text:
    A10A2122, A10A2123.
    ROBERTS v. KINSEY (two cases).
    (708 SE2d 600)
   SMITH, Presiding Judge.

In these consolidated appeals, Nathaniel Roberts appeals from the trial court’s order modifying custody, child support, and visitation in Case No. A10A2122, and from the trial court’s order finding him in contempt in Case No. A10A2123. For the reasons set forth below, we affirm.

The record shows that Roberts and Tracey Kinsey obtained a divorce decree on July 25, 2008, that incorporated a handwritten “Memorandum of Understanding” agreed to by both parties during a mediation. Based upon this agreement, the parties shared “joint legal and physical custody” of their five-year-old son. The agreement provided that Roberts “shall enroll the child in the Henry County GA School district” during the “school year 2008-2009 and thereafter.” It also provided: “Any change or relocation by husband should be agreed upon by the parties, and if not, will be circumstance to trigger reevaluation of custody by court.”

On October 1, 2008, Kinsey filed a motion for contempt against Roberts in Henry County Superior Court alleging that Roberts was a resident of Maryland, that he had taken the child to Maryland instead of enrolling him in the Henry County School System, and that he was refusing to return their son to Georgia. On December 2, 2008, Kinsey filed a motion for an emergency ex parte order in the same action (08-CV-4254-M). On the same day, the court awarded her “temporary sole legal and physical custody of the child” and also ordered that “[t]he child is to be returned to the mother’s care, custody and control. The child is to be returned to the State of Georgia immediately.”

On December 11, 2008, Roberts moved for an emergency hearing to set aside the emergency ex parte order. He alleged that he was a member of the United States Air Force and had recently been reassigned from Columbus, Georgia to Frederick County, Maryland.

On January 7, 2009, Kinsey filed a separate petition to change custody in Henry County Superior Court (09-CV-0041). She asserted that Roberts’ conduct in “absconding with the child and the father’s failure to enroll the child in Henry County schools” created a substantial change in circumstances, necessitating a change in custody. She also asked that the hearing on Roberts’ motion to set aside the emergency ex parte order in Case No. 08-CY-4254-M be consolidated with a hearing on her petition to change custody.

Roberts filed an answer to the petition to change custody on February 3, 2009, and did not assert a venue defense. On June 5, 2009, Roberts filed a motion to dismiss the petition to change custody in which he asserted an improper venue defense for the first time. At a hearing on July 8, 2009, the trial court denied Roberts’ motion to dismiss because he waived the venue issue.

In July 2009, the superior court conducted separate evidentiary hearings on the motion for contempt and the petition to change custody. On October 12, 2009, the superior court issued a detailed written order on Kinsey’s motion for contempt. The court concluded that “Defendant having admitted that he did not enroll the minor child in the Henry County school system for the 2008-2009 school year, is hereby found in wilful contempt of this Court’s order. There is no action necessary to purge on this issue.” The trial court also found Roberts in contempt for failing to transfer a college fund and failing to pay $8,000 to Kinsey. Finally, it awarded $2,500 in attorney fees to Kinsey.

On October 19, 2009, the superior court issued a final order granting Kinsey’s petition to change custody, child support, and visitation. The court noted that it entered a final judgment and decree of divorce in Case No. 07-CV-2687-M on July 25, 2008, which incorporated the agreement of the parties regarding custody. It found

that the father totally disregarded this Court’s order of July 25, 2008 without logical reasons or legitimate justification within a month of the order being signed. The father intentionally deceived the mother into believing that he was planning to enroll the minor child in the Henry County school system. The father then fled with the child to an out-of-state undisclosed location and hid the child. The father intentionally avoided contact with the mother for a significant amount of time; meanwhile, the mother was attempting to locate the child.
The father is an active member of the United States military and his current duty assignment makes this Court’s order of July 25, 2008 untenable for the minor child. It is in the best interest of the minor child to have a stable home environment. The mother is providing a stable home environment; the father cannot provide a stable home environment.
Based on this Court’s findings, the mother is hereby awarded sole legal and physical custody of the parties’ minor son. . . . The father is awarded visitation as outlined in the Parenting Plan. . . .

In Case No. A10A2123, Roberts appeals from the trial court’s order finding him in contempt. In Case No. A10A2122, Roberts appeals from the trial court’s final order on custody.

Case No. A10A2123

1. Roberts asserts the trial court erred by finding him in wilful contempt of the agreement incorporated into his final divorce decree. The trial court’s order shows that it found Roberts in contempt for failing to enroll his son in the Henry County school system. The parties’ agreement provided that Roberts “shall enroll the child in the Henry County GA School district,” that any changes would have to be agreed upon by the parties, and that if the parties could not agree, court intervention would be required. The record supports the trial court’s conclusion that Roberts wilfully failed to enroll his son in the Henry County school system as required by the agreement, particularly in light of his failure to communicate with Kinsey before moving the child out of state and his failure to seek a judicial reevaluation of custody based upon his planned move.

2. Roberts asserts the trial court “erred by relying on a facially invalid self-executing custody provision” in the parties’ agreement. In support of this argument, Roberts cites Scott v. Scott, 276 Ga. 372 (578 SE2d 876) (2003), in which the Supreme Court found that public policy is violated by the use of automatic change of custody provisions that do not provide judicial scrutiny into the best interest of the child at the time of the modification. Id. at 373-377.

We find no merit in this argument because the agreement did not include a self-executing change of custody provision. Instead, it provided for reevaluation of custody by the court in the event Roberts were to move outside of Henry County. This language provides for precisely the type of judicial scrutiny required by the Supreme Court in Scott.

3. Roberts contends the agreement “effectively restricted him] from establishing residence anywhere other than Henry County” and constituted an unlawful attempt to retain jurisdiction over the child. We disagree. The agreement provided only that a judicial reevaluation of custody would be triggered if Roberts moved. The outcome of any reevaluation was not pre-determined, and the provision does not constitute an unlawful attempt by a court to retain jurisdiction. See Facey v. Facey, 281 Ga. 367, 371 (7) (638 SE2d 273) (2006).

4. We find no merit in Roberts’ remaining claims that the trial court made an improper custody award through its ex parte emergency order in the contempt action. The record shows that the trial court issued a final order modifying custody in a separate action as required by OCGA § 19-9-23. This final order renders any issues regarding the validity of the temporary order moot. Edwards v. Edwards, 226 Ga. 875, 878 (2) (178 SE2d 168) (1970).

Case No. A10A2122

5. In related enumerations of error, Roberts asserts the trial court erred by (1) denying his motion to dismiss Kinsey’s petition to change custody based upon improper venue and (2) issuing a final order in a case with improper venue. We cannot consider these claims because Roberts failed to raise this issue in his answer or by a motion filed at or before the time he filed his answer. Gravley v. State of Ga., 285 Ga. App. 691, 692-693 (1) (647 SE2d 372) (2007).

6. Roberts asserts the trial court erred in its custody decision because it “relied on a gross misinterpretation of the facts” and “included unsubstantiated and false statements in its findings of fact.” Roberts takes issue with the following statement in the trial court’s order: “The father then fled with the child to an out-of-state undisclosed location and hid the child. The father intentionally avoided contact with the mother for a significant amount of time. . . .”

Where, as here, the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, this Court will not interfere with that decision unless the evidence shows the trial court clearly abused its discretion. Where there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.

(Citations and punctuation omitted.) Haskell v. Haskell, 286 Ga. 112 (1) (686 SE2d 102) (2009). “[F]actual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” (Citations and punctuation omitted.) Harris v. Williams, 304 Ga. App. 390 (696 SE2d 131) (2010).

The record in this case supports the factual findings made by the trial court. The record shows that on July 25, 2008, the court approved the parties’ agreement to share joint physical and legal custody of their child. Under this agreement, Roberts would care for the child on weekdays, provided he enrolled their child in the Henry County school system, and the mother would care for the child on weekends.

On Wednesday, August 6, the father picked up the child at the office of the mother’s attorney for the purpose of enrolling the child in the Henry County school system. When Kinsey attempted to pick up the child the following Friday at the designated location, Roberts did not appear and did not answer his cell phone. After one hour, Roberts called her back and told her “I will not be coming today. I will see you next weekend.” Roberts claimed that he had made arrangements with Kinsey’s lawyer and obtained his consent to “not show up.”

Roberts also failed to appear the following Friday, did not answer his phone, and did not respond to Kinsey for two weeks. When Kinsey called her attorney about Roberts’ failure to appear again, she learned that Roberts had left Georgia.

On August 19, Roberts sent Kinsey an e-mail letting her know that their son was okay, that he was enrolling him in school in Frederick, Maryland, that he planned for the child to live with him during the school year, and that the child would live with Kinsey for the entire summer. Kinsey was unable to reach Roberts or her son by telephone after receiving this e-mail. On September 15, Roberts sent Kinsey another e-mail giving her his address and new phone number in Maryland for the first time.

This evidence supports the trial court’s findings, and we find no abuse of discretion. While Roberts presented an alternative version of these events, the trial court was not obliged to accept it. See Harris, supra, 304 Ga. App. at 390.

