author: Blackwell, Judge.

text:
    A11A1835.
    JONES v. HOUSING AUTHORITY OF FULTON COUNTY.
    (726 SE2d 484)
   Blackwell, Judge.

The Housing Authority of Fulton County terminated the employment of its chief executive officer, Jonathan Jones, ostensibly for cause, and Jones then sued the Authority for breach of his employment agreement, alleging that his termination was, in fact, without cause and that the Authority failed to pay him certain compensation and benefits due under the agreement. The Authority moved for summary judgment, and Jones moved for partial summary judgment on his claim for unpaid compensation and benefits. The court below awarded summary judgment to the Authority, denied partial summary judgment to Jones, and awarded attorney fees and expenses to the Authority. Jones now appeals, but we find no error and affirm the judgment below.

The standard for summary judgment is settled and familiar. “Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.” Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011); see also Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). So, as we have explained before, “to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.” Strength, 311 Ga. App. at 39 (2). We review an award of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party. Cowart, 287 Ga. at 624 (1) (a).

So viewed, the record shows that the Authority is an agency that helps low-to-moderate-income families obtain affordable housing in Fulton County, and Jones served as its chief executive officer from May 2005 until November 2009. During that time, Jones was responsible for, among other things, “assuring] that [Authority] activities are within federal and state laws, regulations, policies, and procedures” and “directly supervising] the Senior Director/Directors,” and Jones had “ultimate responsibility for all federal programs” in which the Authority participated. According to his employment agreement, if Jones “perforated] any act [that] is materially harmful to the business of [the Authority],” the Authority was permitted to terminate his employment for cause, meaning that Jones would be entitled to his base compensation through the date of termination and nothing more.

The Department of Housing and Urban Development (“HUD”) funds certain Authority programs, including its regular voucher program, portability voucher program, and Red Oak Housing Project. Federal funds made available by HUD to the Authority for the voucher programs and Red Oak Housing Project are subject to certain HUD rules and regulations. While Jones served as chief executive officer, the Authority violated a number of these rules and regulations. For instance, the Authority incorrectly and inconsistently reported data to HUD regarding Authority funds, the Authority did not properly collect funds for portability voucher payments from the issuing housing agencies, and HUD contributions to the regular voucher program were improperly used to make portability voucher payments. In addition, proceeds from the sale of the Red Oak Housing Project were used to make portability voucher payments, rather than to develop other affordable housing, the Riverside Replacement Housing Project in particular.

During his time as chief executive officer, Jones executed two certifications in which he guaranteed that Red Oak funds would be used only for the development of other affordable housing, and he signed a commitment in which he guaranteed that those funds would be used specifically for the Riverside Replacement Housing Project. Twice, the chief financial officer of the Authority notified Jones that Red Oak sales proceeds were being diverted to cover portability voucher payments, but no evidence suggests that Jones ever objected or questioned the propriety of these diversions. Moreover, Jones admits that he did not seek approval for these diversions or notify the Authority Board or HUD of the diversions. Likewise, no evidence indicates that Jones ever objected to, questioned, or notified the Board or HUD of the improper use of HUD funds reserved for regular voucher payments to cover portability voucher payments.

After the Authority no longer had sufficient funds to cover its regular voucher payments, Jones asked a consultant to examine the funding issues and to develop a strategy for the Authority. The consultant identified the HUD violations mentioned above as the causes of the budget shortfalls at the Authority. Thereafter, Jones wrote a memo to the Board, explaining these findings. Jones admitted that “certain administrative actions probably should have been taken (such as contacting HUD)” and that the failure to take such action “resulted] in the problematic situation the [Authority] is facing today.” And Jones does not dispute that the violations of HUD rules and regulations led to “a financial crisis” for the Authority. In November 2009, the Board notified Jones that it unanimously had decided to terminate his employment for “cause.” In turn, Jones filed a complaint against the Authority for breach of contract, alleging that the Authority lacked any “cause” to terminate his employment and that it failed to pay the compensation and benefits he was due.

1. We first address the contention that the improper diversion and use of federal funds is no basis under the employment agreement for a termination for cause, inasmuch as the chief financial officer of the Authority, not Jones himself, actually diverted the funds. With respect to the federal funds, Jones argues that he did not “perform any actions,” as that term is used in his employment agreement, that caused material harm to the business of the Authority. Jones seems to read his employment agreement as literally requiring some affirmative act on his part to justify a termination for cause, but that literal reading of the agreement cannot possibly be right. If it were, then Jones could have best secured his job by sitting at home and doing absolutely nothing, thereby performing no affirmative acts on which a termination might be based. That almost certainly is not the meaning of the relevant contractual language.

But in any event, the record shows that Jones did perform some acts that materially harmed the business of the Authority. In particular, he affirmatively certified that Red Oak funds would be used only for the development of other affordable housing, the Riverside Replacement Housing Project specifically. Moreover, he ratified the diversions of restricted HUD funds for improper purposes by the chief financial officer, contrary to his certifications. When a principal ratifies the acts of his agent, he is as responsible for those acts as if he had done the acts himself. See Ford Motor Co. v. Abercrombie, 207 Ga. 464, 475 (62 SE2d 209) (1950) (“[t]he principal is bound by the authorized acts of his agent as effectively as if he had been present and personally committed that act”). “A ratification may be . . . implied from the acts or silence of the principal.” OCGA § 10-6-52. And while the question of ratification is usually one for the trier of fact, Wielgorecki v. White, 133 Ga. App. 834, 838 (212 SE2d 480) (1975), when an agent informs his principal about what the agent has done, “the principal must express his dissatisfaction within a reasonable time, otherwise his assent to his agent’s acts will be presumed.” Dobbs v. Titan Properties, 178 Ga. App. 389, 390 (343 SE2d 419) (1986) (citation and punctuation omitted).

Here, the record shows that Jones was responsible for supervising the chief financial officer, and he was required to express his dissatisfaction with, or at least question, the unlawful diversions to avoid a presumption that he ratified them. On two separate occasions, the chief financial officer expressly notified Jones that Red Oak sales proceeds were being transferred to cover portability voucher payments. Jones knew that such use of Red Oak funds violated HUD restrictions, but Jones did not seek approval for the unlawful transfers or notify the Board or HUD that the transfers were being made. Jones has offered no evidence that he questioned, raised an objection to, or expressed any dissatisfaction with the transfers. As a result, Jones is presumed to have ratified the transfers by his acquiescence or silence.

The misuse of restricted HUD funds, such as the Red Oak funds, undisputably caused material harm to the business of the Authority. Because the undisputed facts show that Jones ratified such misuse, he performed an action that caused material harm to the Authority within the meaning of the termination for cause provisions of his employment agreement, and for that reason, the Authority was entitled to terminate his employment for cause.

2. We next address the contention that the trial court erred when it denied partial summary judgment to Jones on his claim that the Authority was required under his employment agreement to pay a certain amount into a pension plan for his benefit. As noted by the court below, the employment contract provided only that the Authority would contribute “an amount to be agreed upon[,]” but the plan never was funded. The trial court found that the contractual provision regarding the plan was an unenforceable agreement to agree because it contained “no specifics regarding [the] terms and conditions [of the plan],” and the only evidence offered to show that the parties had agreed upon the amount to be contributed was a “self-serving affidavit” in which Jones claimed that the parties, in fact, had agreed to an amount that the Authority would pay into the pension plan.

Pursuant to the Statute of Frauds, a contract that is not to be fully performed within one year from the making thereof must be memorialized “in writing and signed by the party to be charged therewith or some person lawfully authorized by him.” OCGA § 13-5-30. Parol evidence is not admissible to supply any missing essential element of such a contract, Sawyer v. Roberts, 208 Ga. App. 870, 871 (432 SE2d 610) (1993), and the amount of compensation is one of the essential elements of an employment contract. Carter v. Hubbard, 224 Ga. App. 375, 377 (480 SE2d 382) (1997). Thus, parol evidence is not admissible to establish the amount of compensation owed to an employee under an employment contract for a term of more than one year. See id. (“to be enforceable, a promise of future compensation must be made at the beginning of the employment... [and] must be for an exact amount of compensation or based upon a formula or method for determining the exact amount of the compensation”) (punctuation omitted) (quoting Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995)); see also Edwards v. Central Ga. HHS, 253 Ga. App. 304, 306-307 (558 SE2d 815) (2002) (finding that an employee’s affidavit was insufficient evidence of an agreement as to the amount of a bonus to be paid to the employee to overcome the employer’s motion for summary judgment on the employee’s claim for breach of contract).

Decided March 20, 2012.

Albert L. Kemp, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Cheryl B. Reid, for appellee.

