text:
    A94A0828, A94A0911.
    HARPER v. THE STATE (two cases).
    (445 SE2d 303)
   Beasley, Presiding Judge.

Jerome Harper, appellant in Case No. A94A0911, was indicted for the armed robbery of Jimmy Chow by use of a knife on May 17, 1990 (Count 1). OCGA § 16-8-41. He was also indicted for the armed robbery of a Golden Pantry Food Store on July 21 (Count 2), and possession of a knife during the commission of that crime (Count 3). OCGA § 16-11-106.

He and his brother Jerald Harper, appellant in Case No. A94A0828, were jointly indicted for robbery by intimidation of Eat-APlenty Express (Count 4), OCGA § 16-8-40, and armed robbery of Wendy’s Old Fashioned Hamburgers (Count 5), on July 24. Jerome and Jerald were each indicted for possession of a knife during the Wendy’s robbery (Counts 6 and 7) and giving a false name to a law enforcement officer at the time of their arrest (Counts 8 and 9). OCGA § 16-10-25.

Jerome was convicted of all counts in which he was named, except Count 1 (armed robbery of Chow). Jerald was convicted of all counts charging him. In their appeals from the denial of their motions for new trial, Jerome has filed nine enumerations of error, and Jerald has filed two. Jerald’s first enumeration is the same as Jerome’s second.

The co-defendants are brothers who look alike. In the two years between the offenses and trial, their appearances were altered by weight gain and hair length change.

Brenda Barnes, an employee of the Golden Pantry on duty at the time of the robbery, testified that it was committed by two black males. She testified that one remained in the car and the other came into the store with a knife and forced her to give him the cash from the register. She identified the robber from a photographic line-up based on the appearance of a facial scar. On the first day of trial, she testified that she thought the robber was Jerald Harper but was not sure.

A surveillance camera at the Golden Pantry recorded the robbery on videotape. Barnes did not view the videotape until the second day of trial. She positively identified in it herself and her co-employee, Vera Bailey, who was also on duty at the time of the robbery. She testified with certainty that the robber was one of the co-defendants but could not be sure which one.

Bailey testified that she had viewed the videotape and the photographic line-up but was undecided as to which co-defendant was the robber because they both look similar. She testified that she believed Jerald was the robber, because the one who robbed her had the slimmer face.

The investigating officer took various photographs of Jerome Harper to depict his features, including a scar on his left cheek. The officer testified that after looking at the photographs and viewing the videotape, he concluded that Jerome was the robber. He testified that Barnes positively identified Jerome as the robber after being shown the photographic line-up and that Bailey said it could have been either of them.

An employee testified that the co-defendants entered the Eat-APlenty Express on July 24 at approximately 5:00 p.m. and robbed her with what felt in her back like a knife. She identified the co-defendants from photographs shown her by the police. She testified that Jerome held her arms while Jerald took the money.

The police officer investigating this robbery testified that he showed the employee two photographic line-ups, each containing the picture of only one brother. She picked out each brother’s photo. The officer testified that he believed she identified Jerald as the one holding her arms.

An employee identified the co-defendants as the two perpetrators of the robbery of Wendy’s at approximately 11:00 p.m. on July 24. He testified that Jerald entered the store first, followed by Jerome. A visitor who was present positively identified the co-defendants as the perpetrators but could not tell them apart. These two witnesses also positively identified the co-defendants from photographs shown them by police.

Shortly after the Wendy’s robbery, the co-defendants were traced to a motel located on the same road. Jerome identified himself to police as Derrick Solomon, and Jerald identified himself as John Jessie Solomon. Jerome stated he had not robbed the Wendy’s but had switched clothes with the “dude” who had.

1. Jerome contends that the court erred in denying his motion for new trial because the State failed to prove beyond a reasonable doubt his guilt in the Golden Pantry robbery with a knife (Counts 2 and 3).

In Johnson v. State, 176 Ga. App. 378, 380 (4) (336 SE2d 257) (1985), we declined to adopt the minority view that a witness’ pretrial identification is inadmissible if the witness fails to positively identify the defendant at trial. Here, as in Johnson, the witness’ original identification was made within days of the crime, when her memory was fresher than at trial; the defendant’s appearance was substantially changed at trial; and the line-up photograph depicted defendant at the time the crime occurred. As held in Johnson, the inability of the witness to make a positive identification at trial affects the weight of the evidence and the credibility of the witness, which are jury questions. The same is true of contradictions in the witness’ identification of defendant shortly after the robbery and at trial. See Gravitt v. State, 220 Ga. 781, 787 (8) (141 SE2d 893) (1965); Dimick v. State, 178 Ga. App. 60, 62 (1) (341 SE2d 914) (1986); Miller v. State, 174 Ga. App. 703, 704 (2) (331 SE2d 616) (1985).

2. Both appellants contend that the court erred in denying their identical motions for “severance of offenses.”

They moved before trial for severance of Counts 1 through 3, charging only Jerome, from the remaining counts. They also sought separate trials. The reasons given were that the evidence admissible on Counts 1 through 3 (Chow and Golden Pantry robberies) was not admissible on any other count and the effect of this evidence would be to prejudice Jerald unfairly.

When two or more defendants are charged with identical crimes, they may be jointly tried in the discretion of the trial court. Johnson v. State, 208 Ga. App. 747, 749 (2) (431 SE2d 737) (1993); Ledbetter v. State, 202 Ga. App. 524, 525 (2) (414 SE2d 737) (1992). Severance is not required simply because one co-defendant is charged with additional offenses not charged against the other. Hightower v. State, 263 Ga. 375, 376 (2) (434 SE2d 491) (1993). We find no abuse of discretion in the trial court’s denial of the motion based on the showing made in its support. See generally Ledbetter, supra; Hill v. State, 193 Ga. App. 401, 403 (5a) (387 SE2d 910) (1989).

Jerome also moved to sever: (1) Count 1 (Chow) from Counts 2 and 3 (Golden Pantry), in that they were joined in the indictment solely because they were of the same or similar character; and (2) Count 4 (Eat-A-Plenty) from Count 5 (Wendy’s), in that they were not so similar as to show a common scheme or plan or an identical modus operandi.

“ ‘Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. (Cit.) However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.’ [Cit.] When offenses are based on the same conduct, on a series of acts connected together, or on a series of acts constituting parts of a single scheme or plan, severance becomes discretionary, not mandatory, [cit.], and the trial court may order severance if necessary to achieve a fair determination of the defendant’s guilt or innocence on each count. [Cit.]” Villarreal v. State, 198 Ga. App. 501, 502 (402 SE2d 104) (1991).

In robbing Eat-A-Plenty Express and Wendy’s within six hours of each other on the same day, the co-defendants were engaged in a continuing course of criminal conduct and a series of acts constituting a common scheme or plan; the modus operandi was similar but not identical. A determination with respect to Counts 1 through 3 is moot because a directed verdict of acquittal was entered in favor of Jerome on Count 1 due to the State’s failure to present evidence on it. It was not an abuse of discretion to deny his motion.

Both co-defendants argue on appeal that a joint trial hindered a fair determination of their respective guilt because of the similarity of their appearance and resultant confusion of identification evidence. They did not move for a severance on this ground either before or during trial. Compare Terry v. State, 190 Ga. App. 570 (1) (379 SE2d 604) (1989).

3. Jerome contends that the court erred in giving a cautionary instruction to the jury, after Barnes and Bailey testified, that Jerome was charged with the crimes alleged in Counts 2 and 3, that the State contended that he rather than the co-defendant committed these offenses, and that the jury should not infer anything hurtful to Jerald because of what had transpired thus far in the trial.

Both co-defendants objected to this instruction on the ground that it constituted an expression of opinion. The court then emphasized to the jury that it was not expressing an opinion but merely making a statement that the State’s position was that Jerald alone committed these offenses. “A mere statement by the trial court as to what the adverse parties contend is not a statement of opinion by the court.” Owens v. State, 81 Ga. App. 182 (hn. 2) (58 SE2d 550) (1950); compare Crawford v. State, 139 Ga. App. 347 (2) (228 SE2d 371) (1976).

On appeal, Jerome argues that the initial instruction in effect told the jury that the eyewitnesses had been mistaken in their identification of the co-defendant. This basis is waived because it was not raised at trial.

4. Jerome enumerates as error the admission in evidence of the videotape of the Golden Pantry robbery, for lack of a proper foundation in accordance with Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 SE2d 167) (1955). He contends it was not shown that the videotape recorder was functioning properly or that it was being operated by competent personnel. Compare Bedley v. State, 189 Ga. App. 90, 91 (3) (374 SE2d 841) (1988); Allen v. State, 146 Ga. App. 815, 817 (2) (247 SE2d 540) (1978).