7. Roberts asserts the trial court erred by failing to conduct the appropriate best interest of the child analysis. According to Roberts, the trial court “concluded that Roberts’ military assignment prevents him from providing a stable home environment for [the child].” A review of the trial court’s order shows that it did not draw the conclusion asserted by Roberts.

Decided March 23, 2011.

Stephen H. Robinson, for appellant.

Nichole A. Reynolds, for appellee.

The father is an active member of the United States military and his current duty assignment makes this Court’s order of July 25, 2008 untenable for the minor child. It is in the best interest of the minor child to have a stable home environment. The mother is providing a stable home environment; the father cannot provide a stable home environment.
Based on this Court’s findings, the mother is hereby awarded sole legal and physical custody of the parties’ minor son. . . .

The trial court concluded that its previous custody order was not workable after the father’s transfer to Maryland; it did not link the father’s military service to an unstable home environment. The record contained ample evidence from which the trial court could have determined that Roberts could not provide a stable home: he took the child from Georgia to Maryland without telling the child’s mother; he suffered from bipolar personality disorder; and he had previously been hospitalized for “suicidal ideation.” Based upon this evidence, Roberts has failed to show that the trial court abused its discretion by concluding that he could not provide a stable home. Moreover, the trial court’s order demonstrates that it made its custody determination based upon the best interest of the child.

8. Roberts’ remaining enumerations of error have no merit for the reasons provided in Case No. A10A2123.

Judgments affirmed.

Mikell and Adams, JJ, concur.

       She later amended her contempt motion to assert other claims unrelated to custody.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A2165.
    EFFINGHAM COUNTY BOARD OF COMMISSIONERS v. PARK WEST EFFINGHAM, L.P.
    (708 SE2d 619)
   SMITH, Presiding Judge.

In this case of first impression, we are called upon to interpret the language of OCGA § 36-71-4, providing for the calculation of development impact fees for public facilities. Park West Effingham, L.E (“Park West”), a developer, brought this declaratory judgment action against the Effingham County Board of Commissioners (“the county”) and the Georgia Environmental Facilities Authority (“GEFA”), seeking, in addition to other relief, a declaration that Park West was not required to pre-pay impact fees pursuant to an agreement with the county. Park West contended in its petition that the agreement violated the provisions of the Georgia Development Impact Fee Act, OCGA § 36-71-1 et seq. (“DIFA”). The trial court agreed and granted summary judgment in favor of Park West on this issue, finding that the agreement was void because it violated OCGA § 36-71-4 (d), prohibiting the collection of impact fees before the issuance of a building permit. The county appeals, and we affirm.

The intent of DIFA was to promote orderly growth and development by establishing uniform standards by which municipalities and counties may require that new growth and development pay a proportionate share, but no more than its proportionate share, of the cost of new facilities needed to serve new growth and development; to establish minimum standards for the adoption of development impact fee ordinances by municipalities and counties; and to prevent duplicate and ad hoc development exactions. DIFA defines a development impact fee as “a payment of money imposed upon development as a condition of development approval to pay for a proportionate share of the cost of system improvements needed to serve new growth and development.”

(Citations and footnotes omitted.) City of Griffin v. McDaniel, 270 Ga. App. 349, 350-351 (606 SE2d 607) (2004). The subsection of DIFA at issue here, OCGA § 36-71-4 (d), provides:

A municipal or county development impact fee ordinance shall provide that development impact fees shall be collected not earlier in the development process than the issuance of a building permit authorizing construction of a building or structure; provided, however, that development impact fees for public facilities described in subparagraph (D) of paragraph (17) of Code Section 36-71-2 may be collected at the time of a development approval that authorizes site construction or improvement which requires public facilities described in subparagraph (D) of paragraph (17) of Code Section 36-71-2.

(Emphasis supplied.) DIFA further provides that “all local ordinances or resolutions imposing development exactions . . . shall be brought into conformance with this chapter no later than November 30, 1992.” OCGA § 36-71-12.

The county obtained financing from GEFA for the expansion and improvement of its water and sewer system. As a special condition of its loan with GEFA, the county agreed: “Effingham County will collect a total of $6.5 million in nonrefundable Impact and other Fees and/or cumulative letters of credit from developers. Letters must be in hand at GEFA prior to Contract Execution.”

Park West, a real estate developer, is the builder of a subdivision of new homes in Effingham County. As part of the development process, Park West’s predecessor in title, DJ Development Company, Inc., signed an agreement with the county dated April 5, 2006 and titled “Water, Sewer, and Re-use Water Service Agreement (Impact Form)” (“the agreement”). Section 5 of the agreement, “Impact Fees; Re-Use Fees,” provides: “To assist in the payment of the cost of constructing the County’s water supply and distribution and sewage collection and treatment systems, the Developer shall pay to the County impact fees as established by ordinance of the Board of Commissioners. . . .” Section 6 of the agreement, “Guaranty and Security,” provides:

Subject to the provisions of the following paragraph, the Developer and/or its permitted successors and assigns shall guarantee to the County the payment of $1,245,360.00, which represents V2 of the total estimated water and sewer impact fees that will be generated by the Project based upon the per ERU [“equivalent residential units”] water and sewer impact fees currently in effect. The Developer’s guarantee shall be secured by an irrevocable Letter of Credit in favor of the Board of Commissioners of Effingham County and the Georgia Environmental Facilities Authority, to be delivered within ten (10) days of the execution of this Agreement. The amount of the Letter of Credit shall not be reduced until the County has received the water and sewer impact fees, and re-use capacity fees due for V2 of the total estimated ERUs included within the Project. Thereafter, the amount of the Letter of Credit may be reduced annually effective the 1st day of the month following the month in which potable water, wastewater collection, and re-use water are available to the Project at the connection point, so that the amount of the Letter of Credit does not exceed the total remaining estimated water and sewer impact fees associated with the Project build-out.
The Developer anticipates a build-out period of 10 years for the Project, or 60.1 ERUs per year. Based upon this Project build-out period, the Developer agrees to pay water and sewer impact fees and re-use capacity fees (if applicable) of not less than $297,152.00 per year for the 10-year Project build-out period. The first of such payments will be due, unless the County sooner receives all or part thereof, one year from the last day of the month in which potable water, wastewater collection, and re-use water are available to the Project at the connection point (the “Annual Payment Guaranty Due Date”), with subsequent annual payments due on the same date of each succeeding year through the term of the contract (unless the County sooner receives payment thereof). This amount represents the estimated sum due annually for water and sewer impact fees based on the current impact fees. . . . The County shall submit a notice of any shortfall in the collection of annual water and sewer impact fees and re-use water capacity fees not less than sixty (60) days before each anniversary of the Annual Payment Guaranty Due Date. The Developer shall have thirty (30) days to review such statement, ask for supporting information, and/or challenge the statement (the “Review Period”). The Developer shall fund any shortfall in the collection of annual water and sewer impact fees and re-use capacity fees by certified check, money order, or other certified funds within thirty (30) days after the end of the Review Period. In the event Developer does not pay the County the shortfall within said period, the County may draw the entire Letter of Credit.

On March 18, 2009, the county served upon Park West a “Notice of Shortfall” seeking payment of approximately $700,000 for impact fee payments. This notice sought payment of impact fees on the basis of the percentage provided for in the contract, without consideration of whether building permits had been issued. In fact, no building permits had been issued corresponding with the amount sought in the Notice of Shortfall.

Park West filed a challenge to the county’s Notice of Shortfall in accordance with the agreement. It then filed this action seeking a declaration that it did not owe any pre-payment of impact fees. The county then attempted to call Park West’s letter of credit, but Park West obtained a temporary injunction forbidding that action.

As the trial court observed, the language of the agreement requires impact fees to be paid prior to the issuance of a building permit, in violation of OCGA § 36-71-4 (d). GEFA in its pleadings below agrees with this interpretation:

GEFA does not, has not, nor will it in the future construe this or any other loan agreement in derogation of Georgia law, including DIFA. Inasmuch as the loan agreement between GEFA and the county appears to direct Effingham County to collect impact fees or otherwise raise revenues, GEFA is willing to amend its loan agreement to make it clear that the impact fee should be collected only as prescribed by Georgia law. Furthermore, GEFA’s sole focus is ensuring that Effingham County repays its obligations to GEFA under the Loan Agreement.

The county argues that it may contract with a developer on any terms agreeable to both, quoting Fulton Greens, L.P. v. City of Alpharetta, 272 Ga. App. 459 (612 SE2d 491) (2005): “Absent a limiting statute or controlling public policy, parties may contract with one another on whatever terms they wish and the written contract defines the full extent of their rights and duties.” Id. at 463, n. 14. But the county overlooks the controlling issue here: a limiting statute is present. OCGA § 36-71-4 (d) forbids the pre-payment of impact fees.

“An agreement to violate [a statute] would be unlawful and against the public policy. . . . Such contracts are unenforceable. OCGA §§ 13-8-1, 13-8-2; Moore v. Dixon, 264 Ga. 797, 799-800 (2) (452 SE2d 484) (1994).” Taylor v. Kennestone Hosp., 266 Ga. App. 14, 22 (4) (b) (596 SE2d 179) (2004). Parties to a contract cannot agree to alter state law. Maner v. Chatham County, 246 Ga. App. 265, 266-267 (540 SE2d 248) (2000).

