author: McMillian, Judge. DILLARD, Judge, ANDREWS, Presiding Judge,

text:
    A13A0792.
    In the Interest of C. J. V. et al., children.
    (746 SE2d 783)
   McMillian, Judge.

The mother of C. J. V. and F. N. R., born in January 2007 and January 2009, respectively, appeals from the trial court’s order terminating her parental rights. Because the evidence does not show clearly and convincingly that the cause of the deprivation of the children is likely to continue or will not likely be remedied, we must reverse the order of termination.

On appeal from a juvenile court’s order terminating a parent’s rights, we view the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of C. S., 319 Ga. App. 138, 139 (735 SE2d 140) (2012). Additionally,

[w]e proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). In the Interest of T. E. T., 282 Ga. App. 269, 269-270 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is present clear and convincing evidence ofparental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

(Citation omitted.) In the Interest of R. N. H., 286 Ga. App. 737, 739-740 (650 SE2d 397) (2007). Moreover, OCGA § 15-11-94 (b) (4) (B) sets out several factors that a juvenile court may consider in deciding whether the child is without proper parental care and control. And if the children are not in the parent’s custody, pursuant to OCGA § 15-11-94 (b) (4) (C),

the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

(Emphasis supplied.)

Without belaboring the point, we will assume that the evidence was sufficient to show that the children were deprived since the mother did not appeal that determination. Accordingly, we will focus our analysis on whether the evidence clearly and convincingly showed that the deprivation was likely to continue since we believe that is the dispositive inquiry here.

The termination petition in this case was filed on May 24, 2012, less than one year after the initial case plan was entered on June 29, 2011. The mother’s reunification goals included attending parenting classes, obtaining and maintaining a source of income and stable housing, maintaining visitation with the children, “follow [ing] through with Vocational Rehab for assistance with employment,” completing a psychological evaluation and following through with recommendations, and paying child support.

The evidence at the termination hearing, which took place in August 2012, showed that despite the fact that the mother lived in an area of the state that had been particularly hard hit by recent economic downturns, the mother had been able to secure a job and had been working for about three to four months. Further, although the mother had been “laid off” at the time of the hearing, she testified that she had been definitively told by her employer that she would be called back, although she did not have an exact date for when that would be. The mother had already applied for unemployment benefits, although she had been laid off for only about one week. The mother had also been living on her own in an efficiency unit for about six months, and although the mother’s sister signed the lease and paid the rent for the first three months, the mother had apparently been paying the rent since that time.

The mother had also met the case plan requirement of attending a parenting class and completing a psychological evaluation. Further, she had consistently visited the children, and by all accounts she had a bond with them, knew how to care for them, interacted appropriately with them, and provided them presents at appropriate times. Further, she had started making child support payments after she got a job, and had made two payments totaling almost $700.

The juvenile court recognized that the mother had met some of the case plan goals, but found that the mother had not met the goals of securing stable employment because she was unemployed at the time of the hearing. Further, the juvenile court opined that because she was currently unemployed, she was in danger of losing her housing and noted the mother’s history of instability with income and housing. The juvenile court acknowledged that the mother had made two child support payments, but noted that the mother did not start paying child support until after the petition was filed. Likewise, although the juvenile court recognized that the mother had completed the psychological evaluation, he did not consider her to have fulfilled the plan requirement because she had not followed through with the recommended treatment. And the court made a negative finding concerning the mother’s failure to participate in a vocational rehabilitation program. Thus, the court concluded that the children would be currently deprived if returned to the mother because of her lack of stable, suitable housing, her lack of income, her failure to pay child support and her failure to complete “many” of the case plan goals.

Although

[i]t is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue,... it is equally true that evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required. Moreover, the record must contain clear and convincing evidence that the cause of the deprivation is likely to continue.

(Citations and punctuation omitted; emphasis in original.) In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009). In our view, even construing the evidence in the light most favorable to the termination order, as we must on appeal, several pertinent findings in the juvenile court’s order were either contrary to or not clearly and convincingly shown by the evidence.

First, contrary to the juvenile court’s findings, the record shows that at the time the termination petition was filed, which was less than one year after the case plan was put into place, the mother had met or substantially completed many of the major goals of her case plan. She had been able to secure employment, and although she was temporarily laid off, she was certain she would be called back to work and in the interim had already applied for unemployment benefits. Thus, the juvenile court merely speculated that the mother might be without income for such a length of time that she was in danger of losing her residence because she would not be able to pay for it. And although the mother did not participate in vocational rehabilitation, she was able to secure employment through her own efforts. Further, the mother had made significant efforts to pay child support after she had secured employment, paying a substantial amount in a short period of time although her hourly wages were not high.

Further, the mother had completed her psychological evaluation. Although the juvenile court nevertheless counted this as a failure because she apparently did not follow up on the recommended treatment, neither the psychological examination nor the results were introduced into evidence at the termination hearing, and the report does not otherwise appear in the record. Thus, we do not know how minor or trivial those recommendations might have been, or even whether they related to any aspect of the mother being able to parent her children. And, importantly, there is no other evidence in the record to suggest that the mother suffered from any medically verifiable deficiency of a mental or emotional nature that would result in an inability to parent her children. Moreover, as with the case plan in general, the mother was given only a short period of time to complete the recommendations before the termination petition was filed and the hearing held.

Thus, it appears that this is a case where the primary reason the mother’s rights were terminated was due to economic inability to provide for the children, and that her shortcomings in failing to comply with the two major components of her case plan “stem largely from her relative poverty. However, [it is well established that] poverty alone is not a basis for termination.” (Citation omitted.) In the Interest of C. T., 286 Ga. App. 186, 190 (648 SE2d 708) (2007). Similarly, we have held that the fact that a mother is “unemployed, without prospects for future employment, and without any stable living arrangements” is not sufficient to terminate parental rights. Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 340 (1) (274 SE2d 728) (1980). Moreover, in this case there is no evidence of a verifiable mental or physical condition that indicates the mother is incapable of caring for the children. And the juvenile court appears to have totally discounted the fact that despite the hurdles facing the mother in her bleak economic environment, she managed to find a job which gave her enough income to pay her rent and make several substantial child support payments. Accordingly, this is not a case where the “evidence” consisted of merely “positive promises” from the parent that she would change and rectify past failures so as to avoid termination of her parental rights, and the juvenile court appears to have prematurely discounted the mother’s progress toward meeting her goals. Further, the mother’s efforts to maintain a bond with her children appeared to be consistent throughout, and it appears that she had been successful in maintaining that bond during the limited amount of visitation she was allowed.

