Heath v. McGuire

306 S.E.2d 741, 167 Ga. App. 489, 1983 Ga. App. LEXIS 2527
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1983
Docket65313
StatusPublished
Cited by26 cases

This text of 306 S.E.2d 741 (Heath v. McGuire) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heath v. McGuire, 306 S.E.2d 741, 167 Ga. App. 489, 1983 Ga. App. LEXIS 2527 (Ga. Ct. App. 1983).

Opinions

Carley, Judge.

In the instant case the father of a three-year-old child appeals from an order terminating his parental rights in that child.

On February 10, 1982, appellant entered a plea of guilty to murder in connection with the violent homicide of his pregnant wife, [490]*490the child’s mother. He was sentenced to life in prison. Appellant also pled guilty to an additional offense and received a sentence to be served consecutive to the life sentence for murder. The appellees, who are the child’s maternal grandparents, were awarded permanent custody of the child after the murder. Appellees subsequently filed a complaint seeking the termination of appellant’s parental rights. The Juvenile Court issued an order terminating appellant’s parental rights and it is from that order that appellant appeals.

1. Appellant first enumerates as error the trial court’s order excluding some observers from the courtroom, but permitting the press to remain in attendance during the termination proceeding. Appellant asserts that allowing the press to remain at the hearing was violative of OCGA § 15-11-28 (c) (Code Ann. § 24A-1801), which provides: “The general public shall be excluded from hearings involving delinquency, deprivation, or unruliness.” No objection to the presence of members of the press was made by appellant at the time of the ruling or at any time during the hearing. See generally Cox v. State, 152 Ga. App. 453, 464-466 (263 SE2d 238) (1979). “It is generally accepted appellate practice that grounds enumerated as error but not objected to during the trial calling for a ruling may not be raised for the first time on appeal.” Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982). Appellant’s first enumeration is accordingly without merit.

2. In enumerations 2, 3, 4, 5 and 6, appellant contends that the trial court erred in denying his motion to strike certain paragraphs of appellees’ complaint and the amendment thereto. “Motions to strike alleged redundant, immaterial or impertinent or scandalous matter are not favored. Matter in pleadings will not be stricken unless it is clear that it can have no possible bearing upon the subject matter of the litigation, and if there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied. [Cits.]” Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 302 (208 SE2d 258) (1974). After a careful reading of the pleadings involved, we find that the trial court did not err in denying appellant’s motion to strike. The paragraphs in question “do not clearly appear to have no possible bearing on the subject matter of the litigation; nor can it be said... these allegations do not raise an issue.” Northwestern Mut. Life Ins. Co. v. McGivern, supra at 303.

3. Enumerations 7, 8 and 9 assert that the evidence is insufficient to support the termination of appellant’s parental rights.

OCGA § 15-ll-51(a)(2) (Code Ann. § 24A-3201), the relevant statute, provides: “The court by order may terminate the parental rights of a parent with respect to his child if:... (2) the child is a deprived child and the court finds that the conditions and causes of the [491]*491deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” OCGA § 15-11-2 (8) (A) (Code Ann. § 24A-401) defines a “deprived child” as a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals . . .”

This court has long recognized that termination of parental rights is a severe measure. Childers v. Dept. of Family &c. Services, 147 Ga. App. 825, 826 (250 SE2d 564) (1978); In the Interest of: A.A.G., 146 Ga. App. 534, 535 (246 SE2d 739) (1978). “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. When we do this, we make a decision on human frailties and their consequences. It becomes an agonizing undertaking.” McCormick v. Dept. of Human Resources, 161 Ga. App. 163, 164 (288 SE2d 120) (1982). Accordingly, “[cjompelling facts are required to terminate parental rights. [Cits.]” Hooks v. Baldwin County Dept. of Family &c. Services, 162 Ga. App. 142, 144 (290 SE2d 356) (1982). See also Griffin v. Walker County Dept. of Family &c. Services, 159 Ga. App. 63 (282 SE2d 705) (1981). “Additionally parental unfitness caused by either intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child must be demonstrated before a parent’s rights will be completely terminated. [Cit.]” McCormick v. Dept. of Human Resources, supra at 164. See also Ray v. Dept. of Human Resources, 155 Ga. App. 81 (2) (270 SE2d 303) (1980); Harper v. Dept. of Human Resources, 159 Ga. App. 758, 759 (285 SE2d 220) (1981) . “[W]here a third party sues the custodial parent to obtain custody of a child and to terminate the parent’s custodial rights in the child,... the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit or otherwise not entitled to custody under [OCGA §§ 19-7-1 and 19-7-4 (Code Ann. §§ 74-108,74-109).]” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). “This standard is stated in our statute. After defining a ‘deprived child,’ our statute requires the court after hearing to find ‘clear and convincing evidence’ before an order of deprivation may be entered. [OCGA § 15-ll-33(b). (Code Ann. § 24A-2201).]” In re Suggs, 249 Ga. 365, 366 (291 SE2d 233) (1982) . “Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981).

[492]*492In the instant case, the trial court found that the child was deprived “in the sense that his mother had been taken away from him by the murder of that person by the natural father.” The court also found that the appellant was unfit to care for his child and was without prospects of reformation because he is serving a life sentence. Furthermore, the trial court found evidence that, as the result of this “deprivation,” the child has suffered physical, mental and emotional harm. The evidence also shows that the child would be unable to have a meaningful future relationship with appellant if they were ever reunited, and that, in fact, such a relationship would be harmful to the child. “After a careful review of the record in this case, we find no abuse of discretion.” Painter v. Barkley, 157 Ga. App. 69 (276 SE2d 850) at 70.

In the Interest of H. L. T., 164 Ga. App.

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Bluebook (online)
306 S.E.2d 741, 167 Ga. App. 489, 1983 Ga. App. LEXIS 2527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heath-v-mcguire-gactapp-1983.