The county also argues that the agreement does not require pre-payment of impact fees, and that any violation of the statute was avoidable and thus “only collateral or remotely connected” to the agreement, citing Shannondoah, Inc. v. Smith, 140 Ga. App. 200, 202 (230 SE2d 351) (1976). According to the county, Park West could avoid pre-paying impact fees by building enough houses to meet the contractual requirement, and “the issue of pre-payment of impact fees would not have arisen at all.” This reasoning, the county contends, brings the agreement within the purview of Shannondoah. We disagree.

Decided March 23, 2011

Zipperer, Lorberbaum & Beauvais, Eric R. Gotwalt, for appellant.

Claude M. Kicklighter, Jr., for appellee.

In that decision, Shannondoah, Inc. by contract granted Smith the privilege of operating a tavern for a stated period, in exchange for certain payments to the corporation. When Shannondoah brought suit for breach of the contract, Smith asserted that the contract was illegal because he had failed to obtain a liquor license as required by the contract. Shannondoah, supra at 201. We rejected that argument, noting that a violation of law was not required by the contract and that any violation was merely “incidental to contract performance.” Id. at 203. Smith had obtained a liquor license for part of the period in question, and “the evidence [did] not show that Smith had to, or in fact did, violate the law in order to perform under the contract.” Id.

In contrast, here the evidence shows that the agreement itself, drafted by the county, is in violation of OCGA § 36-71-4 (d) in its basic purpose: the collection of impact fees to repay the county’s loan from GEFA. It calculates the payment of impact fees not in reference to the issuance of building permits, as required by the statute, but as a sum certain. It further provides for a guarantee of the payment of a minimum stated amount on a yearly basis for a ten-year period, and an irrevocable letter of credit to be provided immediately for one-half the total amount owed. The letter of credit and the minimum payment constitute pre-payment of impact fees for the purpose of retiring the county’s debt with GEFA. This is not merely collateral or incidental to performance of the agreement, but constitutes the entire method of calculating, collecting and enforcing payment. As such, it violates OCGA § 36-71-4 (d) by requiring the pre-payment of impact fees. The trial court did not err in granting Park West summary judgment on this issue.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       In its petition, Park West also sought a declaration that it was not bound by the agreement executed by its predecessor in title and not assigned to it. But, as the trial court noted, the parties agreed to bifurcate this issue, and we do not reach it because we affirm the trial court’s finding that the contract is void.

       GEFA is not a party to this appeal.

       In Fulton Greens, a developer chose to construct certain public improvements itself. It then sought cash reimbursement from the city in lieu of impact fees pursuant to OCGA § 36-71-7 (b). But we noted that OCGA § 36-71-13 (b) explicitly permits developers and municipalities to provide by contract for the method of reimbursement, and that the developer and the city had agreed to reimbursement in the form of impact fee credits, not cash. Id. at 463-464.


author: Smith, Presiding Judge.

text:
    A10A2232.
    CARTER v. THE STATE.
    (708 SE2d 595)
   Smith, Presiding Judge.

Brandon Levi Carter appeals from his convictions for possession of methamphetamine, manufacture of methamphetamine, and manufacture of methamphetamine with a child present. Carter contends he received ineffective assistance of counsel and that the trial court erred by denying his motion to suppress and failing to merge two of his convictions. For the reasons set forth below, we affirm in part and vacate in part.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The record in this case shows that a police officer unsuccessfully attempted to execute an arrest warrant for Carter’s brother at the home of their father. When the father told the officer that the brother was living at Carter’s home, the officer went to Carter’s home to attempt to serve the warrant. Carter and his wife acknowledged that the brother lived with them and informed the officer that he was out of town working and would not be back until the weekend. The officer informed them of the arrest warrant and asked them to tell the brother to turn himself in.

A week later, the same officer, along with three other officers, went to Carter’s home to try to arrest the brother. The lead officer testified that he took other officers with him because he feared the brother “was going to run” and was “known to be a flight risk.” The officers arrived between 4:00 and 5:00 a.m., and the lead officer told “two officers to go to the back.”

When the officers knocked on the front door of Carter’s home, he came to the door and gave nonverbal indications that his brother was in the home hiding in a closet. The officer then arrested the brother, and the officers secured the scene.

One of the officers who went to the back of the mobile home testified that he “went to the back door area, an escape route, because of the fact that he was known to try to flee.” He testified that it was “routine” for one officer to go to the rear of a house to secure it and prevent “any flight attempt.” He did not wait for the other officers to knock on the front door before going to the back of the mobile home.

As the officer was getting out of his car after parking it in the rear of the mobile home, he noticed “a strong chemical odor not commonly smelled around a household.” The smell grew stronger as he approached the back door of the mobile home. He noticed a shed sitting next to the house with a light on, and the smell appeared to be coming from this shed. The officer then stepped “a little closer to the building” and saw that the door was ajar with “an inch to inch-and-a-half gap between the door and the door frame.” When he looked through the partially open door, he saw a video monitoring the front of the mobile home and various items consistent with an active methamphetamine lab.

As soon as the officer realized there was an active methamphetamine lab, he went to the front of the mobile home, where he heard the other officers inside talking to Carter and his family. He informed the other officers about what he had discovered, and they evacuated the home based upon the dangers posed by a methamphetamine lab. The police then obtained a search warrant for the home and its outbuildings based upon the officer’s affidavit averring that he “had occasion to observe an active, working methamphetamine lab in operation within plain view” while serving an arrest warrant.

The trial court orally denied Carter’s motion to suppress based upon its conclusion that “it was not unreasonable for the officer to send one of the officers towards the back where there was a rear entrance.” In a written order denying Carter’s motion for new trial, the trial court found

the evidence used to convict Defendant of drug offenses was not improperly obtained by the State. The evidence reflects that the officers came to the subject premises to execute a lawful arrest warrant for [the brother], and in executing that warrant the officers were authorized to station someone to prevent that subject from fleeing from the rear of the premises. What was perceived by the officer at the rear of the premises constituted probable cause to obtain a search warrant.

1. Carter contends the trial court erred by concluding as a matter of law that the officers had the right to be in the rear of his home when they executed the arrest warrant for his brother. We disagree. “An arrest warrant. . . implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Citations and punctuation omitted.) Wall v. State, 291 Ga. App. 278, 279 (661 SE2d 656) (2008). We find that this limited authority includes the right to enter the back yard of the home to prevent any attempted escape through the rear. Because the record in this case demonstrates that the brother lived with Carter and that he would be present in the home when the officers returned to serve the arrest warrant, the trial court did not err when it concluded that the police were authorized to enter the back yard of the premises and look into the open door of the shed. See id. (officers entitled to enter home of defendant to serve arrest warrant for another who also lived there); Reed v. State, 163 Ga. App. 233, 234 (293 SE2d 469) (1982) (officer entitled to enter storage room to look for defendant when serving arrest warrant at defendant’s residence).

We find no merit in Carter’s contention that the United States Supreme Court’s decision in Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38) (1981), applies to this case. In Steagald, the United States Supreme Court held that police cannot enter a third party’s home to execute an arrest warrant for another person without a search warrant, consent, or exigent circumstances. 451 U. S. at 213-214 (III). In Steagald, however, there was no evidence that the subject of the arrest warrant resided in the third party’s home, as there is in this case. For this same reason, other cases upon which Carter relies are also distinguishable. See, e.g., State v. Gravitt, 289 Ga. App. 868, 870 (2) (a) (658 SE2d 424) (2008) (upholding trial court’s finding that police improperly entered cur-tilage of third party’s home to arrest another who did not reside there); Leon-Velazquez v. State, 269 Ga. App. 760, 761-762 (1) (605 SE2d 400) (2004) (absent exigent circumstances, officer could not step into third party’s home while serving an arrest warrant on nonresident); State v. Schwartz, 261 Ga. App. 742, 743-745 (1) (583 SE2d 573) (2003) (upholding trial court’s finding that officer could not peer through window of third party’s home while serving arrest warrant on nonresident).

Carter also relies upon cases in which the police had no warrant of any kind. See Kirsche v. State, 271 Ga. App. 729 (611 SE2d 64) (2005) (officers investigating domestic complaint could not enter back yard for routine security reasons without consent or exigent circumstances and without first knocking on front door); Morgan v. State, 285 Ga. App. 254, 257-258 (1) (a) (645 SE2d 745) (2007) (officer responding to concerned citizen’s call could not enter back yard without a warrant in absence of consent or exigent circumstances). These cases are inapposite because the police in this case obtained a warrant for the arrest of the defendant and executed it at his place of residence.

While Carter also argues that the police entered his back yard as a pretext to search for a methamphetamine lab, the trial court made a factual finding that the officers had no such intention. “The trial court is entitled to weigh the credibility of witnesses and make its finding of fact, and we review this finding under a clearly erroneous standard.” (Citation omitted.) Grier v. State, 266 Ga. 170, 172 (2) (a) (465 SE2d 655) (1996). Based upon conflicting evidence as to whether the officer who discovered the methamphetamine lab knew that there had been a previous report of a methamphetamine lab in the shed of this home, as well as the lead officer’s denial that he went to the home to search for it, we conclude that the trial court’s finding was not clearly erroneous. Id.