As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue. While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship. Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for the appellant, subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. at 148. In the Interest of M.T.F., 318 Ga.App. 135(733 SE2d 432) (2012) (although mother did not have verifiable proof of income, she had maintained stable housing and her prospects for future employment were high); In the Interest of K. J., 226 Ga. App. 303 (486 SE2d 899) (1997) (termination not warranted because juvenile court’s determination that mother could not maintain an independent lifestyle was premature). Compare In the Interest of J. J. J., 289 Ga. App. 466, 469-470 (657 SE2d 588) (2008) (deprivation likely to continue when appellant had medically verifiable deficiency of mental or emotional health, failed to support the child, comply with reunification plan and failed to establish bond).

Because we find that the evidence does not support a determination that the causes of the deprivation are likely to continue or will not likely be remedied, we need not reach the issue of harm or the second stage of the inquiry concerning the best interests of the children.

Judgment reversed,

Phipps, C. J., Doyle, P. J., McFadden and Boggs, JJ., concur. Dillard, J., concurs fully and specially. Andrews, P. J., dissents.

DILLARD, Judge,

concurring fully and specially.

This was not a close case. As the majority aptly demonstrates, the evidence presented to the trial court did not clearly and convincingly show that the cause of the deprivation of the children is likely to continue or will not likely be remedied. I, of course, agree with this conclusion, and I fully concur with the majority opinion. Nevertheless, I write separately to highlight and repudiate the troubling reasoning employed by the trial court below and adopted by my dissenting colleague.

In a nutshell, this case is the poster child for all that is wrong with this Court’s termination-of-parental-rights jurisprudence: the mother essentially had her parental rights terminated by the trial court for being poor. And while I am certainly appalled by that decision, I do not entirely fault the juvenile-court judge, who did nothing more than parrot language and sentiments this Court frequently uses to justify terminating parental rights:

• “The mother was required to obtain/maintain stable housing with sufficient space to meet the needs of her children for at least six months.”
• “[T]he mother admitted to having at least seven different residences since the removal [of her children], and [s]ix of those were with ‘friends.’ ”
• “Her current residence ... is leased in the name of her sister, who paid her rent for her first three months,” and is “a one room efficiency in a lodge.”
• “The mother was required to obtain/maintain sufficient income for at least six months,” and she “remained unemployed until three months prior to the hearing.”
• The mother “is now unemployed once again” and “currently has no source of income.”
• The mother “admits she draws food stamps for herself.”
• “The mother was required to pay support for the benefit of the children,” but “paid NO support until well after this petition was filed.”
• “The mother has a history . . . [that] includes repeated problems with stability in income and housing.”
• “The mother has no stable, suitable housing ... no income ... [, and she] has substantially failed to support the children for a period of more than twelve months.”

In other words, the mother is really, really poor.

It is the height of irony that Georgia, a state founded for the purpose of providing a fresh start for those whose “misfortunes and want of Employment. . . are not able to provide a maintenance for themselves and Families,” now has an institutionalized policy of severing the natural parent-child relationships of its poorest and most vulnerable citizens simply because they are unable to keep up with the Joneses. Some may call this progress. I do not. And, in any event, I do not think such a policy is even remotely constitutional. The United States and Georgia Constitutions require that the State must proffer compelling facts before terminating and, thus, permanently extinguishing, parental rights. This is not such a case, and the trial court clearly erred in terminating the mother’s parental rights.

Specifically, the trial court and dissent err in concluding that a parent’s mere failure to meet certain aspects of the State’s reunification plan in any way justifies the termination of her parental rights. Indeed, the notion that parental rights can be terminated, in part, because a parent has failed to secure independent housing, stable employment, or work on “vocational rehabilitation” (or the like) is not only patently unconstitutional but morally repugnant — as such “goals,” inter alia, disproportionately discriminate against those who are socioeconomically disadvantaged. To be sure, securing independent housing, stable employment, and furthering one’s job training or education are commendable goals, and there is nothing inherently wrong with the government encouraging the citizens it serves to better their lives. What the government is not entitled to do, regardless of any apparent statutory authority for doing so, is to force some generalized, bureaucratic, Orwellian notion of parenting onto citizens who have temporarily lost custody of their children as a precondition to regaining custody of those children. Indeed, I find it deeply troubling that both the trial court and dissent justify the termination of the mother’s parental rights, in part, because she has moved from place to place, lived with different people, depended on others for financial support, and failed to provide toys for her children. The State has no right to irrevocably sever the natural parent-child relationship simply because a parent is incapable of providing her children with an idyllic middle-class lifestyle. And while it is certainly heartening to know that the children are thriving in their foster home, the State has no business facilitating the adoption of children entrusted to its care until and unless a parent has, by her actions or inaction, forfeited her constitutional right to familial relations. The State’s primary goal must be to maintain and preserve the natural parent-child relationship, not to act as a clandestine adoption agency.

I also disagree with the trial court and dissent’s suggestion that a natural parent’s rights can be terminated merely because she was not financially or emotionally capable of parenting her child at the time of the termination hearing. I likewise disapprove of the trial court and dissent’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.

I also do not share the trial court and dissent’s view 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 explained,

[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.

In sum, I vehemently disagree with the reasoning employed by the trial court and dissent in seeking to terminate the mother’s parental rights, which, to be fair, is typical of that utilized by this Court in termination-of-parental-rights cases. In my view, this reasoning makes a mockery of the cherished and sacrosanct right to familial relations and the concomitant right of parents to raise their children as they see fit, and I will continue to highlight this Court’s inherently flawed and unconstitutional approach to these cases as long as I am privileged to serve Georgians in my capacity as an appellate judge. An order terminating parental rights is the death penalty of civil cases, and this Court should start treating it as such.

ANDREWS, Presiding Judge,

dissenting.

Because I believe that, given this record, and deferring to the juvenile court’s fact-finding, weighing of the evidence and credibility determinations, as we must, there was sufficient clear and convincing evidence to support the juvenile court’s decision, I respectfully dissent.

The record shows that the Department of Family and Children Services (Department) first investigated the children’s living conditions in December 2010, when they were called in because of “lack of supervision.” The mother’s history was that she moved from place to place, living with different people and depending on them for financial support. The mother was given a Parent Aide to help her with a job search and parenting duties, but did not cooperate. The mother moved three times between December 2010 and June 2011 when the Department took custody. At one point she lived with someone who was also involved with the Department and was told that she could not leave her children with this person. Nevertheless, the mother left her children with the roommate for “days at a time.” At the time the Department took custody, the family had moved to a place in which the children had no toys or beds, a foster parent had to bring in necessities such as juice, because the mother could not provide them, and neither the mother nor the roommate could give the names of the men who were living there with them.