Here, the trial court did not err when it refused to consider Jones’s affidavit as evidence of the amount to be paid into a deferred compensation plan because that amount could only have been established by a written agreement. As an agreement that was not to be fully performed within one year, Jones’s employment agreement falls within the purview of the Statute of Frauds. Consequently, parol evidence is not admissible to supply any of its essential terms, including the amount of compensation owed to Jones thereunder. The contract does not identify an amount of compensation to be paid into a deferred compensation plan, nor does it identify a formula or method for determining such an amount. And Jones has not offered any evidence that the parties reached an agreement as to such an amount, formula, or method in writing. As a matter of law, Jones’s affidavit is parol evidence, which is inadmissible for the purpose of proving the existence of such an agreement. See Edwards, 253 Ga. App. at 306-307; Carter, 224 Ga. App. at 377. Given that there is no admissible evidence of the amount to be paid into a deferred compensation plan for Jones’s benefit, the court below properly found that the contractual provision for the establishment of such a plan is unenforceable.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       In addition, Jones was responsible for “reviewing financial reports,” “maintaining] official records and accounts,” acting as the “custodian of all funds and properties” of the Authority, and “direct[ing] the preparation and maintenance of all financial records.”

       Under the regular voucher program, the Authority issues vouchers to qualified families, those families submit the vouchers to participating landlords, and the landlords, in turn, redeem the vouchers with the Authority for payment. The Authority funds its regular voucher payments with annual contributions from HUD, and those contributions are only permitted to be used for regular voucher payments.

       Portability vouchers are issued to qualified families by local housing agencies other than the Authority. When families move into Fulton County with portability vouchers, the Authority redeems those vouchers for payment. The annual contributions of HUD to the Authority cannot be used for payment of portability vouchers. The Authority instead must obtain the funds to make its portability voucher payments from the housing agencies that issued the vouchers.

       The Authority uses HUD funds, subject to restrictions, to acquire and maintain certain affordable housing facilities, and one such facility was known as the Red Oak Housing Project. HUD authorized the Authority to sell the Red Oak Housing Project, subject to the condition that the proceeds of the sale would only be used “for the development of other affordable housing” and, specifically, for housing known as the Riverside Replacement Housing Project.

       In light of the inaccurate reporting of financial data to HUD, HUD reduced its funding to the Authority by more than $600,000 in 2009. And because the Authority improperly used its HUD annual contributions and Red Oak sales proceeds to cover its portability voucher payments, the Authority became liable to HUD for reimbursement of those funds, but it lacked the resources to repay HUD. For the same reason, the Authority did not have sufficient funds to timely cover its regular voucher payments, leaving tenants and landlords without funding. Lacking sufficient funds to cover its financial obligations, the Authority was forced to make cutbacks in its programs and services and reduce staff compensation and benefits.

       Indeed, Jones was the custodian of all funds and was responsible for ensuring compliance with HUD restrictions. Thus, it was Jones’s duty to ensure that restricted HUD funds were used for proper purposes.


source: Caselaw Access Project

license: Public Domain

text:
    A11A1914.
    CITY OF DOUGLAS v. HUDSON.
    (726 SE2d 496)
   Blackwell, Judge.

After Steven Hudson sustained serious injuries in a criminal assault, he sued the City of Douglas, alleging that it owed a duty to protect him from his assailant but negligently failed to do so. The City moved for summary judgment, disputing that it owed any such duty, but the court below denied that motion. The City now appeals from the denial of summary judgment, and we reverse.

The standard for summary judgment is settled and familiar. “Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.” Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). So, as we have explained before, “to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.” Id.

When a defendant moves for summary judgment as to an element of the case for which the plaintiff. . . will bear the burden of proof at trial... the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element.

Id. We review the denial of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

So viewed, the record shows that Hudson experienced a disruption of his cable television service in November 2007, and he discovered that someone had tampered with the cable box outside his apartment. He reported the tampering to his cable service provider, and it dispatched repair personnel to restore cable service to Hudson. About a week later, Marcus Zachery — who apparently had tampered with the cable box to steal cable service for himself — approached Hudson, complained that Hudson should not have contacted his cable service provider, and threatened to kill Hudson. Hudson called for police assistance, and several City of Douglas officers responded. Hudson told these officers about the threat and asked them to “make [Zachery] leave me alone.” One of the officers spoke with Zachery, but the officer did not arrest him. The same officer subsequently provided a copy of his incident report to Hudson, and the officer suggested that Hudson take the report to a magistrate judge and apply for a warrant on Zachery. Two weeks later, Hudson did so, but the judge would not issue a warrant because the incident report was incomplete. Hudson tried several times to contact the officer to ask for a completed report, but he was unable to reach the officer.

Hudson moved out of his apartment for a few months, and during that time, he had no more contact with Zachery. Then, in March 2008, Hudson moved back into his apartment. A few days later, he saw a City of Douglas officer at a local Wal-Mart, and he asked the officer if Zachery was still around. This officer responded: “If I’m not mistaken . . . somebody [went] over there today to have Marcus Zachery removed.... You are all right____Don’t worry about [it].... You go on back over there.” But that evening, Hudson discovered that his cable service again had been disrupted. When he went out to investigate, he learned from a neighbor that Zachery had been tampering with the cable box, and Hudson again called for police assistance. City of Douglas officers responded, Hudson pointed out Zachery to the officers, and the officers told Hudson to return to his apartment with the assurance that they would “go handle this.” Hudson did so, and his cable service soon was restored. Hudson heard nothing more from the officers about what, if anything, they had done with Zachery. Two days later, as Hudson walked to his mailbox, he was assaulted by Zachery, sustaining serious injuries as a result.

To prove a claim of negligence, a plaintiff must show that the defendant owed a duty to him, that the defendant breached its duty, and that the plaintiff sustained injuries as a proximate result of the breach of duty. See Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Consequently, the first questions in any negligence case are whether and to what extent the defendant owed the plaintiff a duty of care, Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 695 (1) (716 SE2d 713) (2011), both of which are questions of law. Barrett v. Ga. Dept. of Transp., 304 Ga. App. 667, 669 (1) (697 SE2d 217) (2010). When a municipality is sued for its negligent failure to provide police protection sufficient to keep the plaintiff safe from criminal violence, the plaintiff cannot rest on a generalized obligation of the municipality to protect the public at large, and he instead must show that the municipality owed a duty to him in particular. City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993). See also Gregory v. Clive, 282 Ga. 476, 477 (651 SE2d 709) (2007); Butler v. Carlisle, 299 Ga. App. 815, 824 (4) (683 SE2d 882) (2009). Such a showing ordinarily requires proof of a “special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual----” City of Rome, 263 Ga. at 28 (1) (emphasis in original). See also Partain v. Oconee County, 293 Ga. App. 320, 321 (1) (667 SE2d 132) (2008). In this case, the City contends that Hudson is without evidence sufficient to show the requisite special relationship, and we agree.

A showing of a special relationship requires proof of three things. First, the plaintiff must establish that a municipal officer or employee explicitly assured him that the municipality would act on his behalf. Second, the plaintiff must prove that the municipality had knowledge that its failure to act could expose the plaintiff to harm. And third, the plaintiff must show that he relied justifiably and detrimentally on the assurance that the municipality would act. City of Rome, 263 Ga. at 29 (2). See also Partain, 293 Ga. App. at 321 (1). In this case, even assuming that the officers who dealt with Hudson knew that their failure to act could expose Hudson to harm, Hudson has failed to come forward with evidence sufficient to prove that he relied justifiably and detrimentally on explicit assurances that the City would act on his behalf.

We begin our analysis with the suggestion of an officer in November 2007 that Hudson take a police incident report to a magistrate and procure a warrant on Zachery. If this suggestion was an assurance at all, it was a conditional assurance that, if a warrant was issued for Zachery, then the municipality would arrest him on the warrant. Even assuming that such an assurance amounts to an “explicit assurance,” Hudson could not possibly have still been relying justifiably and detrimentally upon it at the time he was assaulted by Zachery. To the contrary, the undisputed evidence clearly shows that Hudson tried to obtain a warrant from a magistrate, was unsuccessful because the incident report was incomplete, tried several times to get a completed incident report from the officer, and eventually gave up. By the time of the assault, Hudson had known for months that no warrant would be issued for the incident that was the subject of the incident report, and he could not possibly have been justified then in relying on any assurance given in November 2007.

