-four years of age.” Each was killed by “[g]unshot wounds to the head.” After learning from family members that defendant’s relationship with the victim Vicki H. White was “troubled . . . [investigators] immediately began looking for [defendant].” While Special Agent John White was interviewing employees at Thomasville Sales Company, defendant telephoned “and asked for [Agent White] personally. . . . [When the latter answered, defendant] immediately told [Agent White] where he was [Denver, Colorado] and that he wanted to tell [Agent White] what had happened because it was not what it appeared. And then [defendant] made a verbal statement. . . outlying the events surrounding the homicide.” He also advised the missing vehicle was “at the parking lot in New Orleans at the airport[, with] the murder weapon ... in the glove compartment. . . .” Defendant agreed to turn himself in to the authorities in Orlando, Florida. There, defendant gave a custodial statement.

Defendant told investigators he discovered his female friend, Vicki H. White, had another boyfriend, Michael Rogers. In a jealous rage and armed with a pistol, defendant drove the Toyota to White’s mobile home. Defendant did not want Rogers to recognize his car. Defendant confronted White and Rogers while he “had the gun out. . . . [Defendant] burst out crying [and] took [his] glasses off. . . . [He] put the gun down and . . . told [them he was] not [t]here to hurt anybody, [they are] gonna talk. [Defendant] started crying and put [his] hands up. [Rogers] jumped from the chair, grabbed the gun, walked over to where [White] was, asked her to say whether or not it was true. Vicki, she never said a word. She just sat there.” According to defendant, Rogers shot White and then pointed the gun at defendant. “For some reason [Rogers] turned the gun, shot her again. [Defendant] jumped up [and] hit [Rogers] in the back because he had had [recent] back surgery. [Rogers] dropped the gun. [Defendant] grabbed the gun and [Rogers] started going to the door. [Defendant] yelled at him stop, you better stop. I’m gonna shoot you. [Rogers] didn’t stop and [defendant] shot [him]. . . . [Rogers was still] making noise, [and so defendant] shot him again.” Defendant picked up the Thomasville sales company car and went home. He “called work and told . . . them [he] would be in in a little while. [Then, he] just got in the car and drove.” He cashed a check for $400, and then drove to Biloxi, where he and White had once lived. Special Agent Edward Ricks of the Georgia Bureau of Investigation and Investigator Tommy Butler of the Mitchell County Sheriff’s office retrieved the missing vehicle from Jefferson Parish in Harvey, Louisiana.

The jury found defendant guilty on the sole count of theft by taking (motor vehicle). His motion for new trial was denied and this appeal followed. Held:

1. Defendant first contends the trial court erred in permitting the State to introduce defendant’s custodial statement, implicating him in the Mitchell County homicides, during his Thomas County trial for theft by taking (motor vehicle). The precise objection urged in support of defendant’s motion in limine was that defendant “was never at any time advised that this [theft by taking (motor vehicle)] case was pending or that he was being charged with theft of this vehicle. For [the custodial statement] to come in would be extremely prejudicial for the jury to hear this. They’re liable to convict him for a crime he still has the presumption of innocence on. The trial court determined defendant’s statement was relevant as proof of motive and as proof of the entire res gestae, and further ruled the probative value of that statement outweighed any possible prejudicial impact, and so admitted the statement.

“‘The general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ [Cits.] However, where such evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to this general rule. [Cits.]” Spurlin v. State, 228 Ga. 2, 4 (4), 5 (183 SE2d 765). “ ‘The (S)tate is entitled to present evidence of the entire res gestae of the crime. . . . (E)very aspect of it relevant to the crime charged may be presented at trial. (Cit.) This is true even if the defendant’s character is incidentally placed in issue.’ Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987).” Story v. State, 194 Ga. App. 187, 188 (2) (390 SE2d 96). Evidence material to the issue of the case is not inadmissible because it incidentally puts the defendant’s character in issue. Whippler v. State, 218 Ga. 198, hn. 3 (126 SE2d 744). In the case sub judice, the trial court correctly ruled defendant’s statement contained relevant evidence of motive and of the entire res gestae. We further conclude the trial court did not abuse its discretion in ruling the probative value of that relevant evidence substantially outweighed its prejudicial impact.

Decided June 29, 1998.