The Department caseworker testified that the mother’s interest in complying with the case plan had waned. The caseworker said that the mother cooperated at first, but it had become increasingly difficult to get in touch with her. The caseworker stated that the children are in a “foster to adopt home” and are “doing great.” Both the CASA and the guardian ad litem recommended termination as being in the children’s best interest. The guardian ad litem stated that his recommendation was based on the mother’s failure to show an interest in completing her case plan. According to the guardian ad litem, the mother’s failure to complete the recommendations following the psychological evaluation was a concert, because the children could not go back to the mother until this was accomplished.

In its termination order, the juvenile court found that although the mother had completed the parenting classes and had visited with the children once a month, she had failed to comply with the other requirements of the case plan and had paid no child support until well after the termination petition was filed. The court found that the mother was currently unemployed and in danger of losing her residence. The children had been in foster care for 13 months and the court saw “no hope in the immediate future of being able to return the children to either parent.”

Therefore, there was sufficient clear and convincing evidence that the children were deprived and that the deprivation was likely to continue. As stated, the mother has no income, her sister paid the rent on the apartment, and the apartment was leased in the sister’s name. The caseworker testified that the mother was no longer as interested in complying with the case plan and it was increasingly difficult to get in touch with her. “[W]hat weight to give 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.” (Punctuation and footnotes omitted.) In the Interest of A. T H., 248 Ga. App. 570, 573 (547 SE2d 299) (2001).

The majority cites to In the Interest of C. T., 286 Ga. App. 186 (648 SE2d 708) (2007), as support for its holding that poverty alone should not be a basis for termination. But in that case, the mother did have a steady job and did have permanent housing, although she struggled financially. Id. at 190. Further, in that case, the mother’s compliance with her case plan was “exemplary.” Id.

The law is that the “mother’s failure to make any significant progress toward achieving the goals of stable employment and stable housing, standing alone, was sufficient to support the juvenile court’s finding that the cause of [the children]’s deprivation was likely to continue.” In the Interest of M. S. S., 308 Ga. App. 614, 621 (708 SE2d 570) (2011), citing In the Interest of A. R., 302 Ga. App. 702, 709 (691 SE2d 402) (2010), In the Interest of S. N. H., 300 Ga. App. 321, 327 (685 SE2d 290) (2009), In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (632 SE2d 433) (2006).

There was also sufficient clear and convincing evidence that the continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the children. Although “it is not automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child,” In the Interest of J. T. W., 270 Ga. App. 26, 37 (606 SE2d 59) (2004), in this case the juvenile court was authorized to conclude that the mother’s failure to comply with the requirements of her case plan and failure, over an extended period of time, to get a job and stable housing, could cause harm to the children. In addition, evidence that the children were in a “foster to adopt home” and were doing well supports this finding. See In the Interest of H. L. H., 297 Ga. App. 347, 350 (677 SE2d 396) (2009) (“Evidence that the mother failed to take the steps necessary for reunification, that the foster parents have provided the child with a stable and secure home, and that they want to adopt the child[ren]... supported] a finding that the child would be harmed by further deprivation.”).

Finally, the evidence presented at the hearings and discussed above supports the determination that termination of the mother’s parental rights was in the children’s best interest. “The same factors that show the existence of parental misconduct or inability may also support the juvenile court’s finding that terminating the parent’s rights wouldbe in the child’s best interest.” In the Interest of D. L., 268 Ga. App. 360, 360-361 (601 SE2d 714) (2004). The guardian ad litem and the CASA both recommended termination as being in the children’s best interest. The court found that termination would be in their best interest because it would enable them to achieve stability and permanency. See In the Interest of D. B., 306 Ga. App. 129, 139 (701 SE2d 588) (2010) (Children need permanency, stability, and a safe environment, which the mother failed to demonstrate that she could provide.). See also In the Interest of A. R., supra at 710 (“The test in determining termination of parental rights, is whether the mother, ultimately standing alone, is capable of mastering and utilizing the necessary skills to meet her parenting obligations.”).

Decided July 16, 2013.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Bruce A. Kling, for appellee.

Therefore, because the juvenile court’s determination is supported by clear and convincing evidence on each of the above factors, I believe we must affirm the juvenile court’s order terminating the mother’s parental rights.

       The mother testified that initially she was allowed to visit every week with the children, but that amount was reduced to every two weeks and then to once per month.

       Georgia’s Charter of 1732 (Albert B. Saye ed., University of Georgia 1942) (emphasis supplied), available at http://georgiainfo.galileo.usg.edu/charter.htm.

        See In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009) (emphasizing that “[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”); Blackburn v. Blackburn, 249 Ga. 689, 692 (2) (292 SE2d 821) (1982) (acknowledging that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the United States Constitution,” and that “the Due Process Clause of the Fourteenth Amendment demands that before a state may sever the rights of parents in their natural child, the state must support its allegations by at least clear and convincing evidence” (punctuation and emphasis omitted)); In the Interest of J. E., 309 Ga.App. 51, 62, n.10 (711 SE2d 5) (2011) (Dillard, J., dissenting) (collecting authorities and cases regarding the fundamental constitutional right of familial relations).

        See In the Interest of E. G., 315 Ga. App. 35, 47 (726 SE2d 510) (2012) (Dillard, J., concurring fully and specially) (“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). . . .”); In the Interest of A. E. S., 310 Ga. App. 667, 671 (714 SE2d 148) (2011) (Dillard, J., concurring specially) (same); In the Interest of J. E., 309 Ga. App. at 66, n.19 (same); In the Interest of M. S. S., 308 Ga.App. 614, 626 (708 SE2d 570) (2011) (Dillard, J., concurring fully and specially) (same).

        See In the Interest of L. J. L., 247 Ga. App. 477, 479 (543 SE2d 818) (2001) (noting that “there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship” (punctuation and footnote omitted)); In the Interest of K. J., 226 Ga. App. 303, 306 (486 SE2d 899) (1997) (holding that a judicial determination terminating parental rights “must he scrutinized deliberately and exercised most cautiously,” and that “compelling facts are required to terminate parental rights” (citation and punctuation omitted)); In the Interest of J. E., 309 Ga. App. at 62 (Dillard, J., dissenting) (“Thus, in applying the constitutionally mandated standard of review and accompanying statutory criteria to termination-of-parental-rights cases, we are bound to do so bearing in mind that under both the United States and Georgia Constitutions, a parent has a fundamental constitutional right to, and liberty interest in, the care, custody, and management of his or her children, and that the State may not infringe upon or sever this fiercely guarded right of familial relations except in the most compelling and extraordinary of circumstances! (footnotes omitted; emphasis supplied)); see also id. at n.10 (collecting authorities and cases regarding the fundamental constitutional right of familial relations).

