author: Dillard, Judge. BLACKWELL, Judge,

text:
    A10A2242.
    BENEFIELD v. TOMINICH.
    (708 SE2d 563)
   Dillard, Judge.

In this premises-liability action, Margaret Benefield sued April Marie Tominich, doing business as Taylor’s Gin Store (“TGS”), alleging that TGS breached a duty it owed her as an invitee when she tripped on a rubber mat outside of the entrance to the store and suffered injuries as a result. TGS filed a motion for summary judgment, which the trial court granted. Benefield now appeals, arguing that the trial court erred in finding that there existed no genuine issue of material fact as to whether TGS had superior knowledge of the hazard posed by the rubber mat. For the reasons set forth infra, we are constrained to reverse.

Viewed in the light most favorable to Benefield (i.e., the non-moving party), the record shows that on August 1, 2007 around noon, Benefield went to TGS—which operates as a gasoline station and a convenience store—to pick up a few groceries. After parking and exiting her vehicle, Benefield stepped onto an orange-colored rubber mat that had been laid across a rise in the pavement serving as a wheelchair ramp (leading up to the sidewalk). Although Bene-field was a frequent customer of TGS and had walked across this same rubber mat on numerous occasions, she, nevertheless, tripped on a curled-up corner of the mat that afternoon and fell hard to the ground. As a result of her fall, she suffered abrasions and a broken wrist, and was unable to get back on her feet. Lying on the ground, Benefield cried out for help, but the sole TGS clerk working inside the store could not hear her pleas for assistance. Consequently, she did not receive assistance until another customer arrived at the store approximately 20 minutes later.

Thereafter, Benefield sued TGS to recover damages for the injuries she suffered as a result of her trip and fall on the rubber mat located outside the convenience store. TGS filed an answer, and discovery ensued. In her deposition testimony, Benefield acknowledged that the subject mat had been in place for several months and that she had walked over it on numerous occasions. However, she further testified—during her deposition and by affidavit—that because she was not looking down during her walk up to the store, she did not notice until after her fall that a corner of the mat had curled up, causing her to trip and fall. No employees of TGS were deposed, but both the store’s manager and its sole employee, who was on duty at the time of the accident, filed affidavits, averring that they had inspected the interior and exterior of the store, as well as the surrounding parking lot, for debris when the store opened in the morning, pursuant to a duty list that was distributed to all employees. The duty list, which was filed as an exhibit to both of the foregoing affidavits, directed that “[e]ach employee is responsible for keeping the store neat and tidy, inside and out, at all times,” as well as “[k]eeping the outside area free of debris (trash, cigarette butts, leaves, etc.).” Additionally, the store manager’s affidavit specifically averred that she inspected the subject rubber mat when the store opened on the morning of the accident and did not notice any curling of its corners.

After discovery concluded, TGS filed a motion for summary judgment, arguing that it could not be held liable for Benefield’s injuries because it had no constructive knowledge of the hazard posed by the rubber mat and because Benefield had equal or superior knowledge of the open and obvious hazard. Benefield filed a response, arguing that genuine issues of material fact remained as to whether TGS’s inspection procedures were reasonable and thus whether TGS had constructive knowledge of the hazard. The trial court concluded that TGS lacked superior knowledge of the hazard posed by the mat because it was open and obvious, and granted summary judgment in favor of TGS. This appeal follows.

1. In her sole enumeration of error, Benefield contends that the trial court erred in granting summary judgment in favor of TGS, arguing that genuine issues of material fact remain as to whether TGS lacked superior knowledge of the hazard posed by the rubber mat that caused her to trip and fall. We agree.

The standards for summary adjudication are well settled. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A summary judgment enjoys “no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” Indeed, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with viewing the evidence, “and all reasonable conclusions and inferences drawn from the evidence . . . in the light most favorable to the nonmovant.”

With regard to premises-liability cases, our Supreme Court has held that (1) “as a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication^] but should [instead] be resolved by trial in the ordinary manner”; and (2) “[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.” In practical terms,

this means that issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.

And in Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe, which “includes inspecting the premises to discover possible dangerous conditions of which the [proprietor] does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” Nevertheless, in order for a plaintiff to recover damages for injuries sustained in a slip-and-fall action, “an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” A plaintiffs evidentiary proof concerning the second prong of this test is not, however, “shouldered until the defendant [first] establishes negligence on the part of the plaintiff.” Finally, we have previously held that “ [floor mats subject to periodic folding, bunching, rolling, and shifting can constitute hazards for which landowners may be liable.” With the foregoing principles in mind, we now consider Benefield’s sole enumeration of error.

As noted supra, the trial court’s order granting summary judgment in favor of TGS held that it lacked superior knowledge of the hazard posed by the rubber mat. As such, we initially focus our analysis on TGS’s knowledge of the hazard at issue in the case sub judice. And when, as here, it is undisputed that TGS “lacked actual knowledge of any alleged hazard, the case turns on whether constructive knowledge of the alleged hazard can be imputed to the [store].” Constructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

In the case sub judice, it is undisputed that Benefield presented no evidence that the sole TGS employee on duty at the time of the accident was in her immediate vicinity when she tripped and fell to the ground. In fact, Benefield acknowledged that the TGS clerk was inside the store when the accident occurred and was unable to hear her cries for help. Nevertheless, Benefield vigorously disputes TGS’s assertion that it exercised reasonable care in inspecting the premises on the day of her accident. And in this respect, we have previously held that “ [constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.” Thus, in order to prevail at the summary-judgment stage based on a lack of constructive knowledge, ‘‘the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” Additionally, in order to withstand a motion for summary judgment, “the plaintiff need not show how long the hazard had been present unless the owner has [first] demonstrated its inspection procedures.”

And here, the TGS employee duty list provides generally that the outside of the store is to be kept neat and tidy at all times and, more specifically, that all shifts are responsible for keeping the outside area free of debris. The duty list, however, makes no mention of how frequently the outside area must be checked by the store’s employees. Moreover, even were we to assume that the TGS duty list established a reasonable inspection procedure, “[t]he evidence must establish an adherence to customary inspection procedures on the day in question and not simply that such procedures exist.” But here, the only evidence that the rubber mat at issue was specifically checked on the day of Benefield’s fall is the affidavit of TGS’s store manager, which averred that she checked the mat before the morning shift—which, according to the affidavit of the employee on duty that day, began at 7:00 a.m. The evidentiary record shows then, that approximately five hours elapsed between the time the mat was definitively last checked and Benefield’s fall.

Nevertheless, TGS argues that its inspection procedures were reasonable as a matter of law. We have held, however, that “when the nature of a business is likely to produce a spill or other hazard, frequent inspections may be necessary, and the reasonableness of an inspection program is a question to be decided by the jury.” In this respect,

[t]he length of time [a hazard] must remain on the [ground] before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location.

And while TGS characterizes itself as a small country store with infrequent patronage, which it claims is shown by the fact that nearly 20 minutes elapsed before another customer arrived to discover Benefield injured and lying on the ground, its business includes a convenience store and a gasoline station. Suffice it to say, hazardous spills and debris are certainly not uncommon at this type of establishment, and therefore, inspections may be required more frequently than every five hours. Additionally, the fact that TGS was not aware of any prior incidents involving the mat in no way absolves it of liability because “[a] prior fall is not a necessary precursor to knowledge that a . . . mat poses a hazard.” Given the foregoing circumstances, we simply cannot hold as a matter of law that TGS’s inspection procedures were reasonable and that it lacked constructive knowledge of the hazard posed by the rubber mat.

TGS also argues, and the trial court agreed, that summary judgment was warranted because the curled-up corner of the rubber mat was an open and obvious hazard, and therefore, Benefield had at least equal knowledge of its existence. Contrary to this contention, however, whether Benefield exercised reasonable care on the day of her accident is a question for resolution by a jury. Thus, while Benefield testified that she was looking straight ahead and not down when she tripped over the turned-up corner of the mat, “that does not mean, as a matter of law, that she was not using ordinary care for her own safety.” Indeed, our Supreme Court “has rejected any requirement that an invitee look continuously at the floor for defects, holding that the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” In sum, the evidence in the case sub judice was not plain, palpable, and undisputed on this issue, and therefore the trial court erred in granting summary judgment to TGS.

2. In its brief, TGS moves for the dismissal of Benefield’s appeal on the ground that her brief was electronically filed one day after the date it was due. In considering this request, we begin by noting that Court of Appeals Rule 41 (b) directs, inter alia, that “[n]o motions or responses to motions shall be filed in the body of briefs. ...” In light of this fact, as well as OCGA § 5-6-30’s admonition that “the rules governing appellate practice should be liberally construed to result in a decision on the merits of a case,” we deny TGS’s “motion” to dismiss.

Judgment reversed.

Barnes, E J, concurs. Blackwell and Dillard, JJ, concur dubitante.

BLACKWELL, Judge,

concurring dubitante.

I concur dubitante in the opinion of the majority because it is a correct application of a principle of law adopted 13 years ago by our Court sitting en banc, and although I doubt the soundness of that principle, this case is not, I think, a proper occasion for the Court to revisit it.

Since the decision of our Supreme Court in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it has been settled that a defendant is entitled to summary judgment if the plaintiff is unable to come forward with evidence sufficient to satisfy each essential element of proof for which he bears the burden. And since the decision in Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327) (1980), it also has been settled that, when a plaintiff seeks to recover in premises liability for injuries sustained when he, while visiting the premises of another, slipped upon a foreign substance and fell, the plaintiff must prove, among other things, “that the defendant had actual or constructive knowledge of the foreign substance.” 246 Ga. at 623. Alterman also made clear that, when a plaintiff seeks to prove constructive knowledge with evidence that the defendant failed to exercise reasonable care to inspect and keep the premises in a safe condition, the plaintiff must come forward with evidence “that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.” Id. at 622-23. To my knowledge, our Supreme Court never has sounded a retreat from these requirements of Alterman, although it has adjusted other elements of the proof required in slip-and-fall cases. See, e.g., Robinson v. Kroger Co., 268 Ga. 735, 748-49 (493 SE2d 403) (1997).