We next consider the assurance given to Hudson in March 2008 in a local Wal-Mart that Zachery had been removed from the vicinity of Hudson’s apartment that very day. City of Rome speaks only of assurances of things to come — “an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party,” 263 Ga. at 29 (2) (emphasis supplied) — but the assurance about the removal of Zachery concerns an event that, the officer giving the assurance believed, already had occurred. Whether such an assurance about past occurrences can satisfy the requirement of an “explicit assurance” is uncertain, but we will assume in this case, without deciding, that it can. Nevertheless, although Hudson might have relied justifiably upon this assurance for a short time, he discovered later that day that Zachery had again tampered with his cable box, and when he called for police assistance, he pointed out Zachery to the officers. By then, Hudson quite clearly knew that Zachery had not, in fact, been removed from the area — or that, if he had been, the removal was ineffectual — so he could not have continued to justifiably rely upon that assurance in the following days, including when he was attacked by Zachery a few days later.

Finally, we consider the assurance given by one of the officers who responded in March 2008 when Hudson reported for a second time that someone had tampered with his cable box. This officer told Hudson to return to his apartment and that the officers would “go handle this.” Subsequently, the cable box was repaired, and Hudson apparently heard nothing more from the officer. While the statement of this officer undoubtedly is an assurance, it is so vague and uncertain that it does not, we think, amount to the “explicit assurance” that our Supreme Court has said is required in a case like this one. The officer said nothing about what, if anything, he intended to do to “handle this.” And by saying that he would “handle this,” he presumably meant that he would handle the circumstance that brought the officer to the scene, namely a report of tampering with a cable box. Apparently the officers did “handle” that circumstance, inasmuch as cable service was restored to Hudson soon thereafter and he was not disturbed again. There is no evidence that Hudson reported any violence or threats of violence to the officers in March 2008, and there is, therefore, no reason to construe the assurance as an “explicit assurance” that the officers would do anything at all to keep Hudson safe from physical harm at the hands of Zachery. And in any event, it was not a sufficiently explicit assurance for Hudson to have reasonably relied upon it two days later when he exposed himself to a criminal assault by walking to his mailbox.

Citing footnote 4 of City of Rome, Hudson argues that, even absent proof of a special relationship, he should survive summary judgment on the facts of this case. In footnote 4, our Supreme Court said that,

[s] ince the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act.

263 Ga. at 29, n. 4. Hudson argues that the officers were present at his apartment, knew of the danger to him, and could have protected him, but failed to do so, which amounts, he says, to a breach of their special duty to protect Hudson. We disagree.

We have previously interpreted the City of Rome footnote to mean that

even in the absence of one or more of the three express requirements for the existence of a special relationship with the injured citizen, a special duty to protect that citizen might be found under some circumstances where a police officer is present at the scene of a crime about to be perpetrated against the citizen (who at that point is an identifiable victim) and the officer fails to act to protect the citizen despite his ability to do so. . . . The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff’s decedent. In deciding the issue of when, if ever, an official’s public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim.

Landis v. Rockdale County, 212 Ga. App. 700, 702 (445 SE2d 264) (1994) (citation and punctuation omitted; emphasis in original). Here, it cannot be said that any officer was present at a scene where a crime of violence was about to occur, inasmuch as the assault did not occur until two days after the last police response. It is the assault, not some earlier crime involving mere threats or tampering with a cable box, that led to the injuries for which Hudson has sued, and so it is the scene of that crime that matters for the purpose of applying footnote 4.

Even construed most favorably to Hudson, the record shows that Hudson is without evidence sufficient to prove a special relationship between himself and the City, and footnote 4 of City of Rome simply has no application here. For these reasons, the City is entitled to judgment as a matter of law, and the court below erred when it denied the motion for summary judgment. The judgment below is reversed.

Decided March 20, 2012.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Steven G. Blackerby, for appellant.

Copeland, Haugabrook & Walker, Kimberly L. Copeland, Tyrone N. Haugabrook, for appellee.

Judgment reversed.

Mikell, P. J., and Dillard, J., concur.

       The court below certified the denial of summary judgment for immediate review, and the City timely filed a petition for immediate review, which we granted. This appeal followed. See OCGA§ 5-6-34 (b).

       Zachery later was convicted of aggravated battery.

       Although Hudson claims Zachery threatened to kill him, neither of the incidents prior to the assault involved physical violence between the two men, and the incidents were approximately four months apart, so it could be questioned whether the officers knew that any inaction actually could cause Hudson harm. It is not unusual for people to make threats during a heated argument, but — more often than not — these threats are never carried out. For purposes of this opinion, however, we are assuming that a material question of fact exists about the knowledge requirement of the special relationship test.


author: Dillard, Judge.

text:
    A11A2065.
    SOUTHERN GENERAL INSURANCE COMPANY v. WELLSTAR HEALTH SYSTEMS, INC.
    (726 SE2d 488)
   Dillard, Judge.

Southern General Insurance Company (“Southern General”) seeks the reversal of the trial court’s denial of its motion for summary judgment and grant of summary judgment to Wellstar Health Systems, Inc. (“Wellstar”), arguing that (1) a conflict between case law and statutory law requires Southern General to make payments in excess of policy limits with its insured and (2) the conflict in the law denies insurance companies equal protection. For the reasons set forth infra, we affirm the trial court’s judgment.

To prevail on summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, when viewed in the nonmovant’s favor, entitle the movant to judgment as a matter of law. We review de novo a trial court’s grant of summary adjudication, construing the evidence in the light most favorable to the nonmoving party.

So viewed, the underlying facts are undisputed by the parties. The record reveals that Southern General issued an automobile liability policy to its insured with a policy limit of $25,000. In September 2007, the insured’s vehicle collided with a bicycle ridden by Norman Gray. Gray’s left leg was fractured as a result of this accident, and he sought treatment at Wellstar, with medical expenses totaling $22,047.50.

Thereafter, in October 2007, Wellstar notified Gray and Southern General of its intent to file liens “for the cost of [the] treatment against recoveries realized from any and all causes of action accruing to [Gray] as a result of [the] accident.” The following month, Wellstar in fact filed two hospital liens covering the total hospital and treatment charges incurred by Gray.

But before Wellstar filed a lien, Southern General offered to settle with Gray in the amount of $25,000 (i.e., the applicable policy limits). The settlement letter noted that Wellstar’s hospital lien had been discussed and that Southern General had “confirmation that this lien will be satisfied or that we and our insured will be indemnified from this lien prior to issuing our settlement check.” The insurer indicated that the settlement check and a general release would be issued after Gray and his attorney signed an enclosed lien statement. But on October 24, 2007, Gray sent a letter to Southern General, demanding that the company tender its policy limits within five days in light of Frickey v. Jones.

Southern General responded the following day as to having received the demand letter, and the company enclosed a standard release from liability. Southern General requested that Gray’s attorney review the release and agree to have Gray sign it “to conclude his bodily injury claim.” The letter further directed that if Gray agreed with the release, Southern General would forward a check for $25,000. The general release included the following provision:

The undersigned further warrants and represents that there are no medical, hospital or other liens and no claims by any person, firm, corporation or other entity against the consideration paid herein. The undersigned agrees, in consideration of the payment herein, to indemnify and hold said Payer(s) harmless for any and all claims made against said Payer(s) for medical expenses, hospital expenses or any other expenses related or claimed to be related to treatment or services rendered to the undersigned for injuries or claims arising out of the aforementioned occurrence, including the payment of attorneys fees and expenses.

On October 26, 2007, Gray’s attorney responded that his client was “willing to sign a general release but not an indemnification agreement.” Thereafter, by check dated October 29, 2007, Southern General tendered $25,000 to Gray and his attorney. And on October 31,2007, Gray returned a signed release to Southern General that did not include the aforementioned indemnification provision.

This prompted Wellstar to file suit against Southern General, alleging that after receiving notice ofWellstar’s hospital liens, “Southern General willfully ignored the lien[s] and made payments directly to the injured person ... and made no payment to [Wellstar].” Thus, Wellstar sought $22,047.50 from Southern General in addition to attorney fees pursuant to OCGA § 44-14-473 (a). Southern General then filed for summary judgment, alleging that the settlement was made in compliance with Gray’s time-limit demand to avoid the result in Frickey v. Jones. Specifically, Southern General argued that the precedents established by our Supreme Court in Frickey and Southern General Insurance Co. v. Holt are irreconcilable with the hospital-lien provisions contained in OCGA §§ 44-14-470 and 44-14-473 because an insurance company could be required to make payments in excess of the policy limits with its insured. Southern General further argued that it was denied equal protection by this alleged conflict in the law.

The trial court denied Southern General’s motion for summary judgment, explaining that “[t]he question to be decided is whether [Southern General’s] tender of its policy limits to Gray upon receipt of Gray’s unconditional time-limited demand is a defense to Well-star’s action to enforce its lien.” And the trial court decided that it was not.