Andrews & Seery, Stanaland A. Seery, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

2. Defendant enumerates the denial of his motion for directed verdict of acquittal, arguing there was no proof of any intent to deprive the owner Thomasville Sales Company of the car.

The phrase “ ‘regardless of the manner in which the property is taken or appropriated,’ found in the theft by taking statute (OCGA § 16-8-2), ‘renders the [Code] section sufficiently broad to encompass thefts or larcenies perpetrated by deception . . . and theft by conversion. . . .’ [Cits.] The basic facts in this case as to how [defendant] obtained possession of the car are not in dispute, and the only real issue [in the theft by taking trial] was [defendant’s] intent, which was a question for the jury. [Cit.]” Cole v. State, 186 Ga. App. 243 (1) (366 SE2d 844). In the case sub judice, defendant lied to his employer to get initial possession based on a fraudulently induced consent. Thereafter, defendant did not use his own car to flee the state but took his employer’s vehicle, abandoning it at the New Orleans airport while defendant continued on to seek refuge in Denver. From these circumstances, the jury could infer the criminal intent to deprive the owner of its property. Consequently, the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of theft by taking (motor vehicle) as alleged in the indictment. Cole v. State, 186 Ga. App. 243 (1), 244, supra.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A98A1441.
    In the Interest of F. G. et al., children.
    (503 SE2d 387)
   Eldridge, Judge.

Appellant Donald Ray Ramsey challenges the termination of his parental rights to his twin daughters, J. R. and H. R. We affirm.

In his sole enumeration of error, Ramsey asserts that the evidence was insufficient to support the trial court’s October 1997 order. “The standard of review of a juvenile court’s decision to terminate parental rights is whether[,] after reviewing the evidence in the light most favorable to the [State], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997); see also cases cited therein.

“The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First[,] the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second[,] the court considers whether termination is in the best interest of the [children]. Parental misconduct is determined by finding: 1) the [children are] deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the [children]. OCGA § 15-11-81 (b) (4) (A).” (Citations and punctuation omitted.) In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). Several factors support a determination by the trial court that there has been a lack of proper parental care and control, including the following: “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; . . . [e]gregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive manner; [p]hysical, mental, or emotional neglect of the child . . . or of another child by the parent; . . . [i]njury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.” OCGA § 15-11-81 (b) (4) (B) (iii), (iv), (v), (vi). Further, “in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o communicate or to make a bona fide attempt to communicate with the [children] in a meaningful, supportive, parental manner; (ii) [t]o provide for the care and support of the [children] as required by law, or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the [children] with the parent or parents.” OCGA § 15-11-81 (b) (4) (C) (i), (ii), (iii).

1. (a) The facts of this case are as follows: prior to the birth of twin daughters J. R. and H. R. in November 1995, Ramsey and Mary Love cohabitated in a trailer in Whitfield County. Also living with the couple were Ms. Love’s two small children from a previous relationship, F. G. and T. G. In 1994, the county Department of Family & Children Services (“DFACS”) opened a Child Protective Services case file and began investigating reports that the children were being neglected. DFACS found that the couple was not providing a stable home for the children, i.e., they were unable to pay the rent or utilities due to their chronic unemployment.

After developing a safety plan for the family, DFACS continued to monitor the situation until December 1995, when Ramsey was arrested for marijuana possession. At the time of the arrest, he was smoking the drug in front of all four children, including the newborn twins. A DFACS caseworker testified that this arrest “confirmed” his suspicions of Ramsey’s drug usage. No formal action was taken by DFACS following this incident until Ramsey’s arrest on child cruelty charges a month later.

In January 1996, the couple took the children to stay with Ms. Love’s mother, Mrs. Teasley, while the couple looked for jobs. Shortly after the children arrived, Mrs. Teasley noticed that two-year-old T. G. had dark bruises on his back. Mr. and Mrs. Teasley took the child to the hospital and, upon subsequent examination, multiple severe bruises were discovered on the child’s back, buttocks, and legs. It was established that the child had been severely beaten with a belt. DFACS immediately took protective custody of the four children and placed them in foster care.