For these reasons, we affirm the trial court’s denial of Carter’s motion to suppress.

2. Based upon the State’s forthright concession that the same facts were used to prove both the possession of methamphetamine count and the manufacture of methamphetamine count, we vacate the trial court’s sentence with regard to the possession count and remand this case to the trial court to correct the sentence. See Snoke v. State, 237 Ga. App. 686, 688-689 (3) (516 SE2d 541) (1999).

3. In his remaining enumeration of error, Carter contends he received ineffective assistance of counsel because his counsel (a) failed to request material and relevant jury instructions and (b) elicited testimony that Carter’s wife pled guilty.

To succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Miller v. State, 285 Ga. 285, 285-287 (676 SE2d 173) (2009). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

(a) Carter asserts his trial counsel should have asked for charges on mere presence, mere approval without more, mere association, and grave suspicion because the State’s case centered on the theory that Carter was a “party to a crime.” We disagree.

Decided March 23, 2011

Grayson P Lane, for appellant.

The record shows that in addition to the party to a crime charge, the trial court also instructed the jury on the State’s burden to prove each element of the offense beyond a reasonable doubt, intent, circumstantial evidence, the presumption of innocence, and actual and constructive possession. Viewed as a whole, these charges “informed the jury of the State’s need to prove [Carter] guilty beyond a reasonable doubt, as well as the type of evidence that can satisfy this burden of proof.” New v. State, 270 Ga. App. 341, 345 (2) (a) (606 SE2d 865) (2004). Additionally, the mere presence and mere association charges are simply corollaries of the requirement that the State prove each element of the crime beyond a reasonable doubt and are adequately covered by this charge. Whiting v. State, 269 Ga. 750, 752 (2) (a) (506 SE2d 846) (1998); Roberts v. State, 223 Ga. App. 167, 168 (4) (477 SE2d 345) (1996). Based upon all of the instructions given by the trial court, we find no reasonable probability that the additional instructions would have produced a different outcome at trial. See Butts v. State, 273 Ga. 760, 768 (18) (546 SE2d 472) (2001); New, supra, 270 Ga. App. at 345 (2) (a); Palmer v. State, 294 Ga. App. 85, 88-89 (3) (668 SE2d 523) (2008). Therefore, the trial court did not err by denying this portion of Carter’s ineffective assistance claim.

(b) Carter claims his trial counsel “introduced profound harm and prejudice into this case” when counsel asked his ex-wife about her sentence of five years probation for pleading guilty to possessing methamphetamine. Trial counsel testified that he believed he did so as part of a trial strategy to discredit her testimony and show that she has a self-serving reason to testify falsely and get a lesser sentence. He also testified that her testimony on direct had harmed his client’s case. The record shows that Carter and his wife divorced and that she provided evidence showing Carter had been around the shed with his brother the afternoon before they were arrested.

Based upon the particular facts of this case, we conclude that counsel’s trial strategy did not amount to ineffective assistance of counsel. See Smith v. State, 304 Ga. App. 155-156 (3) (a) (695 SE2d 679) (2010) (“matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel”) (citations, punctuation and footnote omitted).

Judgment affirmed in part and vacated in part.

Mikell and Adams, JJ., concur.

Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

       Friday, November 7, 2008.

       The officers were attempting to arrest the brother on a warrant charging him with probation violations in connection with a conviction for theft by receiving stolen property.

       Although Carter does not contend the officers violated the “knock-and-announce” rule by entering the back yard when serving the arrest warrant, “we note that the Supreme Court of the United States has held that the Fourth Amendment does not require the suppression of all evidence found in a search in which the ‘knock-and-announce’ rule was violated. Hudson v. Michigan, 547 U. S. 586 (III) (126 [SC] 2159, 165 LE2d 56) (2006).” Fair v. State, 284 Ga. 165, 173 (3) (c) (664 SE2d 227) (2008).


text:
    A10A2291.
    MANNATO v. SUNTRUST BANKS, INC.
    (708 SE2d 611)
   SMITH, Presiding Judge.

In this case presenting an issue of first impression, Edward Mannato appeals from a superior court order dismissing his complaint seeking to examine the corporate records and books of SunTrust Banks, Inc. In four related enumerations of error, he asks this court to find that he has a common law right of inspection that was not superceded by the Georgia General Assembly’s enactment of OCGA § 14-2-1602 (e). For the reasons set forth below, we affirm the trial court’s dismissal of Mannato’s complaint.

A trial court’s ruling on a motion to dismiss is reviewed de novo. See Hendry v. Wells, 286 Ga. App. 774, 781 (2) (650 SE2d 338) (2007).

Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiffs favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

(Citations and punctuation omitted.) Id. However, “it is still possible for a litigant to plead himself out of court by revealing a state of facts which affirmatively shows that there is no liability on the defendant. [Cits.]” Hodge v. Dixon, 119 Ga. App. 397 (167 SE2d 377) (1969). See also Hendry, 286 Ga. App. at 781-782 (2) (“[A] party to an action is bound by material allegations made in his pleadings so long as they remain in his pleadings.”) (citations and punctuation omitted).

On March 27, 2008, Mannato asked SunTrust to pursue legal claims against its officers and directors for breach of fiduciary duty in connection with the housing market collapse. On August 19, 2008, SunTrust’s board of directors responded to Mannato’s request in writing and rejected it. The board explained that it created a special committee and retained independent counsel to investigate Man-nato’s claims. Based on this investigation, SunTrust determined that the allegations of breach of fiduciary duty were “without basis in fact” and that “the best interests of the Company would not be served by commencing litigation.”

On September 24, 2008, Mannato, in his capacity as a shareholder of SunTrust, demanded access to SunTrust’s books and records for inspection and copying. SunTrust’s counsel denied this request, in part, because Mannato owned less than two percent of SunTrust’s shares and was therefore not entitled to inspect its records and books under OCGA § 14-2-1602 (e) and SunTrust’s bylaws.

Mannato subsequently filed a complaint in equity seeking to enjoin SunTrust from denying him access to its corporate books and records. SunTrust moved to dismiss because the books and records sought by Mannato could only be obtained by shareholders owning more than two percent of SunTrust’s shares. The trial court agreed with SunTrust and dismissed Mannato’s complaint based on its conclusion that OCGA § 14-2-1602 (e) permits corporations to limit the right to inspect certain corporate records and books to shareholders owning more than two percent of the corporation’s outstanding shares.

In his appeal, Mannato contends the General Assembly’s enactment of OCGA § 14-2-1602 (e) did not abrogate his common law right as a shareholder to inspect SunTrust’s books and records. Mannato asserts that Georgia common law provides all shareholders with a right to inspect corporate books and records. See, e.g., Winter v. Southern Securities Co., 155 Ga. 590, 601 (1) (118 SE 214) (1923).

In construing this statute,

we apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere sur-plusage. At the same time, we must seek to effectuate the intent of the legislature.

(Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). “In construing a statute, the cardinal rule is to glean the intent of the legislature.” Alford v. Public Svc. Comm., 262 Ga. 386, 387 (1) (a) (418 SE2d 13) (1992).

In 1988, the General Assembly enacted the “Georgia Business Corporation Code.” OCGA § 14-2-101 et seq. The relevant subsection, OCGA § 14-2-1602 (e), “originated in a House committee amendment to the original bill.” K. Barfield, “Revised Georgia Business Corporation Code,” Selected 1988 Georgia Legislation, 5 Ga. St. U. L. Rev. 285, 297 (1988). This subsection provides, in part, that “the right to inspection enumerated in subsection (c) of this Code section may be limited by a corporation’s articles of incorporation or bylaws for shareholders owning 2 percent or less of the shares outstanding.” OCGA § 14-2-1602 (e). “[T]he two percent ownership restriction met with significant opposition and debate.” 5 Ga. St. U. L. Rev. at 299. The opposition “focused on the seriousness of a corporation’s ability to restrict shareholder access to records.” Id. at 300. The proponents of the restriction “focused on the need to prevent harassment of corporations by shareholders who own relatively small interests” and argued “that the restriction was necessary for Georgia to remain a probusiness state.” Id.

In light of this history, it appears the General Assembly intended to supercede any common law rights of inspection with the passage of OCGA § 14-2-1602 (e). To conclude otherwise would render this Code provision meaningless, a result precluded by our rules of statutory construction. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970) (holding courts should “refrain from ascribing to the legislature a wholly unreasonable intention or an intention to do a futile and useless thing”). Based upon the plain language of OCGA § 14-2-1602 (e) and the intent of the General Assembly, we conclude that this Code provision abrogates by necessary implication any common law right of inspection provided to shareholders owning two percent or less of a corporation’s outstanding shares. See Griggs v. Zimmerman, 50 Ga. App. 24, 25 (177 SE 86) (1934) (legislature has authority to extinguish common law right of action by “necessary implication” of statute).