Specifically, the trial court held that if Southern General had “satisfied Wellstar by paying the hospital bill as part of the insurance proceeds, Gray would have received the full benefit of the insurance proceeds he demanded,” and therefore, Southern General “would not have been exposed to a claim for bad faith in its failure to settle the claim within policy limits based on the time-limited settlement offer by Gray.” And because the trial court did not find the case and statutory law irreconcilable, it did not address Southern General’s constitutional argument before denying summary judgment to Southern General and sua sponte granting same to Webstar. This appeal by Southern General follows, in which the company makes the same two arguments to this Court that it did below.

1. Southern General first argues that Frickey and Holt, when coupled with OCGA §§ 44-14-470 and 44-14-473, impermissibly set up an insurance company “to pay in excess of its contractually agreed policy limits because it cannot both unconditionally accept a time limit demand, and satisfy the statutorily enforced hospital lien.” We disagree.

At the outset, it is necessary to address an insurance company’s responsibilities in the face of settlement demands and hospital liens.

First, when faced with a time-limit settlement demand, “[a]n insurance company may be liable for damages to its insured for failing to settle the claim of an injured person [when] the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim.” And in deciding whether to settle a claim within the applicable policy limits, “the insurance company must give equal consideration to the interests of the insured.” Whether the insurer “has accorded the insured the same faithful consideration it gives its own interest” is a question for a jury, which must be decided in view of existing circumstances. But an insurance company does not act in bad faith “solely because it fails to accept a settlement offer within the deadline set by the injured person’s attorney.” Instead, the issue is whether “all the facts show sufficient evidence to withstand an insurance company’s motion for directed verdict and permit a jury to determine whether the insurer acted unreasonably in declining to accept a time-limited settlement offer.”

Second, as to an insurance company’s obligation to satisfy a hospital lien, OCGA § 44-14-470 provides that

[a]ny person, firm, hospital authority, or corporation operating a hospital... in this state shall have a lien for the reasonable charges for hospital . . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished ... on account of injuries giving rise to the causes of action and which necessitated the hospital... care .... The lien provided for in this subsection is only a lien against such causes of action and shall not be a lien against such injured person... or any other property or assets of such persons and shall not be evidence of such person’s failure to pay a debt.. . .

As our Supreme Court has explained, “the lien allows the hospital to step into the shoes of the insured for purposes of receiving payment from the tortfeasor’s insurance company for economic damages represented by the hospital bill.” And after a hospital lien has been filed, “[n]o release of the cause or causes of action... shall be valid or effectual against the lien . . . unless the holder thereof shall join therein or execute a release of the lien____” Moreover, “the claimant or assignee of the lien may enforce the lien by an action against the person, firm, or corporation liable for the damages or such person, firm, or corporation’s insurer.”

Southern General considers these to be competing duties and argues that under our Supreme Court’s settlement cases of Frickey and Holt, it was “left with no choice but to unconditionally accept Gray’s demand [to settle within the policy limits] or face liability of any excess exposure for a bad faith refusal to settle.” But the actual holdings in these cases belie Southern General’s assertion that our Supreme Court has created precedents that “impermissibly set[ ] up an insurance company to pay in excess of its contractually agreed policy limits because it cannot both unconditionally accept a time limit demand[ ] and satisfy the statutorily enforced hospital lien.”

Indeed, in Frickey, our Supreme Court held that no binding settlement agreement was reached between an insurance company and an injured party when, in response to a demand letter from the injured party, the insurance company required an additional act— namely, the resolution of all actual and potential liens of health care providers. Thus, the holding in Frickey was limited to issues of offer and acceptance (i.e., the enforceability of a settlement agreement). And in Holt, when an insurance company contended that it was improperly denied a directed verdict on the issue of bad faith, our Supreme Court merely held that there was a jury question as to the company’s potential negligence or bad faith in refusing to settle for the policy limits when (1) liability was clear and (2) the injured individual’s special damages exceeded the applicable policy limits. Given these holdings, we agree with the trial court’s conclusion that Southern General’s argument is misplaced.

To begin with, we are not at all convinced that Gray’s time-limit demand was even sufficient to invoke a Holt-scenario given the five-day time limit and a lack of documentation to show that special damages actually exceeded Southern General’s policy limits. Nevertheless, the question before us is whether an insurance company’s common law and statutory duties are reconcilable under the law, and we agree with the trial court that they are. Like the trial court, we conclude that it is possible for an insurance company to create a “safe harbor” from liability under Holt and its progeny when (1) the insurer promptly acts to settle a case involving clear liability and special damages in excess of the applicable policy limits, and (2) the sole reason for the parties’ inability to reach a settlement is the plaintiffs unreasonable refusal to assure the satisfaction of any outstanding hospital liens.

Consider the following hypothetical: An insurance company— faced with a situation of clear liability and special damages in excess of the policy limits — offers in a timely fashion to tender its policy limits to the plaintiff, subject to a reasonably and narrowly tailored provision assuring that the plaintiff will satisfy any hospital liens from the proceeds of such settlement payment. For example, the insurance company could request that plaintiffs counsel or a third party hold a portion of the settlement proceeds (in an amount equal to that of the hospital lien) in escrow to allow the plaintiff an opportunity to investigate the validity of the liens and to negotiate with the hospital. And once the relevant lien-resolving documents have been executed by the parties, the held-back settlement funds could then be disbursed to the plaintiff. But if the insurer made such an offer or counteroffer (in a timely and reasonable fashion) and the plaintiff unreasonably refused to give the requested assurance, the insurer is (at that point) under no obligation to tender policy limits directly to the plaintiff. Indeed, a plaintiff who unreasonably refuses to give such an assurance does so at his or her own peril because the insurance company would thereafter have no obligation to negotiate with the hospital or otherwise advocate on the plaintiff’s behalf. Instead, the insurer would be free (at that point) to simply verify the validity of any liens, make payment directly to the hospital, and then disburse any remaining funds to the plaintiff.

If an insurer so reacted to a plaintiff s unreasonable refusal to assure satisfaction of hospital liens as a condition of receiving policy limits, the insurer would create a safe harbor from liability under Holt and its progeny. And in such a scenario, when the failure to settle a Holt-scenario claim is based solely on the plaintiff’s unreasonable refusal to agree to a reasonably and narrowly tailored provision assuring that any hospital liens will be satisfied from the settlement proceeds, that cannot, as a matter of law, constitute a bad faith failure to settle when the insurer is merely attempting to comply with its legal obligations. Put another way, no reasonable jury could conclude that an insurer has refused to settle a Holt-scenario case in bad faith when the only reason for the insurer’s refusal to settle with the plaintiff is the insurer’s insistence that any settlement payment to plaintiff be conditioned on the satisfaction of hospital liens that the insurer is obligated by statute to pay. In sum, the hypothetical scenario posited supra describes circumstances quite different from those in which an insurer has arguably acted unreasonably, as was the situation in Holt and subsequent cases that have applied the rule from Holt.

In some sense, the hypothetical outlined supra was also suggested by the trial court when it denied Southern General’s motion for summary judgment. The trial court extended the logic employed by our Supreme Court to the interplay between uninsured motorist coverage and hospital liens to create a safe harbor for insurance companies. And this lends further support to what we suggest supra. Indeed, in the context of uninsured motorist coverage and hospital liens, our Supreme Court has held that a hospital bill is part of an injured individual’s economic damages caused by a tortfeasor and that these economic damages are part of the injured individual’s cause of action against the tortfeasor and the tortfeasor’s insurance company. Thus, payment to a hospital can either represent full or partial satisfaction of the injured individual’s claim, and the “payment inures directly to [the injured individual’s] benefit for payment of a hospital bill for which he is directly responsible.”

Accordingly, in the case sub judice, because Wellstar’s hospital liens were part of Gray’s claim, after negotiating with Gray and receiving Gray’s unreasonable refusal to assure payment of same, Southern General could have satisfied Gray’s claim by verifying the liens, making payment directly to Wellstar, and then remitting any balance of the policy limits to the plaintiff. Because in doing so, “Gray would have received the full benefit of the insurance proceeds he demanded.” And this comports with our Supreme Court’s express disapproval of “placing an affirmative duty on the [insurance] company to engage in negotiations concerning a settlement demand that is' in excess of the insurance policy’s limits,” instead allowing an insurer to create a safe harbor from liability on a bad-faith claim “by meeting the portion of the demand over which it has control, thus doing what it can to effectuate the settlement of the claims against its insured.”