The rule in other jurisdictions is that where a foundation is laid for the admission in evidence of a videotape through the testimony of a witness to the event who confirms that the videotape accurately and reliably represents what the witness sensed at the time in question, it is not necessary to show the proper functioning of the recording device or its operation by competent personnel. Ex parte Fuller, 620 S2d 675, 678 (Ala. 1993); Mikus v. United States, 433 F2d 719, 725-726 (2d Cir. 1970); 1 McCormick on Evidence, § 214 (4th ed. 1992). This rule finds support in Eiland v. State, 130 Ga. App. 428, 429 (1) (203 SE2d 619) (1973), which held that the videotape of a scene may be admitted in evidence on the same basis as a still photograph, i.e., through a showing that it is a fair and accurate representation of the scene sought to be depicted.

Barnes testified that the videotape is a fair and accurate representation of the robbery. In accordance with the logic of Eiland and the foreign authorities cited, we hold that the court did not err in admitting the videotape.

5. In two enumerations, Jerome contends that the court erred in allowing the two investigators to testify that they had viewed the videotape of the Golden Pantry robbery and that in their opinion Jerome was depicted. Objections were made to their testimony as expressions of opinion.

Investigator Pinkston testified that he identified Jerome as the perpetrator after photographing him, viewing the videotape, and observing Jerome in person. He based his identification upon various of Jerome’s features, the most distinctive being a shiny spot on the back of his head which glared in the video. The other officer, who arrested Jerome at the motel, likewise viewed him in person at close range at the time of the robberies.

Under Federal Rules of Evidence, it has been held that “[a] witness’s opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. This criteri[on] is fulfilled where the witness is familiar with the defendant’s appearance around the time the surveillance photograph was taken and the defendant’s appearance has changed prior to trial. [Cits.]” United States v. Farnsworth, 729 F2d 1158, 1160 (1) (8th Cir. 1984); see United States v. Stormer, 938 F2d 759, 761 (1) (7th Cir. 1991); United States v. Allen, 787 F2d 933, 935 (1) (4th Cir. 1986). This holding finds support in Garrett v. State, 141 Ga. App. 584, 586 (3) (234 SE2d 161) (1977) and Randall v. State, 73 Ga. App. 354, 367 (3) (36 SE2d 450) (1945), which authorize the identification of a defendant through the opinion testimony of non-expert eyewitnesses, where the witnesses have testified to the facts upon which their opinions are based.

In this case, the investigators were not eyewitnesses to the robbery but, unlike the jury, they were able to observe the defendant at the time of the robbery before his appearance had changed. Thus, as in Garrett and Randall, their opinions are based upon their personal knowledge of the facts to which they testified. As in Farnsworth and the other federal cases cited, their opinions were probative of the fact in issue. It was not error to admit their testimony.

6. Jerome contends that, over his hearsay objections, the court erred in allowing Investigator Pinkston to testify that he showed certain photographs to various State’s witnesses and that they all identified Jerome.

“A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection. [Cit.]” Bruce v. State, 142 Ga. App. 211, 213 (2) (235 SE2d 606) (1977).

7. Jerome contends that the court erred in denying his motion for mistrial because of Investigator Pinkston’s testimony that the photos he showed to the State’s witnesses were from an “arrested persons” photo book from the year 1989. The court instructed the jury to entirely disregard the testimony.

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]

“When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. [Cit.]” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). As in Stanley, so here, the trial judge acted immediately, ruled out the offensive testimony, and properly instructed the jury not to consider it. This did not amount to an abuse of discretion. See also Howard v. State, 204 Ga. App. 882, 884 (2) (420 SE2d 811) (1992); compare Richardson v. State, 199 Ga. App. 10, 11 (2) (403 SE2d 877) (1991).

8. Jerome contends that the court erred in playing the videotape repeatedly at slow motion and stop frame, at the request of the jury, after jury deliberations had begun.

For the reasons given in Barnett v. State, 204 Ga. App. 588, 589 (1) (420 SE2d 96) (1992) and Brown v. State, 201 Ga. App. 510, 511 (2) (411 SE2d 366) (1991), this was not an abuse of discretion.

9. Jerald contends that the court erred in denying the co-defendants’ motion for a mistrial when the State announced before the jury that it would not introduce evidence as to Count 1 because of the illness of a key witness.

This enumeration is without merit. The announcement could have been harmful only to Jerome, since he alone was charged with that offense. Moreover, the jury was not present to hear the announcement. Later during the trial, the State did remark in the jury’s presence that the subject witness was unable to testify because she was having gall bladder surgery, following which the court directed an acquittal on Count 1. The co-defendants moved for a mistrial because of that remark, but the denial of that motion is not enumerated as error by either of them.

Decided June 3, 1994.

Richard 0. Ward, for Jerald Harper.

Sam B. Sibley, Jr., for Jerome Harper.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgments affirmed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A0894.
    RECTOR v. THE STATE.
    (444 SE2d 862)
   McMurray, Presiding Judge.

Defendant was indicted for armed robbery. The evidence adduced at a jury trial reveals that defendant went into an Atlanta drug store, displayed a pistol and ordered the store’s assistant manager “to open the safe [and] give [the money] to me.” The jury found defendant guilty of armed robbery. This appeal followed the denial of his motion for new trial. Held:

1. Defendant first challenges the sufficiency of the evidence. At. trial, the victim testified that he was robbed at gunpoint while employed as the assistant manager of the “Big B Drugs at 455 North Avenue . . .” and that he is “about eighty percent sure that [defendant] was the [perpetrator of the armed robbery].” Another store employee testified that she was present on the morning of the armed robbery and she positively identified defendant as the perpetrator of the crime charged. Elaine Lattimore testified that defendant came to her home on the morning of the armed robbery; that she then noticed that defendant “had [a pistol and] some money and [that defendant] said that he had hit a lick.” Lattimore explained that the expression, “hit a lick,” means “in the streets, the slang words, . . . robbery, I came up with some money.” This evidence was sufficient to enable a rational trier of fact to find the defendant guilty, beyond a reasonable doubt, of the crime of armed robbery as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Edwards v. State, 209 Ga. App. 304 (1) (433 SE2d 619).

2. Defendant, who is black, contends the trial court erred in overruling his objection based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), arguing the State’s use of peremptory strikes to exclude three prospective black jurors was “based upon an impermissible racial stereotype.”

The State’s attorney exercised only three of six available peremptory strikes, but she employed them all to exclude blacks from jury service. This fact and admissions that eighteen of thirty-four qualified panelists were black and that the jury comprised five blacks and seven whites raises the concern of prima facie discrimination. See Gamble v. State, 257 Ga. 325, 326 (3) (357 SE2d 792); Ford v. State, 262 Ga. 558, 559 (1), 560 (4) (423 SE2d 245); Hill v. State, 263 Ga. 37, 42 (9), 43 (427 SE2d 770); Osborne v. State, 263 Ga. 214, 215 (3) (430 SE2d 576). However, “[t]he preliminary issue of whether [defendant] established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). We therefore need only address the sufficiency of the prosecutor’s explanations for the exercise of the [three] peremptory strikes of [prospective] black [jurors. With this in mind, we note that a] ‘prosecutor’s explanations must be strong enough to overcome the prima facie case.’ (Emphasis in original; citation and punctuation omitted.) Kelly v. State, 209 Ga. App. 789 (1) (b) (434 SE2d 743) (1993). [Further,] ‘[t]he exercise of a peremptory challenge may not be based on either the race of the juror or racial stereotypes held by the party. (Cit.)’ Congdon v. State, 262 Ga. 683, 685 (424 SE2d 630) (1993). ‘In order for the State to carry its Batson burden, the prosecutor (must) explain his striking of the jurors at issue by articulating a racially-neutral reason related to the particular case. (Cit.)’ Lewis v. State, 262 Ga. at 680 (2).” Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728).

In the case sub judice, the State’s attorney explained that she excluded a black male because “he was under investigation for arson and attempting to burn his grandmother’s house . . .” and that she struck a black female because “her brother is charged with murder up in Greene County. ...” The trial court found these explanations racially neutral and sustained the State’s use of peremptory strikes. The trial court did not abuse its discretion in so ruling. See Davis v. State, 263 Ga. 5, 7 (10), 8-9 (426 SE2d 844) (1993). However, the same cannot be said about the decision to allow the State’s use of a peremptory strike to exclude another black female from the jury.

