text:
    A12A1533.
    FOSTER v. THE STATE.
    (733 SE2d 423)
   Ray, Judge.

After a jury trial, Omari Foster was convicted of one count of armed robbery. At the hearing on Foster’s motion for a new trial, the trial court found that although Foster’s counsel’s performance was deficient, Foster was not prejudiced by that performance. Foster appeals, contending that his counsel was ineffective in failing to investigate and call a witness, and that the trial court erred in finding that this witness’ testimony was based upon “rumored hearsay” and “impeachment evidence” and thus presented no reasonable probability of a different outcome at trial. For the reasons that follow, we affirm.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The trial court already has determined that Foster’s counsel’s performance was deficient. For Foster to show prejudice, however, “[t]he likelihood of a different result must be substantial, not just conceivable,” “[W]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Viewed appropriately, the evidence shows that on the night of December 26,2006, Harold Humphries met Ashley Alley at a bar and agreed to follow her home. When they reached Alley’s house, they got out of their cars and talked. Two male friends of Alley’s approached, and she returned to her car. One man held a gun to Humphries’ head and demanded money. When Humphries said he had none, the men hit him in the face and he tripped over some tree roots and fell. The men went through his pockets, taking his wallet and cell phone. The men walked down the street and around the corner, but returned and again pulled a gun on Humphries, again demanding money. He again said he had none. The men beat him up, he fell to the ground, and the men went through his pockets. He eventually reached into his own pocket and gave them a $100 bill. The two men then got in Alley’s car, and she drove away. At trial, Alley testified that Foster, who had a gun, and her boyfriend, James “Tico” Brown, both hit Humphries and took his wallet and keys. They left, then returned and beat him up again. Brown testified that he and Foster both hit Humphries, that Foster pulled a gun on Humphries, and that he and Foster left the scene, then returned to take Humphries’ money.

When police arrived, Humphries described Alley, Brown, and Foster; he also described Alley’s car and gave officers the tag number. After she was arrested, Alley told a detective with the Valdosta Police Department that Brown and Foster had robbed Humphries. Although Brown initially denied the robbery, he eventually told police that he and Foster robbed Humphries. At a photo lineup, Humphries identified Foster as the man with the gun who robbed him.

At the motion for new trial hearing, Foster’s mother testified that she learned from a man named John Troy that Alley had said Foster was not involved in the robbery. Foster’s mother testified that Troy had heard this, variously, from Alley herself, from a relative of Brown’s, and “on the street.” Foster’s mother also testified that Troy told her Alley said Brown’s cousin, not Foster, was the second assailant. Foster’s mother also told police that Troy had heard that her son was not involved. Troy testified at the motion for new trial hearing that Alley told him “directly” that Foster was not involved in the robbery. Troy also testified that he told this to Foster’s mother, but not to police.

At the motion for new trial hearing, trial counsel was asked if he reviewed a police report indicating that Troy told police he “had heard” Alley was saying Foster was not involved. Foster’s trial counsel said yes, but explained that based on the information he had, he did not know that Troy may have had direct knowledge of Alley’s alleged statements. Trial counsel never sought to speak to Troy and never cross-examined Alley about her alleged statement to Troy. Trial counsel also testified that his sole theory of defense was that someone other than Foster committed the robbery and that he argued that Brown’s cousin was the second assailant.

In denying Foster’s motion for a new trial, the trial court reasoned that Troy’s testimony was based upon “rumored hearsay” and “impeachment evidence” and thus presented no reasonable probability of a different outcome at trial. Foster contends that the trial court erred in denying his motion for a new trial, arguing that the evidence at issue was neither hearsay nor limited in value only to impeachment purposes.

Pretermitting whether the trial court’s characterization of the evidence is erroneous, even assuming Troy’s testimony was admissible, it would not have created a substantial, rather than merely conceivable, probability that the outcome of Foster’s trial would have been different given the overwhelming evidence of Foster’s guilt, particularly in light of the testimony of both his accomplices and the victim.

In Ziegler v. State, we determined that counsel was not ineffective for failing to call an alibi witness who could have testified that the defendant was living in Florida at the time the crime was committed, where the testimony of two accomplices placed the defendant in Georgia on the dates in question. This Court found it “unlikely that the outcome of the trial would have been different” had the alibi witness testified. In Jones v. State, we determined that trial counsel was not ineffective for failing to comply with notice requirements necessary to introduce alibi testimony, because other proof linking Jones to a bank robbery, including identification testimony, was overwhelming. Further, as the only witness who could connect the alibi evidence to the date of the robbery had credibility issues, we determined that Jones could not show a reasonable probability that the outcome of trial would have been different had the alibi witness testified.

In the case at bar, even though none of the fruits of the crime were found with him, the evidence against Foster was likewise overwhelming: he admitted that he had no alibi; he was arrested at his home around the corner from the crime scene; and he was positively identified by accomplices Alley and Brown, and by Humphries, who saw him twice at close range with the gun. Further, one of the police officers investigating the case testified that when he told Foster that officers were looking for the gun used in the robbery, Foster said that he had held a black revolver belonging to Brown a few days prior to the incident, and that his fingerprints probably would be on it. The officer had not told Foster that a black revolver was used in the crime.

Here, the identification evidence against Foster was overwhelming, and Troy’s testimony at the motion for new trial hearing presented credibility issues in that he had earlier told police and Foster’s mother that he heard about Alley’s statements from others, rather than directly from Alley. Given this, we cannot say that Foster’s trial counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Foster has not shown a substantial, rather than merely conceivable, probability that the outcome of his trial would have been different. We cannot say that the trial court clearly erred.

Decided October 19, 2012.

Wade N. Krueger, for appellant.

J. David Miller, District Attorney, BradfieldM. Shealy, Jessica W. Clark, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

        Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted; emphasis supplied.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

       (Citation and punctuation omitted.) Boynton v. State, 317 Ga.App. 446(2) (730 SE2d 738) (2012).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       270 Ga. App. 787, 790 (4) (608 SE2d 230) (2004).

       Id.

       266 Ga. App. 679 (598 SE2d 65) (2004).

       Id. at 682-683 (2).

       Id. We find the cases Foster cites to support his argument distinguishable because the missing testimony alleged in them could have been determinative. See Fedak v. State, 304 Ga. App. 580, 585-586 (1) (696 SE2d 421) (2010) (where defendant’s only defense was proof his medical condition, which would have shown he lacked the requisite intent to commit the crime, trial counsel was ineffective for failing to call medical expert to testify); Tenorio v. State, 261 Ga. App. 609, 611-612 (3) (583 SE2d 269) (2003) (where State’s case was weak and centered around the identification testimony of one witness who saw the defendant only once for 15 seconds, trial counsel was ineffective for failing to call alibi witnesses who could have testified that defendant was at work—approximately three-and-one-half hours distant from the crime scene — only an hour after the robbery occurred).

        Strickland, supra at 686 (II).

        Hill, supra.

       We need not reach the issue of whether the trial court erred in the rationale it used to deny the motion for new trial. We will affirm under the right for any reason rule so long as the ultimate judgment is correct. Arellano-Campos v. State, 307 Ga.App. 561, 568-569 (2) (a) (705 SE2d 323) (2011).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A12A1587.
    BEARD v. THE STATE.
    (733 SE2d 426)
   Adams, Judge.