In the case sub judice, when Gray demanded Southern General’s policy limits without also agreeing to assure satisfaction of Wellstar’s hospital liens, Southern General was effectively faced with a settlement demand in excess of its policy limits. Thus, had Southern General verified the validity of the liens, made payment directly to Wellstar, and then paid the remainder of its policy limits to Gray, Southern General would have created a safe harbor from liability under Holt and its progeny. Therefore, the trial court did not err in denying summary judgment to Southern General and granting same to Wellstar.

2. Southern General also argues that it has been denied equal protection because the interplay between the case law and statutory law “places it in a position of liability in which no self-insured or uninsured driver would ever be placed.” Given our holding in Division 1, we need not address this argument. Additionally, this enumeration is not properly before us because the trial court did not rule on the constitutional question. Thus, this enumeration is not ripe for appellate consideration.

Decided March 20, 2012.

Swift, Currie, McGhee & Hiers, Kenneth M. Barre, Douglas L. Clayton, for appellant.

Elizabeth S. Richards, Clinton A. Harkins, for appellee.

Accordingly, for all the foregoing reasons, we affirm the trial court’s judgment.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

        See, e.g., Pew v. One Buckhead Loop Condo. Ass’n, Inc., 305 Ga. App. 456, 456 (700 SE2d 831) (2010); see also OCGA§ 9-11-56 (c).

        See, e.g., Pew, 305 Ga. App. at 456.

       The liens stated that Wellstar
      claim[ed] a lien on all sums and amounts, whether in property or money, paid to the above named patient or their legal representative by any person, firm or corporation ..., if any, as a settlement, as a release, or as a judgment or as consideration for a covenant not to sue when said sum or amounts represent damages or compensation for the patient’s injuries for which [Wellstar] has rendered its services to such injuries.

       280 Ga. 573 (630 SE2d 374) (2006).

       Southern General in turn filed suit against Gray, alleging that if Southern General were found liable to Wellstar, Gray should be liable to Southern General “for part or all of any sums it is required to pay [Wellstar].” This action ended in a default judgment against Gray, with Gray ordered to “indemnify Southern General for all or any part of a judgment entered in favor of [Wellstar].”

       280 Ga. 573 (630 SE2d 374) (2006).

       262 Ga. 267 (416 SE2d 274) (1992).

        Holt, 262 Ga. at 268 (1).

        Id.; see also Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683, 685 (1) (580 SE2d 519) (2003) (“The rationale is that the interests of the insurer and insured diverge when a plaintiff offers to settle a claim for the limits of the insurance policy. The insured is interested in protecting itself against an excess judgment; the insurer has less incentive to settle because litigation may result in a verdict below the policy limits or a defense verdict.”).

        Holt, 262 Ga. at 269 (1) (punctuation omitted).

        Id.

        Id. See generally Kingsley v. State Farm Mut. Auto. Ins. Co., 353 FSupp.2d 1242, 1248-54 (2) (a)-(b) (N.D. Ga. 2005) (providing an overview of Georgia law with regard to settlement demands).

       OCGA § 44-14-470 (b); see also State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315, 317 (702 SE2d 898) (2010) (“[Tjhis statute recognizes that a hospital is entitled to directly bill the patient for its services and to rely solely on the patient to pay for medical services rendered. To ensure payment to the hospital, the statute grants the hospital a lien against a patient’s cause of action. This cause of action refers to the patient’s recourse against a tortfeasor for causing the patient’s injuries.”).

        Adams, 288 Ga. at 318.

       OCGA § 44-14-473 (a).

        Id. (emphasis supplied). But see Integon Indem. Corp. v. Henry Med. Ctr., Inc., 235 Ga. App. 97, 100 (1) (b) (508 SE2d 476) (1998) (holding that hospital lien statute did not permit lien-holder to enforce the lien against tortfeasor’s insurance company because statute, at the time, did not so allow), abrogated by statute, 2002 Ga. L. p. 1429, § 4 (codified at OCGA § 44-14-473 (a)).

        Frickey, 280 Ga. at 575-76.

        See id..; see also Mealer v. Kennedy, 290 Ga. App. 432, 436 (659 SE2d 809) (2008) (noting that the Supreme Court held in Frickey that “the purported acceptance did not create an enforceable agreement”).

        Holt, 262 Ga. at 269 (1).

        See id. (“Nothing in this decision is intended to lay down a rule of law that would mean that a plaintiffs attorney under similar circumstances could ‘set up’ an insurer for an excess judgment merely by offering to settle within the policy limits and by imposing an unreasonably short time within which the offer would remain open.”); see also Brightman, 276 Ga. at 685 (specifying that Holt held that an insurer has “a duty to its insured to respond to the plaintiff’s deadline to settle the personal injury claim within the policy limits when the insurer [has] knowledge of clear liability and special damages exceeding the policy limits” (emphasis supplied)); Holt, 262 Ga. at 269 (1) (plaintiff “had medical bills and lost wages exceeding the limits of [the insurance] policy”).

       The hypothetical posited supra should in no way be read as condoning or encouraging an insurance company to make payment directly to a hospital before engaging in good-faith settlement negotiations with a plaintiff. And while we leave the answer to this question for another day, it is possible that an insurer would be liable under Holt and its progeny if the company made payment directly to the hospital before even attempting to negotiate with the plaintiff.

        Cf. Brightman, 276 Ga. at 687 (2) (“[A]n insurance company faced with a demand involving multiple insurers can create a safe harbor from liability for an insured’s bad faith claim under Holt by meeting the portion of the demand over which it has control, thus doing what it can to effectuate the settlement of the claims against the insured.”); Fortner v. Grange Mut. Ins. Co., 286 Ga. 189, 191 (686 SE2d 93) (2009) (discussingBrightman and explaining that its safe harbor provision “protects an insurer from liability under the reasonableness standard based on an allegation that it failed to satisfy a settlement condition over which it had no control” (emphasis omitted)).

        See McDonald v. Home State County Mut. Ins. Co., No. 01-09-00838-CV, 2011 WL 1103116, at *6 (V) (A) (Tex. App. March 24, 2011) (holding that when plaintiff’s settlement demand did not also include an assurance that plaintiff would satisfy hospital liens, the demand “failed to propose reasonable terms such that an ordinarily prudent insurer would have accepted them and assumed for itself the risk that the liens would be enforced”); see also Fortner, 286 Ga. at 190 (‘Whether an insurance company acts in bad faith in refusing to settle depends on whether the insurance company acted reasonably in responding to a settlement offer, bearing in mind that, in deciding whether to settle, the insurer must give the insured’s interests the same consideration that it gives its own.”). Cf. Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 12 (2) (712 SE2d 531) (2011) (discussing bad faith in a different context but explaining that it “may be shown by demonstrating that under the policy and under the facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying payment” (punctuation omitted)). But see Butler v. First Acceptance Ins. Co., 652 FSupp.2d 1264, 1277 (II) (B) (N.D. Ga. 2009) (applying Georgia law and holding that insurance company’s response to plaintiff’s settlement demand was a counteroffer when it requested assurance that plaintiff would satisfy hens, and this presented question of fact as to reasonableness/ bad faith).

        See Holt, 262 Ga. at 276 (1) (question of fact existed as to whether insurance company “acted unreasonably in declining to accept a time-limited settlement offer” when liability was clear and documentation established that damages exceeded the policy limits); see also Dickerson v. Am. Nat’l Prop. & Cas. Co., No. 3:07-CV-111, 2009 WL 1035131, at *6-8 (I) (M.D. Ga. April 16, 2009) (applying Holt and holding that question of fact existed as to whether insurance company acted in bad faith when it requested medical records and did not accept settlement demand after receiving sufficient documentation to show that damages exceeded policy limit); Whiteside v. Infinity Cas. Ins. Co., No. 4:07-CV-87, 2008 WL 3456508, at *11-12 (III) (B) (1) (M.D. Ga. Aug. 8, 2008) (applying Holt and holding that question of fact existed as to whether insurance company acted in bad faith when it failed to respond to multiple settlement demands when company knew injuries were serious and policy limit was low); Hulsey v. Travelers Indem. Co. of Am., 460 FSupp.2d 1332, 1335 (II) (B) (N.D. Ga. 2006) (applying Holt and holding that although insurance company claimed it did not make payment due to a question regarding extent of coverage, plaintiff presented evidence that the company knew or should have known the answer to the question, which was sufficient to reach a jury on the question of bad faith failure to settle).

        Adams, 288 Ga. at 318.

        Id.

        State Farm Auto. Ins. Co. v. Metro. Prop. & Cas. Ins. Co., 284 Ga. App. 430, 434 (643 SE2d 895) (2007) (punctuation omitted); see also Brightman, 276 Ga. at 687 (2) (“[W]e disapprove of . . . placing an affirmative duty on the [insurance] company to engage in negotiations concerning a settlement demand that is in excess of the insurance policy’s limits.”).