It would seem then, under Lau’s Corp. and Alterman, that, when a plaintiff in a slip-and-fall case seeks to prove constructive knowledge with evidence that the defendant failed to exercise reasonable care to inspect and keep the premises in a safe condition, the defendant is entitled to summary judgment if the plaintiff cannot produce any evidence of the length of time that the foreign substance was on the floor. But our Court, sitting en banc, decided otherwise in Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998). In that case, we said that, “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” 232 Ga. App. at 30 (1).

It is the principle adopted in Straughter on which the majority relies when it concludes that Taylor’s Gin Store is not entitled to summary judgment in this case, and assuming the soundness of the principle, the majority, I think, reaches the correct result. But I have serious doubts about the soundness of the principle. My reasons for doubting it include those set forth in the well-reasoned dissenting opinion in Straughter, see id. at 33-40 (Andrews, J., dissenting), as well as the absence of any endorsement of the principle by our Supreme Court in the 13 years since Straughter was decided.

But my doubts about the soundness of the Straughter principle are not reason enough to revisit it in this case. As a general principle, “[t]he application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.” Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999). And without question, “[i]t is the duty of appellate judges to make concessions to stare decisis.” Partridge v. State, 218 Ga. App. 580, 583 (462 SE2d 415) (1995) (Beasley, C. J., concurring specially). Such concessions are, in my view, especially appropriate when the precedent to which we defer was decided not merely by a panel of this Court, but by the full Court sitting en banc. After all, to reconsider a decision of the en banc Court, we would have to convene another en banc Court, something that is “costly to an appellate court in terms of consumption of its always limited resources of judicial time and energy.” Lewis v. McDade, 250 F3d 1320, 1320 (11th Cir. 2001) (Edmondson, J., concurring in denial of suggestion of rehearing en banc). We should not revisit earlier decisions—especially decisions rendered en banc—without a compelling reason.

Here, I see no compelling reason to revisit Straughter. The application of the Straughter principle in this case implicates neither the constitutional prerogatives of the People nor the constitutional rights of any individual. This case is a dispute between private parties, not between an individual and his government. There is no indication that the principle has caused confusion, has been difficult for the trial courts to apply consistently, or has led to conflicting decisions in our Court. I am aware of no intervening legislation or decision of our Supreme Court that further erodes the already questionable foundation of the principle. And no party in this case even asks us to revisit the principle, which, in my view, is a consideration of great significance. To the contrary, both parties embrace the analytical framework adopted in Straughter, disagreeing merely about its proper application in this case. In these circumstances, I am willing to adhere to Straughter for the purposes of this appeal, notwithstanding my serious doubts about the correctness of that decision.

Accordingly, I concur dubitante.

I am authorized to state that Judge Dillard joins in this opinion.

Decided March 22, 2011.

Jack F. Witcher, Daniel B. Greenfield, for appellant.

Mozley, Finlayson & Loggins, Allison M. Escott, for appellee.

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003) (“On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant”) (citations omitted).

       OCGA § 9-11-56 (c).

        Cowart v, Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

         McCaskill, 263 Ga. App. at 890 (citations omitted); see also Mairs v. Whole Foods Market Group, 303 Ga. App. 638, 638 (694 SE2d 129) (2010) (same).

        Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997) (citations and punctuation omitted).

        Id. (emphasis supplied).

        American Multi-Cinema v. Brown, 285 Ga. 442, 445 (2) (679 SE2d 25) (2009); see also Mairs, 303 Ga. App. at 641 (1) (same).

        See OCGA § 51-3-1.

        Robinson, 268 Ga. at 740 (1) (citations omitted).

        Id. at 748-49 (2) (b); see also Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999) (same).

        Robinson, 268 Ga. at 748-49 (2) (b).

        Valentin v. Six Flags Over Ga., 286 Ga. App. 508, 510 (649 SE2d 809) (2007) (citation and punctuation omitted); see also Whatley v. Nat. Svcs. Indus., 228 Ga. App. 602, 603 (1) (492 SE2d 343) (1997) (same).

        Blocker v. Wal-Mart Stores, 287 Ga. App. 588, 589-90 (651 SE2d 845) (2007) (citation and punctuation omitted); Washington v. J. D. Royer Wholesale Florist, 275 Ga. App. 407, 408 (620 SE2d 626) (2005) (same).

        See, e.g., Gibson v. Halpern Enterprises, 288 Ga. App. 790, 791 (655 SE2d 624) (2007); Bolton v. Wal-Mart Stores, 257 Ga. App. 198, 198 (570 SE2d 643) (2002).

        Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 148-49 (1) (587 SE2d 279) (2003) (citation and punctuation omitted); Shepard, 241 Ga. App. at 748 (same).

        Davis, 263 Ga. App. at 148-49 (1) (citation and punctuation omitted); Shepard, 241 Ga. App. at 748 (same).

        Davis, 263 Ga. App. at 148-49 (1) (citation and punctuation omitted); Shepard, 241 Ga. App. at 748 (same).

        Valentin, 286 Ga. App. at 511 (citation and punctuation omitted); see Quarles v. Ga. Svc. Systems, 263 Ga. App. 563, 565 (588 SE2d 338) (2003) (same); Higgins v. Food Lion, 254 Ga. App. 221, 223 (561 SE2d 440) (2002) (same); Ingles Markets v. Martin, 236 Ga. App. 810, 812 (513 SE2d 536) (1999) (same).

        Crook v. Racetrac Petroleum, 257 Ga. App. 179, 181 (570 SE2d 584) (2002); see Shepard,
        241 Ga. App. at 748-49 (1) (same).

        Crook, 257 Ga. App. at 181 (citation and punctuation omitted), see Shepard, 241 Ga. App. at 748 (1).

        See Crook, 257 Ga. App. at 181 (finding that spills at gasoline stations are not uncommon and, therefore, whether inspections were required more frequently than every two hours was a jury question).

        Valentin, 286 Ga. App. at 512 (citation and punctuation omitted); see also Whatley, 228 Ga. App. at 605 (1).

        See, e.g., Gibson, 288 Ga. App. at 792-93 (finding that whether a weekly inspection of a shopping center’s parking area was reasonable was a jury question); Davis, 263 Ga. App. at 150 (2) (holding that whether a supermarket’s policy of inspecting aisles every 30 minutes was reasonable was for a jury to determine); Crook, 257 Ga. App. at 181 (holding that whether a gas station’s inspections were required more frequently than every two hours was a jury question); Shepard, 241 Ga. App. at 748-49 (1) (finding that it was for a jury to determine whether grocery store’s procedure of inspecting aisles every 30 minutes was reasonable); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 471 (1) (b) (522 SE2d 749) (1999) (holding that whether inspecting floor of grocery store slightly less than two hours prior to plaintiffs fall was a jury question); Jones v. Krystal Co., 231 Ga. App. 102, 104-05 (d) (498 SE2d 565) (1998) (holding that failure to inspect floor of fast food restaurant for 20 minutes or longer could be unreasonable). But see Quarles, 263 Ga. App. at 565 (finding that inspection of mat outside of restaurant one hour and fifteen minutes prior to plaintiff s fall was reasonable as a matter of law).

        Davis, 263 Ga. App. at 150 (3).

        ld. \ see Robinson, 268 Ga. at 743 (1).

         See, e.g., Davis, 263 Ga. App. at 150-51 (3) (holding that whether plaintiff exercised reasonable care was a jury issue despite plaintiff’s testimony that she was talking to her son when she fell); Shepard, 241 Ga. App. at 749 (2) (holding that the fact that plaintiff could have seen hazard if she had been looking down did not constitute a failure to exercise ordinary care as a matter of law).

        Blanton v. Duru, 247 Ga. App. 175, 176 (1) (543 SE2d 448) (2000).

       A concurrence dubitante is a concurrence that is given doubtfully. Unlike a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said—which, according to our Rule 33 (a), renders a decision physical precedent only—a concurrence dubitante is a full concurrence, albeit one with reservations. See Carter v. State, 196 Ga. App. 226, 229-30 (395 SE2d 891) (1990) (Deen, J., concurring dubitante).

         The majority cites Davis v. Bruno’s Supermarkets, 263 Ga. App. 147 (587 SE2d 279) (2003), and Shepard v. Winn Dixie Stores, 241 Ga. App. 746 (527 SE2d 36) (2000), as authority for this principle. Davis itself cites Shepard, and Shepard cites Straughter.

       I do not intend in this opinion to set forth an exhaustive listing of the factors that might properly be considered when we decide whether to revisit a prior decision. In some other case, a consideration of other factors might also be appropriate.


source: Caselaw Access Project

author: Blackwell, Judge. DILLARD, Judge,

license: Public Domain

text:
    A10A2314.
    In the Interest of M. S. S., a child.
    (708 SE2d 570)
   Blackwell, Judge.

Following a hearing, the juvenile court entered an order terminating the parental rights of the mother of M. S. S. The mother now appeals from that order, asserting that the juvenile court lacked jurisdiction to enter the termination order, that the evidence was insufficient to support certain of the juvenile court’s factual findings, and that she received ineffective assistance of counsel. Because we find no merit in any of these claims, we affirm.