The hearing conducted pursuant to Batson v. Kentucky, 476 U. S. 79, supra, pertinently reveals the following: “[STATE’S ATTORNEY]: Judge, I struck juror number three ... for a variety of reasons . . . She finished high school but that was it. She is a cook at the Sheraton and both of her boys are janitors. She is divorced and she had a big gold tooth with a pattern on it right in the front of her mouth. ... I felt that all things considered — she was originally from Vienna, Georgia. I thought all things considered, that [this prospective juror], with a minor education, a lack of — with the big gold tooth — and I just personally felt that with two boys, that she didn’t, couldn’t say where they were janitors and she had been a cook just a couple of years at the Sheraton, that I would choose to — especially with the gold in the mouth, would choose to strike her. . . . THE COURT: Okay. ... I have some concerns about the gold tooth and the gold in the mouth, whether that is a racially neutral reason or whether that’s a stereotype. [STATE’S ATTORNEY]: Well, Judge, I think that, frankly, it would be a matter of, with all of the considerations that we have, that I had here, the fact that she only finished high school, which there were others that only finished high school but she only finished high school and she had a lot of gold in her mouth — and how would that be a stereotype? If there was a white person who only finished high school with a bunch of gold in their mouth, but there wasn’t, I don’t see that would be a stereotype. That he, that she was a cook and only — her sons had, that she didn’t have any further contact, that I’m aware of, other than the fact that they were janitors and she didn’t say where. . . . THE COURT: Is your concern with her general intelligence, educational level? [STATE’S ATTORNEY]: Basically. THE COURT: Can you elaborate on your concern? [STATE’S ATTORNEY]: I know in the past, [Defense Counsel] Hatcher has stated ... he prefers to put people on the jury who have low educational levels. That’s what he wants. In this case, I would be arguing, you know, the deal with Elaine Lattimore[, a State’s witness]. And I was looking to put people on who would understand that while Elaine Lattimore may not be telling the truth on the stand, that there were extenuating circumstances that would follow the pattern between what this woman says and what she really means. Although, in this case, she had two boys and the defendant in this case — and about the same age as this defendant. And the whole pattern made me decide — and with the — I’ll be honest, with the gold in the mouth and the low educational level that [Defense Counsel] Hatcher likes [and] because I knew that, as a matter of fact, I said to my investigator, Mr. Tindol, what about her? Should we keep her? Well, if you don’t strike her, he will keep her because she has only got a high school education. Her sons are janitors and he is just — so, he will put her on the jury and with the — just what I felt, that she — her educational level would not be able ... to follow the pattern. [DEFENSE COUNSEL] BARKIN: Your Honor, we would respond that those reasons are not sufficient. They are not racially neutral. First of all, there were other members of the jury who had low educational levels. She is not the only member the State accepted with low educational levels. Of course, the idea that because she would somehow be acceptable to the defense is a racially neutral reason for the State to strike them doesn’t make any sense. The idea that her sons, she had two sons and they are janitors, that does not in any way show that she is not prepared to be a fair juror or shows any articulable reason that — to strike someone. A janitor is a perfectly fine occupation and there is plenty of people, law abiding citizens, who are janitors. There is no suggestion her sons commit crimes. It’s simply they have low paying, low status jobs and she herself has a low paying, low status job. We are prepared — in many cases, the black people have gold teeth as a sign of status in their community. It’s an aspect of their community. I have seen — and we can make a proper record of this if the court feels necessary, but in my own personal experience, many of my defendants, who are mostly black, have gold teeth and most of the people in my community of white people, middle class, do not have gold teeth. So I think the idea that somebody has a gold tooth is a race neutral way of striking them is — I would disagree very strongly with that. It is an attribute of a person that has nothing to do with their ability to perform as a juror. And we believe it is just a pretextural reason and is not sufficient. [STATE’S ATTORNEY]: Judge, I’m taking all the reasons I gave you together into one package, not broken down into individual pieces the way [Defense Counsel] Barkin is presenting them to you. All put together, what I know about [Defense Counsel] Hatcher, his desire for non-educated people, what I found out about her, coupled with the fact she had a big gold tooth in her mouth — and [there] were plenty of African Americans who did not. So if it’s a sign of status, gee, she must be the highest status person out there, because no one else had it. No one else had a gold tooth out there. So I disagree with [Defense Counsel] Barkin that it is certainly not a sign of status. It’s a sign of maybe a lack of — I don’t know what. To me, having a gold tooth in the front of your mouth is almost a kind of a — I don’t know. It’s kind of cool or something like that. It’s almost a thumb your nose at society kind of thing to me. And, then, that’s the, my approach and that’s simply my interpretation of that and that’s why I removed her, all of the reasons I have given together. [Defense Counsel] BARKIN: I would respond, your honor, if you can’t break down the reasons and look at each one independently, then they are not really articulable and reasonable. Really, what the District Attorney is saying, she didn’t want this juror for a group of reasons, any one of which ... is individually acceptable. We would argue that is exactly what Batson is designed to eliminate is people of African American descent being stricken from a jury because the prosecutor doesn’t like them but can’t articulate why. THE COURT: Okay. ... If all she had told me was about the gold tooth, then I would not accept that explanation in and of itself. But you have told me you are striking her because of her educational level and because of her occupation, . . . because of the fact she has sons that you think she may identify the defendant because of having two sons approximately the same age. And I think taken altogether, I’ll accept that as a racially neutral strike. [STATE’S ATTORNEY]: And the thumbing your nose at society, that’s just how I feel. That’s my opinion. But I’m entitled to that. As prosecutor, I can’t abandon my own opinions. And I think the whole package, to me, and may I also say, Judge, this is one of the reasons why the prima facie showing needs to be, I think, honored somewhat. I know that the Weems case says get away from it. But after Weems came Ford and that articulates the new standard. And absent showing that, you know, it opens you up to arguments like I removed her because of race in spite of the fact that I only removed three black people in a panel of fifty fifty; that there are numerous black people that I accepted and that are on the panel that were removed by [Defense Counsel] Hatcher.”

A determination by a trial court of the existence of racial discrimination in the jury selection process will not be overturned on appeal unless clearly erroneous. Gamble v. State, 257 Ga. 325, 326 (5), 327, supra. In the case sub judice, the trial court was concerned “about the gold tooth and the gold in the mouth [explanation given by the State and she questioned] whether that is a racially neutral reason or whether that’s a stereotype.” In response, the State’s attorney gave her view of the nature of any person with a monogrammed gold tooth and stated that her opinion is not based on a racial stereotype. However, the State’s attorney failed to explain how the prospective juror’s gold tooth related in any way to the outcome of the case sub judice and the trial court ruled that she “would not accept that explanation in and of itself.” We find no abuse of discretion in this ruling. See Chunn v. State, 210 Ga. App. 209, 210 (2), supra. However, the trial court erred in ruling that other purportedly race neutral explanations cured the element of the stereotypical reasoning employed by the State’s attorney in exercising a peremptory strike.

“ ‘While we realize that it may be unrealistic to expect [trial] counsel to put aside every improper influence when selecting a juror, we conclude that that is exactly what the law requires.’ Speaker v. State, 740 SW2d 486, 489 (Tex. App. 1987). ‘Even though [the State’s attorney] may have given [other] racially neutral explanation [s], the [trial court’s finding of one] racially motivated explanation “vitiates the legitimacy of the entire (jury selection) procedure.” (Cits.)’ Moore v. State, 811 SW2d 197, 200 (Tex. App. 1991). See also State v. Tomlin, 384 SE2d 707, 710 (S.C. 1989); McKinney v. State, 761 SW2d 549, 551 (Tex. App. 1988). ... We must therefore reverse [the case sub judice for a new trial].’ Gamble v. State, [257 Ga. 325, 330 (7), supra]. See also Randolph v. State, [203 Ga. App. 115, 117 (3) (416 SE2d 117)].” Strozier v. Clark, 206 Ga. App. 85, 87 (5), 88 (424 SE2d 368).

Decided June 6, 1994.

Ronald B. Hatcher, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Barry I. Mortge, Assistant District Attorneys, for appellee.

3. We have considered defendant’s remaining three enumerations and find that they either lack merit or are unlikely to recur upon retrial.

Judgment reversed.

Pope, C. J., and Smith, J., concur.

       The State contends defendant failed to substantiate any claim of racial discrimination because “[a]ppellant’s counsel merely stated numbers to the court establishing his version of the venire’s makeup.” This contention is without merit. “Although mere colloquy between counsel and the court is insufficient to perfect the record for appellate review of a Batson claim, Shaw v. State, 201 Ga. App. 438, 440 (1) (411 SE2d 534) (1991), the statement of a prosecutor [or defense attorney] ‘for the record’ is prima facie true and if, as [in the case sub judice the State] does not object, it serves in the nature of a stipulation. Morris v. State, 228 Ga. 39, 48-49 (11) (184 SE2d 82) (1971).” Staples v. State, 209 Ga. App. 802 (434 SE2d 757).


author: Smith, Judge.

text:
    A94A0298.
    A94A0299.
    A94A0300.
    A94A0304.
    GROVES v. CITY OF ATLANTA et al. BROWN v. CITY OF ATLANTA et al. RIDENHOUR v. CITY OF ATLANTA et al. PYLANT v. CITY OF ATLANTA et al.
    (444 SE2d 809)
   Smith, Judge.

These four appeals arise from separate actions filed by Barbara Groves, Mary Brown, Juanita Ridenhour, and Hugh Pylant against the City of Atlanta, John D. Stephens, Inc., and others, seeking injunctive relief and damages for trespass on their land. The trial court granted Stephens’s motion for summary judgment; it also granted the City of Atlanta’s motion for partial summary judgment as to two issues and its motion to dismiss the claim for punitive damages. The appeals have been consolidated for review.