Kelvin Beard appeals following the trial court’s denial of his motion for new trial after a jury convicted him of one count of possession of marijuana with the intent to distribute (OCGA § 16-13-30 (j)) and one count of intent to distribute marijuana within 1,000 feet of a housing project (OCGA § 16-13-32.5). We reverse.

Viewed in the light most favorable to the verdict, on November 11, 2003, Larry Bracken and Brian Valle, two narcotics officers with the Richmond County sheriff’s office, approached a car parked in front of Beard’s residence. Beard was exiting from the driver’s seat of the car, and Braxton Davis Walton, Jr., was sitting in the passenger’s seat. After Bracken, who was dressed in plain clothes, approached the car and displayed his badge, Beard dropped a white plastic grocery bag he was holding. As the bag sat on the ground, Bracken could see what appeared to be bags of marijuana inside. Upon further inspection, Bracken discovered four sandwich bags, with what was later determined to be approximately twenty-eight grams, or one ounce, of marijuana in each. After Beard admitted that he also had a small amount of drugs inside, Bracken requested and received Beard’s consent to search the apartment, where the officers discovered an additional bag containing another 28 grams of marijuana. Bracken testified that the marijuana was “street level,” with an approximate total value in 2003 of $500 to $600. Bracken did not testify that the packaging or amount of the marijuana in this case had any significance, but in response to the prosecution’s inquiry, he stated that a nickel bag, holding less than one gram, was “the smallest quantity of marijuana sold for personal use that [he had] encountered” as a narcotics investigator. Both officers further testified that Beard’s residence, where this incident occurred, was located in the Overlook Apartments, which Bracken explained was a subsidized housing project owned by the Augusta Housing Authority. Bracken also identified the location of the apartment on an aerial map of the area.

Bracken did not arrest Beard on November 11; instead, the officers enlisted Beard and Walton to do a controlled buy the same day of a larger amount of marijuana, and in exchange for their full cooperation, the officers indicated that they would ask the district attorney for some leniency. Although Bracken asked Beard to contact him a few days after the controlled buy, Beard never called and approximately one month later, Bracken obtained an arrest warrant for him, leading to the charges in this case.

1. Beard asserts that this evidence was insufficient to establish the “intent to distribute” required for a conviction under OCGA § 16-13-30 (j). He asserts that the State merely proved that he possessed the marijuana. We agree.

“To prove possession with intent to distribute, the State must show more than mere possession of a controlled substance.” Gerlock v. State, 283 Ga. App. 229, 230 (1) (641 SE2d 240) (2007). And while a conviction may be supported upon circumstantial evidence linking “possession to the enterprise of the sale,” “[w]here, as here, a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except guilt. OCGA § 24-4-6.” Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997).

Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of drugs into individual packages, or a prior conviction of possession with intent to distribute,... expert testimony is critical, and the conviction cannot be sustained without it.

(Citations omitted.) Id.

Here, the State proved only that Beard possessed $500-$600 of “street level” marijuana, packaged in five separate plastic bags weighing one ounce each. The State did not produce any evidence that Beard possessed scales or other drug-dealing paraphernalia or that they found large amounts of cash on Beard’s person or in his apartment; nor did they introduce any prior similar transaction involving possession with intent to distribute. And although the five ounces of marijuana Beard possessed were separated into five separate bags containing one ounce each, the State presented no testimony indicating that the amount of the drugs or their packaging was indicative of drug dealing as opposed to personal use. Moreover, Bracken’s testimony that a nickel bag was the smallest amount of marijuana he had encountered for sale for personal use was insufficient to raise an inference that the five ounces Beard possessed could not have been for personal use as well.

Accordingly, the State’s evidence in this case failed to rule out every reasonable hypothesis except guilt of the crime charged. See Vines v. State, 296 Ga. App. 543, 547 (1) (675 SE2d 260) (2009) (possession of 2.9 pounds of marijuana in three separate bags with no evidence of scales, drug paraphernalia or cash insufficient to establish intent to distribute, especially where four people were in the car and odor of marijuana existed); Greene v. State, 230 Ga. App. 155, 156 (2) (495 SE2d 634) (1998) (possession of a bag containing 20 pieces of rock cocaine, with no other evidence of drug dealing insufficient to establish requisite intent); Parris, 226 Ga. App. at 856 (possession of plastic grocery bag containing two bags of marijuana, one with 7.9 ounces and one with 3.6 ounces, insufficient without additional evidence of drug dealing or expert testimony, even with similar transaction evidence); Bethea v. State, 220 Ga. App. 800, 802 (1) (470 SE2d 328) (1996) (evidence of possession of “half a cookie of crack cocaine” alone insufficient, even where officer observed defendant participating in what appeared to be a drug transaction prior to discovery of drugs). We must therefore vacate Beard’s conviction for possession of marijuana with intent to distribute.

2. Similarly, because the State failed to prove the requisite intent to distribute, we also must vacate Beard’s conviction for possession with intent to distribute marijuana within 1,000 feet of a housing project under OCGA § 16-13-32.5.

Decided October 19, 2012.

Jason R. Hasty, Long D. Vo, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Charles R. Sheppard, Assistant District Attorneys, for appellee.

3. Because we have deemed the evidence insufficient to convict Beard, and he cannot be retried, we need not reach Beard’s assertion that he received ineffective assistance of counsel because his attorney failed to object to his appearance at trial in jail attire, and his motion for remand to further develop this issue is denied as moot.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation and footnote omitted.) Jackson v. State, 251 Ga. App. 781, 783 (2) (a) (555 SE2d 136) (2001).

       Compare Bass v. State, 309 Ga. App. 601 (710 SE2d 818) (2011) (conviction upheld where officers discovered four hags of marijuana containing one ounce each and $2,300 in money hag); Davis v. State, 287 Ga. App. 478, 481 (5) (b) (651 SE2d 750) (2007) (this Court found the “division of drugs in small plastic baggies” to be evidence of intent to distribute where truck contained a number of bags containing a total of 24.75 grams of methamphetamine, which this Court concluded was not consistent with personal use).


author: PHIPPS, Presiding Judge.

text:
    A12A0885.
    SNOW v. THE STATE.
    (733 SE2d 428)
   PHIPPS, Presiding Judge.

After a bench trial in which the parties stipulated to the facts, Nicholas Snow appeals his conviction for criminal attempt to commit burglary. Snow contends that the trial court erred in: (1) finding that the evidence was sufficient to prove he intended to commit a theft; and (2) failing to apply the rule of lenity and impose sentence as for the misdemeanor offense of criminal trespass. Finding no merit to Snow’s contentions, we affirm.

1. Snow contends that the evidence was insufficient to prove he intended to commit a theft. We disagree.

On appeal from a criminal conviction that follows a bench trial, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt, giving due regard to the trial court’s opportunity to judge witness credibility. This Court does not weigh the evidence or determine the credibility of witnesses. Rather, we determine only if there is enough evidence from which a rational trier of fact could have found the accused guilty beyond a reasonable doubt.

“As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of criminal attempt to commit burglary improper.”