Viewed in the light most favorable to the juvenile court’s findings, the record shows that on September 18, 2007, Cobb County police found the mother and M. S. S., who was approximately 15 months of age at that time, in an apartment filled with marijuana smoke. The Cobb County Department of Family and Children Services (the “Department”) assumed temporary custody of M. S. S. two days later. The Department was awarded custody of M. S. S. based on the mother’s stipulation that the child was deprived, given the mother’s lack of stable housing and need for a substance-abuse assessment.

The Department then filed a deprivation petition, and in October 2007, the juvenile court entered an order finding M. S. S. to be deprived based on the mother’s stipulation that the father had abandoned the child and that the mother then was incarcerated, lacked adequate and stable housing, and needed substance-abuse assessment and treatment. The order granted temporary custody of M. S. S. to the Department, specified reunification with the mother as the permanency plan, identified the prerequisites for reunification, and required the mother to keep the court informed of her whereabouts. The order was entered nunc pro tunc to September 20, 2007 and provided that the award of temporary custody to the Department would expire on September 20, 2008, unless the order was “subsequently modified or amended.”

The next year, the Department filed a motion for an order extending its temporary custody of M. S. S., and the juvenile court scheduled a hearing on that motion for September 11, 2008, nine days before the earlier custody order was set to expire. After the parents failed to appear at the scheduled hearing, the juvenile court entered an interim order, which extended the Department’s temporary custody of M. S. S. until November 7, 2008, and it scheduled another hearing for November 5, at which the court would revisit the question of an extension.

The mother also did not appear at the November 5, 2008 hearing. The juvenile court then granted the Department’s motion to extend temporary custody, and it entered an order continuing M. S. S. in the Department’s custody until November 5, 2009. In its order extending custody, the juvenile court noted that neither parent had appeared for the hearing and that both the mother and the father had effectively abandoned the child. Although the permanency plan remained reunification with the mother, the juvenile court observed that she had failed to make any progress on her case plan and that she had failed to maintain contact with M. S. S. The court, therefore, ordered the Department to investigate the possibility of terminating both the mother’s and the father’s parental rights.

The Department filed a second motion for an extension of custody on October 9, 2009, and a hearing on that motion was held on November 5, 2009. The juvenile court granted the motion, finding that M. S. S. continued to be a deprived child and extending again the Department’s custody of the child through November 5, 2010. The finding of deprivation as to the mother was based on her failure to maintain communication with the Department and her lack of progress on her case plan. Specifically, the court found that the mother had failed to address her substance-abuse problems and had failed to maintain stable housing or stable employment.

The Department also filed in October 2009 a petition to terminate the mother’s parental rights, and the juvenile court set a hearing on this petition for February 24, 2010. Evidence presented at the termination hearing established that between September 2007 and November 2009, the mother’s contact with M. S. S. had been sporadic. The mother had no contact whatsoever with M. S. S. between September and December 2007, while she was incarcerated following her conviction for loitering and prowling. Between December 2007 and August 2008, the mother had supervised visits scheduled every other week with M. S. S., but according to the child’s court-appointed special advocate (“CASA”), the mother missed at least seven of the approximately seventeen scheduled visits and was late to a number of others. Between August 20, 2008 and December 3, 2008, the mother could not be located and made no attempt to contact the Department.

Later in December 2008, representatives of the Department met with the mother and learned that there was an outstanding warrant for her arrest for probation violations. The Department caseworker explained to the mother that she would need to resolve her probation violations before continuing with her case plan. The mother eventually surrendered herself on the outstanding warrant in February 2009, after discovering that she was pregnant with her second child. She was incarcerated until April 1, 2009 and upon her release was placed in an intensive probation supervision program, which she completed in November 2009. There is no evidence in the record showing what contact, if any, the mother had with M. S. S. during the six months she was in intensive probation. Following her release from intensive probation, she was permitted unsupervised weekend visitation with M. S. S., but again, there is no indication in the record of the extent to which she actually visited with M. S. S. after November 2009.

The evidence also showed that the Department had reviewed the mother’s case plan with her as early as February 2008. The plan remained unchanged during the two-and-a-half years leading up to the termination hearing. It required the mother to undergo a psychological evaluation and follow all recommendations made as a result of the evaluation, attend and successfully complete parenting classes, attend and successfully complete a drug-treatment program, submit to random drug screens, remain drug- and alcohol-free for six consecutive months, cooperate with and follow the recommendations of the Department family aid worker assigned to her, obtain and maintain a stable source of income sufficient to support the child, and obtain stable and safe housing large enough to accommodate the family. Although the Department caseworker testified that the entire plan could have been completed within six months (or by August 2008), the mother admitted that she made no effort at all to fulfill its requirements for more than a year, until after her second release from jail in April 2009. Specifically, the mother did not enter drug treatment until June 2009, did not complete that treatment until October 2009, and did not complete the required parenting classes until approximately July 2009. Although the mother did undergo a psychological evaluation in February 2008, shortly after receiving the case plan, her efforts to follow the recommendations resulting from that assessment still were listed as “ongoing” as of November 2009.

Despite making progress on other aspects of her case plan, the mother never maintained stable housing or stable employment. After M. S. S. first entered the Department’s custody, the mother claimed to be “self-employed,” styling hair for friends and neighbors. She was employed in September and October 2009 as a telemarketer but was fired from that job. She remained unemployed from November 2009 until mid-February 2010, and she obtained a part-time job at a local fast-food restaurant only two days before the termination hearing. Thus, the evidence showed that between September 2007 and February 2010, the mother held a full-time job for only two months.

The mother had a history of alternating between homelessness and unstable housing that depended on the kindness of third parties. She admitted that she had been homeless before moving to Georgia in 2007 and that she was homeless at the time of her September 2007 arrest. Following her initial release from jail in November 2007, she lived at a friend’s apartment until March 2008. Between March and June 2008, she lived with a brother, and from June 2008 until February 2009, when she was jailed on her probation violations, she was homeless. Following her release from jail in April 2009, she lived first with a friend, and then with the paternal grandmother of her second child, before moving to a transitional housing facility in September 2009. She remained at the transitional housing facility, where she was supposed to pay monthly rent of $500, until shortly before the termination hearing in February 2010. She successfully paid her own rent for September, October, and November 2009, but after losing her job, she was forced to rely upon assistance from a local charity to pay her rent for the months of December and January. Thus, between September 2007 and January 2010, the mother had paid rent for only three months.

Just before the termination hearing, the mother moved to a two-bedroom, one-bath apartment, which she rented for $495 per month. She paid the security deposit and rent for the first two months using money she received as part of her 2009 tax refund. Also living with the mother at that apartment was her second child, who then was less than a year old. She was not married to the baby’s father and received no child support for the baby. She did, however, receive $200 per month in food stamps for the baby, and she expected to receive the same amount for M. S. S., if M. S. S. were returned to her custody.

With respect to M. S. S., the evidence showed that the child had been in the same foster home since entering the Department’s custody and that she had adapted well and was flourishing in that home. She had bonded with her foster mother, who expressed a desire to adopt the child. The CASA recommended termination of the mother’s parental rights based on the mother’s inability to obtain or maintain stable employment and stable housing and on M. S. S.’s need for permanency and stability.

Based on this evidence, the juvenile court found that M. S. S. was a deprived child, her deprivation resulted from a lack of parental care and control, her deprivation was likely to continue if custody were returned to the mother, and without termination of parental rights, the child would suffer serious physical, mental, emotional, or moral harm. The juvenile court further found that termination of the mother’s parental rights was in the best interest of M. S. S., and it granted the Department’s petition. The mother then filed an application for a discretionary appeal, which we granted. This appeal followed.

1. We first address the mother’s assertion that the juvenile court lacked jurisdiction to enter the termination order. Her argument is based on OCGA § 15-11-58 (n), which allows a court to extend a temporary custody order for an additional 12 months if:

(1) [a] hearing is held upon motion of the [Department] prior to the expiration of the order; (2) [reasonable notice of the factual basis of the motion and of the hearing and opportunity to be heard are given to the parties affected; and (3) [t]he court finds that the extension is necessary to accomplish the purposes of the order extended.

As noted above, the trial court scheduled a hearing on the Department’s first motion for an extension of custody for September 11, 2008, nine days before the expiration of the earlier custody order. When neither parent appeared at the scheduled hearing, however, the trial court granted an “interim” extension of custody through November 7 and set another hearing for November 5 to address the question of a more prolonged extension. On appeal, the mother argues that no hearing was held on or before September 20, 2008—the date the original order was set to expire—and that, as a result, the juvenile court lost jurisdiction of the case on that date, such that all orders entered after that date are void. We disagree.

(a) By failing to appear at the timely-scheduled hearing, the mother waived the requirement that a hearing on the extension motion be held on or before September 20, 2008. This Court has previously said that even the “mandatory” procedural requirements of the juvenile court code can be waived in deprivation and termination proceedings by the affirmative conduct of a parent or her lawyer. In the Interest of A. S. O., 243 Ga. App. 1, 4 (2) (530 SE2d 261) (2000); In the Interest of C. S., 236 Ga. App. 312, 315 (2) (511 SE2d 895) (1999). In this case, the record shows that the juvenile court scheduled a timely hearing on the Department’s motion for an extension, and the mother was served with notice of the hearing. The mother, however, failed to appear for the scheduled hearing, and in what we can only assume was an attempt to protect the mother’s rights, the juvenile court set another hearing on the question of an extension and extended custody in the interim to preserve the status quo. We find that by failing to appear for a timely hearing of which she had notice, the mother waived the requirement of a hearing before the expiration of the earlier custody order. Accordingly, the juvenile court retained jurisdiction of the case after September 20, 2008, and its subsequent orders in the case are valid.