. The record reveals that the plaintiffs are all owners of parcels of vacant land in Forest Park, in Clayton County. For several years, the City of Atlanta (“the City”) had been acquiring property in that area, known as the Ballard Road area, pursuant to its Noise Abatement Program. The City decided to use the parcels in the Ballard Road area as a “borrow site” for fill dirt to be used in constructing a new concourse at Atlanta’s Hartsfield International Airport. It also contemplated preparation of the area for development, under a plan originated by the City of Forest Park, and sale to private developers. The City sent letters to some, but not all, of the property owners in the area, offering to purchase their property. Groves and Pylant received such letters, but Brown and Ridenhour did not.

.The City had contracted with Atlanta Airport Engineers (“AÁE”) to provide professional services regarding the development and construction of the airport. AAE was responsible for preparing site plans for grading and removing dirt from the “borrow site,” as well as for providing field personnel to ensure compliance with the design and specifications in the contract. It is undisputed that responsibility for acquiring title to the properties in issue rested with the land acquisition office of the City’s Aviation Department. None of the property owners accepted the City’s offers to purchase their land, and the City never acquired their property. Nevertheless, the City awarded a contract to John D. Stephens, Inc. to clear the properties in issue, and on October 3, 1991, it issued a notice to Stephens to proceed with the project. Stephens then began clearing the lots.

The trial court granted Stephens’s motion for summary judgment on the ground that it had performed all work pursuant to the instructions of the City as related to Stephens by AAE. Appellants’ claim for punitive damages against the City was dismissed. Partial summary judgment was granted to the City on certain of appellants’ claims, but the grant is not appealed. The City has not appealed the denial of that portion of its motion for summary judgment based on appellants’ claims of nuisance and interference with right of access.

1. Appellants contend the trial court erred in granting Stephens’s motion for summary judgment. They argue that, contrary to the trial court’s assertion that “Stephens worked under the assumption that [the] City held title to the subject property,” a question of fact exists whether Stephens performed its work despite having knowledge that the properties in issue were not owned by the City. In support of this argument, they point first to a note on the construction plan sheets stating that certain properties in the plan area remain “occupied” under private ownership and cautioning contractors not to enter these areas. It is clear, however, that appellants’ parcels were not “occupied” but vacant and that the note refers to three specific properties — a church, a plumbing business, and a trailer park — that are clearly designated on the plans and marked with references to the marginal note.

Appellants also assert Stephens had actual notice of the trespass through direct contact with several property owners. Several property owners (other than appellants) may have told employees of Stephens the property was privately owned. However, Joseph Cantwell, project superintendent for Stephens testified at deposition that the contract documents themselves provided that all land was owned by the City. He testified further that on November 19, 1991, after the property had been cleared and the crew was working on the second phase of Stephens’s contract, constructing a retention pond on the property for purposes of erosion control, a man came to the site and told Cantwell he owned a portion of the land. Cantwell gave him the address and telephone number of AAE and the names of people to contact there; he asked the man to obtain clarification from them. Cantweil then discussed the problem with Frank Hayes, the chief resident engineer for AAE on the Ballard Road project. Hayes assured Cantwell the subject parcels had been the property of the Atlanta airport for many years.

Moreover, in an affidavit in support of Stephens’s motion for summary judgment, Cantwell stated that Stephens was directed by the City, through its agent AAE, to clear the land in the Ballard Road project; that it had followed and not deviated from the plans, specifications, and directives provided by AAE; and that Stephens had done all work on the Ballard Road project in good faith reliance on the representations in the contract documents and by Hayes that the City had acquired the necessary properties. Hayes executed a similar affidavit in support of Stephens’s motion for summary judgment, stating that the work done by Stephens was properly performed in accordance with the plans, specifications, and directives provided to them by the City and AAE. Hayes’s affidavit also states that when Cantwell called and told him of the problem, Larry Stokes, Noise Abatement Director for the City, was also informed. According to Hayes, Stokes advised that the City had acquired the subject properties. Based on Stokes’s statement, Hayes instructed Cantwell to continue work in the area.

The general rule is that a contractor engaged in a public works project is not liable for damage to private property resulting from the work performed, unless the damage results from the contractor’s negligence or wilful tort. C. W. Matthews &c. Co. v. Wells, 147 Ga. App. 457, 458 (2) (249 SE2d 281) (1978); Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376 (157 SE2d 493) (1967). If the contractor has followed the plans and directions of its employer, the employer, and not the contractor, must be held liable. C. W. Matthews &c. Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987). Although an exception to the rule exists where the work is inherently dangerous, see id., that exception does not apply here.

Martin v. City of Atlanta, 155 Ga. App. 628 (271 SE2d 882) (1980), relied upon by appellants, is distinguishable on its facts. There, the contractor cleared privately owned land, and a question of fact existed whether the contractor had knowledge that the land needed no clearing. Id. at 630 (1), 631 (3). Johnson v. Fowler Elec. Co., 157 Ga. App. 319, 323-324 (277 SE2d 312) (1981), cited by appellants, did not involve a public works project. Instead, it involved approval by government inspectors of privately contracted electrical work that was negligently performed but resulted in defects not visible or apparent upon inspection.

Decided May 2, 1994

Reconsideration denied June 7, 1994

Dwyer & White, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellants.

Joe M. Harris, Jr., Charles G. Hicks, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Neal H. Howard, Michael V. Coleman, for appellees.

In this case, the evidence shows that as soon as the possibility of a trespass was raised, Stephens sought guidance from its superior, AAE, the City’s agent, and was instructed to proceed because the City owned the property. Although it is clear a trespass took place, the evidence demanded the conclusion that Stephens was an innocent trespasser. Wells, supra at 458-459 (2). Even construing the evidence in the light most favorable to appellants, the trial court did not err in awarding summary judgment to Stephens.

2. Appellants contend the trial court erroneously granted the City’s motion to dismiss their claim for punitive damages. Appellants direct their argument to the issue of sovereign immunity, asserting that a municipality’s defense of immunity is waived to the extent of any applicable general liability coverage, and that the City is an insured under the policy of insurance carried by Stephens. However, sovereign immunity is not in issue. The Supreme Court has recently held that an award of punitive damages against a governmental entity is against public policy and is thus impermissible as a matter of law. MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991). Boswell was recently followed by this court in Hosp. Auth. of Clarke County v. Martin, 210 Ga. App. 893 (438 SE2d 103) (1993). The holdings in those cases control this case adversely to appellants, and therefore this enumeration is meritless.

Judgment affirmed.

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


text:
    A94A0528.
    WILLIAMS v. THE STATE.
    (444 SE2d 831)
   Smith, Judge.

Mikel Williams was tried along with three co-defendants on two counts of aggravated assault, one count of armed robbery, one count of criminal attempt to commit armed robbery, and one count of conspiracy to commit armed robbery. The charges alleged two attempts to rob a Foot Locker store in DeKalb County, with the second attempt accomplishing the goal of the enterprise. Each of the defendants jointly tried pled not guilty to all counts. Two other co-defendants were not tried with Williams. One entered a guilty plea prior to trial. The other, a Foot Locker employee not present at the time of the actual robbery, was awaiting a separate trial. Williams was found guilty of armed robbery, two counts of aggravated assault, and conspiracy to commit robbery as a lesser included offense of conspiracy to commit armed robbery. He was acquitted of the attempted armed robbery charge related to the attempt to rob the store preceding the completed crime. Williams appeals following the denial of his motion for new trial.

1. Williams makes a challenge to the jury array, OCGA § 15-12-162, contending that it was “underrepresentative of Black Americans.” Williams concedes that at present the law entitles him only to a jury list comprised of a fair cross section of the community. See, e.g., Caldwell v. State, 263 Ga. 560, 563 (3) (436 SE2d 488) (1993). Rather, he presents for review whether the fair cross section requirement should be extended to ensure that the array itself likewise represents a fair cross section of the community to the extent possible. We find this issue to be controlled adversely to Williams by the decision of the Supreme Court in Jewell v. State, 261 Ga. 861, 862-863 (3) (413 SE2d 201) (1992). We find no distinction between Jewell and the present case, and we therefore find no error.

2. Williams contends the court abused its discretion in denying his motion to sever his trial from that of his co-defendants, asserting that their defenses were antagonistic to his own. We agree with Williams with respect to the general defense his co-defendants presented. Essentially their position was that their actions should be excused because Williams had kidnapped them, assaulted them, and forced them to participate in the robbery.

However, “ ‘[t]he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. (Cit.) A showing of harm is necessary. (Cit.)’ [Cit.] Tt is not enough to claim that (one) has a better chance of acquittal in a separate trial. Rather, the burden is on defendant to show clear prejudice and in the absence of this showing the trial court’s denial of the motion to sever will not be disturbed. (Cits.)’ [Cit.] ‘With the benefit of hindsight, it is incumbent upon this court to determine whether the trial court’s decision to join the trial of the co-defendants . . . hindered a fair determination of the guilt or innocence of [the accused], and thus constituted a manifest abuse of discretion.’ [Cit.]” Head v. State, 191 Ga. App. 262 (381 SE2d 519) (1989).