Ramsey subsequently pled guilty to cruelty to children in April 1996. He was sentenced to five years imprisonment, three to serve, and he has been incarcerated ever since. The trial court noted that, in addition to this felony conviction, Ramsey previously pled guilty to six separate counts of burglary in 1991, and he received a ten year sentence. He was on parole when he pled guilty to cruelty to children, and his parole was revoked. Ramsey’s release date is January 24, 1999, and a parole officer indicated at the hearing that it was unlikely that the parole board would release Ramsey prior to. that time. However, as a special condition of his probation, Ramsey is prohibited from having any contact with any minor child without DFACS approval, including his own children.

Notably, T. G.’s beating was not the only evidence of Ramsey’s violent acts toward the family. The hearing testimony consistently showed that F. G. and T. G., as well as Ms. Love, feared Ramsey. Ms. Love’s stepfather, Mr. Teasley, testified that the children would “have a fit . . . screaming and carrying on” when he and his wife took the children home after a visit. Several witnesses testified that they had observed Ramsey striking the children or Ms. Love; that they saw suspicious bruises on F. G. and T. G.; and that they saw Ms. Love with a black eye following a confrontation with Ramsey.

Since Ramsey’s most recent incarceration, it is undisputed that he has failed to communicate at all with his twin daughters, who are now two years of age. He admits that he has failed to call them; to send toys, birthday cards, or Christmas presents; to send financial support; or to contact DFACS regarding the children’s status and welfare. He asserts that his failure to communicate with or support the children is due to the State’s alleged failure to contact him while he was incarcerated, and he further claims that he did not know how to contact DFACS. However, he admitted that he maintained regular contact with his mother, who testified that she had the name, phone number, and address of the DFACS employee assigned to the case. His mother also testified that she would have given Ramsey the name and phone number of the DFACS caseworker if he had asked for it. Further, the DFACS caseworker testified that he gave Ramsey a business card with his name, DFACS phoné number, and address so that Ramsey could stay in contact with DFACS during his incarceration.

Ramsey also claims that he did not know of any DFACS requirements for his reunification with the children, including his support obligations, so that he could not be held responsible for failing to meet such requirements. Ramsey admits that he paid no child support and the evidence indicated that he was approximately $1,600 in arrears at the time of the hearing. However, a DFACS caseworker testified that Ramsey was notified that he had to do two things to avoid losing his parental rights to the children, i.e., legitimate the children and cooperate with DFACS during his incarceration. It is undisputed that Ramsey has done neither.

However, even though he asserts that he was not notified regarding a reunification plan, Ramsey contends that he has made progress toward meeting the DFACS requirements for regaining custody of the children. For example, Ramsey testified that he participated in a drug rehabilitation course while imprisoned; such course requirement was related to Ramsey’s admission to abusing marijuana prior to his incarceration. Upon cross-examination, however, Ramsey admitted that the course was required for all inmates as a condition of their release. He also admitted that he did not enroll in a family violence or an anger management class until after he received his termination notice.

Further, although Ramsey points to his alleged successful completion of a parenting class as evidence of his parental fitness, the fact that he took the class before his January 1996 physical abuse of T. G. speaks volumes as to the effect of the class on Ramsey’s parenting abilities.

After viewing the evidence in the light most favorable to the trial court’s judgment, there is more than sufficient evidence to find that the children are deprived and that Ramsey’s violent propensities; his present incarceration; and his total failure to contact, support, or legitimate the children is the cause of such deprivation. Further, “although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. The nature of and circumstances surrounding appellant’s convictions per se establishes the requisite aggravating circumstances in this case.” (Citations and punctuation omitted.) In the Interest of S. H., 204 Ga. App. 135, 139 (418 SE2d 454) (1992).

(b) “ ‘[T]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.’ [Cits.]” In the Interest of A. W., 231 Ga. App. 770, 773 (501 SE2d 22) (1998); see also cases cited therein; In the Interest of K. H., 229 Ga. App. 307, 309 (494 SE2d 69) (1997). “In a termination case, evidence that is one or two years old is not outdated.” (Citation and punctuation omitted.) In the Interest of K. H., supra at 309.

In this case, there is substantial evidence of Ramsey’s bad temper and violent propensities, his history of illicit drug use, his failure to maintain consistent employment, and his lack of parenting skills. A DFACS caseworker testified that, in her opinion, there is “a good possibility that [Ramsey] would lose control [of his temper] and something would happen again.” It was DFACS’s position that reuniting the children with Ramsey would be detrimental to the children.