The stipulated facts show that on October 4, 2010, at about 2:30 p.m., a homeowner arrived home to find a man walking quickly across her property on the back deck. The homeowner yelled “[H]ey, who are you and what are you on my back deck for[?]” The homeowner observed the man attempting to conceal a metal object by his side as he walked toward a vehicle parked in front of the house. The homeowner asked a woman in the vehicle what they were doing. The woman said that they were looking for an individual by a particular name who had told them to go to the back door of the house. The man arrived at the vehicle, entered, and said to the woman, “[L]et’s go.” The homeowner observed that the man was nervous and that he kept his head down. When the man and woman drove away, the homeowner called the police.

A police officer who was nearby stopped the vehicle. The woman told the officer that the man had asked her to take him to the homeowner’s house to contact someone about some yard work. The woman stated that the man first went to the front door of the house and that when no one answered, he went to the back of the house. The man gave the police an account similar to the woman’s. The officer issued a citation to the woman for an expired vehicle tag, then released her and the man.

A different officer who went to the house inspected the deck door and saw what he believed were fresh pry marks on the door knob and lock. The homeowner told the officer that she had to unlock the door to open it, and that nothing was missing from inside the house. The homeowner told the officer that the pry marks had not been on the door when she left her house that morning. The homeowner picked Snow (and the woman) out of a photographic lineup as the individuals she had seen when she arrived at her home that day.

The homeowner’s neighbor was interviewed by police and said that he had seen Snow carrying a crowbar and walking from a vehicle to the top of the deck of the homeowner’s house.

After Snow and the woman were arrested, the woman waived her Miranda rights and told police that Snow had called her and asked her to pick him up at his residence and take him to a painting job. She said, however, that Snow did not have any painting equipment or supplies with him. The woman then said that she had been taking Snow to get an estimate for a painting job. She said, however, that Snow had no paper or pen with him with which to write. The woman said that after Snow exited her vehicle, he went toward the back of the house. She said that Snow directed her both to and away from the house. Before Snow’s trial, the woman entered a guilty plea to burglary for her involvement in the incident.

Snow had two prior convictions for theft by taking which were admitted in evidence as similar transactions.

The stipulated facts, even if characterized as circumstantial, were sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Snow had acted with the intent to commit a theft inside the victim’s house and had taken a substantial step toward entering the house for that purpose, and that therefore, the trial court properly found he was guilty of criminal attempt to commit burglary.

2. Snow contends that the trial court erred in failing to apply the rule of lenity and impose sentence as for the misdemeanor offense of criminal trespass. Snow argues that, even if the facts supported the finding of guilt, his conduct would satisfy the elements of both the crimes of criminal trespass and criminal attempt to commit burglary, and under the rule of lenity, he was entitled to be sentenced to the lesser of the two penalties, that being the penalty for criminal trespass. We disagree.

Snow was indicted for one count of burglary. The trial court found him guilty of criminal attempt to commit burglary.

The Supreme Court of the United States has referred to the rule of lenity as a sort of junior version of the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous.

“[T]he essential requirement of the rule of lenity is that both crimes could be proved with the same evidence. .. . [T]hat a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity.”

A person commits the offense of criminal trespass, in pertinent part, when he knowingly and without authority enters upon the land or premises of another person for an unlawful purpose. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” A person commits the offense of burglary, pertinently, when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any structure designed for use as the dwelling of another.

The statutes do not define the same offense. The criminal trespass statute may be violated in a number of ways. But it does not require that the place the defendant intended to enter be a dwelling house or a structure designed for use as a dwelling house; that the defendant intended to commit inside the dwelling house a felony or a theft; or that the defendant perform a substantial step toward the commission of a crime. Conversely, it is not possible for the state to establish the offense of criminal attempt to commit burglary, as indicted, without establishing that the defendant intended to enter a dwelling house or a structure designed for use as a dwelling house; that the crime the defendant intended to commit inside the dwelling house was a felony or a theft; and that the defendant performed a substantial step toward the commission of the burglary.

Decided October 22, 2012.

Crawford & Boyle, Eric C. Crawford, for appellant.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

Thus, the crimes of criminal trespass and criminal attempt to commit a burglary do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply. Accordingly, the trial court did not err in not applying the rule of lenity.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA §§ 16-4-1, 16-7-1 (a) (We apply the 2010 version of OCGA § 16-7-1, in effect at the time of the crime; OCGA § 16-7-1 was amended, “effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall he governed by the statute in effect at the time of such offense____”; Ga. L. 2012, pp. 899,949, §§ 3-1, 9-1.).

        Hickman v. State, 311 Ga. App. 544, 545 (716 SE2d 597) (2011) (citation omitted).

        Murray v. State, 187 Ga. App. 747 (371 SE2d 272) (1988) (citations and punctuation omitted).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Uniform Superior Court Rule 31.3.

       See Landers v. State, 255 Ga. App. 410, 411 (1) (565 SE2d 585) (2002).

       See Rudnitskas v. State, 291 Ga. App. 685, 686-687 (1) (662 SE2d 729) (2008); Landers, supra at 410-411 (1) (whether the fact that defendant was, among other things, standing next to the victim’s house when police arrived, proved that he was the man who had been trying to enter the house two minutes earlier was for the factfinder to decide); Murray, supra; OCGA §§ 16-4-1, 16-7-1 (a) (2010).

       See Judice v. State, 308 Ga. App. 229, 233 (3) (707 SE2d 114) (2011) (under OCGA § 16-4-3, a person charged with the commission of a crime maybe convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment).

        Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007) (citations and punctuation omitted).

        Rouen v. State, 312 Ga. App. 8, 11 (3) (717 SE2d 519) (2011) (punctuation and footnotes omitted).

       OCGA§ 16-7-21 (b) (1).

       OCGA§ 16-4-1.

       The indictment charged Snow with burglary in that he did “unlawfully, without authority and with the intent to commit a theft therein, enter the dwelling house of another... contrary to the laws of [this] State, the peace, good order and dignity thereof.”

       OCGA§ 16-7-1 (a).

       See Banta, supra at 618 (2).

       Id.; see Rouen, supra at 11 (3); Rylee v. State, 288 Ga.App. 784, 787 (3) (b) (655 SE2d 239) (2007).


text:
    A12A1434.
    In the Interest of M. T. F., a child.
    (733 SE2d 432)
   PHIPPS, Presiding Judge.

The biological mother of four-year-old M. T. F. appeals the juvenile court order terminating her parental rights. The mother contends that the juvenile court erred in, among other things, terminating her parental rights because the evidence was insufficient. We agree and reverse.

On June 19, 2008, the Georgia Department of Human Resources Division of Family and Children Services (DFCS) filed a deprivation petition alleging that on June 15,2008, M. T. F. was born prematurely to a mother who was a minor and in the custody of DFCS. DFCS alleged in the petition that M. T. F. was admitted at a hospital and was “without a proper parent to provide for the child as the... mother is a child herself who cannot provide for her own daily necessities of life and the child has been essentially abandoned by [the] father.” M. T. F. was born at 24 weeks, and, according to a neonatology developmental specialist, was “medically fragile.” M. T. F. had multiple diagnoses, including mild cerebral palsy, because of his extreme prematurity. M. T. F. was fed through a gastrostomy tube which was surgically placed through his anterior abdominal wall and into his stomach.