       In so holding, we further note that even if we agreed with Southern General that Frickey and Holt were irreconcilable with the statutory law covering hospital liens, those decisions are nevertheless binding precedent on this Court. See Ga. Const. Art. 6, § 6, ¶ VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); see also State v. Smith, 308 Ga. App. 345, 352 (1) (707 SE2d560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”).

        See City of Decatur v. DeKalb County, 284 Ga. 434, 438 (2) (668 SE2d 247) (2008) (holding that Court of Appeals was without jurisdiction to consider constitutional issue because the trial court did not specifically or distinctly rule on the issue).

        See Decatur Fed. Sav. & Loan Ass’n v. Litsky, 207 Ga. App. 752, 755 (2) (429 SE2d 300) (1993) (although trial court “took note” of constitutional argument in order, the issue was not ruled on and there was no ruling to review on appeal).


author: Boggs, Judge. DILLARD, Judge,

text:
    A11A2242.
    IN THE INTEREST OF E. G. et al., children.
    (726 SE2d 510)
   Boggs, Judge.

A juvenile court terminated the father’s parental rights to his two children, five-year-old E. G. and two-year-old M. G. Following the denial of his amended motion for new trial, the father appeals, asserting several claims of error. Having reviewed these claims, we find no error and affirm.

The record reveals that the Morgan County Department of Family and Children Services (“DFACS”) became involved with the family in early 2009. On April 3, 2009, the juvenile court entered an order for shelter care placing the children in the custody of DFACS. This order found as fact that the mother had recently tested positive for methamphetamine, moved between several counties during the previous two weeks, did not have stable housing or employment, and violated her safety plan by having the children’s paternal grandmother remove the children from their safety resource placement without DFACS permission. The order found further that the father was incarcerated. DFACS filed a deprivation petition the same day the court signed the order for shelter care. On April 14, 2009, nunc pro tunc to March 30, 2009, the juvenile court held a 72-hour hearing and entered an order on April 24, 2009, concluding that the children were deprived and awarding temporary custody of the children to DFACS.

The juvenile court, on April 24, 2009, signed an order incorporating a 30-day case plan formulated by DFACS. Although the record includes several case plan reports involving the mother, the parents’ original case plan was not admitted during the termination hearing, but was later admitted at the hearing on the motion for new trial. The case plan required both parents to: attend and complete a drug/alcohol treatment program, remain drug and alcohol free, submit to random drug screens, follow any recommendations of a psychological evaluation, attend and complete parenting classes, obtain and maintain a source of income/support for the children, and obtain and maintain clean and safe housing that is large enough for the parents and children.

On September 15, 2009, the juvenile court signed a “Consent Order of Adjudication & Disposition as to the Legal Father,” concluding that the children were deprived as to the father due to inadequate housing, failure to provide support due to unstable or irregular employment, domestic violence issues, and a recommendation for an outpatient alcohol treatment program. On the same day, the court signed a judicial review finding that the father missed his psychological examination, had not entered the outpatient program or domestic violence counseling, did not have housing or employment, and did not sign the case plan until August 2009, but that he had completed a DNA test, passed drug screens, visited the children, and had attended some of the parenting classes. The court found that the father had to complete the drug treatment program and domestic violence counseling, and secure safe, stable housing in order for the children to be returned to his care.

Upon motion by DFACS, the juvenile court ordered that the case be continued until March 9, 2010 due to the mother’s mental health and possible drug use. The court, in a March 9,2010 “Order on Motion for Extension/Permanency Order,” found that the father did not have a stable residence, “failed treatment,” did not pay child support and had not visited the children since December 2009, and had not cooperated with DFACS. DFACS filed a petition to terminate parental rights on April 21, 2010. Following a hearing, the juvenile court terminated the parental rights of both the mother and the father in an order entered on August 23,2010. The father filed a motion for new trial, and an amended motion for new trial, which the juvenile court denied following a hearing. It is from the denial of this motion that the father appeals.

At the hearing on the petition for termination, a DFACS caseworker testified that she became involved with the case in November 2009 and at that time made several unannounced visits to the father’s home with no success. The father left her a phone message in December 2009, and she was finally able to visit him at his home in April 2010. During this visit, she and the father discussed “what he needed to do” under the case plan. When she attempted to make a second visit to the father’s home, the home was abandoned. When she later made contact with the father, she gave him a phone number to arrange his appointment for substance abuse treatment.

Another caseworker explained that the father “never accepted the fact why his children were removed. So, we could not get beyond that point to address any of his issues,” and that although he was presented with the case plan in March 2009, he did not sign the case plan until August 2009. She stated further that she explained to the father on “four or five” occasions “what he needed to do to get his kids back,” and that it never seemed to “click with him at all.” The father never provided the caseworker with proof of employment or housing, or proof that he completed substance abuse counseling. The caseworker noted that the father called her maybe “once or twice” about the children. The father’s last visit with the children was in March 2010; DFACS had stopped providing him with transportation for the visits in November 2009. The caseworker testified that M. G. does not have any special needs, but that E. G. has been diagnosed with ADHD and is on medication.

A licensed psychologist testified that the children are attached to their foster parents who are committed to the children and plan to adopt them. She explained that E. G. “expressed feelings about his dad. He has been angry, sad, and worried about his dad for not coming for visits. He’s also disclosed inappropriate physical discipline by his dad when he was living with his dad . . . [s]aid that his dad had slapped him, punched him, and hit him.” She recounted that on one occasion, E. G. asked her “do you know I have had six mothers?” and that E. G. refers to his current home as “my home, my room, my mommy, my daddy, my things ... he shows ownership of this family and the life that he has created here, or that they have created for him and with him there.” She stated further that “it could be very confusing” for the children to have uncertainty about who is “going to be their mom and dad,” and that for E. G. it would create frustration. The psychologist explained further that “given their young age, I think that these children have been in foster care for long enough. I do not feel like that [staying] any longer in foster care would be . . . emotionally to their advantage.” The psychologist concluded that a change in placement “would be very emotionally devastating to [E. G.] if he had to leave the placement that he is at right now.”

The father testified that he was arrested in 2007 for criminal trespass. He admitted he was required to undergo a psychological examination as part of his case plan but missed three appointments, explaining that he missed them because he was not employed at the time and had no transportation. The father also admitted he was required to complete a substance abuse assessment and an outpatient treatment program as part of his case plan, but could not do so because he later found employment and could not complete these requirements because of his work schedule. The father did, however, complete four out of eight required parenting classes, and passed all drug screens.

The father stated that he was living with his parents at the time of the hearing, but that he was “working on getting ... a place,” and had been employed for the previous five months at a manufacturing plant working 40 to 54 hours per week. He stated that he was paid about $2,300 per month with overtime, and submitted paycheck stubs at the hearing. When asked if he had paid child support, the father responded, “I haven’t been notified to do that,” and stated further that he did not think he needed to “complet[e] treatment.” The father admitted he had not visited the children in the five months prior to the hearing, but stated it was due to his work schedule. He purchased a used vehicle three months before the hearing. The father admitted during the hearing that he was not currently able to care for the children, but asked for more time to secure stable housing. He could not provide a time frame for when he would be able to care for the children stating only “[hjopefully pretty soon.” The father later explained that he “realistically” needed about six months “to get on [his] feet.” At the conclusion of the hearing, the father’s counsel requested 90 days for the father to complete the requirements of his case plan.

Following the presentation of evidence, the juvenile court noted that it could not make a finding with regard to the father’s ability to parent the children because the father failed to submit to the court-ordered psychological examination. The court also found that both parents have a history of drug abuse, that the father “failed significantly for a period of one year or longer to develop and maintain a parental bond with these children in a meaningful and supportive manner, to provide for their care and support.” The court found further that

the father has decided what the elements of his plan will be, and he will do what he thinks he should be doing, which is, to stay out of touch with the custodian of his children, to not have — have any meaningful supportive contact with his own child, to not pay any child support, but to work and at some day maybe in the future ... he might be able to provide a home [for the children].

The court found that the cause of the deprivation was likely to continue because in addition to the mother’s drug addiction and psychological problems, the father, “continues to have no insight into why his children were removed.” With regard to whether the continued deprivation would cause harm, the juvenile court found that the father “has not completed parenting. He has not completed A&D treatment that was ordered by the Court under the case plan. He’s not demonstrated that he can provide stable housing. And [he] has a lack of commitment to these children which will just continue to confuse and hurt his son emotionally.”