Even when Ramsey is eventually released from prison, the special conditions of his probation will prohibit him from having contact with the children without first obtaining DFACS’ permission. This fact alone indicates that Ramsey will face significant barriers to his eventual reunification with the children. Notably, Ramsey has taken no substantial step to ensure that, in the event of such reunification, his situation will be any different than that which existed prior to his most recent incarceration. He has never legitimated the children, a relatively simple step in establishing his concern for their welfare and one that was required by DFACS for reunification. He has failed to obtain his GED and has developed no additional skills to assist him in finding and maintaining stable employment.

Under the circumstances, Ramsey’s assertion that he could improve these areas of his life if given a little more time fails to “overcome the proof of unrelieved detriment already suffered by the children for their entire lives, where there is no indication but the promise to suggest hope of improvement.” (Citations and punctuation omitted.) In the Interest of N. C., 228 Ga. App. 875, 877 (492 SE2d 895) (1997). Accordingly, the evidence supports a finding that the deprivation is likely to continue.

(c) Further, there is sufficient evidence that the children would be harmed if maintained in foster care until they are eventually returned to Ramsey’s care. Twins J. R. and H. R. were born in November 1995 and were only two months old at the time of T. G.’s abuse. Accordingly, the children have lived in foster care almost since birth and have had no memorable contact with Ramsey. The DFACS caseworker testified that the children are presently very good candidates for adoption.

Given the children’s age, the lack of parental bonding, and their present adoptability, as well as Ramsey’s violent propensities, the evidence supports a finding that the children would be harmed if Ramsey’s parental rights are not terminated.

2. “If there is clear and convincing evidence of [statutorily defined] parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interests] of the [children], after considering the physical, mental, emotional, and moral condition and needs of the [children,] including the need for a secure and stable home.” OCGA § 15-11-81 (a); In the Interest of S. H., supra at 139. “The same factors which prove a parent’s inability to properly raise [his] children may also serve to show that termination of parental rights would be in the children’s best interests. [Cit.]” In the Interest of V. S., 230 Ga. App. 26, 30 (495 SE2d 142) (1997); In the Interest of S. H., supra at 140. Even though Ramsey contends that his minimal efforts evince a desire to change his behavior, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of V. S., supra at 30; In the Interest of K. A. C., 229 Ga. App. 254, 257 (493 SE2d 645) (1997).

Upon review of the facts of this case in light of the statutorily defined considerations, this Court concludes that there was substantial clear and convincing evidence to support the termination of Ramsey’s parental rights.

Decided June 29, 1998.

Michael R. McCarthy, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Jerry W. Moncus, Richard K. Murray, for appellees.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       This case initially involved four children, four-year-old F. G., three-year-old T. G., and one-year-old twins, J. R. and H. R. At the October 1997 hearing on this action, Mary Love, the mother of the children, voluntarily relinquished her parental rights. Jerry Green, Jr., the father of F G. and T. G., also relinquished his parental rights at this hearing.

       Ms. Love’s stepfather also testified that Ramsey attacked him in the fall of 1995 by slamming a car door into his body and injuring his arms and chest.

       DFACS has a policy that prohibits the development of formal reunification plans for fathers that fail to legitimate their children.


text:
    A98A1477.
    SKOGLUND v. DURHAM et al.
    (502 SE2d 814)
   Eldridge, Judge.

Plaintiff/appellant Frederick Skoglund sought to obtain his broker’s license from the Georgia Real Estate Commission (“GREC”). Pursuant to OCGA § 43-40-27 (a), defendants/appellees Charles and Deborah Durham filed a Request to Investigate with the GREC wherein the Durhams allegedly contended that a jury had found Skoglund guilty of defrauding them. As a consequence, Skoglund filed an action against the Durhams in the Oconee County Superior Court, claiming that their statement in the Request to Investigate constituted defamation.