On July 2, 2008, the juvenile court entered an order nunc pro tunc June 24,2008, adjudicating M. T. F. deprived and placing him in the custody of DFCS. The court ordered DFCS to prepare a plan of care for reunification and to submit it to the court to become the court-ordered case plan. The court ordered that before M. T. F. could reunite with the mother, the plan, at a minimum, shall include goals for the mother to “establish and maintain stable housing and employment sufficient to provide for the child’s basic necessities of life....” The adjudication and disposition order concerning M. T. F. was due to expire on June 24, 2009, but was extended to May 13, 2010, with the agreement of the mother who, according to the extension order, had recently turned 18 years old.

In accordance with the adjudication and disposition order, the case plan, which, on August 20, 2008 was signed by the mother, required, among other things, that the mother obtain and maintain a source of income/support and obtain and maintain stable, clean, and safe housing. The plan required also that the mother keep all scheduled medical appointments and follow all recommendations of M. T. F.’s health care providers. The mother further agreed to receive services geared toward living with M. T. F, making sure all of his needs were met, and being a good mother. One of the goals for the mother was to graduate from high school in May 2009.

On April 14, 2010, DFCS filed a petition alleging that M. T. F. continued to be deprived and seeking to terminate the mother’s parental rights. DFCS pertinently alleged in the petition that for the “past one year and ten month period of time that the child has been subject to the jurisdiction of the . . . [court], the mother continues to show a lack of maturity and demonstrated parental ability so as to provide appropriate care for the child.” DFCS asserted that despite being given the opportunity to remain in foster care after she turned 18 years old, the mother chose to leave the foster care system and live with her sister who “has a history with the department.” DFCS alleged that “[d]espite attending school and maintaining a job, the mother appears very immature and nonchalant as to the special needs of the subject child.” DFCS claimed that the mother had made a negative comment about the child’s developmental delay, had failed to follow proper procedures in maintaining the child’s feeding tube, appeared to have many young people in and out of her apartment at all hours, and that the mother’s weekend visits with the child had stopped because the child had received injuries to his face and eye and the mother did not have a reasonable explanation for the cause of the injuries.

By order filed June 23, 2010, nunc pro tunc April 21, 2010, the court, with the agreement of the mother, extended to April 20, 2011, its order adjudicating M. T. F. deprived and placing M. T. F. in DFCS’s custody.

Hearings on DFCS’s termination petition were held on September 10, 13, and 16, 2010. The court suspended the termination hearings and held case review hearings in the interim. Case review hearings were held on October 20, 2010, and November 22, 2010. At the November 2010 hearing, the court set the matter for January 28, 2011, to resume the hearings on the termination petition. At the January 28, 2011 hearing, the court ordered that the mother’s rights be terminated.

In reviewing the sufficiency of the evidence supporting a termination order, we view the evidence in the light most favorable to DFCS and determine whether .. . any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

Viewed in the proper light, the evidence showed the following. At the September 10, 2010 termination hearing, the neonatology developmental specialist testified that in September 2009, the team of medical personnel assigned to treat M. T. F. met with the family to review medical and developmental findings and speech and language issues concerning M. T. F. The psychologist and physical therapist provided instructions on home exercises and activities to improve, enhance, or facilitate communication with M. T. F. According to the physician’s records, the mother had attended the team meeting in September 2009, but not the meetings in January 2010 and May 2010.

A clinical psychologist who on June 18, 2010, completed a psychological and parental fitness evaluation of the mother testified that at the time of the evaluation, the mother indicated that she was unemployed, a full-time student, and living independently. The psychologist recommended that, among other things, the mother work closely with a parent aide.

The mother’s DFCS social services case manager from August or September 2009 to December 2009 testified that when she was initially assigned the case, the mother had commented that she thought M. T. F. was being lazy concerning his special needs and disabilities. The case manager testified that she discussed the incident with the mother and explained the need for the mother to learn how to cope with M. T. F.’s needs. She testified that the mother had acknowledged that she had missed medical appointments and other appointments regarding M. T. F. because she did not have transportation. When the case manager handled the case the mother was a college student, unemployed and had no steady income, other than student loan money, and she received assistance from her sister. The mother had lived with her sister but obtained an apartment of her own by the time the case manager’s handling of the case was about to end. DFCS had required the mother to obtain housing separate from the sister because the sister would not allow DFCS to conduct an evaluation of her home or enter her home on a regular basis.

The case manager testified that when she handled the case, the mother had completed anger and violence counseling and parenting courses, and she was complying with her case plan. She testified that the mother appeared to be loving and caring toward M. T. F.

M. T. F.’s foster mother, who had once had a son who was medically fragile and worked on-call on weekends at a home for medically fragile children, testified that M. T. F. had come into her care after he had been discharged from the hospital, at eight months old. The foster mother testified as to M. T. F.’s various medical and weekly therapy appointments. She testified that although the mother had attended all of M. T. F.’s medical appointments, the mother had not attended any of M. T. F.’s therapy appointments because they conflicted with her class schedule. And although the mother had not attended the therapy appointments, she asked the foster mother how they had gone, and the foster mother “showed her what’s going on.”

The foster mother testified that in June 2009, the mother had begun to have unsupervised visitation with M. T. F. But at one point the visitation had stopped because M. T. F. had accidentally received minor injuries while in the mother’s custody. The visitation recommenced, however, just one month prior to the September termination hearing. The foster mother testified that the mother always appeared to be ready to exercise visitation with M. T. F. and that she was not aware of anything DFCS had asked the mother to do that the mother had not done. The foster mother testified that she had seen the mother interact with M. T. F. and handle his feeding tube and that, in her opinion, the mother handled the feeding appropriately and that “as far as his care she knows exactly what to do.” The foster mother testified that she felt the mother knew how to appropriately take care ofM. T. F.

The mother testified that approximately one month before the termination hearing, she had moved into an apartment of her own that was near a child care center which could handle M. T. F.’s special needs. Before then, she had lived with her sister, with her boyfriend’s mother for approximately one month, and in a different apartment for one year. The mother testified that she currently attended college and was fifteen to sixteen months into a three-year program. She was attending classes on Mondays, Wednesdays, and Fridays. She testified that she obtained money to go to college through scholarships, loans, and DFCS’s independent living program.

The mother testified that, at the time of the hearing, she was employed by her sister as a receptionist, and had been at that job for approximately three months; she did not know, however, her rate of pay or how her pay was calculated. She testified that before then, she had worked from March 2010 to May 2010 as a shampoo assistant at a different place of business. The mother testified that about two or three weeks before the hearing, the case manager handling the case had asked her for pay stubs. The mother testified that she had brought with her to court a document drawn up by her sister which provided her rate of pay and pay schedule. No such document is included in the appellate record from that hearing, however.

The mother testified that she had a checking account through her school, that she was no longer involved with the boyfriend, and that if she were given custody of M. T. F., the child care center near her apartment, at which she intended to enroll him, would provide the therapy that M. T. F. needed. The mother also testified that she could call a “medical van” to transport M. T. F. to his appointments free of charge.