(b) In the alternative, even if the law did not permit the waiver of the requirement that a hearing be held before the original order expired, it would afford the mother no relief here. The juvenile court set a hearing for September 11, 2008, before the expiration of the earlier custody order. While we know that the mother failed to appear at that hearing, we do not know what else happened because no transcript of those proceedings is contained in the record on appeal. But for all we know, the juvenile court may have received evidence on September 11 sufficient to justify an extension of the award of custody to the Department, such that the juvenile court held a “hearing” within the meaning of OCGA § 15-11-58 (n), albeit one that the mother chose not to attend. Because the mother bears the burden on appeal of demonstrating error, and because no transcript of the September 11 proceedings appears in the record, we must presume that whatever happened would justify the interim extension that the juvenile court ordered. See Code v. State, 255 Ga. App. 432, 433 (2) (565 SE2d 477) (2002) (“Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.”) (citation and punctuation omitted); In the Interest of B. B. S., 253 Ga. App. 119, 120 (3) (558 SE2d 447) (2001) (“The burden is on the appellant to show . . . error affirmatively by the record.”).

2. We now turn to the mother’s claim that the evidence is insufficient to sustain the termination of her parental rights. “In considering a challenge to the sufficiency of the evidence in a termination of parental rights case, the question is whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. [Cit.]” In the Interest ofR. S., 287 Ga. App. 228, 228 (651 SE2d 156) (2007) (punctuation omitted). To prove that parental rights ought to be terminated, the Department first must prove “parental misconduct or inability” by clear and convincing evidence. OCGA § 15-11-94 (a). Such proof requires the Department to establish that (1) the child is deprived; (2) the deprivation results from a lack of proper parental care or control; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Where the Department carries this burden, it then must prove that “termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child[,] including the need for a secure and stable home.” OCGA § 15-11-94 (a).

In this case, the mother does not challenge the juvenile court’s findings that M. S. S. was deprived or that the lack of proper parental care or control was the cause of the deprivation. Rather, the mother argues only that the Department failed to prove that the deprivation was likely to continue, that any such continued deprivation would cause serious harm to M. S. S., and that termination of her parental rights was in the child’s best interest. We address each of these contentions below.

(a) In support of her assertion that the Department failed to prove that the deprivation was likely to continue, the mother points to evidence showing that she recently had achieved some of her case-plan goals and was making progress on others. She also points to the fact that she successfully had maintained custody of her second child. Finally, the mother cites the testimony of the Department caseworker, who stated that she believed the mother could take M. S. S. home and successfully care for her.

These arguments, however, ignore the fact that for two-and-a-half years, the mother failed to achieve two of the reunification plan’s most important requirements: that she maintain stable housing and stable employment. The mere fact that the mother obtained housing about two weeks before the termination hearing, and had paid advance rent for two months, did not make that housing stable. In the Interest of T. V, 302 Ga. App. 124, 128 (1) (690 SE2d 457) (2010). Nor did the evidence show that the mother had maintained stable employment or that her income was adequate to provide for M. S. S. Id. Indeed, the evidence shows that the mother was less successful at maintaining employment than housing. Although she had paid rent for five months since September 2007 (including the advance rent she paid on the apartment she obtained just before the termination hearing), she had maintained a full-time job for only two months during the same period. Furthermore, the job she had obtained in preparation for the termination hearing was part-time employment, and she had yet to actually work at that job. The mother’s failure to make any significant progress toward achieving the goals of stable employment and stable housing, standing alone, was sufficient to support the juvenile court’s finding that the cause of M. S. S.’s deprivation was likely to continue. See In the Interest of A. R., 302 Ga. App. 702, 709 (1) (c) (691 SE2d 402) (2010); see also In the Interest of S. N. H., 300 Ga. App. 321, 327 (1) (c) (685 SE2d 290) (2009); In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (1) (c) (632 SE2d 433) (2006).

Moreover, the mother’s argument ignores the indisputable fact that the mother made no progress at all on her case plan for approximately 19 months, something that the juvenile court was obligated to consider. See OCGA § 15-11-94 (b) (4) (C) (iii). Even when a parent makes some progress on a case plan just before a termination hearing, “the past conduct of the parent is properly considered by the court in determining whether [the child’s] deprivation [is] likely to continue.” In the Interest of M. J. G., 288 Ga. App. 754, 756 (655 SE2d 333) (2007) (citation and punctuation omitted). This is because “recent improvements do not establish that the parent is capable of maintaining the progress [and] the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of M. L., 290 Ga. App. 437, 441 (3) (659 SE2d 800) (2008) (citations and punctuation omitted). Thus, despite the mother’s recent compliance with some requirements of her case plan, the trial court was entitled to weigh that progress against the length of time it took her to comply, and it “was authorized to assign less weight to [her] assertion[ ] of sudden parental fitness based on [these] belated efforts” at compliance. In the Interest of D. L. T, 283 Ga. App. 223, 227 (1) (641 SE2d 236) (2007).

As we have said time and again, “[i]n considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” In the Interest ofT.W. O., 283 Ga. App. 771, 776-777 (1) (a) (iii) (643 SE2d 255) (2007) (citation and punctuation omitted). “Likewise, judging the credibility of her good intentions was a task for the juvenile court.” In the Interest ofR. J. D. B., 305 Ga. App. 888, 893-894 (1) (a) (700 SE2d 898) (2010) (citation and punctuation omitted). And on appeal, we will neither reweigh that evidence nor reevaluate the credibility of the witnesses. Id. Based on the evidence presented, the juvenile court was authorized to conclude that the cause of M. S. S.’s deprivation was likely to continue.

(b) We next consider the sufficiency of the proof that continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to M. S. S. This Court has looked at the question of harm in two distinct ways. Only five years ago, our Court, sitting en banc, said that the relevant question is “whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” In the Interest of J. K., 278 Ga. App. 564, 567 (1) (629 SE2d 529) (2006) (en banc) (emphasis in original). Notwithstanding the decision of the en banc Court in J. K., however, some panels of our Court have framed the question differently in more recent cases, inquiring whether a continuation of the status quo—rather than the return of a child now in the custody of the Department to the custody of the natural parents—likely would harm the child. See, e.g., In the Interest of K. D. E., 288 Ga. App. 520, 526 (1) (654 SE2d 651) (2007) (finding inadequate proof of harm where there was no evidence that child “was experiencing difficulties, such as behavioral or social issues, from being in foster care or that he would experience difficulties if a permanent placement was not put into place; and there was no testimony that a continued relationship with his mother would result in any potential or actual harm to the child”). In this case, we need not decide which is the correct standard. Under either standard, there is sufficient evidence of a likelihood of serious harm.

The evidence is sufficient to show that M. S. S. likely would suffer serious harm if she were returned to the custody and care of her mother and the state of deprivation that was likely to continue. The nature of the deprivation is enough proof, we think, to clearly and convincingly establish a likelihood of serious harm. See In the Interest of M. E. M., 272 Ga. App. 451, 455 (612 SE2d 612) (2005) (likelihood of harm proved by evidence showing that mother had no stable income or housing, had no parental bond with the children, and had made no effort to provide any kind of support for children while they were in DFACS custody); In the Interest of S. L. B., 265 Ga. App. 684, 688 (595 SE2d 370) (2004) (mother’s history of drug abuse, criminal conduct, and incarceration, even after losing custody of her child, together with her failure to obtain employment, provide financial support, or establish a parental bond with the child, showed a likelihood of harm). Indeed, we think the proposition that a lack of stable housing—punctuated by periods of homelessness and the incarceration of the mother—and a lack of a stable income to provide for the necessaries of life pose a risk of serious harm to a child of tender years is not seriously debatable. The CASA confirmed that returning M. S. S. to her mother would pose a substantial risk of harm to the child, considering the child’s need for a stable home environment.

The evidence also is sufficient to establish a likelihood that a continuation of the status quo would seriously harm M. S. S. At the age of three years and eight months, M. S. S. had been in foster care for two-and-a-half years, approximately two-thirds of her life. As a result, according to the CASA, the child had formed a parental bond with her foster mother, who wanted to adopt M. S. S. The CASA, who had observed M. S. S. visiting with her mother on several occasions, explained that M. S. S. did not appear to have a similar bond with her mother. To the contrary, the mother seemed more like an older sister than a parent to M. S. S., playing games with the child and styling her hair, but never inquiring about the health, development, or progress of the child. The foster mother testified that, although M. S. S. seemed to enjoy short visits with her mother, visiting with the mother for more than an hour or so made the child “quite upset.” Before longer visits, M. S. S. would cry and complain of stomachaches, and afterward, she would be “crabby,” “argumentative,” and “out of sorts.”

After hearing this evidence, and after observing that long-term foster care with no permanency is “a recognized harm,” the juvenile court found that a continuation of the status quo likely would be detrimental to M. S. S. The court also found that, because M. S. S. had “bonded” with her foster mother in a “parent-child relationship,” the child would suffer “significant emotional harm” if that bonding were disrupted by efforts to force upon M. S. S. a continued relationship with her natural mother. The evidence supports the juvenile court’s findings, and it sustains the conclusion that M. S. S. likely would suffer serious harm from continued maintenance of the status quo. See In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008) (finding of harm supported by evidence that child had been in foster care since birth, prolonged foster care would be harmful to the child, and no parental bond existed between child and biological parent); In the Interest ofT. C., 282 Ga. App. 659, 663 (2) (639 SE2d 601) (2006) (“This Court has previously ruled that where, as here, the evidence showed no parental bond between parent and child, the child had adapted well to foster care, and the foster parent wished to adopt, this was sufficient to support the juvenile court’s conclusion that continued deprivation was likely to harm the child.”) (citation and punctuation omitted).