        See generally Janet L. Wallace, Judging Parents, Judging Place: Poverty, Rurality, and Termination of Parental Rights, 77 Mo. L. Rev. 95 (2012); id. at 112 (III) (A) (“Poverty frequently plays a role in child removal and failed reunification, with studies indicating that only when there is no adequate source of income are the children more likely to be removed, and at a very high rate.” (punctuation and footnote omitted)); id. at 116 (III) (B) (noting that “the state sometimes removes children because their parents lack outward signs of a middle-class lifestyle,” that “[jjudges and caseworkers... often impose middle-class values and expectations on impoverished families, who may not fit dominant cultural paradigms, such as white, married, middle-class, and suburban,” and that “dominant society does not view poor families as ‘real’ families,” devaluing these socioeconomically disadvantaged families “to the point of tolerating the termination of the parent-child relationship” (citation and punctuation omitted)).

        See Wallace, supra note 6 at 107 (II) (B) (noting that “some states treat a parent’s inability to comply with a reunification plan as prima facie evidence that returning the child to the parent would be detrimental,” and that “reunification plans leave the state focusing on whether the parent has complied with a lengthy checklist of actions rather than on whether the parent is able to care for the child”); id. (“The issue is no longer whether the child may be safely returned home, but whether the mother has attended every parenting class, made every urine drop, participated in every therapy session, shown up for every scheduled visitation, arrived at every appointment on time, and always maintained a contrite and cooperative disposition. . . . Sometimes permanency plans are so complicated or onerous that they seem designed to ensure failure.” (ellipses in original)); id. (noting that “such plans are not only subjective, they are not centered on children’s well-being . . . [and] leave little room for consideration of context” (footnote omitted)).

        See In the Interest of M. S. S., 308 Ga. App. at 626.

        In the Interest of J. E., 309 Ga. App. at 66.

        Id. (footnotes omitted).

        Id. at 61 (footnotes omitted).

       In this respect, I wish to make clear that I have nothing but the utmost respect and admiration for the juvenile-court judge and my distinguished dissenting colleague. And to the extent the tone of this concurrence comes across as being somewhat obstreperous, the reader should understand that my frustration is not with my esteemed colleagues, but is instead directed squarely at this Court’s deeply troubling termination-of-parental-rights jurisprudence.

        See In the Interest of J. E., 309 Ga. App. at 63 (“Unfortunately, I believe this Court has, in recent years, lost sight of the serious constitutional implications that result from a juvenile court’s termination of parental rights . . . .”); id. at 68, n.31 (outlining constitutional, jurisprudential, and historical basis of parental rights); see also O’Connell v. Turner, 55 Ill. 280, 284-85 (Ill. 1870) (noting that “[t]he parent has the right to the care, custody and assistance of his child,” that “[t]he duty to maintain and protect it, is a principle of natural law,” and that “every attempt to infringe upon it, except from dire necessity, should be resisted in all well governed States”); Bruce C. Hafen, Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Children to Their Rights, 1976 BYU L. Rev. 605, 615 (1976) (“For this reason, both English and American judges view the origins of parental rights as being even more fundamental than property rights. Parental rights to custody and control of minor children have heen variously described as sacred as a matter of natural law, and as inherent, natural rights, for the protection of which, just as much as for the protection of the rights of the individual to life, liberty, and the pursuit of happiness, our government is formed.” (citation and punctuation omitted)).

       Although, the mother did keep up with her visitation, the record shows that the number of visits per month was reduced because of the mother’s missed visits.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A0858.
    THE WORD OF FAITH MINISTRIES, INC. v. HURT et al.
    (746 SE2d 777)
   ELLINGTON, Presiding Judge.

Pursuant to a granted interlocutory appeal, the Word of Faith Ministries, Inc. d/b/a Abundant Life Word Fellowship (“the church”) challenges the order of the Superior Court of Putnam County denying the church’s motion for summary judgment in this premises liability suit brought by Valerie Hurt on behalf of her son, Mark. Because the church is shielded from liability by the Recreational Property Act (“RPA”), OCGA § 51-3-20 et seq., the superior court erred in denying the church’s motion.

Summary judgment is proper when there is no genuine issue of material fact as to any essential element of a claim and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Norton v. Cobb, 284 Ga. App. 303, 303-304 (643 SE2d 803) (2007). So viewed, the record shows the following.

In October 2007, the church sponsored “Hallelujah Fun Night” on its property. The festival was free, open to the community, and intended as an alternative to traditional Halloween activities. Mildred Moss, who was then the youth director at the church, testified that the purpose of the event was to “reach the young people out there . . . [to] bless them . . . [to] do something for them and just let them come in and have fun.” The festival, which was advertised on flyers posted around town, included a bounce house, giant inflatable slide, carnival games, and concession stands offering free drinks, popcorn, hot dogs, and cotton candy. According to Moss, no one from the church was assigned to greet or invite festival-goers to attend services or otherwise introduce them to the church.

Hurt brought her ten-year-old son Mark, along with other children, to the festival. Hurt had never given any money to the church and was not a member there. She deposed that she took the children to the festival for fun and entertainment in lieu of “trick or treating.” When they arrived, Mark went directly to the inflatable slide. When he got to the top of the slide, which was about eight feet from the ground, the slide began to lean because several other children had congregated along one side of its base. He fell from the top of the slide onto the asphalt below and suffered injuries, including alleged permanent damage to his left hip joint. Neither Mark nor his mother believed that the church intended to cause Mark harm or that the church acted with “any kind of malice or intent to hurt” Mark.

1. The church contends that it was entitled to summary judgment under the RPA. We agree. The stated purpose of the RPA “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20.

In order to achieve this purpose, the [RPA] specifies that an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises, unless such injuries resulted from willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

(Citations and punctuation omitted.) South Gwinnett Athletic Assn. v. Nash, 220 Ga. App. 116, 117 (1) (469 SE2d 276) (1996); see OCGA §§ 51-3-23; 51-3-25 (1).

It is undisputed that the church offered the festival free of charge to its guests for their recreation and entertainment. Also, there is no evidence that Mark’s injuries were the result of wilful or malicious conduct on the part of the church or its members. Hurt contends, however, that material issues of fact remain concerning whether the event had an underlying commercial purpose. Hurt argues that the RPAdoes not apply as a matter of law in this case because the church derived an indirect pecuniary benefit from the use of its property, namely that the event was an act of self-promotion designed to encourage people to become contributing members of the church. We disagree.

As we have explained, “our Supreme Court recognized in Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 116 (2) (537 SE2d 345) (2000), that, for the RPAto apply, it is not necessary that the property be used for sheer recreational pleasure.” (Citation and punctuation omitted.) Matheson v. Ga. Dept. of Transp., 280 Ga. App. 192, 195 (1) (b) (633 SE2d 569) (2006). “A single property may have several different uses[.]” Id. In determining whether a property is commercial or recreational,

the important criterion is the purpose for which the public is permitted on the property. If the public is invited to further the business interests of the owner — e.g., for sales of food, merchandise, services, etc. — then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.