A fair determination by the jury of Williams’s culpability was not hindered by the denial of his motion to sever. Williams fails to point to any testimony or other evidence introduced at the joint trial he received that could not have been introduced against him in a separate trial. See, e.g., Jordan v. State, 210 Ga. App. 30, 31 (1) (435 SE2d 256) (1993). Limited admissibility of evidence appears to have been an issue only with respect to Williams’s own incriminating statement, since his co-defendants each testified and were subject to cross-examination.

Decided May 23, 1994

Reconsideration denied June 7, 1994.

Peters, Townsend, Wilson & Roberts, R. Stephen Roberts, Cathy M. Alterman, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Assistant District Attorney, for appellee.

Without conceding that it is a legitimate course of inquiry, we also note that even if all evidence introduced as the result of his co-defendants’ availability and willingness to testify were excluded, the evidence remaining is nevertheless clearly sufficient to find Williams guilty beyond a reasonable doubt. Two of Williams’s co-defendants were not on trial, and their testimony, combined with the testimony of a juvenile participant and Williams’s own detailed confession, was more than sufficient to convict him. Based on what actually transpired at trial, we find no reversible error. We do not read the federal cases cited by Williams as demanding a contrary result. See, e.g., Smith v. Kelso, 863 F2d 1564, 1567-1572 (11th Cir. 1989) (defendant must establish “compelling prejudice” amounting to fundamental unfairness).

Judgment affirmed.

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


text:
    A94A0752.
    In the Interest of M. R., a child.
    (444 SE2d 866)
   McMurray, Presiding Judge.

Gwinnett County’s Department of Family & Children Services (“DFACS”), acting on behalf of Georgia’s Department of Human Resources, filed a petition in the Juvenile Court of Gwinnett County to terminate parental rights of the biological parents as to the minor child, M. R. The child’s father did not appear at a hearing on the petition to terminate parental rights, but the child’s mother appeared with the maternal grandmother and her court-appointed attorney. The child was represented by a court-appointed guardian ad litem.

On October 22, 1993, the juvenile court judge entered an order with the following findings of fact: “The date of the birth of the child is May 27, 1990. . . . The child, now age 3 years and 4 months, has been in the temporary custody of [DFACS] since September 30,1991, when [the child] was approximately 16 months old. . . . The child’s biological parents . . . were married to each other by common law, according to the mother. However, they have not obtained a divorce and have not lived together for over two years. The child’s father . . . has lived with the child only briefly (according to the mother), but has not contributed to the child’s support nor provided support for the mother (including medical care) either during her pregnancy or during her hospitalization for the birth of the child. The mother testified that [the child’s father] had no parental bond with the child and had never supported the child. [DFACS] has had no contact from [the child’s father]. He has not visited the child nor provided financial support for the child while in [DFACS] custody, nor has he participated in case plans to determine the child’s future.

“The child was removed from the home, where he was living with his mother, maternal grandmother and maternal uncle, on September 30,1991. The court found that this home was an extremely unsanitary living environment, in that the apartment was filled with trash, spoiled insect-infested food and cat feces. Moreover, the apartment was waterlogged due to an overflowing toilet. The child suffered at that time from conjunctivitis. In addition, the child had a closed tear duct for which surgical treatment was necessary.

“The mother and grandmother plead guilty to and were convicted of reckless conduct with regard to this incident. By this conviction they consciously disregarded a substantial and unjustifiable risk of endangering the child’s safety, which was a gross deviation from the standard of care which a reasonable person would exercise in the situation. OCGA § 16-5-20 (b). As part of the sentence, the mother was ordered to complete a mental health evaluation and a parenting skills class, which she completed.

“The case plans and court orders for reunification of the child with the mother have required the mother to maintain stable, clean housing, stable employment, complete counseling and parenting skills classes and pay child support. Although she has completed parenting classes, which were attendance based, and partially completed counseling, she has not completed the remaining requirements. This court found in its extension order dated May 20, 1993, that the mother had not complied with all of the elements of the case plan. In September 1992, the mother knew that the case plan goal had been changed to termination of parental rights.

“The mother was evicted from the apartment where she was living at the time of the child’s removal due to the filthy living conditions. Parenthetically, around the time of the child’s removal, she surrendered her rights to another child upon that child’s birth. After her eviction she stayed temporarily with different friends for approximately six weeks, until she moved into successive, temporary motel efficiencies with her mother and brother. In February 1993, she moved away from her mother and lived in a three-bedroom apartment with five other adults for approximately six weeks. Following unsuccessful living arrangements with a friend in Smyrna and Atlanta, she moved back to her mother’s two-bedroom apartment in Lawrenceville, where she has resided with her mother and brother since June 1993. In total, she has lived at seven or more residences in the two-year period that the child has been in [DFACS’] temporary custody. With the possible exception of her last place of residence, all of her places of residency have been temporary.

“Petitioner conducted an announced visitation between the mother and the child at the mother’s current residence in July 1993, and found the home to be cluttered, though not a health risk. Several weeks later petitioner conducted an unannounced visitation at the home and found the home to be more cluttered, illustrating poor housekeeping skills.

“During the two year period since the child’s removal from the home, the mother has had at least 12 different places of employment, most of which have been for approximately 20 hours per week at minimum wage or less in the fast-food industry. She is presently employed as a cook at Pizza Hut, where she reports working 40 hours, earning $140 net weekly.

“The court ordered the mother to pay $20.00 per week as child support beginning October 3, 1991. None has been paid. She has refused to pay support, because the State had removed the child from her custody. Additionally, she testified that she wanted to pay her debts first; however, she could not account for their dollar value. She pays very little rent where she presently lives.

“Although the mother has visited the child, [DFACS] has provided transportation to her to enable her to visit on several occasions due to her lack of transportation. She and the child have shown very little familial bonding with each other. After the goal of the case plan changed to termination of parental rights, the mother became emotionally detached from the child. Moreover, she demonstrated a lack of parenting ability with the child at these visits. At the child’s last visit with the mother, October 12, 1993, the mother dressed the child in clothing she had brought, but took the clothing with her upon completion of the visit.

“The child has been in the same foster home since his removal from the mother’s home. The child has bonded to his foster family, who would offer the child an adoptive home.

“[DFACS] has attempted to locate a suitable family member for placement but has been unsuccessful. There are no suitable relatives willing and able to take responsibility for the child.”

The juvenile court terminated parental rights of the biological parents as to M. R., concluding that the child is deprived due to lack of proper parental care or control; that the deprivation is likely to continue or will not be remedied; that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child and that termination of the biological mother’s parental rights is in the best interest of the child. The mother then filed this appeal. Held:

1. The mother challenges the sufficiency of the evidence, arguing the juvenile court’s finding that she failed to pay court-ordered child support for a period of 12 months or longer, that she failed to provide a stable home environment while the child was in protective custody and that she failed to maintain stable employment during this period was insufficient to support termination of her parental rights.

“The termination of parental rights under OCGA § 15-11-81 is a two-step process. 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. In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). The standard for appellate review of a termination of parental rights is ‘ “whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. (Cit.)” (Cit.)’ In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).” In the Interest of C. D. P., 211 Ga. App. 42, 43 (3), (438 SE2d 155).

(a) Parental Misconduct or Inability. “ ‘Parental misconduct [or inability] 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. (Cit.) Among the factors which may be considered with regard to a child lacking proper parental care or control [is] physical, mental or emotional neglect of the child. (Cit.) Another consideration is whether the parent without justifiable cause failed significantly for a period of one year or longer to comply with a court ordered plan designated to reunite the child with the parent. (Cit.)’ In the Interest of B. J. H, 194 Ga. App. 282 (1) (390 SE2d 427) (1990).” In the Interest of M. M., 207 Ga. App. 722, 724 (1) (429 SE2d 132). This includes unexplained or unjustified failure to pay child support under the family reunification plan for a period of 12 months or longer. OCGA § 15-11-81 (b) (2). Compare Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155).

In the case sub judice, an apparently unappealed order entered by the juvenile court on October 4, 1991, established that M. R. was then a deprived child pursuant to OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of B. P., 207 Ga. App. 242, 245-246 (427 SE2d 593); In the Interest of C. D. P., 211 Ga. App. 42, 43 (3), 45, supra. Further, there is undisputed evidence that the mother failed to appear at an October 3, 1991, hearing to determine whether the less than 17-month-old child was deprived and that the juvenile court then found M. R. to be deprived due to a lack of medical care and unsafe and unsanitary living conditions. Undisputed evidence also shows that on October 4, 1991, the juvenile court confirmed removal of the child from the mother’s custody by DFACS on September 30, 1991, and then directed the biological parents to cooperate with DFACS, “to participate in parenting skills training classes, to obtain and maintain stable employment and living arrangements or [to] follow any other recommendation made by [DFACS and] ordered . . . the mother [to] pay child support in the amount of $20.00 per week to [DFACS] through the Child Support Recovery Unit.” There is also no dispute that the mother did not comply with the plan for family reunification by failing to pay court-ordered child support (despite evidence of the mother’s ability to pay) for a period of more than twelve months, failing to maintain a stable or appropriate home environment (the record indicates that the mother resided at no less than six temporary locations since placement of the child in protective custody) and failing to demonstrate the ability to maintain steady employment or sufficient income to support of the child (the record indicates that the mother had at least eight different part-time or low-paying jobs since the child’s placement in protective custody). This proof and testimony from a DFACS caseworker that “[t]here were periods of time [the mother] did not call for a visit[,] sometimes a couple of months would go by when she did not have a visit” and that the mother displayed weak parenting skills during such visits constitutes clear and convincing proof that the child is currently deprived due to parental inability, that said deprivation is likely to continue or will not be remedied and that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child.