(c) The mother also asserts that the evidence is insufficient to support a finding that termination of her parental rights was in the best interest of M. S. S. The mother fails to support this enumeration in her brief, however, with any reasoned argument, citation of authority, or record citations. Accordingly, this claim of error is deemed abandoned. Gooch v. Tudor, 296 Ga. App. 414, 422 (3) (674 SE2d 331) (2009). See also R. S., 287 Ga. App. at 232 (2); Court of Appeals Rule 25 (c) (2).

3. Finally, we address the mother’s claim that she was deprived of the effective assistance of counsel at the termination hearing. “[A] juvenile court’s finding that a parent has been afforded effective assistance of counsel will be affirmed on appeal unless that finding is clearly erroneous.” S. N. H., 300 Ga. App. at 330 (5). We find no error in this case.

To prevail on her claim of ineffective assistance of counsel, the mother must prove both that the performance of her lawyer was deficient and that she was prejudiced by this deficient performance. S. N. H., 300 Ga. App. at 329 (5). To prove that the performance of her lawyer was deficient, the mother must show that her lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. In the Interest of A. H. E, 232 Ga. App. 330, 334-335 (2) (500 SE2d 418) (1998). And to prove that she was prejudiced by the performance of her lawyer, the mother must show “a reasonable probability that, absent counsel’s unprofessional errors, the result of the [termination proceeding] would have been different.” Id. at 335 (2). We think the mother has failed to carry her burden.

As best we can tell from her brief, the mother asserts that her lawyer was ineffective for two reasons. First, the mother claims that the lawyer should have appealed from, or otherwise objected to, the allegedly void orders entered after September 20, 2008. As discussed in Division 1, supra, however, the juvenile court never lost jurisdiction of this case, and those orders are, therefore, valid. Given that trial counsel’s failure to pursue a meritless or futile objection, motion, or appeal cannot constitute ineffective assistance, the mother’s lawyer was not ineffective for failing to object to or appeal the juvenile court’s orders on jurisdictional grounds. See, e.g., Smith v. State, 302 Ga. App. 128, 135 (2) (a) (690 SE2d 449) (2010).

The mother also claims that her lawyer should have appealed from the finding of deprivation contained in the order entered after the November 2009 hearing on the second motion to extend custody. She argues that the failure to appeal this finding meant that she was bound by it, and she says that it was this finding of deprivation that supported the termination of her parental rights. In other words, the mother claims that the failure to appeal this finding of deprivation relieved the Department of having to prove at the termination hearing that M. S. S. was currently a deprived child. This argument misapprehends the law.

The mother is correct that ”[a]n unappealed order adjudicating a child deprived does indeed bind a parent to the finding that at the time of the order the child was deprived for the reasons given in the order.” In the Interest of K. R., 298 Ga. App. 436, 438 (1) (a) (680 SE2d 532) (2009) (citation and punctuation omitted; emphasis in original). The parent’s failure to appeal a finding of deprivation, however, does not relieve the Department of the obligation to prove current deprivation in a subsequent proceeding. In the Interest of E D.W., 296 Ga. App. 189, 192-193 (1) (a) (674 SE2d 338) (2009). To prevail on the termination petition, therefore, the Department was obligated to prove that, as of the date of the termination hearing, M. S. S. was a deprived child. Accordingly, the failure to appeal the finding that M. S. S. was deprived as of November 5, 2009 did not preclude the mother from arguing at the termination hearing that M. S. S. was not currently deprived. Nor did it preclude the mother from challenging on appeal the finding of deprivation on which the juvenile court based the termination of parental rights. Even assuming that the mother’s lawyer should have appealed from the November 2009 finding of deprivation, the mother has not shown that she was prejudiced by the failure to do so.

For the reasons set forth above, we affirm the order of the juvenile court terminating the mother’s parental rights to M. S. S.

Judgment affirmed.

Barnes, P. J., concurs. Dillard, J., concurs fully as to Division 1 and concurs specially as to Divisions 2 and 3.

DILLARD, Judge,

concurring fully and specially.

I concur fully in Division 1 of the majority’s opinion. And while I agree with the majority’s conclusion that the juvenile court could have found that present clear and convincing evidence warranted the termination of the natural mother’s parental rights, I do not entirely agree with its reasoning for doing so and therefore specially concur as to Division 2 of the opinion.

Specifically, I do not agree with the majority’s assertion that a natural parent’s rights can be terminated merely because the mother failed to satisfy certain elements of the State’s reunification plan (e.g., securing stable employment and housing), or because she was not financially or emotionally capable of parenting her child at the time of the termination hearing. Nevertheless, I do agree with the majority that the juvenile court was correct in terminating the mother’s parental rights because the record evidence shows, clearly and convincingly, that the ongoing parental relationship between the mother and M. S. S. is likely to cause the child serious, actual harm if permitted to continue. As the majority notes, “the mother for long periods of time had put her own desires ahead of the best interest of her daughter, which manifested in. . . her lackluster efforts to maintain contact and establish a parental relationship with the child.”

Decided March 22, 2011.

Jamie L. Smith, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, Sanders B. Deen, for appellee.

As our Supreme Court has previously explained, it is one thing if a parent desires to care for his or her child but simply lacks the financial wherewithal or emotional capability to do so, and quite another for a parent to wilfully disregard or abandon his or her parental duties. Because I believe that the case sub judice is far closer to falling into the latter category rather than the former, I agree that termination of the mother’s parental rights was constitutionally and statutorily permissible.

Finally, I likewise specially concur as to Division 3 of the opinion. While I agree with the majority’s conclusion that the natural mother was not deprived of effective assistance of counsel at the termination hearing, I do not agree with all of the underlying reasoning employed by the majority in reaching this determination. As such, I concur only in the majority’s ultimate conclusion that the mother was afforded effective assistance of counsel below.

       The juvenile court also terminated the parental rights of the father, but he is not a party to this appeal.

        In the Interest of R. S., 287 Ga. App. 228, 228 (651 SE2d 156) (2007).

       On September 25, 2007, police arrested the mother, and she later was indicted for loitering and prowling in violation of OCGA § 16-11-36 (a) and for possession of methamphetamine in violation of OCGA § 16-13-30 (a). In November 2007, the mother pled guilty to both charges and was sentenced to four months in jail on the loitering and prowling charge and four years probation on the drug charge.

       Specifically, the order provided that any reunification plan must require the mother to resolve “all aspects of her criminal arrest,” undergo a substance-abuse evaluation and complete all treatment recommendations, and maintain stable housing and employment.

       This interim order was entered on November 26, 2008, nunc pro tunc to September 11.

       The probation violations included the mother’s failure to maintain gainful employment, to keep the probation office advised of her residence, to obtain a drug and alcohol evaluation, and to pay certain court-ordered monies.

       This job paid the minimum wage, and although the mother had not yet started working there, she expected that she only would work 25 to 30 hours per week.

       Evidence showed that the mother’s total income for 2009, including her self-reported income for styling hair, was $9,500.

       In support of this argument, the mother cites In the Interest of B. G., 231 Ga. App. 39 (497 SE2d 572) (1998). That case, however, is inapposite. There we found that the juvenile court lacked jurisdiction to extend an order of temporary custody because the Department did not even seek an extension and the court set no hearing on the extension issue until several months after the earlier order had expired. Id. at 40. In this case, however, the Department filed a timely motion for an extension of custody and the juvenile court scheduled and tried to hold a timely hearing on that motion.

       The mother also cites the caseworker’s testimony that if M. S. S. were returned to the mother as of the date of the termination hearing, the caseworker did not think that the child would be deprived. That testimony, however, goes to the finding that M. S. S. was, at the time of the termination hearing, a deprived child. See In the Interest of P. D.W., 296 Ga. App. 189, 191-192 (1) (a) (674 SE2d 338) (2009). On appeal, the mother has not challenged that finding, and she is therefore hound by it.

       OCGA § 15-11-94 (b) (4) (C) (iii) provides that, in a termination of parental rights proceeding, a trial court “shall consider . . . 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 . . . [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.” (Emphasis supplied.)

       That is not to say that a lack of stable housing and income always demands a finding that serious harm is likely. We suppose that an uncommonly resilient child, an older child, or the extraordinary efforts of an unusually devoted and loving parent might avoid the harm that otherwise likely would follow such deprivation. But here, the mother for long periods of time had put her own desires ahead of the best interest of her daughter, which manifested in her failure to make timely progress on her case plan, her violations of the criminal laws and conditions of her probation, the periods of incarceration that followed, and her lackluster efforts to maintain contact and establish a parental relationship with the child. Although the mother recently had made some progress on her case plan, the juvenile court was entitled to consider her history as indicative of her attitudes about parenting. These considerations, although not necessary to prove a likelihood of serious harm, tend to confirm it, inasmuch as they offer no reason to believe that this mother was capable of, or willing to undertake, extraordinary efforts to shield her young child from the serious harm that otherwise is likely to result from continued deprivation.

       “Where [a child has] been removed from parental custody, the Department may prove current deprivation by showing that, if the child were returned to the parents at the time of the hearing, [she] would be deprived.’’ In the Interest ofT. V, 302 Ga. App. at 127 (1) (citation and punctuation omitted). See also In the Interest of C. H., 305 Ga. App. 549, 559 (2) (b) (700 SE2d 203) (2010) (“the question is whether, if returned to the parent as of the date of the hearing, the child would return to a state of deprivation because of the parent’s lack of proper parental care or control”) (citation and punctuation omitted; emphasis in original). Current deprivation “may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.” In the Interest of Z. H. T, 302 Ga. App. 424, 429 (1) (a) (691 SE2d 292) (2010).

       Because I agree with all that is said in Division 1 of the majority’s opinion, the reasoning and holding contained therein is to be treated as binding precedent of this Court and is not to be considered as merely physical precedent.