(Citation and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. at 116 (2).

Pretermitting whether soliciting new church members during a free festival can be construed as furthering “the business interests of the owner,” there is no evidence that the church was actively seeking to recruit new members during the festival or that they recruited any new members as a result of the festival. Moreover, even if the festival had the effect of encouraging some people to consider joining the church, thereby allowing the church to eventually or potentially “profit” by increased tithes or gifts to the church from those new members, the connection between the festival and the church’s “eventual and hypothetical ‘profit’ is far too tenuous to render the venture commercial.” See Matheson v. Ga. Dept. of Transp., 280 Ga. App. 192, 195, n. 2. Therefore, given the undisputed facts of this case, the church was entitled to summary judgment under the RPA. See Maleare v. Peachtree City Church of Christ, 213 Ga. App. 593, 595 (1) (a) (445 SE2d 321) (1994) (“These undisputed facts and the absence of evidence that the church required any person to give money to support its cause forecloses issues of fact (genuine or otherwise) regarding lack of immunity under the [RPA] due to charges for admission onto church property.”).

Decided July 16, 2013.

Hall Booth Smith, James H. Fisher II, Joel L. McKie, Denise W. Spitalnick, for appellant.

Adams, Jordan & Treadwell, Donald J. Jordan, for appellees.

2. The church’s remaining claim of error is moot.

Judgment reversed.

Phipps, C. J., and Branch, J., concur.


author: BARNES, Presiding Judge.

text:
    A13A0036.
    TANKSLEY v. THE STATE.
    (743 SE2d 585)
   BARNES, Presiding Judge.

Following a jury trial, Jordash Antwan Tanksley was convicted of burglary, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Tanksley contends on appeal that the trial court improperly instructed a State’s witness to repeat his previous testimony or be charged with perjury and that the trial court erred in charging the jury. For the reasons set forth below, we disagree. Tanksley also claims that he was improperly punished as a recidivist in the absence of evidence of his prior convictions. We agree. Accordingly, we affirm the judgment of conviction, but we vacate Tanksley’s sentence and remand the case with instruction that he be resentenced.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that during the early morning hours of July 30, 2007, Tanksley and his father, Clarence Tanksley, along with Derrell McNair and Megan McClendon, drove to a clothing store. Clarence Tanksley broke the store’s window. Clarence Tanksley and McNair then entered the store through the broken window. The store owner and his girlfriend were asleep in the store’s office at the time, and they were awakened by the sound. The owner yelled loudly so that the intruders would know that someone was in the store. After hearing several gunshots, the owner returned fire by shooting through the office wall. McNair was struck by a bullet. Tanksley, who was in the driver’s seat of the car parked outside the store, fired two or three shots. The intruders left after taking some clothing, a television, and a computer.

Police apprehended Tanksley that same day. He was indicted for burglary, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. At Tanksley’s trial, McClendon and McNair gave testimony which implicated Tanksley in these crimes. The jury returned a verdict of guilty on all counts.

1. Tanksley claims that the trial court erred in instructing McNair that he had to repeat his previous trial testimony or be charged with perjury. We disagree.

During proceedings outside the presence of the jury, the prosecutor informed the trial court of its intention to call McNair as a witness for the State and that she anticipated eliciting the same responses from McNair that McNair had given in his previous trial. McNair’s attorney announced that McNair intended to exercise his Fifth Amendment right not to testify, but that he had explained to his client that if the State afforded him immunity under then OCGA § 24-9-28 that the trial court could compel McNair to testify. McNair’s counsel further represented that he had discussed with his client the prospects of prosecution for perjury and false swearing if he testified and did so untruthfully. After the prosecutor confirmed that she had requested immunity, the trial court ordered that McNair testify, but that he be granted immunity for his testimony. The trial court then warned McNair that if he gave testimony “that’s not true to the transcript from the last trial, if you say something opposite and the district attorney shows it to you so you can read it and refresh your memory — if you lie — that’s what we’re talking about — if you lie today in your testimony, you’ll be in trouble.” As the trial court further explained, “[tjhis immunity does not mean you can come in here and lie and say anything you want.”

When asked if he had an objection, Tanksley’s counsel responded that “it sounds like” the trial court had just told McNair that “if you say anything other than what you said before you’ll be in trouble.” The trial court responded that, “[i]f he told a lie last time and today he says my story[ ] [is] different and I lied last time, then he’s in trouble for last time.” The State subsequently called McNair as a witness.

Relying on Webb v. Texas, 409 U. S. 95 (93 SCt 351, 34 LE2d 330) (1972), Tanksley contends that the trial court improperly threatened and intimidated McNair into testifying against Tanksley by admonishing McNair to repeat his previous trial testimony or face a perjury charge. We disagree for several reasons. First, the import of the trial court’s instruction was that McNair not “lie today in [his] testimony” and not that he was required to repeat his previous testimony.

Second, the transcript does not show that the trial court abused McNair or treated him in an improper manner. Although McNair had been granted immunity for his testimony, he could “nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing, or contempt committed in testifying or failing to testify.” OCGA § 24-9-28 (2008). Thus, the trial court warned McNair against lying in the context of properly informing McNair that the grant of immunity did not extend to giving false testimony. The trial court’s statement that McNair would be in “trouble for last time” if he had given false testimony in the first trial may have gone a little too far in that it implied, perhaps, that McNair’s truthful testimony in Tanksley’s trial could be used against him notwithstanding the grant of immunity, but the trial court’s statement fell short of the threatening remarks to a witness which were found to violate the defendant’s right to due process in Webb. See, e.g., Hester v. State, 219 Ga. App. 256, 257 (2) (465 SE2d 288) (1995) (finding that, “[ajlthough the court here may have gone a little too far in ‘assuring’ [witness] he would be prosecuted for perjury if he gave conflicting testimony,” there was nevertheless no showing that appellant’s right to due process was violated). Further, as discussed infra, Tanksley was free to cross-examine McNair about whether he felt pressured by the trial court’s comments to give testimony consistent with his testimony in the first trial. In addition, McNair was in court with his own counsel, who voiced no concern that McNair was being threatened or bullied. See, e.g., Terry v. State, 308 Ga. App. 424, 428 (707 SE2d 623) (2011) (where witness consults with independent counsel, the potential for improper coercion is diminished).

Third, under Webb, “judicial or prosecutorial intimidation that dissuades a potential defense witness from testifying for the defense can, under certain circumstances, violate the defendant’s right to present a defense.” (Citation and footnote omitted.) Terry, 308 Ga. App. at 426. Here, however, the alleged intimidation did not dissuade a defense witness from testifying. Accordingly, Tanksley was not denied “the right to present his own witnesses to establish a defense.” Webb, 409 U. S. at 98.