At the continuation of the termination hearing, on September 13, 2010, Cassie Register, the case manager who was assigned the case in July 2010, testified that when the case was first assigned to her, the mother was living with her boyfriend at his mother’s house. Register acknowledged that, as it concerned the case plan, the mother had completed parenting courses, anger and violence courses, that she had been working with a parent aide, that she was in constant contact with the foster parents, and that she was going to school. Register testified that “[t]he components of her case plan that [DFCS] does not feel she’s completed would be [the] stable income component and the stable housing component.”

DFCS tendered, without objection, prior court orders that were entered in the case. One of the orders, filed on July 19,2010, provided for the termination of unsupervised visitation because the mother had a live-in boyfriend who had an admitted history of criminal activity that involved the use of a gun.

DFCS rested its case at the end of the September 13, 2010 hearing. The matter was continued to September 16, 2010. At the September 16, 2010 hearing, counsel for the mother moved that the court enter a “directed verdict.” The court heard argument and stated that it would not rule on the mother’s motion, but would take it under advisement; in the meantime, the court stated that it desired to “set this case out a little bit... bring it back maybe within 30 or 60 days... to at that point review what our status is on some of our issues here.”

The court stated that it wanted, among other things, more information about whether the mother’s housing situation was stable, and whether the mother’s employment and income therefrom were stable and sufficient to meet expenses. The court specifically ordered the mother to provide to her caseworker documentation of employment and income. The court ordered the mother to attend M. T. F.’s physical therapy sessions and to get involved so that she could “get firsthand information from the therapist on whatever the things are that you’re supposed to be doing with [M. T. F] at home.” The mother affirmed that she understood the court’s instructions, and her attorney did not object to the court’s ruling.

At the first review hearing on October 20,2010, Register testified that since the last hearing (September 16, 2010), a new parent aide was assigned to work with the mother, and the parent aide told Register that the mother had canceled an appointment scheduled with her for October 6, 2010, because of the amount of time the appointment would take. Register testified that the parent aide said she had left three voice messages before receiving a return call from the mother to schedule the canceled appointment. According to Register, the parent aide said she had tried, unsuccessfully, to call the mother, who never called the parent aide to reschedule the appointment.

Register testified that the mother was not cooperative with her, either. Register also had difficulty scheduling an appointment with the mother. Register testified that the mother resisted meeting with her monthly and that the mother was not at home when Register went to her home on October 7, 2010, for a scheduled appointment. Register testified that the week before the review hearing the mother told Register that she was frustrated that Register was in her home; the mother said she felt her privacy was being invaded and she was overwhelmed with all she had to do.

Register testified that since the last hearing the mother had missed one of M. T. F.’s medical appointments. But according to the foster parents, the mother did attend a therapy session for M. T. F. The mother resided at the same place she had indicated at the last hearing, a month earlier. Register testified that the mother told her that she still worked for her sister but that the mother had not provided her with proof of income. Since the last hearing, DFCS increased the mother’s unsupervised visitation with M. T. F. from every other weekend to every weekend.

At the end of the hearing, the mother’s attorney asked the court to reschedule the matter for another review hearing in 30 or 60 days to give the mother time to provide Register with the requested information. The court scheduled the matter for another review hearing on November 22, 2010. The court again directly addressed the mother, asking that she provide proof of income.

The following individuals testified at the November 22, 2010 hearing: the new parent aide, Register, and the mother. The parent aide confirmed Register’s earlier testimony that the mother had canceled an appointment after the parent aide had left the mother three messages to schedule the appointment in the first place. The parent aide testified that she had rearranged her schedule to accommodate the mother’s availability that week. Aside from that appointment, the parent aide testified that she and the mother had an appointment for November 4, 2010, and the mother called her two to three hours after the scheduled time to say that she had forgotten about the appointment. They rescheduled the appointment for November 11, 2010, but did not meet that day, either. That day, the parent aide called the mother to tell her that she was stuck in traffic and was running approximately half an hour late, and despite telling the mother that appointments lasted about two hours (and thus, they were still within the scheduled time to meet), the mother stated that she could not meet because she had other plans. The parent aide testified that she arrived at the mother’s home but she did not seek to enter because of the “manner in which [the mother] was talking to me.” The parent aide testified that prior to the hearing she had met with the mother only twice.

The parent aide testified that her purpose was to help the mother budget and structure her finances to ensure that she could provide for M. T. F. As of the hearing, however, she had not received from the mother proof of income from employment, or any history of bill payments.

Register testified that since the last review hearing, the mother continued to have unsupervised visitation with M. T. F. Register testified that the mother had not attended any of M. T. F.’s therapy sessions since the last hearing. Register testified that the mother asked for an extended visitation for the Thanksgiving holidays, and DFCS approved visitation from the Wednesday before Thanksgiving Day to the Saturday following the holidays. The mother had still not provided Register with any verifiable proof of employment or income from employment. Register explained that a document the mother had given her was not satisfactory proof of income because she could not verify receipt of the money without corresponding evidence of a checking-cash history or a history of use of the money, such as deposits and withdrawals of the money from a bank account.

The mother testified that it was not her fault that the scheduled appointment with the parent aide the day the aide was stuck in traffic did not take place. The mother testified that she waited at home for the parent aide, who had called her when she had already left her house and the appointment would have ended. The mother testified that she worked for her sister but admitted that she did not bring to court any verifiable proof of income or employment.

At the continuation of the termination hearing on January 28, 2011, DFCS moved to incorporate testimony and evidence from the October and November case review hearings. The court granted the motion.

At the January 2011 termination hearing, Register testified that after the November 22, 2010 hearing, the mother failed for three to four weeks to exercise visitation with M. T. F., beginning with the Wednesday before Thanksgiving Day. Register testified that the mother told her that she had stopped the visitation because she was feeling frustrated. The mother also told Register, at that point, that she wanted to surrender her parental rights.

Register testified that, again, she experienced difficulty scheduling an appointment with the mother who would tell Register that she would call her back. Register testified that she had been informed by the parent aide that the mother had not returned her phone calls, either. After several phone calls, Register finally spoke to the mother who agreed to meet Register. The mother then recommenced visitation with M. T. F. on December 17,2010, and told Register that she no longer wanted to surrender her parental rights. Register testified that the mother had maintained her housing and attendance at school, but she still had not provided verifiable proof of stable income to financially support herself and M. T. F.

At the January 2011 termination hearing, the mother acknowledged that she had called the foster parents to pick up M. T. F. the Wednesday before Thanksgiving. The mother testified that she did it because she had gotten discouraged and could no longer tolerate DFCS in her life. The mother testified that she felt there were “so many negative people [who were] supposed to be trying to help me out in my case,” and that she had tried to do everything DFCS had asked of her, but

one time I have a good person or someone that’s trying to help me get my child back. Then the next day I have this person telling me that I’m not going to get my child back, that they don’t believe me basically, that I’m not doing it right. So that’s why I felt like nobody was trying to actually help me get my son back.

The mother admitted that she had missed a medical appointment for M. T. F. in December 2010. She introduced what she testified was a document her sister had generated which showed payments she had received for employment, from July 9, 2010, to September 3, 2010. Her attorney stated that a copy of the document had been previously admitted into evidence; and although at the November 2010 review hearing there appeared to have been reference to a document showing a list of payments by the sister, the appellate record does not reflect that the document was admitted as an exhibit at that hearing.