       See Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (1989).


author:
Mikell, Judge.
      SMITH, Presiding Judge,

text:
    A10A1619.
    STRICKLAND v. MCELREATH et al.
    (708 SE2d 580)
   Mikell, Judge.

We granted an interlocutory appeal to Joe Paul Strickland, the administrator of the estate of his late mother-in-law, Geraldine McElreath (“Geraldine”), to review the trial court’s denial of his motion to transfer the underlying suit against him to the county of his residence. Because the claims at issue sound in equity, venue lies in the county of Strickland’s residence. Therefore, we reverse the trial court’s judgment.

The trial court’s application of the law to the allegations of the complaint is subject to de novo review. Jerry McElreath and Fred McElreath (“the McElreaths”), Geraldine’s surviving sons, filed the complaint in equity in Madison County against Strickland individually and as administrator of Geraldine’s estate. The complaint alleges that the McElreaths’ father, Robert Hoyle McElreath (“Robert”), began acquiring various parcels of land in Madison County in the 1950s; that he and Geraldine had announced their intention to divide the real property equally among their children; that Robert died in 1971 survived by Geraldine and their five children; that the children conveyed their interests in the property to Geraldine, thereby creating an implied resulting trust; and that Geraldine died on March 8, 1997.

The complaint also alleges that ten hours before her death, Geraldine purportedly executed a deed conveying all of the real property to her daughter Flora Diane McElreath Strickland (“Flora”), who was married to Strickland; that Flora placed the pen in Geraldine’s hand and moved it to sign her name; that Geraldine lacked the mental or physical capacity to execute the deed; that the McElreaths acquired an interest in the real property by virtue of an implied resulting trust; that Flora made several conveyances to effectuate the trust but then died in 2003; that although Strickland is Flora’s surviving spouse and sole heir, he has never probated her estate; that Strickland, individually, made additional conveyances consistent with the implied resulting trust; but that as the administrator of Geraldine’s estate, he has breached his fiduciary duty to distribute the remaining property in accordance with the laws of intestacy. The McElreaths seek to set aside the deed from Geraldine to Flora, to remove Strickland as administrator, and to have the property declared included in the corpus of the trust and subject to the McElreaths’ interests therein.

Strickland moved to transfer the case to Barrow County, where he resides, asserting that venue is proper there because the McElreaths seek equitable relief. The trial court denied the motion, ruling that, regardless of the title of the complaint as one in equity, “the suit involves the deed/title to land and whether or not the deed executed was valid.” The court issued a certificate of immediate review, and we granted Strickland’s application for interlocutory appeal.

Strickland argues that, with the exception of the claim seeking to remove him as administrator, venue lies in the county of his residence because the remaining claims sound in equity. We agree. Pursuant to our Constitution, “[c]ases respecting titles to land shall be tried in the county where the land lies,” while “[e]quity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” “The common test as to whether an action to recover land is an action respecting title to land within the venue provision of our Constitution is whether the plaintiff can recover on his title alone, or whether he must seek the aid of a court of equity in order to recover.”

If the plaintiff, without resorting to the powers of the superior court as a court of equity and without invoking equitable relief, can, upon her legal title, recover, the suit is well brought in the county where the land lies; but if, in order to vest herself with a legal title upon which she can recover at law, it becomes necessary at first to assert an equity as against the person invested with the legal title, then . . . the action should have been brought in the county wherein the defendant resided.

In the case at bar, the McElreaths must resort to the superior court’s equitable powers to obtain their requested relief. They seek to impress a resulting trust on real property, and “[t] rusts are peculiarly subjects of equity jurisdiction.” In addition, in order to obtain title to the land, the McElreaths seek to set aside the deed from their mother to their sister. Our Supreme Court has repeatedly held that a petition to set aside a deed is not a suit respecting title to land that must be brought in the county where the land lies but, instead, is a suit in equity that must be brought in the county of the defendant’s residence. Consequently, venue lies in the Superior Court of Barrow County, where Strickland resides, and the trial court erred in denying his motion to transfer.

Judgment reversed.

Adams, J., concurs. Smith, P. J., concurs fully and specially.

Decided March 23, 2011.

N. David Wages, for appellant. Timmons, Warnes & Anderson, John W. Timmons, Jr., for appellees.

SMITH, Presiding Judge,

concurring fully and specially.

I concur with the majority opinion and all that is said there; I write separately to note that the application for interlocutory appeal was transferred to this court by the Georgia Supreme Court pursuant to the following order:

Applicants seek to invoke this Court’s equity jurisdiction to challenge the trial court’s order denying the motion for a change of venue in this action to set aside a deed and to establish an implied trust. However, because the propriety of equitable relief is not a substantive issue on appeal, this Court’s jurisdiction over equity cases is not invoked. See Electronic Data Systems Corp. v. Heinemann, 268 Ga. 755, 756 (493 SE2d 132) (1997); see also Mabra v. Deutsche Bank & Trust Co., 277 Ga. App. 764, n. 1 (627 SE2d 849) (2006). Therefore, it is hereby ordered that the application be transferred to the Court of Appeals.

As we observed in Foster v. Wilmington Plantation Owners Assn., 304 Ga. App. 239, 241 (696 SE2d 85) (2010), the Supreme Court has long recognized that “substantially identical phrases” contained in both the venue provisions of the Georgia Constitution and the provisions governing the appellate jurisdiction of the Georgia Supreme Court “should be interpreted harmoniously unless harmonious interpretation renders either provision unreasonable.” (Citations and footnote omitted.) Graham v. Tallent, 235 Ga. 47, 50 (218 SE2d 799) (1975) (“cases respecting title to land”).

In the case before us, we reach the conclusion that a petition to set aside a deed and impose a trust is a suit in equity for purposes of venue, as provided in Ga. Const, of 1983, Art. VI, Sec. II, Par. III. Again, I fully agree with that conclusion and the analysis supporting it. As the majority makes abundantly clear, the only issue on appeal here is whether this is a case in equity. That being so, however, I have great difficulty in grasping the reasoning underlying the order that transferred the case to us, because I am unable to understand how it can be that “the propriety of equitable relief is not a substantive issue on appeal.”

       See HD Supply v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009).

       The trial court also held that the Madison County Probate Court has jurisdiction over the proceeding to remove Strickland as administrator, and he does not challenge that portion of the order.

       Ga. Const. 1983, Art. VI, Sec. II, Pars. II & III; Hayes v. Howell, 251 Ga. 580, 581 (1), n. 1 (308 SE2d 170) (1983).

       (Citations omitted.) Payne v. Terhune, 212 Ga. 169, 170 (91 SE2d 348) (1956). Accord Schuehler v. Pait, 239 Ga. 520, 523-524 (2) (238 SE2d 65) (1977) (cases involving title to land do not include actions in which the plaintiff must first seek the aid of equity to perfect his title); Lockridge v. Smith, 298 Ga. App. 428, 430 (2) (a) (680 SE2d 501) (2009).

        Clayton v. Stetson, 101 Ga. 634, 638 (28 SE 983) (1897).

       OCGA § 53-12-6 (a); Rader v. Levenson, 290 Ga. App. 227, 229 (1) (b) (659 SE2d 655) (2008); In re Longino, 281 Ga. App. 599, 602 (3) (636 SE2d 683) (2006).

        Deen v. Altman, 267 Ga. Ill, 112 (2) (475 SE2d 611) (1996); Hawkins v. Pierotti, 232 Ga. 631 (208 SE2d 452) (1974); Borden v. I. B. C. Corp., 220 Ga. 688, 690 (1) (141 SE2d449) (1965).


author: SMITH, Presiding Judge.

text:
    A10A1630.
    ALEXANDER v. THE STATE.
    (708 SE2d 583)
   SMITH, Presiding Judge.

Matthew Alexander appeals from his conviction for trafficking in marijuana. He asserts that insufficient circumstantial evidence supports his conviction, that the trial court erred in its charge, and that he received ineffective assistance of counsel. Because the State destroyed evidence introduced during Alexander’s trial, we must reverse.

1. Alexander contends that the State presented insufficient circumstantial evidence that he knew a package that he picked up at a vacant house contained marijuana. In his notice of appeal, he requested that the entire record be transmitted to this court for our review of the sufficiency of the evidence. The record before us, however, contains only a photocopy of State’s Exhibit 1, a DVD recording of the statement Alexander gave to police after his arrest. This DVD recording was admitted into evidence and played twice during Alexander’s trial, but it was not transcribed. Alexander testified and was cross-examined about this statement, counsel for both parties argued about the import of this recording in closing argument (exculpatory versus inculpatory), and the trial court granted the jury’s request to hear it again for a third time during its deliberations.

On March 7, 2011, this court ordered the clerk of the trial court to transmit Exhibit 1 to this court. On March 11, the Gwinnett County District Attorney’s office sent the following letter to this court by facsimile:

Please allow this letter to be a response to this Court’s order dated March 7, 2011, directing the Clerk of Gwinnett County Superior Court to forward State’s Exhibit 1, a DVD recording of Appellant’s police interview, immediately to this Court.
After a diligent search by the staff of the Clerk of Gwinnett County Superior Court and the court reporter at trial, . . . both advise that they are not in possession of State’s Exhibit 1. The trial exhibits, due to their size and nature (marijuana included), were apparently returned to Attorney for Appellee . . . for preservation pending appeal. Also due to their size and nature, I signed an “Evidence Request/Disposition” directing that these items be returned to the secure property room at the Gwinnett County Police Department on September 13, 2007. . . . On that form, I specifically marked that all evidence be held and not destroyed.

Decided March 23, 2011.

Virginia W. Tinkler, for appellant.