The trial court granted the Durhams’ motion for a judgment on the pleadingr as to the defamation action. The court found that “public policy wan ants the imposition of an absolute privilege for communications made in the filing of a request for investigation with the GREC.” Skoglund appeals this decision. Held:

“From motives of public policy the law recognizes certain communications and publications as privileged. The privilege which the law thus accords the speaker or publisher is either absolute, entirely freeing the party from any liability ... or conditional, that is, the words shall be spoken in good faith, upon a proper occasion. When the privilege is absolute, the motive of the publication is immaterial. When the privilege is conditional actual malice will bring about liability.” (Citations and punctuation omitted.) Bell v. Anderson, 194 Ga. App. 27, 28 (389 SE2d 762) (1989).

The issue before us is one of first impression. We are required to determine whether statements made in a Request to Investigate filed with the GREC pursuant to OCGA § 43-40-27 are entitled to absolute privilege under OCGA § 51-5-8. We find that such statements are so entitled. Both (a) the criteria of OCGA § 51-5-8 and (b) the public policy rationale of OCGA § 43-40-27 compel this conclusion.

(a) Under OCGA § 51-5-8, “[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought,” are absolutely privileged. “It is clear from a review of past decisions that... we have not strictly limited the privilege under OCGA § 51-5-8 to ‘pleadings’ as they are defined under OCGA § 9-11-7 (a). Rather, the absolute privilege afforded by OCGA § 51-5-8 has been more broadly construed. . . . Indeed, we have generally described the coverage of the privilege to include ‘official court documents’ and acts of‘legal process.’ ” (Citations and punctuation omitted.) Williams v. Stepler, 227 Ga. App. 591, 595 (490 SE2d 167) (1997). Consequently, the privilege has been applied to protect, inter alia, allegations in affidavits, protective orders prepared by counsel, notice of lis pendens, an affidavit in support of an arrest warrant, the words of a judge in the course of a judicial proceeding, filings with the state employment agency, and other quasi-judicial proceedings in administrative tribunals.

In determining whether a proceeding falls within the ambit of OCGA § 51-5-8, we look to the nature of the proceeding and the character of the rights which may be affected by it. This analysis includes but is not limited to the applicability of discovery, the existence of provisions for an evidentiary hearing, whether the merits of the complaint are to be reached during the course of the proceeding, and the scope of judicial review thereon. Davis v. Shavers, 225 Ga. App. 497, 498 (1) (484 SE2d 243) (1997), aff’d in 269 Ga. 75 (495 SE2d 23) (1998); see also Phillips v. MacDougald, 219 Ga. App. 152, 156-157 (464 SE2d 390) (1995).

Here, the proceeding upon a Request to Investigate filed pursuant to OCGA § 43-40-27 (a) provides that “upon the sworn written request of any person,” the GREC may investigate a brokerage license applicant for alleged “fraudulent conduct or mishandling of funds held in a fiduciary capacity, or investigations of possible violations of this chapter [see OCGA § 43-40-25 (a)] which have been litigated in the courts or arise from litigation in the courts[.]” Under the statute, an initial investigation of the complaint is made and, if deemed necessary, provisions exist for the issuance of subpoenas to compel the production of “writings, documents, or material, either on behalf of the commission or at the request of a respondent”; further, before any action may be contemplated against a respondent, a hearing is required on the merits of the complaint. OCGA § 43-40-27 (c). In addition, OCGA § 43-40-26 provides for judicial review in the superior court of the decision of the GREC and subsequent appellate review of the superior court determination. See OCGA §§ 43-40-26 (c); 50-13-19; 50-13-20. Accordingly, the “judicial nature” of the proceedings under OCGA § 43-40-27 renders applicable the privilege afforded by OCGA § 51-5-8 to a quasi-judicial proceeding. See Morton v. Stewart, 153 Ga. App. 636, 637 (1) (266 SE2d 230) (1980).

(b) Furthermore, public policy supports the application of an absolute privilege to a claim of fraud contained in a Request to Investigate. “The statute in question [OCGA § 43-40-27] is . . .a state regulation for the public welfare. The statute was designed to promote quality services in the real estate profession by preserving confidentiality and encouraging candor when the Commission investigates real estate licensees.” (Citations and punctuation omitted; emphasis supplied.) Demery v. Ga. Real Estate Comm., 266 Ga. 288, 289 (466 SE2d 591) (1996). In this regard, “[absolute] privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfarei.T (Citations and punctuation omitted; emphasis supplied.) Fedderwitz v. Lamb, 195 Ga. 691, 696 (25 SE2d 414) (1943); see also, e.g., OCGA § 34-8-122.