Lastly, to the extent Tanksley infers that his right to due process of law was denied by the trial court’s admonishment of McNair, we disagree.

Due process guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice. In order to declare a denial of it a court must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.

(Citation and punctuation omitted.) Terry, 308 Ga. App. at 427. See Frei v. State, 252 Ga. App. 535, 535-536 (1) (557 SE2d 49) (2001) (notwithstanding allegation that trial court intimidated witnesses and bullied trial counsel, appellant did not receive an unfair trial). Tanksley was free to explore on cross-examination the possibility that McNair interpreted the trial court’s statements as directing him not to change his previous testimony, and he did so. We conclude that the trial court’s instructions to McNair did not deprive Tanksley of a fair trial, nor did the trial court err in admonishing McNair not to lie in giving his testimony.

2. Tanksley further contends that the trial court committed plain error in charging the jury. Again, we disagree.

Tanksley had no objection below to the trial court’s jury charge. On appeal, however, he contends that portions of the charge constituted plain error. See OCGA § 17-8-58. In that context, “[t]he proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” (Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). If these three inquiries are answered affirmatively, and if the error seriously affects the fairness, integrity, or public reputation of the proceedings below, the appellate court has the discretion to reverse. Id.

(a) Tanksley contends that the trial court committed plain error in charging the jury that “[t]he offense of armed robbery is committed merely by armed taking of property of another regardless of whether its value is great or small.” This was an accurate statement of the law. See Tarver v. State, 278 Ga. 358, 360 (1) (602 SE2d 627) (2004). Tanksley nevertheless argues that the instruction omitted the essential element of armed robbery that a taking must be from the person or “the immediate presence” of another and so conflicted with the previously charged statutory definition of the crime. It is well established, however, that “jury instructions must be considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Vergara v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010). In context, as shown by those portions of the charge preceding and following the language complained of by Tanksley, the trial court’s instruction did not provide the jury with conflicting guidance, nor omit any essential element of the crime of armed robbery. See id. (holding that “review of the record establishes that appellant’s arguments regarding one portion of the trial court’s armed robbery instruction are completely obviated by other portions of that instruction not quoted by appellant”). The instruction was not plain error.

(b) Tanksley further claims that the trial court committed plain error in charging the jury that in order to constitute armed robbery, “[i]t is not required that the taking be from the actual contact of the body, but if it is from under personal protection it will suffice.” Tanksley acknowledges that there is appellate authority which supports the principle expressed by the charge. See Felder v. State, 270 Ga. 641, 643 (2) (514 SE2d 416) (1999) (taking need not “necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice”) (citation and punctuation omitted). Tanksley maintains that the charge was nevertheless misleading because it did not limit in any way the distance over which a victim’s personal protection over property could extend for purposes of an armed robbery. The trial court’s charge also provided, however, that “immediate presence as used in our armed robbery statute is applicable even if the taking occurred out of the actual physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant.” (Emphasis supplied.) See Young v. State, 290 Ga. 392, 396 (4) (721 SE2d 855) (2012). Viewing the charge as a whole, it is unlikely that the jury was misled or confused into believing that, for purposes of armed robbery, the distance of the victim from the property taken was not relevant. See, e.g., Daniel v. State, 296 Ga. App. 513, 518 (3) (675 SE2d 472) (2009) (viewing the charge as a whole, “we are satisfied that the jury was not misled or confused”). The legal error, if any, was not “clear or obvious, rather than subject to reasonable dispute.” (Citation and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a). It follows that Tanksley does not show plain error.

(c) Tanksley also alleges plain error in that the trial court charged the jury that it would be authorized to acquit the defendant if it found he had no knowledge that the crimes were being committed. Tanksley refers us to the following portion of the trial court’s instruction:

If you find from the evidence in the case that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit, participate, aid or abet in the commission of the alleged offense, then it would be your duty to acquit the defendant.

Tanksley contends the foregoing is the charge that we found to be incorrect in Nanthabouthdy v. State, 245 Ga. App. 456, 458 (2) (538 SE2d 101) (2000). However, the charge at issue in Nanthabouthdy directed that the jury “would be authorized to convict the defendant” if they found either knowledge of the crime or intent to participate in the crime, and not, as here, that the jury had a “duty to acquit” if the defendant had no knowledge of the crime or lacked intent to participate therein. Id. That portion of the trial court’s charge identified by Tanksley was not erroneous. See, e.g.,Ahn v. State, 279 Ga. App. 501, 503 (2) (631 SE2d 711) (2006).

(d) Lastly, Tanksley claims the trial court’s charge constituted plain error in that the trial court charged the jury that if it found a conflict in the evidence

you should settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do this, then you should believe that witness or witnesses you think best entitled to belief. You must determine what testimony you will believe, and what testimony you will not believe.

This is consistent with the charge which our Supreme Court found to be without error in Mallory v. State, 271 Ga. 150, 151 (2) (517 SE2d 780) (1999). Further, the charge did not require the jury to believe the testimony of the State’s witnesses. See Guyton v. State, 281 Ga. 789, 791 (2) (642 SE2d 67) (2007). The charge was not plain error. See Plummer v. State, 315 Ga. App. 829, 830 (728 SE2d 341) (2012).

3. Tanksley was sentenced as a recidivist under OCGA § 17-10-7 (c) to serve a total of life plus 45 years. OCGA § 17-10-7 (c) provides that any person who has been convicted of three prior felonies must, upon conviction for a fourth felony, “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” Tanksley argues that because there was no evidence of his alleged prior convictions, he was improperly sentenced as a recidivist under OCGA § 17-10-7. We agree.

At the sentencing hearing, the prosecutor represented that the State had filed a notice seeking recidivist punishment and that she was in possession of certified copies of Tanksley’s three prior convictions. The prosecutor then notified the trial court that “based on the indictment there may have been only two convictions,” but then indicated that, as to the third, “the Clerk’s office has advised that a certified copy is on the way down to the courtroom.” Defense counsel acknowledged the maximum sentences the trial court was required to impose if Tanksley was a recidivist but asserted that this was only “assuming there is a hard copy of that third conviction.” The prosecutor then purported to tender certified copies of two of Tanksley’s prior convictions into evidence as Exhibits 1 and 2, “and as soon as it comes down [Exhibit] 3 for purposes of sentencing.” The trial court did not admit the tendered convictions into evidence, but asked the clerk, court reporter, and Tanksley to be “held back here until we get the certified copy.” There is nothing else on the record about the matter. Tanksley further shows, and the State does not dispute, that certified copies of Tanksley’s three alleged convictions were never entered in the record.