Nonetheless, on March 29, 2009, the Gwinnett County Police Department destroyed the DVD, which appears to be the original State’s Exhibit 1 admitted at trial. . . . Upon learning this devastating news, I began to search for a true and correct copy of this exhibit to attempt to provide as a replacement. I have searched the file of the Gwinnett County District Attorney’s Office, contacted Appellant’s trial counsel,. . . contacted Appellant’s appellate counsel, . . . and contacted the lead investigator from the Gwin-nett County Police Department. . . . None of these parties are in possession of State’s Exhibit 1.

Based upon the destruction of State’s Exhibit 1, we cannot conduct a meaningful review of the sufficiency of the evidence. In the Interest of L. G., 230 Ga. App. 153, 154 (1) (495 SE2d 628) (1998). The evidence in this case is circumstantial and presents a close question of sufficiency. See Baltazar v. State, 254 Ga. App. 773, 775 (564 SE2d 202) (2002). In a similar case, we looked at a defendant’s inconsistent statement to conclude sufficient evidence supported the conviction. See Hitchcock v. State, 291 Ga. App. 455, 457 (1) (662 SE2d 155) (2008) (defendant’s statement to police inconsistent with statement to mail drop employee and showed guilty knowledge of box’s contents). In this case, the parties disagree as to whether Alexander’s statement recorded in the DVD was inconsistent with his trial testimony and as to whether it was inculpatory or exculpatory.

Based upon the unique facts and circumstances of this case, we have no choice but to reverse and remand this case to the trial court for a new trial.

2. Our holding in Division 1 renders Alexander’s remaining enumerations of error moot.

Judgment reversed.

Mikell and Adams, JJ., concur.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.


author: Dillard, Judge.

text:
    A10A1674.
    THE STATE v. MCNEIL.
    (708 SE2d 590)
   Dillard, Judge.

Lyna Nicole McNeil was indicted on one count each of possessing cocaine, possessing less than an ounce of marijuana, and possessing an open container of alcoholic beverage in a motor vehicle. McNeil moved to dismiss these charges following the destruction of the master recording of the traffic stop that led to her arrest. The trial court granted this motion, and the State appeals the dismissal of the charges, contending that the trial court misapplied this Court’s decision in State v. Miller, which interpreted the Supreme Court of the United States’s holdings in California v. Trombetta and Arizona v. Youngblood. We reverse the trial court for the reasons noted infra.

The record shows that McNeil was the passenger in a vehicle driven by Corey McCoy, which Cobb County Sheriffs officers observed traveling southbound on South Cobb Drive while patrolling that area. The officers noticed that McCoy’s vehicle did not have a tag, and a traffic stop was initiated and ultimately made just over the county line in Fulton County.

Once the vehicle stopped, McCoy was investigated by the officers for driving under the influence, but he was ultimately arrested for driving with a suspended license. During the investigation of McCoy, the officers noticed an open beer can between McNeil’s seat and the passenger-side door. At this point, however, McNeil was not arrested with McCoy. Instead, McNeil was told by the officers that she was free to leave. Nevertheless, because the officers believed McNeil was intoxicated, she was told to call a friend or family member to pick her up. Unfortunately for McNeil, the hour was late (approaching 2:30 a.m.), and those she contacted for a ride home were either unable or unwilling to comply with her request. McNeil’s fate seemed to take a turn for the better, however, when one of the responding officers—who arrived after McCoy’s arrest—kindly offered to drive her home; and McNeil accepted this gracious offer. Before departing, however, the officer first asked to check McNeil’s purse for weapons as a safety precaution. McNeil consented to this search, and there, in plain view, the officer saw two small bags containing cocaine and marijuana on top of the purse’s other contents. McNeil was then arrested and ultimately indicted on one count each of possessing cocaine, possessing less than an ounce of marijuana, and possessing the open container of alcoholic beverage that was in the vehicle.

Thereafter, at a motion to suppress hearing, McNeil questioned why a copied DVD of the traffic stop provided by the State did not contain the officers’ pursuit of McCoy’s vehicle or her eventual search and arrest. This mattered to McNeil because she claimed that, upon her arrest, McCoy chivalrously yelled from the patrol car that the drugs in her purse actually belonged to him. The copied DVD of the traffic stop, however, began at the Fulton County gas station where McCoy and McNeil were stopped and arrested, and it did not contain any of the officers’ interactions with McNeil. According to the officers, this was because the recording was manually stopped when they believed their investigation had concluded—i.e., when McCoy was arrested and placed in the back of the patrol car. Thus, the search of McNeil’s purse was not recorded.

Additionally, because the recording of the stop began after the officers activated their emergency equipment, the copied DVD also did not show any of the actual pursuit of McCoy’s vehicle as it crossed over from Cobb County into Fulton County. In general, initiating the patrol car’s emergency equipment will result in a “pre-record,” in which the recorder jumps back to tape what occurred in approximately the half-minute before the equipment was initiated, thereby capturing the driving infractions. And here, the officers originally believed that the patrol car’s recording system had malfunctioned because the copied DVD did not contain this “prerecord” of the stop of McCoy’s vehicle.

McNeil eventually subpoenaed the master DVD to compare it to the copied DVD presented by the State at the motion-to-suppress hearing. This subpoena, however, was not delivered until the Friday before McNeil’s Tuesday trial date. And because it would have taken an officer hours to manually copy the master DVD (and he was already scheduled to work multiple shifts that weekend), the State simply agreed to meet with McNeil’s counsel to view the master DVD at the Cobb County District Attorney’s Office the evening before trial.

A few hours before the scheduled viewing of the master DVD, an officer previewed the DVD and advised the District Attorney’s Office that a “pre-record” did in fact exist but had not been included in the copied DVD provided to McNeil. According to the officer, the “pre-record” showed the patrol car pulling out onto South Cobb Drive, the initiation of the stop, and the actual stopping of McCoy’s vehicle at the Fulton County gas station. The officer also viewed the traffic stops recorded both before and after stopping McCoy’s vehicle, and he testified that these buffering incidents had absolutely nothing to do with McNeil’s case, thus showing that the officers never reinitiated the recording device after McCoy’s arrest and that there was no recording of McCoy’s alleged statements that the drugs in McNeil’s purse belonged to him. The assistant district attorney, however, never viewed the master DVD, and prior to speaking with the officer before the meeting, he was not familiar with its contents.

When McNeil’s counsel arrived at the Cobb County District Attorney’s Office, there were immediate issues with viewing the master DVD. Despite the assistant district attorney’s best efforts and attempts at using his computer and a DVD player, the master DVD would not play. Eventually, a tech-sawy investigator was summoned to see if he could get the master DVD to play. Upon arriving, the investigator ejected the DVD, examined it, and placed it back inside the player. He then attempted to eject the master DVD again, but instead of ejecting, the player reformatted the DVD sua sponte, erasing its content. Attempts to thereafter play the master DVD were to no avail, and the State could not explain how or why the machine reformatted the DVD. McNeil’s counsel was present during the entire incident and filed an amended motion to dismiss the following day.

After hearing the evidence on McNeil’s motion to dismiss, the trial court explicitly stated that it did not believe the State had intentionally destroyed the master DVD in bad faith. The court, nevertheless, concluded that the master DVD could have contained material exculpatory evidence and that McNeil could not obtain comparable evidence through other reasonable means. Specifically, the trial court was concerned that it could not determine what was on the master DVD and that, if what McNeil claimed was true (i.e., that the master DVD might have shown McCoy claiming the drugs as his own and that venue was improper), this evidence would have been materially exculpatory, at least in part. For this reason, the trial court granted McNeil’s motion to dismiss the State’s charges against her. This appeal by the State follows.

On appeal, the State contends that the trial court misapplied this Court’s holding in State v. Miller, At the outset, however, we note that our decision in Miller—which is relied upon by both parties and was relied upon by the trial court—has since been overruled by the Supreme Court of Georgia, and it is this decision that controls our decision in the case sub judice.

In Miller, we addressed a trial court’s dismissal of charges following the State’s destruction of a cell phone that a criminal defendant claimed contained contact information for potential alibi witnesses. We affirmed the dismissal, agreeing with the trial court that the evidence was potentially exculpatory and that the State “had engaged in conscious wrongdoing and thus acted in bad faith.” Our Supreme Court disagreed with the standard we set forth in Miller, holding that the cell phone in that case did not rise to the level of constitutional materiality, which is the “threshold inquiry” in such matters. In order to rise to that level, the exculpatory value of the evidence must be apparent before its loss or destruction, and the evidence must be “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Finally, our Supreme Court concluded that the cell phone’s destruction in Miller was “accurately characterized as an unfortunate series of mishandlings, mistakes, and negligence by police,” such that there was no showing of bad faith by the State.

Applying the foregoing standard in the case sub judice, we disagree with the trial court that the master DVD rose to the level of constitutional materiality; rather, the lost evidence in McNeil’s case was at best potentially exculpatory. And while we understand the trial court’s trepidation over its inability to review the master DVD, the record before us does not support a finding that the loss of the master DVD’s contents required dismissal of McNeil’s charges. First, there was testimony at the motion hearing that the master DVD’s “pre-record” showed the officers’ pursuit from Cobb County into Fulton County and that the master DVD did not contain anything else relevant to McNeil’s arrest; thus, nothing suggests that this evidence had apparent exculpatory value. Second, we do not believe McNeil is unable to obtain comparable evidence. To the contrary, she may cross-examine the officers regarding the venue issue and McCoy’s alleged statements regarding ownership of the drugs in question, and she may also call McCoy as a witness at trial. Accordingly, the master DVD simply does not rise to the level of constitutional materiality. As our Supreme Court explained in Miller, “the fact that evidence may be potentially useful in a defendant’s attempt at exoneration is insufficient to sustain a claim that the defendant has suffered an abridgment of due process of law due to the destruction or loss of the evidence.”