We find no merit in Mannato’s claim that OCGA § 14-2-1602 (f) should be read in conjunction with OCGA § 14-2-1602 (e) to preserve a shareholder’s common law rights of inspection. First, OCGA § 14-2-1602 (f) is not an express savings clause of any common law rights of inspection by two percent or less shareholders. Second, construing it as an implied savings clause would render OCGA § 14-2-1602 (e) meaningless, a result to be avoided in statutory construction. City ofJesup, supra, 226 Ga. at 609 (2). Third, OCGA § 14-2-1602 (f) has meaning and import apart from that of a savings clause as advocated by Mannato. It would authorize a court to order production or discovery of corporate records and books in pending lawsuits involving issues such as piercing the corporate veil, shareholder derivative suits, criminal cases, or administrative investigations by tax and insurance commissioners. See, e.g., OCGA §§ 33-2-16 (a), (c) (authorizing insurance commissioner to subpoena witnesses and compel production of records and other documents and superior courts to compel compliance); 48-2-53 (authorizing superior courts to compel compliance with tax commissioner’s document requests).

Decided March 23, 2011.

Lacy & Snyder, William T. Lacy, Jr., for appellant.

King & Spalding, Justin C. Jeffries, Michael R. Smith, for appellee.

Finally, Mannato cites the comment following OCGA § 14-2-1602 (f) in support of his claim to inspect the records. But the comment is not persuasive on this issue for several reasons. The comments were included in the Official Code of Georgia Annotated at the request of a State Bar of Georgia Committee with the following disclaimer:

Neither the General Assembly of Georgia nor the Code Revision Commission of the State of Georgia has participated in the drafting of these comments or has reviewed the comments for their content. The comments should not be considered to constitute a statement of legislative intention by the General Assembly of Georgia nor do they have the force of statutory law.

OCGA Title 14, Chapter 2, Code Revision Commission Note on Comments, p. 10. Our Supreme Court has also noted that the comments do not control “the interpretation to be given the provisions of the [Georgia Business Corporations Code] or otherwise preclude[ ] our application of the rules of statutory construction.” Svc. Corp. Intl. v. H.M. Patterson & Son, 263 Ga. 412, 415, n. 5 (434 SE2d 455) (1993).

Based on the reasoning outlined above, we conclude that Man-nato cannot recover under any state of facts, and we therefore affirm the trial court’s dismissal of Mannato’s complaint.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       While this publication colloquially known as the “Peach Sheets” is an unofficial source for legislative history, it has been cited for this purpose both by this court and by the Georgia Supreme Court. See, e.g., Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, 739 (3), n. 9 (691 SE2d 218) (2010); Jones v. State, 276 Ga. App. 810, 812 (1), n. 1 (625 SE2d 4) (2005).

       OCGA § 14-2-1602 (f) provides:
      This Code section does not affect: (1) The right of a shareholder to inspect records under Code Section 14-2-720 or, if the shareholder is in litigation with the corporation, to the same extent as any other litigant; or (2) The power of a court, independently of this chapter, to compel the production of corporate records for examination.


author: Doyle, Judge.

text:
    A10A1635.
    A10A1636.
    YANCEY v. WATKINS et al. USSERY v. WATKINS et al.
    (708 SE2d 539)
   Doyle, Judge.

Leland Timothy Watkins, Michael Edwin Watkins, and Leland Brian Watkins (collectively, “Watkins Farm”) sued Stacey Bloods-worth, Tony Yancey, and Milton Ussery for crop damage allegedly caused by the drifting of chemicals aerially applied by Bloodsworth to Ussery’s neighboring cotton crop. The trial court denied the defendants’ motions for summary judgment and certified the ruling for immediate review. This Court granted applications for interlocutory review filed by Yancey (Case No. A10A1635) and Ussery (Case No. A10A1636). We have consolidated the cases for review, and for the reasons that follow, we reverse in Case No. A10A1635 and affirm in Case No. A10A1636.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the material portions of the record show that Yancey farmed a cotton crop and helped Ussery, his brother-in-law, farm Ussery’s separate cotton crop. Yancey used a combination of his own equipment and Ussery’s equipment to prepare and plant Ussery’s cotton crop. Yancey had no ownership interest in Ussery’s property or crop, nor did he participate in the yield. At the end of the year, Ussery paid him what the men estimated Yancey’s work was worth.

Adjacent to Ussery’s cotton field was Watkins Farm’s crop of pepper plants. In the fall of 2006, after conferring with a cotton “scout,” Ussery determined that the timing was appropriate to apply certain chemicals, including a defoliant, to the cotton crop. He arranged for Bloodsworth to apply the chemicals to his crop from a crop-dusting airplane. Yancey, as part of his regular employment with a farm supply warehouse, delivered the chemicals from the warehouse to the airport where Bloodsworth operated. Bloodsworth then aerially applied the defoliant to the cotton crop, and during the process, some defoliant allegedly drifted onto Watkins Farm’s adjacent pepper crop and damaged it.

After discovering the damaged pepper crop, Watkins Farm sued Bloodsworth, Yancey, and Ussery, alleging claims for negligence and trespass. Yancey and Ussery moved for summary judgment, which motions were denied, giving rise to these interlocutory appeals.

Case No. A10A1635

Yancey’s summary judgment motion relied on a theory that he was a mere employee of Ussery, and there is no evidence that the pepper crop damage arose from any breach of a duty he owed to Watkins Farm. The evidence shows that other than delivering the chemicals to the airport on behalf of the farm supply warehouse (his regular employer), Yancey himself was not involved in Bloodsworth’s application of the chemicals. In response to Yancey’s summary judgment motion, as on appeal, Watkins Farm contended that Yancey was engaged in a joint venture with Ussery, and therefore any negligence on the part of Ussery, as the landowner who employed Bloodsworth, could be imputed to Yancey. In light of the undisputed evidence of record, this argument fails.

A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other. . . . For a joint venture to exist, there must be not only a joint interest in the purpose of the enterprise but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury.

Here, there is no evidence that Yancey had an equal right to control how Ussery farmed his cotton. There is undisputed evidence that Yancey was paid by Ussery to help farm Ussery’s cotton, as ultimately directed by Ussery. Ussery owned both the land and the cotton grown on it, and Yancey had no ownership interest in either. Yancey had no right to control Ussery’s decision to farm his land or whether to dispose of the cotton it yielded, if any. Accordingly, the undisputed facts show that Yancey was not engaged in a joint venture with Ussery, and any negligence on Ussery’s part, imputed or otherwise, is, as a matter of law, not attributable to Yancey. Therefore, the trial court erred by denying Yancey’s motion for summary judgment.

Case No. A10A1636

In this appeal, Ussery contends that the trial court erred by denying him summary judgment because Bloodsworth was an independent contractor not subject to his control, and any negligence on Bloodsworth’s part was therefore not imputable to Ussery. However, in light of the dangerous nature of aerial application of chemicals to open land, we affirm the trial court’s judgment.

We first address whether the record demonstrates a genuine issue of material fact as to whether Bloodsworth was an independent contractor of Ussery.

Under OCGA § 51-2-4, an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. With regard to the “independent business” requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego. The Restatement, Second, Torts § 414 states the rule thusly: “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Although the relationship between an alleged master and servant is generally a question of fact to be decided by a jury, there are cases presenting factual situations wherein this issue has been decided as a matter of law.

Here, Ussery had a very limited role in actually directing or controlling Bloodsworth’s crop dusting. Ussery hired Bloodsworth on a one-time basis to apply the chemicals, but there is no evidence that Ussery controlled precisely when and how Bloodsworth flew during the crop dusting. As explained in Ussery’s deposition, he informed Bloodsworth that the chemicals were at the airport and asked Bloodsworth to apply the chemicals “whenever he could get to it.” Ussery asked Bloodsworth to perform the defoliation based on the recommendation from a cotton scout that his crop was “ready,” and Ussery believed there was “no push [for time]. If you do it today[,] okay. If you do it three days from now, it’s okay.”

Furthermore, Bloodsworth deposed that he operated his flying service as an independent business called Owensboro Ag Service, through which he performed work for a number of farmers. In the present case, Bloodsworth explained that he himself decided when to apply the chemicals according to the weather and his other scheduled work. Bloodsworth alone determined the method and manner of applying the chemicals, according to his past experience and current observations made on the day he flew. Based on this record, we conclude that Bloodsworth was acting as an independent contractor.

Nevertheless, OCGA § 51-2-5 (2) provides that an employer is liable for the negligence of his contractor “[i]f, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed.” Ussery had previous experience with crop dusters on his land, including one mishap when several of his trees were damaged by overspray. Thus, Watkins Farm argues Ussery should have known that the aerial application of chemicals to crops is itself an activity of such a dangerous nature that the duty of care is nondelegable. Although Georgia courts have not directly addressed this question, our courts have noted in dicta that inherently dangerous activities in this context “have been held to include . . . spraying from airplanes.” The rationale for this view was stated in Hammond Ranch Corp. v. Dodson:

[T]he law will not allow one who has a piece of work to be done that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work. This is especially true where the agency or means employed to do the work, if not confined and carefully guarded, is liable to invade adjacent property, or the property of others, and destroy or damage it. The defendant was within its legal rights in depositing the insecticide on its lettuce field for the purpose of ridding it of the worms with which it was infested, and it could do this work itself or it could contract it, but, because of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property thereon, it could not delegate this work to an independent contractor, and thus avoid liability.