Here, OCGA § 43-40-27 specifically states that “fraudulent conduct” is a basis for a Request to Investigate. The investigation of such conduct benefits the public welfare (and the GREC) by generating and maintaining the degree of public trust required in a profession that brokers the contractual obligations between home seller and buyer and that acts in a fiduciary capacity therefor. However, when the filing of a GREC Request to Investigate may result in a defamation suit, with its consequent time, money, and anxiety regardless of the merits, we agree with the trial court that a “chilling” effect may occur in the reporting of fraudulent conduct. Obviously, then, the public welfare sought to be enhanced by the statute would not be served.

Skoglund argues that “no citizen would have any cause to fear being sued if (1) their complaint was entitled to a conditional privilege, and (2) they made the report in good faith.” However, this argument is not well taken. First, it contradicts Skoglund’s other argument that this is an “overly litigious age” apparently because “[t]he courts are the means by which individuals settle their differences short of physical violence”; and further, it ignores the reality that the one against whom a complaint is lodged seldom agrees that such complaint is made in good faith, even if it was. With licensing (i.e., employment) on the line, it is not unlikely that a defamation suit would follow a GREC Request to Investigate fraudulent conduct, as much from tactical considerations and notions of quid pro quo, as from legitimate outrage.

On the other hand, OCGA § 43-40-27 provides a level of confidentiality which protects both the complainant and the respondent, making imposition of an absolute privilege even more germane to the statutory purpose. The statute “prohibits the discovery of any document in [the GREC’s] possession” relating to the investigation of a complaint against a licensee or applicant. Demery v. Ga. Real Estate Comm., supra at 290. Candor is the goal of such confidentiality, candor in the reporting of unprofessional conduct, as well as in the response to such report. Id. at 289. It would appear to make little sense for the legislature to provide a statutory scheme for policing the integrity of the real estate profession by reporting unprofessional conduct and then for this Court to stymie the process by permitting libel actions against those who do as contemplated by the statute and report such conduct.

Further, the level of strict confidentiality provided by OCGA § 43-40-27 also addresses Skoglund’s concerns regarding complaints which contain “a malicious falsehood . . . [filed] by one whose only purpose is to injure a real estate professional.” The confidentiality of the investigative procedures under the statute ensures that the GREC may discreetly review those claims made only for malicious purposes and dispose of them equally discreetly, thereby negating the traditional “libelous” consequences of the open destruction of one’s reputation in the community. Only when an initial investigation reveals that a complaint has potential merit does the real estate professional actually become involved, and, even then, the statute provides for continued confidentiality in any further proceedings. OCGA § 43-40-27 (d); compare Davis v. Shavers, supra.

In point of fact, the strict confidentiality provided by the statutory scheme of OCGA § 43-40-27 promotes the application of absolute privilege under OCGA § 51-5-8. And, clearly, the public policy behind the policing of professionals who act in a fiduciary capacity, such as real estate professionals and legal professionals, makes it necessary for such professionals to understand that a less than flattering statement contained in a complaint before a regulatory body is a necessary, if somewhat vexing, part of the process of building and maintaining public confidence in their industry, regardless of the merits of the complaint. Indeed, in some professions, criticism comes with the territory.

Accordingly, the trial court properly granted a judgment on the pleadings as to Skoglund’s defamation suit, because the suit was based upon a statement contained in a Request to Investigate filed with the GREC pursuant to OCGA § 43-40-27, and, as such, the statement was absolutely privileged under OCGA § 51-5-8.

Decided June 29, 1998.

Crowther & Green, James M. Green,, for appellant.

IV Glover Housman, Jr., for appellees.

Judgment affirmed.

McMurray, P. J, concurs. Blackburn, J., concurs in judgment only.

       See Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102 (1) (441 SE2d 288) (1994); Bell v. Anderson, 194 Ga. App. 27 (389 SE2d 762); Conley v. Key, 98 Ga. 115, 117 (25 SE 914) (1896); Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172 (358 SE2d 477) (1987); Land v. Delta Airlines, 147 Ga. App. 738 (250 SE2d 188) (1978).