“The burden is on the state to produce competent evidence of a prior conviction for purposes of sentencing.” Brinkley v. State, 301 Ga. App. 827, 830 (2) (689 SE2d 116) (2009). Further, “a trial court cannot rely upon the hearsay statement of a prosecutor to establish a fact for purposes of sentencing.” Id. at 831 (2). The State argues that the prosecution, defense counsel, and judge were all proceeding “on the assumption” that there were three convictions and that we should therefore presume that the sentencing was valid.. But defense counsel did not waive the requirement that the convictions be proven by the State, which failed to carry its burden of showing by competent evidence that Tanksley was a recidivist. Accordingly, Tanksley’s sentence must be vacated and the case remanded to the trial court for resentencing. See Brinkley, 301 Ga. App. at 830-831 (2); Williams v. State, 235 Ga. App. 876, 877 (510 SE2d 848) (1999).

Decided May 29, 2013

Reconsideration denied July 17, 2013

Zell & Zell, Rodney S. Zell, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated, and case remanded with direction for resentencing.

Miller and Ray, JJ., concur.

       Contrary to Tanksley’s suggestion, the trial court was not required to determine if McNair could nevertheless exercise his Fifth Amendment right not to testify. “[T]he trial court’s grant of an order of immunity pursuant to OCGA § 24-9-28 (a) removed... any right to invoke the privilege against self-incrimination.” Hawkins v. State, 175 Ga. App. 606, 609 (1) (333 SE2d 870) (1985). See also Willard v. State, 244 Ga. App. 469, 471 (1) (a) (535 SE2d 820) (2000) (witness could not plead the Fifth Amendment on ground that statutory immunity did not protect him from prosecution for perjury during his trial testimony).

       From our review of the record, it appears that Tanksley may have misquoted that portion of the trial court’s charge that he wished to assert was plain error. Immediately following that portion of the charge set forth by Tanksley in his appellate brief, the trial court charged the jury:
      On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge that the crimes were being committed and that he — or that he knowingly participated, aided, or abetted in the commission thereof, then you would be authorized to convict the defendant.
      The trial court’s use of the disjunctive “or,” in an apparent slip of the tongue, was improper. See Nanthabouthdy, 245 Ga. App. at 458 (2). However, the trial court had correctly charged the jury that if it found that Tanksley had no knowledge of the crime or had not knowingly participated in the crime, it had a duty to acquit. The trial court also properly charged the jury on intent, mere association, party to a crime, and the elements of the alleged offenses. See id. The trial court’s charge was unlikely to have affected the outcome of the case and did not rise to the level of plain error. See Kelly, 290 Ga. at 33 (2) (a); Nanthabouthdy, 245 Ga. App. at 458 (2).

       The State, after presenting its argument, acknowledged that there is authority which “strongly militate[s] against its position on this issue.”

       The State is not precluded from introducing evidence of Tanksley’s prior convictions at his resentencing. See Railey v. State, 273 Ga. App. 520, 522 (3) (615 SE2d 609) (2005).


text:
    A13A0060.
    WATKINS v. LATIF.
    (744 SE2d 860)
   BARNES, Presiding Judge.

Lanier Watkins sued police officer Usman Latif for false imprisonment, and the trial court granted summary judgment to the officer. Watkins appeals, arguing that the trial court erred in finding that Latif was entitled to official immunity, but for the reasons that follow, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). If a movant who does not bear the burden of proof at trial notes the absence of evidence to support an essential element of the respondent’s case, the respondent must then identify evidence in the record giving rise to a triable issue. Shannon v. Office Max North America, 291 Ga. App. 834, 835 (3) (662 SE2d 885) (2008). “We review a trial court’s grant of summary judgment de novo, construing the evidence and reasonable inferences in favor of the nonmoving party.” Id.

So viewed, Officer Latif testified that after he saw Watkins roll through a stop sign and drive past him, the officer made a u-turn, activated his lights, and followed Watkins a short distance to his house. As the officer began to advise his dispatcher of his location, Watkins got out of his truck and began walking across the lawn to his house. At that point the officer called for backup because he was concerned about a potential threat. He thought it was “very unusual” for someone to get out of his car and walk away during a traffic stop. The officer got out of his patrol car, stood behind his door for cover, and ordered Watkins to get back in his car, which he did eventually. The officer retrieved Watkins’ license and insurance information, went to the patrol car to write a ticket for failing to stop at the stop sign, and returned to Watkins’ truck. Watkins was on his cell phone but complied with the officer’s request to put the phone down, and the officer explained the citation, the court date, and that signing the ticket was not an admission of guilt but acknowledgment of receiving the citation. The officer asked Watkins if he had any questions. Watkins responded that he was waiting for a supervisor and began talking on the phone again.

The officer realized that Watkins was on the phone with 911 dispatch requesting a supervisor, which he had a right to do. When someone requests a supervisor, standard procedure is for the officer to complete the task he is doing and then call for a supervisor, but since Watkins had already requested one, the officer attempted to finish the citation. He asked Watkins to sign the ticket but after he refused several times, the officer asked him to step out of the vehicle and arrested him for a stop sign violation and for failing to sign the ticket.

According to Watkins, he did not notice the patrol car pull up behind him with lights flashing when he parked in front of his house because he was focused on going inside after a long day at work. He testified that he got out of his car and had just stepped onto the grass when the officer began yelling at him to get back in his car. The officer repeated the command several times and put his hand on his gun “in a very, very intimidating way,” so Watkins got back into his car and called 911 because he felt threatened and wanted “to have someone come out there and figure out what’s going on.” Officer Latif retrieved Watkins’ license, notified Watkins about the stop sign violation, and returned to his patrol car. Watkins still felt that he was in danger because the officer’s demeanor was stern and aggressive, and the record contains a transcription of his conversation with the 911 dispatcher before and after Latif returned to the car with the ticket.

Watkins asked the dispatcher to stay on the phone with him until the supervisor arrived. When the dispatcher responded that he did not know how long it would take for a supervisor to arrive, Watkins replied that he had done nothing wrong, all he wanted to do was go into his house, and “all of this stuff is pure nonsense especially for a civil servant — someone who is supposed to serve and protect.” The officer returned to Watkins’ car with the ticket in hand and the 911 transcript included the following exchange:

Officer: Mr. Watkins?
Watkins: Yes sir?
Officer: Alright. You are being stopped for stop sign violation at Tejas Trail . . . [inaudible] . . . City of Atlanta, 151 8th Street. By signing this citation, [it] is not an admission of guilt but acknowledging the citation. Any questions about the citation?
Watkins: I have a supervisor coming and if you could just stay here until he gets there.
Officer: Ok, what I need you to do is sign the citation. I am going to ask you one more time to sign the citation or you will be taken to jail for obstruction.
Watkins: Ma’am do you hear this?
Operator: Yes sir.
Officer: Sir, are you going to sign the citation?
Watkins: Do I have to? Do I have to sign the citation?
Officer: No. You can go to jail if you don’t though.
Watkins: So if I don’t sign a citation, I can go to jail?
Officer: Sir I’m going to ask you one more time. Are you going to sign the citation or not? Yes or no?
Watkins: Do I have to sign the ci. . . .
Officer: Okay — step out of the vehicle. Put the phone down and step out [of] the vehicle. Step out of the vehicle for me sir.
Watkins: Man I don’t believe this.
Officer: Hands behind your back.
Watkins: Can I put my wallet back in my pocket?
Officer: We will take care of that for you sir.