The mother testified that she had changed her class schedule, and at the time of the hearing, she was enrolled in school full-time in on-line classes, had obtained a driver’s license, and lived at the same apartment from the time of the September 2010 hearing. The mother tendered into evidence a copy of a 12-month apartment lease that was in her name only.

The parent aide testified that she called the mother twice during December 2010 and left messages, but the mother did not return the calls. The parent aide called again on January 6, 2011, and left a message; the mother returned that call. The parent aide testified that she had met with the mother on January 16, 2011, and that it appeared to her that the mother finally understood that parenting involved more than loving a child. The parent aide testified that the mother, however, missed an appointment with her on January 25, 2011. That day, the parent aide drove to the mother’s home, but the mother was not there and although at one point the mother asked the parent aide to wait for her, the mother later called back to say that she could not make it.

The mother called as a witness at the termination hearing a case manager who had handled the case from September or October 2009 to July 2010, and testified that the mother had complied with the case plan. A court appointed special advocate testified that the mother had a very good connection with M. T. F. and that there was nothing that would prevent her from being a fit and proper parent.

The mother’s older brother, who lived in-state and was familiar with M. T. F, testified that he had financially assisted the mother in the past and he would continue to assist her financially and provide transportation.

The foster father testified that the mother was actively involved in M. T. F.’s life, that the mother and M. T. F. interacted very well with each other, and that the mother was very loving and caring of M. T. F. He testified that M. T. F. recognized the mother as his “mom” and that the mother seemed adequately informed and intelligent to deal with his needs.

The juvenile court found that M. T. F. was deprived because of the mother’s inability to care for M. T. F, based on the following facts. The mother: (1) had failed to attend all of the child’s medical appointments; (2) had not attended medical appointments designed to educate her about the child’s medical condition; (3) had once commented that the child’s developmental delays were as a result of him being lazy; (4) had lived with her sister who had a history with DFCS (which showed poor judgment in the mother’s choice of living environment); (5) had not shown a steady stream of income; (6) had maintained a relationship with a man who had committed a crime in the past; (7) did not establish a stable place to live until one month before the start of the September termination hearing; (8) excessively relied on the foster parents; and (9) failed to cooperate with the parent aide. The court pointed out the mother’s failure to exercise her extended visitation and to be involved with the child during the 2010 Thanksgiving holidays.

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. If there is, the court shall then consider whether termination of parental rights is in the best interest of the child. The court determines parental misconduct or inability by finding that: the child is a deprived child (defined in OCGA § 15-11-2 to mean a child who 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); the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; such 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 child.

In determining whether the child is without proper parental care and control as set forth in OCGA § 15-11-94 (b) (4) (A), the court was required to consider any evidence that such care and control was absent, including evidence of circumstances described in OCGA § 15-11-94 (b) (4) (B), which DFCS does not allege to be present here. In addition to these considerations, OCGA § 15-11-94 (b) (4) (C) provides that where the child is not in the custody of the parent whose rights are in issue, in determining whether the child is without proper care and control, the juvenile 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 termination petition to: develop and maintain a parental bond with the child in a meaningful, supportive manner; provide for the care and support of the child as required by law or judicial decree; and comply with a court-ordered plan designed to reunite the child with the parent.

1. The mother contends that there was not sufficient clear and convincing evidence to show that she was unable to care for M. T. F. She argues that the juvenile court erroneously based its determination of parental unfitness on past unfitness alone and failed to address the issue of present parental unfitness. She further argues that the juvenile court failed to adequately consider the provisions of OCGA § 15-11-94 (b) (4) (C). We agree.

On July 2, 2008, the juvenile court entered an order nunc pro tunc June 24,2008, finding that M. T. F. was deprived. That order was twice extended with the agreement of the mother, the last extension occurring after DFCS had filed its petition to terminate the mother’s parental rights. Even so, DFCS was required to present at the termination hearing evidence of present deprivation, not past or potential future deprivation.

Where, as here, the child[ ] ha[s] been removed from parental custody, DFCS may prove current deprivation by showing that, if the child[ ] w[as] returned to [his] mother at the time of the hearing, [he] 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.

The mother’s circumstances at the time of the termination hearing were significantly different from the circumstances which caused M. T. F. to be placed in the custody of DFCS. At the time DFCS opened this case, the mother was in DFCS custody, she was in high school, and she conceded that she could not provide for the care and support of M. T. F., who had lived at a hospital for the first eight months of his life and then in a foster home.

In contrast, at the time of the termination hearing, there was some evidence that the mother was employed. The evidence showed that she had established stable housing near a child care center that could provide specialized care for M. T. F., had knowledge of a medical van service that could transport M. T. F. to medical appointments, had obtained her driver’s license, was a second-year college student, had enrolled in on-line college courses, had exercised unsupervised visitation with M. T. F. numerous times, attended most of M. T. F.’s medical appointments, had completed anger and violence counseling, had completed parenting counseling, knew how to appropriately care for her medically fragile son, and with the exception of the incident around the Thanksgiving holidays, had consistently exercised her right of visitation with M. T. F.

Because M. T. F. is not in the custody of the mother, whose rights are in issue, in determining whether M. T. F. is without proper care and control, we now consider, without being limited to, whether the mother, without justifiable cause, had failed significantly for a period of one year or longer prior to the filing of the termination petition to do the following:

(a) Develop and maintain a parental bond with the child. There was no evidence that the mother failed to develop and maintain a parental bond with M. T. F. before the filing of the termination petition. Indeed, the evidence showed that the mother had always appeared ready for visitations, she appeared loving and caring toward M. T. F, and M. T. F. recognized her as his mother.

(b) Provide for the care and support of the child. Although there was some evidence that the mother had been unemployed periodically, there was no evidence presented that she failed to provide for the care and support of M. T. F.

(c) Comply with case plan. Of the court’s nine factual findings set out above, numbers 1 through 5, and 8, concerned events which transpired before the filing of the termination petition, the relevant period. (The remainder of the findings apply to events which transpired after the filing of the termination petition, and thus, we need not address them here.)

Regarding the relevant findings, there was some testimony that the mother missed some medical appointments because she did not have transportation. And the case plan did not require that the mother attend either therapy appointments or medical team meetings. Nor did the case plan prohibit the mother from living with her sister. But in any event, when DFCS later required that the mother move out of the sister’s home, the mother complied. The mother’s comment about M. T. F. being lazy was made early in the case, and the case manager addressed the issue; there was no evidence that the mother ever said it again. And although the evidence showed that the foster parents provided transportation for M. T. F. to visit with the mother, there was no evidence that the mother relied on them to do so; the evidence showed only that this was the established routine.

Concerning the court’s finding that the mother had failed to show a steady stream of income, 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.” Here, although there was no evidence which the court considered to be verifiable proof of income, the mother had maintained stable housing and her prospects for future employment arguably were high because she was obtaining a college education.

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. Accordingly, compelling facts are required to terminate parental rights.

Decided October 22, 2012.

Victoria E. Rowan, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Sanders B. Deen, Assistant Attorney General, for appellee.

Given the facts of this case, the juvenile court erred in determining that there was clear and convincing evidence that M. T. F. was deprived at the time of the January 2011 termination hearing.