Furthermore, as explained by Bloodsworth in his deposition, the aerial application of chemicals requires him to fly approximately six to eight feet above the crop — at times only two to three feet above obstacles in the field such as irrigation equipment. And considering the likelihood of encountering nearby power lines, trees, or other obstacles, the hazards inherent in crop dusting are readily apparent.

Furthermore, at least ten other jurisdictions have concluded that crop dusting is an inherently dangerous activity such that an employer cannot escape vicarious liability for his independent contractor’s negligence. In light of the cases opining similarly in Georgia, and in light of the nature of the task, we hold that the aerial application of chemicals to open land involves sufficient inherent danger that it falls within the scope of OCGA § 51-2-5 (2), such that an employer can be liable for the negligence of an independent contractor he hired to perform such work. Therefore, based on the record before us, material issues of fact remain as to Ussery’s liability for harm caused by negligence in requesting or performing the crop dusting activity here, and we affirm the trial court’s denial of summary judgment to Ussery.

Decided March 9, 2011

RECONSIDERATION DENIED MARCH 24, 2011

Reinhardt, Whitley, Summerlin & Pittman, John R. Reinhardt, John T. Croley, for appellants.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Susan W. Cox, Benjamin J. Colson, for appellees.

Judgment affirmed in Case No. A10A1636. Judgment reversed in Case No. A10A1635.

Ellington, C. J., and Andrews, J., concur.

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

       (Punctuation omitted; emphasis supplied.) Williams v. Chick-fil-A, Inc., 274 Ga. App. 169, 170 (617 SE2d 153) (2005). See First Nat. Bank of Madison v. Vason, 164 Ga. App. 309, 311 (2) (297 SE2d 85) (1982) (each party must have a joint interest in the objects and purposes of the undertaking, as well as the right to direct and control the conduct of the other parties).

       Watkins Farm alludes to evidence that Bloodsworth erroneously believed that Yancey owned Ussery’s land, but this mistaken belief as to ownership (offered as evidence of a joint venture) is ultimately a legal assertion, which is insufficient to preclude the grant of summary judgment. See Groover Engineering Co. v. Capital Assoc., Inc., 169 Ga. App. 480 (313 SE2d 498) (1984); Smith v. Forrester, 156 Ga. App. 79, 80 (1) (274 SE2d 101) (1980).

       (Citations and punctuation omitted.) Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986).

       See Cooper v. Olivent, 271 Ga. App. 563, 564 (1) (610 SE2d 106) (2005) (affirming grant of summary judgment in the absence of evidence of employer’s control of time or manner or method of contractor’s work); Perry v. Soil Remediation, Inc., 221 Ga. App. 386, 387-388 (1) (471 SE2d 320) (1996) (evidence insufficient to create question of fact as to party’s independent contractor status); Slater v. Canal Wood Corp., 178 Ga. App. at 882 (1).

       See, e.g., Community Gas Co. v. Williams, 87 Ga. App. 68, 80 (2) (73 SE2d 119) (1952).

       (Citations omitted.) Id. See also Ogles v. E. A. Mann & Co., 277 Ga. App. 22, 25 (1) (625 SE2d 425) (2005) (quoting same in the context of acceptance doctrine analysis).

       199 Ark. 846 (136 SW2d 448) (1940), quoted favorably by Community Gas Co., 87 Ga. App. at 80 (2) and quoting S. A. Gerrard Co. v. Fricker, 42 Ariz. 503, 507 (27 P2d 678) (1933) (citing Wisconsin and Kansas precedent).

        Hammond Ranch Corp., 199 Ark. at 852.

       See Boroughs v. Joiner, 337 S2d 340, 343 (Ala. 1976) (“We hold that aerial application of insecticides and pesticides falls into the intrinsically or inherently dangerous category and, therefore, the landowner cannot insulate himself from liability simply because he has caused the application of the product to be made on his land by an independent contractor.”); Lawler v. Skelton, 241 Miss. 274, 288 (130 S2d 565) (1961) (“The owner of the premises may not delegate the work of dusting or spraying a crop with poisonous insecticides to an independent contractor and thus avoid liability.”); Burke v. Thomas, 313 P2d 1082, 1088 (Okl. 1957); Pendergrass v. Lovelace, 57 NM 661, 663 (262 P2d 231) (1953); Faire v. Burke, 363 Mo. 562, 564 (252 SW2d 289) (1952); Alexander v. Seaboard Air Line R. Co., 221 SC 477, 486 (71 SE2d 299) (1952); McKennon v. Jones, 219 Ark. 671, 674 (244 SW2d 138) (1951); Pannella v. Reilly, 304 Mass. 172, 173 (23 NE2d 87) (1939); Miles v. A. Arena & Co., 23 Cal. App. 2d 680, 683 (73 P2d 1260) (1937); S. A. Gerrard Co. v. Fricker, 42 Ariz. at 507. See also Restatement of Torts (Second) § 427 (“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work ... is subject to liability for physical harm caused ... by the contractor’s failure to take reasonable precautions. . . .”); Prosser and Keeton on the Law of Torts § 71, 512-516 (5th ed., West 1984) (inherently dangerous activities include crop dusting).


text:
    A10A1997.
    CITY OF ATLANTA et al. v. STARSHIP ENTERPRISES OF ATLANTA, INC.
    (708 SE2d 538)
   Smith, Presiding Judge.

We granted a discretionary appeal in this case to the City of Atlanta (“the city”) and the City Board of Zoning Adjustment (“the board”) to review the trial court’s order reversing the decision of the board and reinstating a building permit initially granted to Starship Enterprises of Atlanta, Inc. (“Starship”), but later revoked. The trial court incorrectly held that no evidence supported the board’s finding of an intervening use that terminated the legal nonconforming use of the property at issue, and accordingly erred when it reinstated the building permit on that ground. We therefore reverse.

Starship sought to operate an adult business on premises formerly occupied by another adult business as a nonconforming or “grandfathered” use. The city first issued and then revoked a building permit, contending that under Atlanta Code of Ordinances § 16-24.005 (4), the nonconforming use was superseded by a permitted use, a used furniture store, and could not be resumed. The board affirmed, and Starship appealed to the superior court, which found that the permit had been wrongfully revoked and ordered the city to reinstate it. This appeal followed.

1. The board first complains that the trial court applied the wrong standard of review, weighing the evidence instead of determining whether any evidence supported the board’s decision. While it recited some of Starship’s evidence at considerable length, the trial court expressly adopted the correct standard of review, observing, “[T]he ‘any evidence’ standard applies to this Court’s review of the administrative decision of the City Board of Adjustment.” “[T]he sole function of the reviewing court was to determine (1) whether there was any evidence to support the findings of the [board] and (2) whether the [board] had abused its discretion. [Cit.]” City of Atlanta Bd. of Zoning Adjustment v. Kelly, 238 Ga. App. 799, 801 (1) (520 SE2d 269) (1999).

2. The trial court erred, however, in its application of the standard, by incorrectly concluding that the board provided “no evidence at all” in support of its finding of an intervening use. Any evidence is sufficient to support the decision of the local governing body. See Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859-860 (2) (572 SE2d 530) (2002); Emory Univ. v. Levitas, 260 Ga. 894, 897-898 (1) (401 SE2d 691) (1991).

The evidence showed that the previous tenant had operated a lingerie modeling business at the location beginning in 1991. In 2007, the owner requested that the original business license be cancelled. Local residents testified that the lingerie modeling business ceased operations some time in the summer of 2007, and the signs advertising the business and the blinds covering the windows were removed. At the same time the residents observed new signs reading “USED FURNITURE,” including a large illuminated sign on a pole near the roadway. One local resident testified that he observed the “USED FURNITURE” signs for a period of at least six months, and “did see driving past what appeared to be commerce going on at that location.” He elaborated that he observed “[p]eople coming and going from the site as opposed to the site closed and shuttered with no activity.”

This evidence was circumstantial, but the evidence presented by Starship was likewise circumstantial, as it presented no testimony from anyone with direct personal knowledge of the use of the building during the time in question. See Douglas v. Gilbert, 195 Ga. App. 796, 798 (395 SE2d 9) (1990) (direct versus circumstantial evidence). Neither the previous tenant’s principal nor any other representative of that tenant testified. The testimony regarding the removal of the old signs and blinds, the installation of new signs, and “what appeared to be commerce going on at that location” for a period of approximately six months, constitutes some evidence of an intervening permitted use and satisfies the “any evidence” standard. The trial court’s judgment therefore must be reversed.

Decided February 16, 2011

Reconsideration denied March 24, 2011

Jeffrey S. Haymore, Lemuel H. Ward, for appellants.

Begner & Begner, Alan I. Begner, Cory G. Begner, Meta T. Dama, for appellee.

3. In light of our holding in Division 2 of this opinion, we do not reach the remaining enumeration of error.

Judgment reversed.

Mikell and Adams, JJ., concur.