Watkins testified that he was talking to the dispatcher when he asked if he had to sign the ticket or not and that he would have signed the ticket eventually. After a supervisor arrived on the scene and spoke to both Watkins and Latif, Watkins was taken to the police station and then to jail, where he was booked, held for several hours, and released on his own recognizance. Both tickets were ultimately dismissed.

Watkins sued Officer Latif for false imprisonment, and the trial court granted summary judgment to the officer, finding that the arrest was a discretionary act and thus Latif was entitled to qualified immunity. On appeal, Watkins argues that the arrest constituted the violation of a ministerial duty, not a discretionary act, and therefore Latif was not entitled to immunity.

“Public agents are immune from liability for their discretionary acts unless they are done with malice or intent to injure.” Taylor v. Waldo, 309 Ga. App. 108, 111 (2) (709 SE2d 278) (2011).

The doctrine of official immunity, also known as qualified immunity, . . . protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.

(Citations and punctuation omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001). Public employees are given immunity for discretionary acts to preserve their “independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Id.

Watkins does not argue that Latif acted with malice or intent to injure, only that his actions were ministerial in nature, and therefore that the trial court erred in finding that Latif was entitled to official immunity. He asserts that a police officer has a ministerial duty to not arrest someone for refusing to sign a citation, and therefore Latif is not entitled to immunity for arresting him under these circumstances, citing OCGA § 40-13-2.1 and State v. Torres, 290 Ga. App. 804 (660 SE2d 763) (2008).

OCGA § 40-13-2.1 (a) provides that a person who gets a traffic ticket “shall” sign it to acknowledge receiving the ticket and receiving notice of his obligation to appear for trial. The officer issuing the ticket “shall” advise the person that signing the citation is not an admission of guilt and that the person will have to post a cash bond if he fails to sign it. Refusal to sign the ticket “shall” constitute reasonable cause to believe that the person will not appear at trial and the officer may bring him “before a judicial officer or traffic violations bureau to post a bond as is otherwise provided by law.”

Watkins argues that under OCGA § 40-13-2.1 (a) and the analysis in Torres, the officer had no discretion to arrest him after he issued the traffic citation. However, the facts in Torres differ from the facts in this case. In Torres, an officer issued a citation for Torres’ failure to obtain a Georgia driver’s license within 30 days of becoming a resident, but Torres refused to sign it because no one told him he had to get a Georgia license. 290 Ga. App. at 805. After the officer asked if there was anything he could say to get Torres to sign the ticket, Torres said no, so the officer arrested him and then searched his car and found marijuana. Id. At a hearing, the officer admitted he was unfamiliar with the requirements of OCGA § 40-13-2.1 and did not tell Torres that signing the ticket was not an admission of guilt or that failing to sign it would require him to post a cash bond. Id. at 806. The officer also admitted that he did not arrest Torres to bring him before a judicial officer to secure a cash bond; he arrested him because he would not sign the ticket. Id. at 807. We held that the arrest was illegal because the officer did not fulfill the notice requirements of OCGA § 40-13-2.1, and therefore the trial court properly granted Torres’ motion to suppress the evidence seized as a result of that arrest. Id. at 806-807. We also held that, once the officer issued the citation, he could not change his mind and decide to arrest Torres without fulfilling the notice requirements of OCGA § 40-13-2.1. Id.

The facts in this case are different. Here, the officer complied with the statutory requirement that he tell Watkins that signing the citation was not an admission of guilt, only acknowledgment of the ticket and court date, and told him that if he did not sign, he would be arrested. When Watkins’ counsel asked the officer if he had told Watkins that he would be required to post bond if he did not sign the ticket, the officer replied, “That’s what being arrested means.” When asked if Watkins could have posted a cash bond at the precinct or any other place rather than going to jail, Latif responded no.

Watkins argues that under Torres, it was “unlawful” for Latif to arrest Watkins for refusing to sign a traffic ticket “rather than complying with the requirements of OCGA § 40-13-2.1.” Therefore, he contends, the police officer had no discretion to arrest him for refusing to sign the ticket, and his arrest constituted the violation of a ministerial duty for which Officer Latif was not entitled to official immunity. But Torres does not hold that an officer may never arrest someone for failing to sign a ticket. Torres holds that, once an officer decides to issue a citation rather than arrest someone for certain traffic violations, the officer must explain that signing the citation does not mean acknowledgment of guilt and that the consequence of failing to sign the ticket is having to post a cash bond. 290 Ga. App. at 806-807.

Decided June 19, 2013

Reconsideration denied July 17, 2013

Cash, Krugler & Fredericks, David N. Krugler, Page Perry, Craig T. Jones, for appellant.

Tamara N. Baines, for appellee.

Neither Torres nor the statute address the situation in this case, in which the officer initially decided to issue a citation instead of a custodial arrest and complied with the notice requirements of OCGA § 40-13-2.1. Under these circumstances, “[e]ven if, as [Watkins] argues, the officer’s investigation and decision to arrest were flawed, the officer’s decisions remained discretionary.” Reese v. City of Atlanta, 261 Ga. App. 761, 762 (583 SE2d 584) (2003).

Because the act of arresting Watkins was discretionary, Watkins could overcome Officer Latif’s immunity defense only by showing that Latif acted with malice or an intent to injure. Cameron v. Lang, 274 Ga. at 123. His only argument as to malice was that it “might be inferred from evidence suggesting that Mr. Watkins was arrested in retaliation for calling 911,” but an inference of malice is insufficient to overcome his immunity defense. The 1991 amendment to Art. I, Sec. II, Par. IX, of the Constitution of the State of Georgia specifies that public officers “may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions,” and “actual malice” does not include “implied malice.” Merrow v. Hawkins, 266 Ga. 390, 391-392 (2) (467 SE2d 336) (1996).

Because the act of arresting Watkins was discretionary and no evidence establishes a question of fact regarding whether Latif acted with actual malice or an intent to injure, the trial court did not err in granting summary judgment to the officer.

Judgment affirmed.

Miller and Ray, JJ., concur.