(b) The Best Interest of the Child. “In considering the child’s best interest, the trial court may consider the child’s need for a stable home situation and the detrimental effects of prolonged foster care. In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).” In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368). Further, “[t]he [Juvenile Code] (Ga. L. 1971, p. 709 et seq.) is to be liberally construed toward the protection of the child whose well-being is threatened. Code Ann. § 24A-101[, now OCGA § 15-11-1]. Deprivation of love and nurture is equally as serious as mental or physical disability. Goldstein, Freud & Solnit, Beyond the Best Interests of the Child, 32-34. ‘A termination hearing seeks above all else the welfare of the child, with due regard for the rights of the natural and adoptive parents. (The judge) will realize that the natural parents must be cautioned, informed, counseled, and protected; he will realize that the adoptive parents must likewise be protected, that their reliances and expectations should be strongly considered. And, after considering the interests of these parties, when the judge is faced with the final decision in an adoption (or termination) case, he will ponder again that ancient question, “Is it well with the child?” ’ Katz, Judicial and Statutory Trends in the Law of Adoption, 51 Georgetown Law Journal, 64, 69, 95.” In re Levi, 131 Ga. App. 348, 351 (3), 352 (206 SE2d 82).

In the case sub judice, a DFACS caseworker testified that she observed little family bonding between the mother and the child during supervised visits. The caseworker’s testimony also reveals that DFACS went to great lengths to assist the mother in visiting the child and to set the mother on a road to parental responsibility. Further, there is evidence that the child has remained in a stable foster home since removal from the mother’s custody; that the child is well-adjusted and happy in the foster home; that the child has bonded with the foster family and that the foster family aspires to adopt the child. This evidence, along with evidence that the mother has been unable to deliver the child from a state of deprivation since September 30, 1991, authorizes the juvenile court’s finding, via clear and convincing evidence, that termination of parental rights is in the best interest of the child. Consequently, since further insecurity regarding the child’s parental situation may be damaging to the child, we find that the juvenile court did not abuse its discretion in terminating the biological mother’s parental rights as to M. R. See In the Interest of G. K. J., 187 Ga. App. 443 (2) (370 SE2d 490); In the Interest of B. P., 207 Ga. App. 242, 245-246, supra.

2. In her second enumeration, the mother contends “DFACS offered no services as the agency made a determination over a year prior to trial to terminate [her] parental rights.”

“The relevant portions of OCGA § 15-11-81 (b) (4) (C) provide: ‘In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, 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: . . . (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.’ ” In the Interest of C. D. P., 211 Ga. App. 42 (1), supra. This Code subsection and OCGA § 15-11-41 (b) impose a duty on DFACS to make “reasonable efforts” to reunite the family for at least a year after a plan has been formulated for family reunification.

In the case sub judice, an exhibit in the trial transcript reveals that DFACS formulated a plan for permanent family reunification on September 30, 1991. However, the record reveals that after a year of assistance from DFACS under this plan, the mother failed to comply with terms of the case plan and failed to demonstrate abilities necessary for family reunification. The record also shows that another case plan, dated September 15, 1992, was documented, changing the goal from permanent family reunification to “Termination of Parental Rights.”

Appellate counsel for DFACS cites no authority (or argument in opposition to this enumeration) that “Termination of Parental Rights” is an appropriate goal under a case plan designed for family reunification and we find none. However, the record indicates that the notation, “Termination of Parental Rights,” was entered just short of eleven months and two weeks after formulation of the original plan for family reunification. and that DFACS continued to monitor and assist the mother after entry of the goal, “Termination of Parental Rights.” Consequently, it appears that DFACS made “reasonable efforts” to reunite the family for a least a year after formulation of the original case plan (dated September 30, 1991) designed for family reunification and that the mother was not harmed by entry of the goal, “Termination of Parental Rights.”

3. The mother further contends in her second enumeration that neither the juvenile court nor DFACS made an exhaustive and thorough attempt to place M. R. with a relative after termination of her parental rights. Appellate counsel for DFACS submits no argument in opposition to this contention.

“If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage. An exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement. A placement effected under this paragraph shall be conditioned upon the family member who is given permanent custody or who is granted an adoption of the child agreeing to abide by the terms and conditions of the order of the court.” OCGA § 15-11-90 (a) (1).

It is undisputed that the biological father has had no meaningful contact with M. R. since the child’s birth and that the father’s whereabouts was unknown at the time of the termination hearing. Further, the transcript of the termination hearing shows that the juvenile court judge asked the maternal grandmother if she could help the mother care for M. R. and that the grandmother responded that she could. However, the undisputed evidence shows that M. R. and the mother were residing with the maternal grandmother and uncle in the unsafe and unsanitary apartment at the time the child was taken into protective custody. Further, the grandmother indicated at the termination hearing that her assistance may be limited due to her work schedule and that the small size of the two-bedroom apartment she and the mother were then sharing may pose difficulties. In light of this evidence, proof that the child would remain in a safe and stable foster home upon termination of the mother’s parental rights and evidence of the foster parents’ intent to adopt the child, we find no abuse of discretion in failing to place the child with a family member (the maternal grandmother or the biological father) upon termination of the mother’s parental rights. See OCGA § 15-11-90 (a) (2).

Decided June 7, 1994.

George Robinson, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, The Cheeley Firm, Joseph E. Cheeley III, for appellee.

4. In her final enumeration, the mother contends the juvenile court erred in terminating her parental rights in light of evidence that she “made excellent progress before the termination trial.”

“(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 J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). In the case sub judice, there is evidence that the mother resided in the same location with the maternal grandmother for at least six months before the termination hearing and that during this period the mother had a full-time job. However, there is no indication that the mother was then ready or able to provide basic care for M. R. In light of this evidence and evidence of the mother’s consistent failure to provide a safe and adequate home for the child for more than a year while the child was in protective custody, we find no abuse of discretion in terminating the mother’s parental rights, despite evidence of improvement in the mother’s lifestyle.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Cooper, Judge.

text:
    A94A0025.
    BRADLEY v. THE STATE.
    (444 SE2d 842)
   Cooper, Judge.

Defendant entered a plea of nolo contendere to the charge of possession of marijuana, expressly reserving the right to appeal the denial of his motion to suppress.

Based on information supplied by a reliable confidential informant regarding alleged drug activity involving Wallace Majure III, the police sought a warrant to search Majure and the premises at “1512 Winterspark Drive” in DeKalb County. The affidavit submitted to the magistrate listed the location to be searched as “1512 Winters-park Drive.” However, in the search warrant, the subject premises was listed as 1412 Winterspark Drive in DeKalb County. The police actually executed the search at 1512 Winters Park Drive in DeKalb County, a residence in which appellant had a room. After the police gained entry into the house, defendant and Majure were held in the living room during the search. Defendant told the police he lived in the residence, and the police asked defendant for identification. Defendant indicated that his identification was in a pouch or wallet. Detective Blake went to defendant’s room, located a camera bag and brought the bag back to the living room where it was opened. Inside the bag, the police found approximately $3,600, defendant’s wallet, defendant’s passport, defendant’s prescription medication, a camera and a small quantity of marijuana. The police also seized several thousand dollars and a pound of marijuana from Majure’s bedroom.

During the hearing on the motion to suppress, defendant argued to the trial court that, in addition to the issues raised in the written motion, the search warrant was also deficient because of the difference between the address listed on the affidavit and the address on the face of the warrant. This issue was not previously raised in defendant’s written motion to suppress. Defendant also sought to amend the motion to add a prayer for the return of defendant’s personal property seized by the police pursuant to OCGA § 17-5-30. The trial court ruled that the hearing would be confined to the issues raised in the written motion and that the State had not been given adequate notice of defendant’s intention to seek the return of his property.

1. Defendant enumerates as error the denial of his motion to suppress. Defendant contends the search warrant was invalid because the premises was not described with sufficient particularity since the address on the warrant was incorrect. A copy of the search warrant was attached to defendant’s motion to suppress filed on November 5, 1992, and the hearing was held on January 8, 1993. “OCGA § 17-5-30 requires that a motion to suppress be in writing and state facts showing that the search and seizure were unlawful. . . . [Defendant] had ample opportunity to review the warrant in advance of the hearing and assert an incorrect address as a defect in his motion to suppress; certainly [defendant] would be in the best position to know if the address on the warrant were incorrect, as it was his own address. Because the issue was not raised in the motion to suppress and the state was not properly placed on notice that this issue would be raised at the hearing on the motion, the objection must be deemed waived.” (Citations and punctuation omitted.) State v. Armstrong, 203 Ga. App. 159, 160 (1) (416 SE2d 537) (1992).

