In re C. M.

347 S.E.2d 328, 179 Ga. App. 508
CourtCourt of Appeals of Georgia
DecidedJune 25, 1986
Docket72400
StatusPublished
Cited by8 cases

This text of 347 S.E.2d 328 (In re C. M.) 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
In re C. M., 347 S.E.2d 328, 179 Ga. App. 508 (Ga. Ct. App. 1986).

Opinion

Banke, Chief Judge.

The appellants filed separate appeals from an order terminating their parental rights with respect to their three minor children, C. M., S. M., and B. M. The termination order was based on findings that the appellants had failed to pay court-ordered child support for a period of almost two years and that the children were suffering and would likely continue to suffer deprivation due to parental unfitness.

The three children were born in March of 1980, April of 1981, and April of 1982, respectively. The Department of Family and Children Services first became involved in the family’s affairs on July 31, 1981, when one of its caseworkers was notified by hospital personnel that S. M., who was only three and one-half months old at the time, had been brought to the emergency room for treatment of a broken arm and leg. The orthopedic surgeon who examined and treated the child on that occasion testified that the arm fracture had resulted from the arm’s being “twisted one full revolution beyond the limits of the shoulder joint. . . .” He further testified that the two fractures had occurred separately, with the arm injury being about a week older than the leg injury, and that it would not have been possible for the arm injury to have gone unnoticed during that period of time, both because of the pain which would necessarily have been associated with it and because the injury had caused the arm to swell to about twice its normal size. Asked at the termination hearing to explain the cause of these two injuries, the appellant mother invoked her Fifth [509]*509Amendment privilege against self-incrimination. She did testify, however, that the appellant father had been out of town when the injuries occurred.

Due to the nature of S. M.’s injuries and the mother’s failure to offer a satisfactory explanation for them, the Department of Family and Children Services immediately obtained an emergency, ex parte order placing both him and his older sibling, C. M., in protective custody. In October of 1981, the department was awarded temporary custody of the two children.

The third child, B. M., was born in April of 1982. In August of that year, the father' was arrested during the course of a street fight with the mother over physical possession of this child. According to a police detective who participated in the arrest, “[t]he child was in some danger and could have been hurt.”

Homemaker’s services were provided to the appellants by the department during the last six months of 1982, in an effort to assist them in learning to care for the children and budgeting their limited finances. B. M. was placed in foster care in December of that year, when it was learned that the appellants had been evicted from their apartment. Between December of 1982 and October of 1983, the appellants moved several times and were unable to maintain steady employment.

On September 29, 1983, the juvenile court granted the department’s petition for a continuation of the original temporary custody order with respect to S. M. and C. M. Also, the trial court ordered the appellants at this time to begin paying child support for S. M. and C. M. in the amount of $25 per month. However, with the exception of an $8 payment made around the time the order was entered, the appellants made no support payments whatever during the two years immediately preceding the termination hearing, which took place in August of 1985. Faced with evidence that the appellants were not entirely without disposable income during this period, the trial court determined that their “failure to abide by the order requiring the child support [was] wanton, willful, and without excuse.”

It was established without dispute at the termination hearing that the father was a chronic alcoholic with a history of multiple drug abuse; and it was further shown that although he had made some efforts, with the encouragement and assistance of the department, to overcome his addiction to alcohol, these efforts had been unsuccessful. The mother acknowledged at the hearing that she had no bed nor other furnishings for the children and did not have the present ability to care for them. Held:

1. The appellant father contends that the trial court erred in limiting the scope of discovery as follows: “The [state] shall respond to the [father’s] interrogatories and requests for production of docu[510]*510ments as soon as practicable. Caseworker notes, memoranda, or other caseworker-generated documents shall not be discoverable unless the petitioner uses same at the adjudication hearing. If a document is not presented to counsel for [the father] prior to the hearing, it shall not be admissible at the hearing.”

Discovery is applicable in juvenile court proceedings “within confines set by the trial court.” Ray v. Dept. of Human Resources, 155 Ga. App. 81, 85 (270 SE2d 303) (1980). We do not find the limitation imposed by the trial court in this case with respect to the discovery of “caseworker notes, memoranda, or other caseworker generated documents” not intended to be utilized by the department at the hearing to have been unreasonable in and of itself; and the appellant father has made no showing that the limitation resulted in his being denied access to any information either favorable or material to his case. Instead, he asserts that reversible error arose from the mere possibility that “certain nontrial material contained in the state’s files could [have] prove [n] favorable to his case and helpful in terms of being impeachment material. . . .” (Emphasis supplied.) The existence of this hypothetical possibility clearly was not sufficient to establish an abuse of discretion by the trial court in controlling the scope of discovery in the case.

2. The father also contends that the trial court erred in failing to grant him a continuance of between three and six months to enable him to obtain certain favorable evidence not available to him at the time of the hearing. The reason this evidence was not available to the father at the time of the hearing was because it was not in existence. He had recently entered an in-patient addiction program at the Veterans’ Administration Hospital in Charleston, S. C., and his motion for continuance was predicated on the assertion that his attending physicians at the hospital “would be potential material witnesses” on his behalf in the event he were successful in overcoming his alcoholism through his participation in this program.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” OCGA § 9-10-167 (a). The appellant father’s potential for overcoming his alcoholism, which had existed throughout the four years the children had been in foster care, was insufficient to require the grant of a continuance in this case.

3. The appellant father’s contention that the trial court terminated his parental rights based on his wife’s delinquencies rather than his own is without support in the record.

4. The father contends that the trial court erred in considering his failure to pay court-ordered child support as a ground for termination, in view of the fact that the department had not alleged such [511]

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Bluebook (online)
347 S.E.2d 328, 179 Ga. App. 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-c-m-gactapp-1986.