       The property owner testified before the board that the previous tenant’s principal, Gambill, made certain verbal representations to him regarding his use of the property after his adult business closed, stating that Gambill informed him that he was not operating a furniture business but simply trying to sell the fixtures from the closed business. Since Gambill did not testify and apparently was not available, this testimony is inadmissible hearsay and lacks probative value, even if no objection is raised. In the Interest of E. C., 271 Ga. App. 133, 135 (1) (609 SE2d 381) (2004). Compare Edge v. Fugatt, 264 Ga. App. 28, 30 (3) (589 SE2d 845) (2003) (“purpose of hearsay rule satisfied where declarant is in court and available for cross-examination”).

       “Adult businesses” are defined in Atlanta Code of Ordinances § 16-29.001 (3).


text:
    A10A1857, A10A1858.
    IN THE INTEREST OF R. J. et al., children (two cases).
    (708 SE2d 626)
   Doyle, Judge.

A Jefferson County Juvenile Court terminated the rights of the biological parents of R. J. and J. G. The court also denied the mother’s motion for new trial. In Case No. A10A1857, the mother challenges the denial of her motion for new trial and argues that the juvenile court erred by failing to make sufficient findings of fact and conclusions of law in its termination order. In Case No. A10A1858, the father challenges the sufficiency of the evidence to support the termination and the juvenile court’s determination that the termination was in the best interests of the children. For the reasons that follow, we affirm.

On appeal from an order terminating parental rights, we must determine whether, after reviewing the evidence in a light most favorable to the [juvenile] court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the [juvenile] court’s factfinding and affirm unless the appellate standard is not met.

So viewed, the record shows that the mother and father are step-siblings who began a romantic relationship prior to reaching the age of majority after the mother’s biological mother (“grandmother”) and father’s biological father (“grandfather”) were married. The mother gave birth to R. J. in 1999 when she was 17, and the parents moved to Georgia when the mother was 19, leaving R. J. in his grandmother’s care in South Carolina because the mother did not feel her situation in Georgia “was[ ] stable enough to [take R. J.] with” her. During this time, the mother gave birth to J. G. in March 2003. In May 2003, the grandmother died, and the parents traveled to South Carolina to retrieve R. J. from the grandfather, who initially refused to allow the parents to take the child, but later relinquished custody to them after the local police became involved. The mother stated that the father’s biological mother informed her that the grandfather had previously molested other individuals.

At the time the parents returned with R. J. to Georgia, they claimed R. J. had been prescribed phenobarbital. The parents believed this was the result of an accidental head injury R. J. sustained while living with his grandfather. Upon returning to Georgia, the parents visited Dr. Ford to refill R. J.’s prescription; however, because R. J. was not covered by Medicaid and the father was covered, the parents testified that Dr. Ford prescribed the phenobarbital in the father’s name.

That June, the mother was at home alone with the children one evening when she administered R. J.’s dose of phenobarbital around 9:00 p.m. She stated that she went to the restroom, and when she returned, she claimed to have discovered R. J. with the medication bottle in his bedroom. She claimed that he took more of the medicine while she was out of the room, and he later exhibited drowsiness, slurred speech, and other symptoms, but she believed those were typical for the medication. The mother did not contact poison control or emergency services, but kept R. J. awake until the father returned from work approximately two hours after the event. Upon the father’s return from work approximately one-and-a-half or two hours later, the mother told him what had happened, and he contacted an Ask-A-Nurse line, seeking information and advice on a course of treatment for the child. The father thereafter contacted emergency services. When help arrived at the home, R. J. was not responsive.

While at the hospital, authorities noticed bruising on R. J., which was eventually discovered to be the result of corporal punishment inflicted on the child by the mother with a belt. The mother initially denied any physical punishment of the child, and the father, though aware that she had hit R. J. with a belt, also lied to investigators about the cause of the bruising. The father later conceded that he had seen the mother whip R. J. with a belt, and he had witnessed her yell at R. J. until he had to intervene.

Thereafter, the children were removed from the parents, and a juvenile court found that the children were deprived due to lack of proper parental control. The Department of Family and Children Services (“the Department”) developed a reunification case plan, requiring the parents to, inter alia, obtain and maintain an income source and obtain and maintain suitable housing.

On May 27, 2005, a juvenile court entered an order extending the Department’s custody of the children because the parents had failed to comply with the reunification plans. The Department filed a motion for nonreunification on September 23, 2005, alleging that the parents had failed to establish stability in employment and housing, and while they visited J. G. weekly, the parents had visited R. J. only twice over several months. The Department then filed an updated case plan requiring the parents to (1) maintain a source of income; (2) maintain stable housing; (3) complete psychological evaluations; (4) demonstrate they could employ nonharmful discipline methods; and (5) meet the children’s needs.

In June 2006, a juvenile court entered an order finding that the children could not be returned to the parents because the goals of the new case plan had not been completed, and the Department thereafter filed a petition to terminate the parents’ rights.

In November 2006, the Juvenile Court of Glascock County, which had been overseeing the case, transferred the matter to Jefferson County, from which the current appeals arise. After the transfer, the Department filed a new deprivation petition because the parents had not completed their case plan and neither was employed. The parents stipulated to an extension of custody with the Department, and on December 14, 2007, the Department filed a new petition to terminate the parents’ rights, alleging that (1) sexual abuse allegations, including that the parents made R. J. perform oral sex on J. G., had been substantiated, and (2) R. J. continued to maintain that the mother had made him ingest the phenobarbital.

At the hearings on the termination proceedings, psychologist Latonya Wright testified that she performed a sexual trauma evaluation on R. J. on October 10, 2007, which revealed a probable history of sexual abuse and ambivalence toward the father and grandfather. R. J. reported to Wright sexual abuse by other children in his special education class, reported watching J. G. using the restroom, exhibited distorted sexual beliefs, and reported that his grandfather had kissed him on the lips, which made him feel bad. Additionally, Wright testified that R. J.’s evaluation suggested that he probably had sexual contact with J. G. because “he believed that sexual contact between children should be allowed”; R. J. also spontaneously stated that he did not touch anything when he watched J. G. use the restroom, which Wright explained was an inappropriate response for a child. R. J. indicated to her that he did not live with the mother because she gave him “the wrong pill.”

Psychologist Jeffrey Dulin testified regarding a psychological and psycho-sexual evaluation he performed on the mother over a period of two years. Dulin opined that the mother’s response to R. J.’s overdose was inappropriate, that she did not blame herself for the event, that she denied any abuse of R. J, and she was a high risk for untruthfulness. Dulin reported no improvement in the mother’s frustrations or maturity over the course of the two years he conducted his evaluation, and he found that her major weaknesses included: (1) acknowledging the children’s feelings, (2) struggling with immaturity and inappropriate frustration, and (3) abusive tendencies when under stress. Dulin also opined that the mother had possible homicidal intent toward R. J., that any child would be at risk for physical abuse in her care, and that any treatment plan would have to be extensive and would likely be ineffective.

Dulin testified that the father’s response to R. J.’s overdose was appropriate, but the father admitted to Dulin that he was aware that the mother physically disciplined R. J. Dulin also testified that while the father knew the grandfather was a registered sex offender, he still allowed R. J. to stay in his home. Dulin concluded that while the father may have been capable of caring for the children, it would not be in their best interest to be placed with him while the mother lived with him.

Jane Dansy, guardian ad litem for the children from May 2004 until October 2006, testified that R. J. disrupted three foster placements before going to a treatment center and then to a therapeutic placement, where he remained at the time of the hearing and where he was showing great improvement. She testified that the parents visited the children sporadically and attended to J. G. more than R. J. when they did visit, and the parents had not completed their case plan. Dansy testified that R. J. told the Department that the mother made him overdose on the medication, and R. J. and J. G. had both acted out sexually in foster care. Dansy testified that neither the father nor the mother were intellectually or emotionally equipped to care for R. J.

Linda Story, case manager for the children in 2004 and again in 2007, testified that R. J. told her that when the mother gave him the overdose, she told him that she wished he would die. Story’s assessment of the parents’ home based on her evaluations was that it was not suitable for children because it was near a busy highway, had inadequate heating, and contained excessive clutter or items that were in disrepair. Additionally, she testified that the parents’ living situation had never been stable, the mother was unemployed and paid very little child support, and the parents were behind on their rent in their current home. She testified that the father had been employed for approximately six months and was not consistent with paying child support. Story recommended terminating the parents’ rights, explaining that both children were doing well in their respective environments, the parents were still unstable and had inadequate housing, R. J. had not acted out sexually since 2006, the children had been in foster care for a long time, and the children needed permanent placement to avoid any negative effect of long-term fostering.

Glenda Clegg, R. J.’s therapeutic foster parent for approximately three years, testified that she was specially trained to deal with his issues, which included hyperactivity, sexual dysfunction, social dysfunction, lying, and aggression. Clegg was not adopting R. J., but she had met the couple that planned to adopt him in the event his parents’ rights were terminated. J. G.’s foster parent testified that she had cared for him about a year and a half, that he was doing well, and that she wished to adopt him in the event the court terminated the parents’ rights.

The father’s biological mother, J. M., testified that she had witnessed visits between the parents and children, and the visits were always appropriate. On a previous occasion, J. M. told the Department home evaluator that she believed that the mother gave R. J. the phenobarbital because the mother was not capable of handling the needs of a baby and a special-needs child, but J. M. believed that the children would be safe with the parents at this time. J. M. thought that the father should be given custody, but she thought that the mother was easily overwhelmed and should probably not care for the children while the father was at work.