The court concluded that termination of the parental rights of both parents was in the best interests of the children. In deciding placement for the children, the court found that relatives of the parents were either eliminated or failed to timely come forward to express an interest in the children, and that the foster parents “have demonstrated a commitment to adopt them.” The court then ordered that the children be placed in the custody of DFACS for the purpose of adoption. The juvenile court’s written order reflects these same findings of fact and conclusions of law.

1. The father argues that the juvenile court erred in relying on, and referring to, the father’s case plan “even though the case plan was never entered into evidence, does not otherwise appear in the record in connection with a previous proceeding . . . and no one ever specifically testified as to its contents.” But although the father’s case plan was not admitted into evidence during the termination hearing, details of the case plan were confirmed by the testimony of a parent aide, a caseworker, and the father himself. And in a judicial review made a part of the record, the juvenile court listed the requirements of the plan and the father’s status on completing those requirements. Under OCGA § 15-11-65 (b), formerly OCGA § 15-11-33 (d), “all information helpful in determining whether the children are deprived, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” (Punctuation omitted.) In the Interest of M. L. P., 236 Ga. App. 504, 510 (2) (512 SE2d 652) (1999). At the hearing on the motion for new trial, the juvenile court allowed DEACS to enter into evidence the father’s case plan, a caseworker testified to the requirements of the plan, and the father acknowledged that he signed it. Under these circumstances, we find no ground for reversal. See id. at 511 (2); In the Interest of D. T., 251 Ga. App. 839, 843-844 (1) (555 SE2d 215) (2001) (case plan details were corroborated by testimony of caseworkers and appellants).

2. The father argues that the juvenile court erred in finding clear and convincing evidence that the children were presently deprived, that the cause of the deprivation was likely to continue, and that the continued deprivation of the children was likely to cause “serious physical, mental, emotional, or moral harm.” See OCGA§ 15-11-94 (b) (4) (A) (i), (iii), and (iv).

In considering a challenge to the sufficiency of the evidence in a termination of parental rights case, the question is whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In making that determination, this Court reviews the evidence in a light most favorable to the lower court’s judgments and we neither weigh evidence nor determine the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citation and punctuation omitted.) In the Interest of M. L., 290 Ga. App. 437, 438 (659 SE2d 800) (2008). And in order to terminate a parent’s rights as to a child,

the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. ... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

OCGA § 15-11-94 (a). The court makes a determination regarding parental misconduct or inability by finding that the children are deprived, the lack of proper parental care or control by the parent in question is the cause of the children’s status as deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-94 (b) (4) (A).

Here, the father does not challenge the finding regarding the second factor (lack of proper parental care or control), nor does he challenge the court’s finding that termination was in the best interests of the children. We therefore limit our analysis to a consideration of only the challenged findings. See In the Interest of M. L., supra, 290 Ga. App. at 439.

(a) The father argues that the juvenile court erred by finding clear and convincing evidence of present deprivation. See OCGA § 15-11-94 (b) (4) (A) (i).

Where, as here, the children have been removed from parental custody, [DFACS] may prove current deprivation by showing that, if the children were returned to their [father] at the time of the hearing, they would be deprived. This may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.

(Citations and footnotes omitted.) In the Interest of Z. H. T., 302 Ga. App. 424, 429 (1) (a) (691 SE2d 292) (2010).

Here, the juvenile court found specifically with regard to current deprivation: “There was a finding by this Court dated September 15th ’09. That finding has not been appealed, but there are other factors . . . supporting deprivation. The Court finds that drug abuse by the mother, instability of both parents, irregular employment, neglect, and [in] adequate housing.” The father’s own testimony, that he was unable at the time of the termination hearing to care for the children and did not have stable housing, is sufficient to show that the children were presently deprived within the meaning of OCGA § 15-11-2 (8) (A) (Child is deprived if he is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.”). See In the Interest of P. D. W., 296 Ga. App. 189, 193 (1) (a) (674 SE2d 338) (2009) (current deprivation found for same reasons as alleged in most recent petition: mother not in treatment for drug issues, did not have stable housing, and paid no child support); see also In the Interest of T. B., 267 Ga. App. 484, 486-487 (1) (600 SE2d 432) (2004) (father’s failure to support child, even in absence of order directing father to pay specific amount is compelling evidence he is not an able parent).

(b) The father contends that there was a lack of clear and convincing evidence to show that the cause of the deprivation was likely to continue. See OCGA§ 15-11-94 (b) (4) (A) (iii). “In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent.” (Citation omitted.) In the Interest of J. C., 237 Ga. App. 533, 535-536 (1) (515 SE2d 847) (1999). And “the question how much weight should be given to a parent’s recent improvements is a question for the trier of fact. In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” (Citation and punctuation omitted.) In the Interest of J. E., 309 Ga. App. 51, 56 (1) (c) (711 SE2d 5) (2011).

The father argues that because he made some progress on his case plan and had been employed for the five months before the hearing, and because he had visited with the children regularly until DFACS stopped providing him with transportation, the court erred in finding that the cause of the deprivation was likely to continue. But evidence was also presented that the father failed to complete his case plan and made no effort to do so even after he became employed and purchased a vehicle, failed to cooperate with and communicate with his caseworkers consistently, failed to visit the children at any time in the five months before the hearing even though he had transportation to do so, and failed to support them in any meaningful way during the nearly seventeen months the children were in the custody of DFACS.

The father also contends that he was never asked or ordered to pay child support. But the “father’s failure to support his child, even in the absence of an order directing the father to pay a specific amount for the child’s support, is compelling evidence that the father is not an able parent.” (Citation omitted.) In the Interest of T. B., supra, 267 Ga. App. at 486-487 (1); see In the Interest of K. B. E., 291 Ga. App. 75, 78 (661 SE2d 217) (2008) (Georgia law requires parent to support child financially while child in foster care).

Although the father testified that he needed more time to secure stable housing, “[a] plea for more time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child.” In the Interest of J. C., supra, 237 Ga. App. at 536 (1). He made little or no effort to complete the case plan even after the caseworker informed him what was needed before the children could be returned to him. The father simply never accepted the importance of completing the plan, nor did he understand the importance of supporting the children and visiting and developing a bond with them despite his work schedule.

There was clear and convincing evidence to support the juvenile court’s finding that the children’s deprivation was likely to continue. See In the Interest of T. C., 302 Ga. App. 693, 696 (1) (691 SE2d 603) (2010) (finding that deprivation likely to continue supported by evidence of failure to cooperate with DFACS, and failure to consistently visit with children); In the Interest of M. L., supra, 290 Ga. App. at 441 (3) (failure to visit children for three months, comply with case plan goals, or support children sustained finding that the deprivation would likely continue). This is particularly true where as here, the father testified at the hearing that he was still not yet ready or able to provide for the children’s needs, partly because he was living with his parents and had not secured his own housing. See In the Interest of J. C., supra, 237 Ga. App. at 536 (1) (father’s failure to visit child regularly, stay in contact with DFACS, and to secure a safe home environment for the child supported finding that the deprivation woüld likely continue, particularly since the father was not ready or able to provide for child’s basic needs at time of hearing).

(c) The father argues that the juvenile court erred in finding clear and convincing evidence that the continued deprivation is likely to cause serious mental, emotional, physical or moral harm to the children. See OCGA § 15-11-94 (b) (4) (A) (iv). “The question we address is whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” (Citation and punctuation omitted.) In the Interest of C. G., 289 Ga. App. 844, 853 (1) (d) (658 SE2d 448) (2008). “[T]he same facts authorizing a finding that deprivation is likely to continue may also authorize a finding, under the circumstances of an individual case, that the continued deprivation is likely to cause serious harm.” (Citation omitted; emphasis in original.) In the Interest of J. E., supra, 309 Ga. App. at 57 (1) (d). Moreover,

our law requires a juvenile court to consider not only the relationship between the parent and child at the time of the termination hearing, but also what might happen if the child were returned to the parent given the likelihood that the deprivation under which the child has been suffering would continue after a reunion with that parent.

(Emphasis in original.) Id. at 58 (1) (d).