Defendant also contends there was no probable cause for the search of his room because he was not named in the affidavit or the search warrant nor did the confidential informant mention defendant in connection with Majure’s drug activities. Thus, the search of his room was a prohibited general search. Similar arguments were unsuccessfully made in Daugherty v. State, 171 Ga. App. 95 (4) (318 SE2d 803) (1984) and Chester v. State, 162 Ga. App. 10 (1) (290 SE2d 117) (1982). “ ‘The courts of this state have often held that searches of persons not named in a search warrant but found on the premises to be searched are illegal absent independent justification for a personal search.’ ” Blount v. State, 181 Ga. App. 330, 333 (4) (352 SE2d 220) (1986). The State does not contend there was any independent justification for the search of defendant’s camera bag but relies solely on the warrant as authorization for the search. “[T]he police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant.” (Citations and punctuation omitted.) Id. at 334. Since defendant was a resident of the suspect locale, the warrant was a sufficient basis for the search of defendant’s camera bag. See id. at 334-335; Daugherty, supra at 96; Chester, supra at 11.

Relying on Newby v. State, 161 Ga. App. 805 (1) (288 SE2d 889) (1982), defendant contends that the search was an impermissible general search because he was not named in the warrant and his living quarters were separate from the rest of the premises. We disagree. In Newby, this court determined that the subject premises, located in a dwelling with multiple units, was sufficiently described in the warrant because the warrant specifically stated, in addition to the street address, that the warrant was “ ‘requested for the above residence where Michael Newby rents a room.’ ” Id. at 806. In the instant case, the confidential informant reported that there was drug activity involving Majure at 1512 Winterspark Drive. At that time, it was believed that the premises was occupied by Majure, and Majure was found on the premises with a substantial amount of contraband. However, there was no evidence that the subject premises was a multiple dwelling unit which would necessitate the police obtaining a separate warrant for each separate unit to be searched. Compare Miller v. State, 126 Ga. App. 847 (2) (191 SE2d 883) (1972); Jones v. State, 126 Ga. App. 841 (192 SE2d 171) (1972). Moreover, after the police gained entry, there was no indication that defendant maintained a separate resi-. dence on the premises, nor was such evidence adduced at the hearing, e.g., by evidence of rent payments by defendant. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Decided May 25, 1994

Reconsideration denied June 8, 1994.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael M. Hawkins, W. Cliff Howard, Yvonne A. Twyman-Williams, Assistant Solicitors, for appellee.

2. We need not consider defendant’s second enumeration of error concerning his prayer for the return of his personal property since it was contingent upon our finding that the court erred in denying his motion to suppress.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


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    A94A0223.
    WILLIAMS v. SCRUGGS COMPANY.
    (445 SE2d 287)
   Cooper, Judge.

Plaintiff Christin Amanda Williams was a passenger in a car driven by Joel Montgomery on Union Road in Valdosta, Georgia, in the early evening hours of January 17, 1991. As Montgomery drove the car west across certain railroad tracks that intersect with Union Road, his car was struck by a train traveling north on the tracks owned and operated by Georgia Southern & Florida Railway Company. Even though a railroad crossing warning sign and a stop sign were located at the railroad crossing and another railroad crossing warning sign was situated on Union Road prior to the crossing, the evidence indicates that Montgomery neither stopped nor slowed down his vehicle before entering the grade crossing at an approximate speed of 40 mph. Montgomery died shortly after the collision. Blood and urine tests performed on his body were positive for cannabinoids.

Plaintiff filed a negligence action against Georgia Southern & Florida Railway Company, Scruggs Company and the owner of the car involved in the collision seeking damages for injuries she sustained as a result of this collision. Scruggs Company is the owner of a cement plant lying south of Union Road and east of the railroad tracks. Plaintiff alleges that debris negligently placed on Scruggs Company’s property and heavy equipment deposited in the vicinity of the railroad right-of-way negligently interfered with the vision of motorists entering the railroad crossing on Union Road by obscuring the sight of oncoming trains traveling north on the railroad tracks. Plaintiff further alleges that Scruggs Company was aware that previous collisions had occurred at this intersection but allowed its debris and equipment to be placed on the cement plant property with no consideration for the safety of others. Scruggs Company filed a motion for summary judgment which was granted by the trial court, and plaintiff appeals.

1. Relying on the Restatement of Torts (2d), §§ 364 and 365 (1965), plaintiff argues that the trial court erred in holding that a landowner adjoining a railroad right-of-way has no duty to take reasonable precautions to prevent injury to others traveling on an adjacent public road. Specifically, plaintiff claims that Scruggs Company can be held liable to plaintiff in negligence because the company maintained an artificial condition on its property which it realized or should have realized would involve an unreasonable risk of harm to those traveling on Union Road by obstructing the view of oncoming trains traveling north on the railroad tracks.

Although there is no case law in Georgia involving a private property owner’s liability for permitting allegedly vision-obstructing objects to exist on property abutting a railroad crossing, this court has considered a property owner’s liability for vision-obstructing conditions on property abutting the intersection of two public roads. The controlling authority for landowner liability in these cases is Smith v. Hiawassee Hardware Co., 167 Ga. App. 70 (305 SE2d 805) (1983) where we held that “ ‘(s)tructures on private property adjoining road rights-of-way only become unlawful under OCGA § 32-6-51 ... if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized. There is no per se lack of authorization as obtains in structures placed in public road rights-of-way, and the party asserting that a structure placed on private property is unauthorized has the burden of establishing the fact of the assertion by showing that the structure was erected or maintained in violation of some statute, code, or local ordinance. [Cit.]’ ” Whidby v. Mr. B.’s Food Mart, 182 Ga. App. 408 (356 SE2d 78) (1987). Thus, in Smith v. Hiawassee Hardware Co., supra, we held that the owner of a building that allegedly obstructed a driver’s vision at the intersection of two public roads could not be held liable in negligence because the plaintiff had failed to show that the property owner had violated some statute, code or local ordinance by erecting its building at that particular location. Similarly, in Whidby v. Mr. B’s Food Mart, supra, we held that a property owner who placed a lighted sign on its property in such a manner as to obstruct a driver’s view of oncoming traffic at the intersection of two public roads could not be held liable in negligence because the plaintiff had failed to show that the placement of the sign was “unauthorized” by being in violation of some statute, code or local ordinance.

Decided May 24, 1994

Reconsideration denied June 8, 1994.

S. Lester Tate III, Lamar Gibson, for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Daniel C. Hoffman, Sherry S. Harrell, for appellee.

We see no reason to differentiate between private landowners whose property abuts the intersection of two public roads and private landowners whose property abuts the intersection of a public road and railroad tracks. Accordingly, we are constrained to conclude that summary judgment in favor of Scruggs Company was proper because plaintiff was unable to show that the allegedly vision-obstructing debris and heavy equipment located on Scruggs Company’s property was “unauthorized.”

2. Having determined that plaintiff cannot establish an essential element of her prima facie case in negligence against Scruggs Company, we need not address plaintiff’s second enumeration of error that genuine issues of fact remain as to whether certain pieces of heavy equipment belonging to Scruggs Company were lying in the railroad right-of-way at the time of the collision.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

       The trial court has determined that there is no just reason for delay and has directed that final judgment be entered in favor of Scruggs Company pursuant to OCGA § 9-11-54 (b). Plaintiff’s claims against Georgia Southern & Florida Railway Company and the owner of the car are still pending in the trial court.


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    A94A0294.
    FAULKENBERRY v. ELKINS et al.
    (445 SE2d 283)
   Cooper, Judge.

This appeal follows our grant of the application of petitioner Lisa M. Faulkenberry seeking discretionary review of the trial court’s order denying petitioner’s petition to set aside and/or vacate an order granting permanent custody of her minor child to Wayne M. Elkins and Carol R. Elkins (the “Elkins”), petitioner’s aunt and uncle.

Petitioner married her husband Robert Faulkenberry on July 28, 1990, and gave birth to a daughter (A. S. F.) on November 2, 1991. Shortly after the child’s birth, petitioner was hospitalized for gallbladder surgery. During her recuperation from the surgery, petitioner began having “passing out spells” and was once again admitted to the hospital for observation. While she was hospitalized, petitioner fell in the hallway and hit her head, purportedly suffering a total memory loss to the extent she did not remember she was married or that she had a child.

Because of petitioner’s claim of total memory loss, petitioner began a series of in-patient visits to various psychiatric medical facilities in Georgia and Tennessee where a battery of medical, psychological, neurological and intelligence tests were performed. None of petitioner’s medical records support petitioner’s claim of trauma induced amnesia, although it is clear that petitioner has been diagnosed as having various and serious mental problems, including psychogenic amnesia, schizotypal personality disorder of a severe nature, and depression. Eventually, petitioner was released from the hospitals and treated on an out-patient basis with an array of medications, including Thorazine, Prozac, Triavil and Klonopin.