The father testified that he was ordered to pay $310 in child support per month and was not current at the time of the hearing, and he also stated that he and the mother were $100 behind on their rent payment at that time. The father testified that he still lived with the mother, but would ask her to leave the home if the juvenile court instructed him to do so.

On July 20, 2008, the juvenile court entered an order terminating the parents’ rights to R. J. and J. G. The mother filed a motion for new trial, which was denied on February, 11, 2009. These appeals followed.

A termination of parental rights case involves a two-step analysis. First, the juvenile court must find parental misconduct or inability, based on clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (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. “If these four factors are satisfied, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.”

1. The children are deprived. Because the parents did not appeal the juvenile court’s order finding R. J. and J. G. deprived, and because the evidence showed that the conditions upon which these findings were based still existed at the time of the termination hearing, the parents are bound by these findings and may not challenge the juvenile court’s finding of deprivation.

Case No. A10A1857

2. As addressed below, sufficient evidence exists as to support the juvenile court’s findings of the mother’s parental misconduct or inability.

(a) Lack of parental care or control caused the deprivation. The mother does not challenge the juvenile court’s finding that lack of parental care or control caused the deprivation, and our review of the record reveals no error in the juvenile court’s determination that lack of care or control on the mother’s part led to the deprivation of the children.

(b) The cause of the children’s deprivation is likely to continue.

Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required. But the trial court is entitled to consider evidence of the [parent’] s past actions in determining whether the deprivation is likely to continue. It is not bound by mere promises to do better in the future.

The mother contends that the juvenile court erred by finding that there was clear and convincing evidence that the deprivation was likely to continue or not be remedied, pursuant to OCGA § 15-11-94 (b) (4) (A) (iii). We disagree.

Dulin testified that the mother had not improved over the course of the two years that he evaluated her, and he opined that any child in her care was at risk of being harmed by her. Additionally, the mother visited the children sporadically, and she favored J. G. over R. J. She failed to obtain employment or adequate housing and failed to pay child support for the children. J. M. testified that, although she believed that the mother would do a better job now that the children were not as young, she also opined that the mother should not watch the children alone while the father was at work. R. J.’s therapeutic foster parent testified that, while he has improved, he still has many special needs issues, which likely will produce a stressful situation for his caregiver. Thus, construing the evidence in favor of the Department, the finding that the deprivation of the children by the mother is likely to continue is supported by the record.

(c) Continued deprivation is likely to cause serious harm to the children. Next, the mother contends that the juvenile court erred by finding that the continued deprivation would cause serious physical, mental, emotional, or moral harm to the child, pursuant to OCGA § 15-11-94 (b) (4) (A) (iv). Again, we disagree.

As stated above, Dulin testified that a child in the mother’s care was likely to suffer harm because she has shown no improvement in her ability to deal with stress related to caring for a child, and J. M. testified that the children should not be left in their mother’s care alone because she would likely injure them. In addition to this testimony, “the juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” Here, the children have been in foster care since 2004, and the testimony at the termination hearings established that J. G.’s current foster parents wished to adopt him, and R. J.’s therapeutic foster parent had met his prospective adoptive parents. Thus, the children have an opportunity to achieve permanent homes.

3. Best interests of the children. The mother challenges the trial court’s finding that termination is in the best interests of the children, but she provides argument only as to R. J. She contends termination is not in R. J.’s best interests because R. J. is not adoptable, adoption would sever R. J.’s relationship with J. G., and any adoptive parents would have to deal with R. J.’s special needs. Although the mother is correct that R. J.’s adoptive parents likely would endure a great deal of stress raising him, the record evidence supports the trial court’s determination that the mother is not capable of adequately providing for R. J.’s care, and it is therefore in his best interest to have her rights terminated so that he has the opportunity to establish a permanent bond with an adoptive family capable of meeting those needs.

“The same factors which illustrate a parent’s inability to properly parent her children may also provide proof that termination of parental rights will be in the children’s best interests.” The facts as addressed above support the trial court’s conclusion that termination of the mother’s rights was in the best interests of the children. Additionally, both R. J. and J. G. have prospective adoptive families and have greatly improved since entering foster care. Under these circumstances, we find no error in the trial court’s determination.

4. The mother contends that the children’s interests were not adequately represented before the juvenile court because they were not represented by an attorney. Pretermitting whether the mother has standing to raise this issue, the children were represented by an appointed guardian ad litem, which is specifically provided for by the legislature in OCGA § 15-11-98 (a). Moreover, testimony was provided to the trial court that the children asked to return to their parents, which is the testimony the mother contends that an appointed attorney would have produced. Accordingly, the mother has failed to establish any harm.

5. The mother contends that the juvenile court erred by failing to issue an order containing appropriate findings of fact and conclusions of law. This enumeration is without merit, however, because the court’s order explicitly made the appropriate findings to support its legal conclusions under OCGA § 15-11-94 (b) (4) (A).

Case No. A10A1858

6. As addressed below, sufficient evidence exists as to support the juvenile court’s findings of the father’s parental misconduct or inability.

(a) Lack of parental care or control caused the deprivation. The father does not challenge the juvenile court’s finding that lack of parental care or control caused the deprivation, and our review of the record reveals no error in the juvenile court’s determination that lack of care or control on the father’s part led to the deprivation of the children.

(b) The cause of the children’s deprivation is likely to continue. “In determining whether . . . deprivation is likely to continue, the juvenile court is authorized to consider the past conduct of the parent.” The father argues that the juvenile court’s finding was based largely on R. J.’s 2004 phenobarbital overdose, but the father contends that this is not sufficient to support the finding. The father instead contends that his reaction to the incident, including calling paramedics, was appropriate. Nevertheless, the father was involved in procuring under a false prescription the phenobarbital, and he administered the drug to his child without a clear understanding of why it was being prescribed. The father also attempted to cover up evidence of the false prescription.

Moreover, for the past four years, the father has failed to maintain stable housing or work, and he has not regularly supported the children.

[T]he trial court was also authorized to assign less weight to assertions of sudden parental fitness based on belated efforts to comply with a case plan after termination proceedings begin. The decision as to the children’s future must rest on more than positive promises which are contrary to negative past fact.

While the father testified that he would leave the mother if the juvenile court so instructed, he continues to co-habitate and maintain a relationship with her, even though it is clear from the evidence presented to the juvenile court that the mother poses a risk to any child left in her care. When the children were in their custody, the mother physically disciplined and yelled at R. J., but the father did not intercede on the child’s behalf. The father also lied to authorities about the source of the bruising found on R. J. in order to protect the mother.

(c) Continued deprivation is likely to cause serious harm to the children. Clear and convincing evidence also supports the trial court’s finding that the deprivation is likely to cause serious harm to the children. In addition to the father’s failure to protect the children from the mother, he has failed to establish a stable home and job during all but the very most recent months of the four years that the children have been in foster care. As stated above, the juvenile court was authorized to consider the children’s needs for permanency and stability as well as the detrimental effects of prolonged foster care when making this determination.

Decided March 24, 2011.

H. Brannen Bargeron, for appellant (case no. A10A1857).

Marnique W. Oliver, for appellant (case no. A10A1858).

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Thomas J. O’Donnell, Assistant Attorney General, for appellee.

7. Best interests of the children. For the reasons discussed in Divisions 3 and 6, there was clear and convincing evidence that the trial court’s termination of the father’s rights was in the best interests of the children.

8. Finally, because clear and convincing evidence supports the termination order as to the mother and father, it follows that the trial court did not err in denying the mother’s motion for new trial.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       (Punctuation omitted.) In the Interest of S. N. H., 300 Ga. App. 321, 321-322 (685 SE2d 290) (2009).

       See OCGA § 15-11-94 (b) (4) (A).

       (Footnotes omitted.) In the Interest of S. N. H., 300 Ga. App. at 325 (1).

       See, e.g., In the Interest of K. C. W., 297 Ga. App. 714, 718 (2) (a) (678 SE2d 343) (2009).

       (Citation and punctuation omitted; emphasis in original.) In the Interest of J. T. W., 270 Ga. App. 26, 33 (2) (c) (606 SE2d 59) (2004).

       (Punctuation omitted.) In the Interest of A. M., 259 Ga. App. 537, 543 (578 SE2d 226) (2003).

        In the Interest of D. H., 243 Ga. App. 778, 784 (534 SE2d 466) (2000).

       See In the Interest of A. P., 291 Ga. App. 690, 691-692 (1) (662 SE2d 739) (2008).

       See In the Interest of M. T. C., 267 Ga. App. 160, 162 (598 SE2d 879) (2004).

       Compare In the Interest of M. D. F., 263 Ga. App. 50, 52 (587 SE2d 199) (2003).

        In the Interest of D. M. K., 302 Ga. App. 168, 172 (1) (690 SE2d 481) (2010).

       (Citations and punctuation omitted.) In the Interest of D. H., 243 Ga. App. at 783.

       See id. at 784.

       See In the Interest of A. M., 259 Ga. App. at 543.