Here, the record reveals no evidence of a bond between the father and the children. In fact, the only evidence of the father’s relationship with the children was a psychologist’s testimony that E. G. was “angry, sad, and worried about his dad for not coming for visits,” and that E. G. told the psychologist that the father hit, slapped and punched him while disciplining him. M. G., only nine months old when she was placed in DFACS custody and age two at the time of the hearing, had only visited with her father twice in 2010. The lack of evidence showing a bond between the father and the children is underscored in this case by the father’s failure to visit them for the five months before the termination hearing when he had his own transportation, and his failure to provide support for the children in any meaningful way during the nearly seventeen months they were in DFACS custody. Moreover, evidence that the children are thriving and have a strong bond with their foster parents who intend to adopt them, and that E. G. would be emotionally devastated if removed from his foster home, shows that the children would likely suffer harm if returned to the father. See In the Interest of A. E. S., 310 Ga. App. 667, 670 (714 SE2d 148) (2011); In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008) (prolonged foster care harmful where child in foster care since birth and no evidence of parental bond between father and child). “We have previously held that where evidence shows no parental bond between parent and child, the child has adapted well to foster care, and the foster parents wish to adopt, this is sufficient to support the conclusion that continued deprivation is likely to harm the child.” (Citations and punctuation omitted.) In the Interest of D. D. B., 282 Ga. App. 416, 420 (1) (638 SE2d 843) (2006). Although the father testified that he needed more time to be able to care for the children, “the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of C. G., supra, 289 Ga. App. at 854 (1) (d).

3. Finally, the father contends that he received ineffective assistance of counsel. In order to prevail on an ineffective assistance claim, “appellant must show that [his] trial counsel’s performance was deficient and that the deficient performance prejudiced [him].” In the Interest of S. N. H., 300 Ga. App. 321, 329 (5) (685 SE2d 290) (2009).

Failure to satisfy either prong of this test is fatal to an ineffective assistance claim, and we need not address the issue of deficient performance if appellant has not borne [his] burden of demonstrating prejudice .... [A] juvenile court’s finding that a parent has been afforded effective assistance of counsel will be affirmed on appeal unless that finding is clearly erroneous.

(Citations and footnotes omitted.) Id. at 330 (5).

(a) The father contends that his counsel failed to adequately investigate the case. But counsel testified at the hearing on the motion for new trial that DFACS had an open file policy and that he was privy to all of the information in the case and therefore did not think it was necessary to file discovery. Counsel stated further that he had all of the information he needed, and that he regularly communicated with the case manager. The father has therefore failed to show that counsel’s performance was deficient. Additionally, the father has failed to make a proffer of any facts that further investigation would have uncovered that had not already been presented at the termination hearing or at the hearing on the motion for new trial. He therefore has failed to meet his burden of showing harm. See Williams v. State, 304 Ga. App. 592, 595 (4) (696 SE2d 512) (2010).

(b) The father also contends that counsel stipulated to an additional ground of deprivation not alleged in the original deprivation petition. But he has failed to state specifically to which ground he refers. It appears from the motion for new trial transcript that the father claims counsel stipulated to the fact that he failed to provide support due to unstable employment. But counsel did not recall stipulating to this ground of deprivation. Moreover, the father testified he was unemployed at some time after the children were taken into DFACS custody, and also acknowledged that he never paid child support. The father has therefore failed to show how he was prejudiced.

(c) The father also argues generally that counsel failed to subpoena witnesses. But he failed to name or present any potential witnesses at the hearing on the motion for new trial or show how the failure to subpoena unknown witnesses prejudiced him. See, e.g., Taylor v. State, 293 Ga. App. 551, 554 (2) (667 SE2d 405) (2008).

(d) The father’s remaining grounds of ineffective assistance are waived because those grounds were not raised in his motion for new trial, his amended motion, or at the hearing on the motion. See Nichols v. State, 285 Ga. 784, 785 (2) (a) (683 SE2d 610) (2009) (allegation of ineffectiveness waived where it differs from ground raised below). And “[mjerely eliciting testimony in the course of a hearing, without raising any argument concerning that testimony in a motion, brief, or argument before the trial court, is insufficient to place the trial court on notice as to what is being asserted and the grounds for the assertion.” Stone v. State, 229 Ga. App. 367, 371 (2) (494 SE2d 48) (1997).

Judgment affirmed.

Mikell, P. J., concurs. Dillard, J., concurs fully as to Division 3 and in judgment only as to Divisions 1 and 2.

DILLARD, Judge,

concurring fully as to Division 3 and in judgment only as to Divisions 1 and 2.

I agree with the majority’s conclusion in Division 1 that the failure of the State to enter the father’s case plan into the record does not provide a basis for reversal. Nevertheless, because I do not agree that a parent’s compliance with a case plan is particularly relevant in determining whether or not a child is deprived or whether a parent’s rights should be terminated, I concur in judgment only as to this division.

I also take no issue with the majority’s ultimate conclusion that the juvenile court did not err in finding clear and convincing evidence that (1) E. G. and M. G. are currently deprived and (2) this deprivation is likely to continue. Additionally, I agree with the majority’s decision that the juvenile court could have found that present clear and convincing evidence warranted the termination of the natural father’s parental rights. However, I do not entirely agree with the majority’s underlying reasoning in reaching these conclusions and, therefore, specially concur in judgment only as to Division 2.

Specifically, I do not agree with the majority’s assertion that the pertinent question in analyzing whether “the continued deprivation is likely to cause serious mental, emotional, physical or moral harm” is “whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” As I have previously noted,

[t]he overarching question in a termination proceeding is not whether the child has a model parent, or even whether that parent is presently capable of taking his or her child back into custody, but is instead whether the natural parent-child relationship has been irretrievably damaged as a result of the parent’s unwillingness or inability to care for the child — i.e., that the continuation of the natural parent-child relationship, as it presently exists with the child in the custody of the State, is causing or is likely to cause that child serious harm. As our Supreme Court has recently and rightly emphasized, “[o]ne who is subject to the termination of parental rights cannot be equated to an individual who faces an interruption of custody” because termination “is a much more severe measure” that acts as a “remedy of last resort to address the most exceptional situation of a deprived child and that child’s continuing deprivation.” Put another way, it is one thing to remove a child from a parent’s custody for reasons of neglect, but quite another to permanently and irrevocably sever the natural parent-child relationship. And there is a reason for this crucial distinction: Terminating a parent’s rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child’s constitutional right to familial relations.

I also disagree with the majority’s suggestion that a natural parent’s rights can be terminated merely because the father failed to satisfy certain elements of the State’s reunification plan (e.g., securing stable employment and housing), or because he was not financially or emotionally capable of parenting his child at the time of the termination hearing. I likewise do not approve of the majority’s reliance “on generalized notions of permanency as a basis for terminating parental rights.” As I have previously explained,

[w]hile I do not quibble with the general proposition that children need permanency (or, for that matter, the corollary that long-term foster care can have ill effects), I find it troubling that many of our prior decisions upholding the termination of parental rights appear to rely, in part, on such generalizations without specifically tying them to particularized findings of fact, even though we have repeatedly held that a juvenile court is required to make explicit findings of fact that the child at issue — rather than some hypothetical child placed in the subject child’s situation — will suffer or is likely to suffer serious harm as a result of the continued deprivation.

Decided March 20, 2012.

Sara E. Adams, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Prior, Daniel & Wiltshire, Lee R. Moss, for appellee.

Nevertheless, I do agree with the majority that the juvenile court was correct in terminating the father’s parental rights because the record evidence shows, clearly and convincingly, that the ongoing parental relationship between the father and both E. G. and M. G. is likely to cause the children serious, actual harm if permitted to continue. As the majority notes, the father “failed to visit the children at any time in the five months before the hearing even though he had transportation to do so,” and he likewise failed to financially provide for his children even when he had stable employment and was clearly capable of doing so.

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

       We granted the father’s application for discretionary review.

       DFACS subsequently amended its deprivation petition on May 6, 2009.

       The father denied ever hitting either of the children.

       The father testified at the hearing on the motion for new trial that he visited the children regularly from the time DFACS took them into custody up until November 2009, when he was informed that DFACS would no longer provide him with transportation for the visitation.

       The court-appointed special advocates did not testify at the termination hearing. And the guardian ad litem stated only that she recommended the court terminate the parental rights of both parents and that the children be placed with DFACS for adoption.

       Because I agree with all that is said in Division 3 of the majority’s opinion, the reasoning and holding contained therein is to be treated as binding precedent of this Court and is not to be considered as merely physical precedent.

       Although the discussion that follows is as to the majority’s reasoning as employed in Division 2 (c) only, much of the analysis in Divisions 2 (a) and (b) is intertwined with the reasoning I object to in Division 2 (c), and this is why I concur in judgment only as to the entirety of Division 2.

        In the Interest of J. E., 309 Ga. App. 51, 61 (711 SE2d 5) (2011) (Dillard, J., dissenting) (footnote omitted).

        See In the Interest of M. M. S., 308 Ga. App. 614, 626 (708 SE2d 570) (2011) (Dillard, J., concurring fully and specially).

        In the Interest of J. E., 309 Ga. App. at 66 (Dillard, J., dissenting).

        Id. at 66-67 (footnote omitted).

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