2. Because of our holding in Division l, we need not address the remaining considerations under OCGA § 15-11-94 (b) (4) (A).

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

        In the Interest of D. P. E., 282 Ga. App. 529, 530 (639 SE2d 535) (2006) (footnote omitted); In the Interest of S. R. M., 283 Ga. App. 463 (641 SE2d 666) (2007).

       OCGA § 15-11-94 (a).

       Id.

       OCGA §§ 15-11-94 (b) (4) (A) (i); 15-11-2 (8).

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

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

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

       See In the Interest of S. G., 271 Ga. App. 776, 777 (611 SE2d 86) (2005).

       Id. at 777-778; OCGA § 15-11-94 (b) (4) (C).

        In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012); In the Interest of C. L. C., 299 Ga. App. 729, 734 (1) (683 SE2d 690) (2009).

        In the Interest of A. R., 315 Ga. App. 357, 363-364 (1) (a) (726 SE2d 800) (2012) (footnote omitted); see In the Interest of P. D. W., 296 Ga. App. 189, 192-193 (1) (a) (674 SE2d 338) (2009).

       See In the Interest of 258 Ga. App. 312, 315 (1) (574 SE2d 387) (2002) (judgment terminating parental rights reversed where circumstances that had prevented mother from parenting her children since birth and contributed to children’s deprivation changed significantly; mother was no longer a minor, no longer in DFCS’s custody, had taken steps consistent with providing adequate care and supervision for her children, including securing employment, obtaining housing, planning a future with her children and their father, and remedying her mistakes).

       OCGA § 15-11-94 (b) (4) (C).

        In the Interest of M. M., 263 Ga. App. 353, 359 (1) (587 SE2d 825) (2003) (punctuation and footnote omitted).

       Id. (footnote omitted).

       See OCGA § 15-11-94 (a).

       See generally In the Interest of S. D., supra at 89-90 (2); In the Interest of M. M., supra at 357-359; In the Interest of supra; compare In the Interest of C. R., 245 Ga. App. 697, 700 (2) (538 SE2d 776) (2000) (affirming termination of 16-year-old mother’s parental rights where, among other things, present deprivation was shown because mother was pregnant again, unemancipated, unmarried, had not demonstrated an ability to maintain consistent employment at even a subsistence level, was unable or unwilling to exercise her scheduled visitations, and failed to maintain a parental bond with the child in any meaningful, supportive way).

       Supra.


text:
    A12A1617.
    HOWSER MILL HOMES, LLC et al. v. BRANCH BANKING AND TRUST COMPANY.
    (733 SE2d 441)
   PHIPPS, Presiding Judge.

Howser Mill Homes, LLC, R. Millard Bowen, Bowen and Bowen Construction, and MBC Properties (collectively, “Howser Mill”) appeal from the trial court’s order confirming a sale of property foreclosed on by Branch Banking and Trust Company (“BB&T”) and denying Howser Mill’s motion to dismiss BB&T’s application for confirmation of the sale. For the reasons that follow, we affirm.

The material facts are not in dispute. Howser Mill Homes gave BB&T a security deed encumbering certain real property. On July 1, 2008, exercising the power of sale contained in the security deed, BB&T sold and bought the property in a nonjudicial foreclosure sale.

On July 29, 2008, BB&T filed an application for confirmation of the sale. While the application was pending, BB&T discovered that the notice of the foreclosure sale had not been properly advertised. In October 2008, BB&T voluntarily dismissed its application for confirmation of the sale without prejudice.

BB&T thereafter started new foreclosure proceedings under power of sale on the property, including advertising the sale and providing notice to Howser Mill. In November 2008, the property was sold at foreclosure to BB&T. BB&T subsequently filed an application for confirmation of the November sale. Howser Mill objected and moved to dismiss the second application, contending that the November sale could not be confirmed because the court had not ordered a resale of the property. The trial court denied the motion to dismiss and confirmed the November foreclosure sale.

1. Howser Mill contends that the trial court erred in confirming the November foreclosure sale because BB&T was required, pursuant to OCGA § 44-14-161, to obtain a court order before conducting the November sale, but BB&T failed to obtain such an order. We hold that no such order was required in this case.

“The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. We apply a de novo standard of review to any questions of law decided by the trial court.”

OCGA § 44-14-161 provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

Relying on the language of OCGA § 44-14-161 (c) emphasized above, Howser Mill argues that BB&T was not authorized to sell the property in November because the court had not ordered a resale after the July sale. But Howser Mill has cited no authority that supports its position that a party must obtain from the court a resale order before selling the property under the circumstances presented in this case (i.e., where the party voluntarily dismissed its application for confirmation before the entry of a final order, and then started new foreclosure proceedings).

The security deed pertinently provided that, in the event of Howser Mill Homes’ default, BB&T was authorized to sell the property at public auction, “first advertising the time, terms and place of such sale by publishing a notice thereof once a week for four consecutive weeks ... in a newspaper in which sheriff’s advertisements are published.”

In MPP Investments v. Cherokee Bank, the Supreme Court of Georgia held that a foreclosure sale was not valid where the security deed required the secured party to give notice before the party could exercise the power of sale contained in the deed, and the party did not give the required notice before foreclosing. Further, Georgia law pertinently provides that “[n]o sale of real estate under powers contained in . . . deeds . . . shall be valid unless the sale shall be advertised ... in the usual manner of the sheriff’s sales.” It is undisputed that notice of the July foreclosure sale was not published in the manner required by the security deed or by statute. Thus, the July sale was not valid.

As the Supreme Court of Georgia stated in Culver v. Lambert,

where the lender who is the plaintiff is also the purchaser at an illegal and void sheriffs sale, we see no reason why he can not treat the sale as void, and proceed in the manner which he should have first adopted in the enforcement of his execution. The defendant can not complain that the plaintiff treats as void a sale which the law pronounces invalid, and proceeds to sell again.... The second sale could hardly have had the effect of depressing the price of the land because of the prior illegal sale, since the rights of no new parties were injected into the transaction, and it was manifest that the only purpose was to bring the land to sale in a legal manner.

And as this court has stated, “when the lender is also the purchaser at an invalid sale, the lender can treat the sale as void and resell the property in the manner that it should have sold the property in the first place.”

The confirmation proceeding commenced in connection with the November sale comprised a new action. The trial court found that, and Howser Mill does not dispute, as to the November action, the advertisement requirements were met and the property was sold for its true market value.

The only purpose of OCGA § 44-14-161 is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. Its purpose is to pass upon the notice, advertisement and regularity of the sale and to re-insure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments.

Howser Mill has not shown that it was deprived in the November sale of any protection afforded by OCGA § 44-14-161.

To support its assertion that the July sale was not void (but merely voidable), Howser Mill relies on the following statement from Stripling v. Farmers & Merchants Bank: “The alleged failure to advertise the four weeks immediately preceding the sale pursuant to OCGA § 9-13-141, would not render it absolutely void.” The cited language, however, is dicta. More importantly, we are not required to determine whether the invalid July foreclosure sale was void or merely voidable because, in either case, BB&T cured the invalidity by conducting the second foreclosure in the proper manner. The trial court did not err in confirming the November sale.

Decided October 22, 2012.