Finally, because we hold that McNeil’s evidence was only potentially useful, the destruction of the master DVD does not—in the absence of a showing of bad faith on the part of the State—amount to a due-process violation. And here, while the destruction of the master DVD was certainly regrettable, it was not obviously intentional, as the trial court itself noted in its ruling. The officers involved in the traffic stop and the members of the district attorney’s office might well have been negligent or perhaps carelessly unfamiliar with the workings of their own technology, as was acknowledged by the trial court, but “there is no evidence that the [master DVD] was destroyed out of an interested or sinister motive [ ] or through a conscious doing of wrong.” Furthermore, without evidence that the master DVD was materially exculpatory, our decision on this point would not change even if the DVD provided McNeil with her only hope for exoneration because the bad-faith requirement of Young-blood still applies in such circumstances.

Decided March 23, 2011.

Patrick H. Head, District Attorney, Dana J. Norman, John R. Edwards, Amelia G. Pray, Assistant District Attorneys, for appellant.

Kimberly K. Frye, for appellee.

Accordingly, for all of the foregoing reasons, we reverse the trial court’s dismissal of the charges against McNeil.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       298 Ga. App. 584 (680 SE2d 627) (2009), reversed by State v. Miller, 287 Ga. 748 (699 SE2d 316) (2010).

       467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984).

       488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988).

       The officers testified that they were not going to allow McNeil to walk or drive home for her own safety due to her intoxicated state; and while McNeil testified that she felt that she could not leave the scene, she was not handcuffed, she was never told she could not leave, she never attempted to leave, and she was allowed to continue using her cell phone. McNeil also admitted to drinking, and she accepted the offer of a ride because she did not want to walk home in four-inch heels.

       As to why the officers pursued McCoy and McNeil from Cobb County into Fulton County, there was testimony that the vehicle was traveling at approximately 45-50 miles per hour about one-half to one-quarter mile inside Cobb. The officers, however, were at a complete stop when they noticed that McCoy’s vehicle did not have a tag, placing the officers a few hundred yards behind McCoy’s vehicle before finally catching up with it. The officers testified that they were less than a mile inside Fulton County at the point of the traffic stop and that they activated their vehicle’s emergency equipment a few hundred feet over the county line.

       Apparently the equipment used in Cobb County patrol cars records the “pre-record” and the actual stop on two different titles, and only the second title (i.e., the actual traffic stop) had been copied from the master DVD. The officer who requested the initial copy of the master DVD was in training during the relevant time period, and he later admitted that it was his error to not also request a copy of the “pre-record.”

       The master DVD was already in a DVD player when he arrived, having been placed there by an earlier investigator, but neither investigator knew anything about what the DVD contained or that it was original evidence.

       McNeil had previously moved to dismiss the charges against her on venue grounds.

       298 Ga. App. 584 (680 SE2d 627) (2009).

        See Miller, 287 Ga. at 748.

       298 Ga. App. at 584-86.

        Id. at 591-92. The dissent maintained that the evidence was insufficient to prove bad faith and that it instead merely demonstrated negligence and/or carelessness on the part of the State. Id. at 592 (Bernes, J., dissenting).

       We interpreted the Supreme Court of the United States’s holdings in Youngblood and Trombetta and announced the following standard:

        Youngblood describes three types of evidence: (1) that which the police knew “would have exculpated” the defendant, (2) that which the police knew “could have exculpated” the defendant, and (3) that of which nothing more can be said other than it is potentially useful evidence. Youngblood seems to treat the first type of evidence as “material exculpatory evidence” and to make good or bad faith irrelevant when the police destroy or fail to preserve such evidence. As to the second and third types of evidence, Youngblood seems to require a showing of bad faith such as the type outlined in Trombetta, i.e., official animus toward the defendant or a conscious effort to suppress exculpatory evidence, before the [SJtate’s destruction or failure to preserve such evidence rises to the level of a due process violation. And before dismissal of criminal charges is warranted for destruction or failure to preserve any of the three types of evidence, it would seem that the Trombetta requirement, concerning the inability of the defendant to obtain comparable evidence by other reasonably available means, continues in effect.

        Miller, 298 Ga. App. at 589-90 (footnotes omitted). In reversing this Court’s decision in Miller, our Supreme Court noted that the appropriate standard for analyzing whether the destruction of potentially exculpatory evidence rises to a violation of due process had already been established in prior decisions, that we erred in failing to apply this standard, and that this standard “was not met in Miller’s case.” Miller, 287 Ga. at 748.

        Miller, 287 Ga. at 748, 754-55.

        Trombetta, 467 U. S. at 489 (II); see also Miller, 287 Ga. at 754.

        Miller, 287 Ga. at 755.

        See Ballard v. State, 285 Ga. 15,15-16 (2) (673 SE2d 213) (2009) (holding that dismissal was not required when the State destroyed tape-recorded conversation that was not apparently exculpatory and the content of which was addressed in thorough cross-examination). Compare State v. Blackwell, 245 Ga. App. 135, 135 (537 SE2d 457) (2000) (dismissal proper when State intentionally destroyed urine sample, which initially tested negative for drugs, later tested positive, and which defendant sought to independently test).

       The Supreme Court of the United States has likewise recognized the difficulty of this task, noting that “[wjhenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” Trombetta, 467 U. S. at 486 (II) (citation omitted).

        See State u. Brawner, 297 Ga. App. 817, 818-19 (678 SE2d 503) (2009) (reversing trial court’s dismissal of indictment when, based on officer testimony regarding what appeared on destroyed surveillance tape, there was no evidence that anything “was readily seen, understood, evident, or obvious or that it had any exculpatory value”); see also Lynott v. State, 198 Ga. App. 688, 690 (4) (402 SE2d 747) (1991) (no dismissal required when officers destroyed audio recording of drug buy and testified that tape was unintelligible, but defendant claimed the recording could have contained exculpatory evidence). Accord Bennett v. State, 23 So3d 782, 787 (II), 794 (VI) (Fla. Dist. Ct. App. 2009) (holding that destroyed video of a field sobriety test “seems more likely to be a loss of ‘possibly useful’ evidence under the analysis in Youngblood,” and suggesting that such a video is not “material exculpatory evidence unless the police admit that it contained evidence that supported the defendant’s theory that he was sober”).

        Cf. Trombetta, 467 U. S. at 490 (III) (“[T]he defendant retains the right to cross-examine the law enforcement officer who administered the [destroyed] test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered.”). Additionally, we note that the master DVD’s “pre-record” would have presented cumulative evidence on the issue of venue because officers admitted that they initiated the emergency equipment in Fulton County, not Cobb County. See note 5 supra.

        Miller, 287 Ga. at 754 (emphasis supplied) (punctuation omitted) (quoting Krause v. State, 286 Ga. 745, 752 (8) (691 SE2d 211) (2010)). Cf. United States v. Agurs, 427 U. S. 97, 109-10 (III) (96 SC 2392, 49 LE2d 342) (1976) (“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”).

        Youngblood, 488 U. S. at 58 (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (emphasis supplied)); see Krause, 286 Ga. at 752-53 (8) (no due-process violation when evidence was only potentially useful and no showing of bad-faith destruction); Davis v. State, 285 Ga. 343, 348-49 (9) (676 SE2d 215) (2009) (same); Brannan v. State, 275 Ga. 70, 74 (2) (c) (561 SE2d 414) (2002) (same); see also Milton v. State, 232 Ga. App. 672, 679 (6) (503 SE2d 566) (1998) (no due-process violation when defendant could use comparable evidence and no showing of bad-faith destruction); Brantley v. State, 199 Ga. App. 623, 623-24 (1) (405 SE2d 533) (1991) (same).

        See Brawner, 297 Ga. App. at 820 (“[T]here is no evidence that the police had knowledge that the videotape had exculpatory value when it was lost. . . . Georgia courts have required more than negligent or careless conduct to support a finding of bad faith.”).

       Whether the State acted in bad faith is a question of fact for the trial judge, who resolves issues of truthfulness. See, e.g., Swanson v. State, 248 Ga. App. 551, 551 (1) (a) (545 SE2d 713) (2001); Milton, 232 Ga. App. at 679 (6). And we will not disturb the trial court’s finding in this respect, so long as there is any evidence to support it. Swanson, 248 Ga. App. at 551 (1) (a); Milton, 232 Ga. App. at 679 (6).

        Swanson, 248 Ga. App. 551, 552 (1) (a); see also Fincher v. State, 276 Ga. 480, 483-84 (5) (578 SE2d 102) (2003) (“At most, the record shows negligence in record keeping to be the cause of the failure to preserve the evidence. That being so, the trial court did not err in ruling that bad faith had not been shown.”); Walker v. State, 264 Ga. 676, 681 (3) (449 SE2d 845) (1994) (“[T]he handling of the [evidence] may indicate careless, shoddy and unprofessional investigatory procedures, but it does not indicate that the police in bad faith attempted to deny [the defendant] access to evidence that they knew would be exculpatory.”).

        See Illinois v. Fisher, 540 U. S. 544, 548 (124 SC 1200, 157 LE2d 1060) (2004) (per curiam) (“We . . . disagree that Youngblood does not apply whenever the contested evidence provides a defendant’s ‘only hope for exoneration’ and is ‘essential to and determinative of the outcome of the case.’ ” (citation and punctuation omitted)). When evidence is only potentially useful, bad faith must be established because the applicability of this requirement does not depend “on the centrality of the contested evidence to the prosecution’s case or the defendant’s defense, but on the distinction between ‘material exculpatory’ evidence and ‘potentially useful’ evidence.” Id. at 549 (citation and punctuation omitted).