For the first few months following A. S. F.’s birth, the child was taken care of by various relatives while petitioner was receiving treatment for her physical and mental illnesses. In January 1992, the Elkins were given physical custody of A. S. F. by the Faulkenberrys and have had custody of her ever since. Neither petitioner nor her husband have ever undertaken any responsibility for raising A. S. F., nor have they ever exercised any parental authority over the child. Due to the Faulkenberrys’ inability to cope with their child, discussions were held within the family in November 1992 to consider placing the child in the legal custody of the Elkins. Evidence has been presented that both petitioner and her husband participated in these discussions and expressed a desire for the Elkins to have custody of their child. On November 18, 1992, petitioner and her husband went to the law offices of the Elkins’ attorney and signed forms acknowledging their receipt of a copy of the Elkins’ complaint for permanent custody of A. S. F. and setting forth their consent to a grant of permanent custody to the Elkins. A final hearing was held on the petition on January 7, 1993, during which permanent custody and control of A. S. F. was awarded to the Elkins. Neither petitioner nor her husband attended the hearing, by their own choice.

On February 8,1993, petitioner and her husband filed a joint motion to set aside and/or vacate the order granting custody of A. S. F. to the Elkins. In her motion, petitioner alleged that she was not of clear mind and intellect at the time she executed the consent and acknowledgment and that she had been unaware of the legal significance of the document and of the effect such document would have on custody of the minor child. Robert Faulkenberry decided not to pursue his motion after the Faulkenberrys initiated divorce proceedings. After a hearing was held on petitioner’s motion, the trial court denied petitioner’s motion to set aside, ruling that petitioner had executed the consent and acknowledgment at a time when she was fully competent and understood the contents of the document and the consequences of her signature.

1. Petitioner alleges the trial court erred in failing to set aside the order granting custody of A. S. F. to the Elkins because the Elkins neither pleaded nor proved that the Faulkenberrys were unfit parents or lost their parental power as required by OCGA § 19-7-1. Parental power may be lost by any of the ways recognized by law, including voluntary contract, releasing the right to a third party pursuant to OCGA § 19-7-1 (b) (1). In the Interest of A. M. Y., 189 Ga. App. 847 (1) (377 SE2d 893) (1989). OCGA § 19-7-1 (b) (1) permits a parent to relinquish her parental rights to a third party by contract and imposes no requirement that the parent be shown to be unfit prior to her surrender of these rights as may be required by other subparagraphs of this Code section. Accordingly, this enumeration of error is without merit.

2. Petitioner alleges that the trial court erred in finding that petitioner assented to the terms of the consent and acknowledgment and that petitioner had sufficient mental capacity to execute the consent and acknowledgment.

“Although OCGA § 19-7-1 (b) provides that parental power may be lost by voluntary contract, the evidence must establish clear, definite, and unambiguous terms of such contract before a relinquishment of parental rights will be found.” (Citations and punctuation omitted.) In the Interest of A. M. Y., supra at 849. In the present case, there is no question that petitioner executed a document on November 18, 1992, that clearly, definitely and unambiguously relinquished her parental power to the Elkins. What is at issue here is whether petitioner had sufficient mental capacity at that time to enter into such an agreement.

Where a natural parent claims mental incapacity in a case involving the surrender of parental rights, this court will “base our analysis upon the law regarding mental incapacity to execute a contract generally.” Families First v. Gooden, 211 Ga. App. 272, 277 (5) (439 SE2d 34) (1993). Thus, a contract surrendering parental rights “is subject to cancellation if the person executing the contract was entirely without understanding of the contract or if the person lacked a full and clear understanding of the nature and consequences of the contract. [Cit.]” Id. at 277. “[W]here it is contended that one who executed a contract was not competent to execute it, the burden is upon [her] who asserts the incompetency. Mental or physical impairment. is never presumed. It must be proved. In order to void a contract on the ground of mental incapacity of the maker, [s]he must have been non compos mentis, that is, entirely without understanding, at the time the contract was executed. It is also the policy of Georgia law, wherever possible, to uphold contracts and to uphold the capacity of one to enter into a contract. Further, even proof of a temporary loss of sanity or competency would create no presumption that it continued up to the time of execution of the contract, and the burden remains on the party alleging incapacity to show such incapacity at the very time of the transaction.” (Citations and punctuation omitted.) Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 672 (1) (344 SE2d 492) (1986). Therefore, petitioner had the burden of proving that she was without mental capacity to contract on November 18, 1992, at the time she relinquished her parental rights to the Elkins.

In support of her claim of insufficient mental capacity to contract, petitioner testified that because she was so nervous about what she was going to do, she took a quadruple dose of her Thorazine medication approximately two hours before she went to the law offices to sign the documents. She stated that this large dose of medication, together with the other prescription drugs she had taken that day, made it difficult for her to focus her eyes and read the document she was signing. Although petitioner later admitted she was aware she was signing a document that gave the Elkins certain rights over A. S. F., she claims she did not realize the document gave the Elkins permanent custody of the child. An expert witness who is both a pharmacist and attorney testified on petitioner’s behalf. He stated that it was his belief that the large dose of Thorazine taken by petitioner combined with the other medication she had taken that day may have impaired her ability to exercise rational judgment and prevented her from understanding the full consequences of what she was signing. On cross-examination, however, the expert witness admitted that if petitioner had been so impaired by the medication, she would have exhibited some physical or behavioral abnormalities that would have indicated that something was wrong. This was not the case as there was testimony that petitioner’s appearance, behavior and demeanor were all normal when she appeared and signed the papers, that petitioner read the papers before signing the documents, that petitioner failed to ask any questions in response to a query from the Elkins’ attorney, and that petitioner or her husband specifically asked the attorney whether they'had to appear for the custody hearing.

Other testimony adduced at the hearing directly contradicted petitioner’s assertions that she was highly medicated or mentally incompetent at the time she executed the documents. Petitioner herself testified that she knew what she was signing but only did so because she was afraid of her husband. Petitioner’s mother, Mrs. Elkins and petitioner’s husband all testified that petitioner was involved in many of the conversations held in the fall leading up to the family’s decision to give custody of A. S. F. to the Elkins. Mrs. Elkins also testified that petitioner called her encouraging Mrs. Elkins to go ahead with the custody proceeding. Petitioner’s mother further testified that petitioner visited her home the day after she signed the documents and told her mother that she was relieved she had given custody of A. S. F. to her aunt.

Decided May 24, 1994

Reconsideration denied June 8, 1994

Joseph E. Willard, Jr., for appellant.

On cross-examination, petitioner also admitted that in the month of November, at the same time she claims she was mentally incompetent from her medication and/or illness, she had sufficient mental capacity to work part-time, to initiate legal proceedings in the juvenile courts of Tennessee to get custody of her teenage sister from her father, and to file for and receive AFDC benefits for A. S. F., which involved ‘falsely swearing that petitioner was in physical custody of her minor child. Finally, the Elkins introduced testimony that suggested that petitioner decided to try to regain custody of A. S. F. in January only after she stopped receiving governmental assistance checks for her daughter and realized that she was no longer allowed to claim her daughter as a dependent for income tax purposes.

Based upon our review of the record, we find that the trial court correctly concluded that petitioner failed to meet her burden of proving she was mentally incompetent or did not know what she was doing at the time she executed the documents relinquishing her parental rights to the Elkins. Instead, the evidence leads us to believe that petitioner knowingly and voluntarily relinquished custody of her child but later changed her mind, perhaps when she became aware of some of the financial repercussions of her decision. “Where the parental authority over an infant child is released to another, such release is not revocable unless some sufficient legal reason is shown therefore. A mere change of mind on the part of the parent consenting is not such legal cause as will revoke the consent.” (Citation omitted.) Sessions v. Oliver, 204 Ga. 425, 433-434 (2) (50 SE2d 54) (1948). Accordingly, the trial court did not err in denying petitioner’s motion to set aside the order granting custody of A. S. F. to the Elkins.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Herbert E. Franklin, Jr., for appellees.

       The Elkins dispute petitioner’s claim of amnesia and presented evidence at the hearing supporting their position that petitioner did not suffer a memory loss.


text:
    A94A0511.
    CROWDER v. CITIZENS TRUST BANK.
    (444 SE2d 853)
    Decided May 27, 1994
    Reconsideration denied June 8, 1994
    Halbert Crowder, pro se.

      Ellenberg & Associates, Louis G. McBryan, for appellee.
   Cooper, Judge.

Defendant executed a promissory note and a deed to secure debt, granting plaintiff a security interest in the subject property. Defendant defaulted on the note and filed for bankruptcy protection. After obtaining relief from the automatic stay, plaintiff foreclosed on the property and subsequently filed a writ of possession against defendant, alleging defendant to be a tenant at sufferance. The Magistrate Court of Fulton County issued a writ of possession, and defendant appealed to the State Court of Fulton County, which affirmed the decision of the magistrate. Defendant, pro se, filed a direct appeal from the order of the state court.

“Because the appeal to this Court is taken from the decision of a state court reviewing a decision of a magistrate court by a de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. [Cit.]; OCGA § 5-6-35 (a) (11).” Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538) (1992).

Appeal dismissed.

Birdsong, P. J., and Blackburn, J., concur.