Smith, Gilliam, Williams & Miles, Steven P. Gilliam, Keith J. Whitaker, for appellants.

Greenberg Traurig, Sean A. Gordon, Jack C. Lundstedt, Jr., for appellee.

2. In light of our holding in Division l, we need not address Howser Mill’s contention that the trial court erred also in denying Howser Mill’s motion to dismiss the application for confirmation based on BB&T’s alleged failure to comply with the resale order provision of OCGA § 44-14-161 (c).

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Citizens Bank of Effingham v. Rocky Mountain Enterprises, 308 Ga. App. 600, 601 (708 SE2d 557) (2011) (citations and punctuation omitted).

       (Emphasis supplied.)

       288 Ga. 558 (707 SE2d 485) (2011).

       Id. at 560-561 (1), 563 (4).

       OCGA § 44-14-162 (a); see OCGA §§ 9-13-140(a)and9-13-141regardingspecificrequire-ments for advertising judicial or sheriff’s sales.

        MPP Investments, supra; see Proudfit v. Oliver, 150 Ga. 707 (105 SE 241) (1920) (where the advertisement of foreclosure sale did not conform to the requirements of the security deed, the foreclosure sale was invalid and did not divest title of the grantor to the property).

       132 Ga. 296 (64 SE 82) (1909).

       Id. at 298.

        Duke Galish, LLC v. Southcrest Bank, 314 Ga. App. 801, 803 (1) (726 SE2d 54) (2012) (citation omitted).

       See Friedman v. Regions Bank, 288 Ga. App. 57, 60 (653 SE2d 507) (2007).

       Id. at 58 (punctuation and footnotes omitted).

       See id.

       175 Ga. App. 75 (332 SE2d 373) (1985).

       Id. at 76 (2).

       Id. at 76-77 (2).

       See Duke Galish, LLC, supra.

       Supra.


author: McFADDEN, Judge.

text:
    A11A0768.
    MAYOR & ALDERMEN OF THE CITY OF SAVANNAH v. BATSON-COOK COMPANY et al.
    (734 SE2d 743)
   McFADDEN, Judge.

In Mayor &c. of Savannah v. Batson-Cook Co., 291 Ga. 114 (728 SE2d 189) (2012), the Supreme Court reversed and remanded with direction Division 1 of our decision in Mayor &c. of Savannah v. Batson-Cook Co., 310 Ga. App. 878 (714 SE2d 242) (2011), in which we affirmed the trial court’s denial of the City of Savannah’s motion to recuse the trial court judge. The Supreme Court held that the trial court judge should have assigned the motion to recuse to another judge for resolution, and directed us to remand the case to the Superior Court of Troup County for disposition of the motion to recuse by a different judge. 291 Ga. at 121-122 (2) (b) (ii).

Because the Supreme Court’s decision addressed only one of the divisions in our opinion, we are required

(1) to read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) [to] enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by this Court.

Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001). After so doing, we find that Divisions 2, 3,4, 5, 6, 7 and 8 of our opinion are consistent with and were not affected by the Supreme Court’s decision. Accordingly, Division 1 of our opinion is vacated, and the judgment of the Supreme Court is made the judgment of this court for Division 1. The judgment of the trial court denying the motion to recuse is vacated, and the case is remanded for assignment of the motion to recuse to another judge for resolution. If the motion to recuse is granted, “then the proceedings that occurred after the filing of that motion are invalid and an interlocutory appeal of the grant of the motion may be sought.” (Citations omitted.) Morgan v. Propst, 301 Ga. App. 402, 405 (1) (c) (688 SE2d 357) (2009). If the motion is denied, the trial court may reenter the judgment on the jury verdict. Id.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Phipps, P. J., and Andrews, J., concur.

On Motion for Reconsideration.

The City of Savannah seeks reconsideration of our remittitur opinion. It argues that, upon remand, should the trial court grant the motion to recuse and thereby render invalid the trial court’s subsequently entered rulings, then to the extent our opinion affirmed those rulings, our opinion would be incorrect and must be changed. On the contrary,

when the Supreme Court reviews a decision by the Court of Appeals, any portions of the Court of Appeals’ decision that are not considered by the Supreme Court are unaffected by the Supreme Court’s opinion and become the law of the case. Thus, those portions of a Court of Appeals’ decision that were not addressed by the Supreme Court are treated as affirmed and become binding upon the return of the remittitur to the extent they are consistent with the Supreme Court’s opinion.

(Citations and punctuation omitted.) Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 284 Ga. App. 387, 390 (643 SE2d 864) (2007). The Supreme Court held that the trial court erred in affirming the trial judge’s denial of the motion to recuse and that the case must be remanded so that a different judge could dispose of the recusal motion. Mayor &c. of Savannah, supra, 291 Ga. at 121-122 (2) (b) (ii). If a different judge, on remand, reached the same conclusion as the initial judge — that the motion to recuse should be denied—then the trial court would be authorized to “reenter the judgment on the jury verdict and its subsequent orders.” (Citation omitted.) Morgan, supra, 301 Ga. App. at 405 (1) (c). Consequently, Divisions 2, 3, 4, 5, 6, and 8 of our opinion, which addressed the merits of the subsequently entered rulings, as well as Division 7, which addressed a previously entered ruling, were not inconsistent with the Supreme Court’s opinion.

It is true that should the trial court grant the motion to recuse “then the proceedings that occurred after the filing of that motion are invalid.” (Citations omitted.) Morgan, supra, 301 Ga. App. at 405 (1) (c). But we cannot issue an opinion that addresses potential rulings of the trial court in the case of that eventuality. Bibbins v. State, 280 Ga. 283, 284-285 (627 SE2d 29) (2006) (“Georgia appellate courts are not authorized to render advisory opinions as to potential error.”) (citations omitted.)

Our rulings “not disturbed by [the Supreme] Court... remain[ ] the law of the case,” Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731 (514 SE2d 201) (1999), andweare not authorized to change them. The parties are reminded, however, that the law-of-the-case “principle only establishes the law of the case in its then existing evidentiary posture.” (Emphasis in original.) Modern Roofing & Metal Works v. Owen, 174 Ga.App. 875 (1) (332 SE2d 14) (1985). The parties also are reminded that

[r]ulings by Georgia trial and appellate courts are construed according to their substance and function and not merely by nomenclature. The goal is to give full effect to the totality of the opinion rendered rather than to read words in a vacuum. As such, the words [in the judgment line] should not be treated as magic words that can be read in isolation, separate and apart from the underlying substantive language and reasoning of the various appellate opinions issued in the case.

Decided August 29, 2012

Reconsideration denied October 23, 2012

Phillips & Morgan, Andrew D. Shore, Cohen, Pollock, Merlin & Small, Gregory K. Morgan, Elizabeth B. Hodges, James B. Blackburn, Peter A. Giusti, for appellant.

Willis, McKenzie, DeGennaro & Alford, Charles J. Willis, MarkL. DeGennaro, Savage, Turner, Pinson & Karsman, Stanley Karsman, Ellis, Painter, Ratterree & Adams, Robert S. Glenn, Jr., for appellees.

(Citations and punctuation omitted.) Hedquist, 284 Ga. App. at 391 (1).

Motion for reconsideration denied.