In Re Cm

574 S.E.2d 433, 258 Ga. App. 387
CourtCourt of Appeals of Georgia
DecidedNovember 15, 2002
DocketA02A1264, A02A1265
StatusPublished

This text of 574 S.E.2d 433 (In Re Cm) 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 Cm, 574 S.E.2d 433, 258 Ga. App. 387 (Ga. Ct. App. 2002).

Opinion

574 S.E.2d 433 (2002)
258 Ga. App. 387

In the Interest of C.M. et al. (Two Cases).

Nos. A02A1264, A02A1265.

Court of Appeals of Georgia.

November 15, 2002.
Certiorari Denied February 24, 2003.

*434 Oliver R. Register, Atlanta, for appellant (case no. A02A1264).

Harold B. Baker, Valdosta, for appellant (case no. A02A1265).

Thurbert E. Baker, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., William C. Joy, Senior Asst. Atty. Gen., Shalen S. Nelson, Laura W. Hyman, Asst. Attys. Gen., Charles R. Reddick, Homerville, for appellee.

BARNES, Judge.

The natural parents of C.M., E.M., and A.D.M. appeal the juvenile court's decision to terminate their parental rights. Because the appeals concern the termination of the parental rights to the same children and concern substantially the same issues, we have consolidated them for disposition.

In Case No. A02A1264, the father contends the juvenile court erred by failing to record the deprivation hearing, by denying his right to counsel in the earlier deprivation hearing, and by admitting and considering inadmissible hearsay. He also contends the evidence is insufficient to support the termination of his parental rights.

In Case No. A02A1265, the mother contends the juvenile court erred by admitting and considering inadmissible hearsay and by denying her right to counsel at the deprivation hearing. She also contends the evidence is insufficient to support the termination of her parental rights.

As we find no reversible error and the evidence supports the decision of the juvenile court, we affirm the termination of parental rights in both appeals.

Case Nos. A02A1264 and A02A1265

1. Both parents contend the trial court erred by not appointing counsel to represent them during earlier deprivation proceedings concerning the children. See OCGA § 15-11-6 ("Right to Counsel"). Neither parent, however, identifies where in the record a request for appointment of counsel because of indigence was made and denied by the juvenile court.[1]

More significantly, this is not the proper time to assert error in the deprivation proceedings. Deprivation proceedings and parental rights termination proceedings are separate and distinct. In the Interest of V.S., 230 Ga.App. 26, 31(2), 495 S.E.2d 142 (1997). Unappealed deprivation orders of the juvenile court may be used to establish that the children were deprived within the meaning of OCGA § 15-11-94(b)(4)(A)(i). In the Interest of A.M.B., 219 Ga.App. 133, 134, 464 S.E.2d 253 (1995). Because the parents did not appeal that decision regarding their children, they are bound by the determination that their children were deprived. See OCGA §§ 9-12-40; 9-12-42; In the Interest of J.L.Y., 184 Ga.App. 254(1), 361 S.E.2d 246 (1987). See also In the Interest of B.P., 207 Ga.App. 242, 244, 427 S.E.2d 593 (1993) (unappealed deprivation determination binding on appeal). Accordingly, the parents' enumerations of error concerning the denial of counsel at the deprivation hearing are not properly before us in this appeal.

2. Both parents also contend the juvenile court erred by admitting and considering a time line prepared by a Department of Family & Children Services ("DFCS") worker showing the history of DFCS's involvement with the family, because the time line was prepared from DFCS records and contained hearsay. Because the juvenile court found that the time line was a business record, it admitted the time line over the parents' objections. Pretermitting whether the time line was admissible under any other rule of evidence, this time line was not a business record. See OCGA § 24-3-14.

*435 This Code section allows the introduction of entries in business records when the entry was a recording of an act, transaction, occurrence, or event and the entry was made in the regular course of business to record such entries by someone acting according to that routine at or near the time of the act, transaction, occurrence, or event. OCGA § 24-3-14. This time line does not meet that standard.

The time line was prepared for this litigation and, thus, was not prepared in the regular course of business. Reach Out, Inc. v. Capital Assoc., 176 Ga.App. 585, 586(1), 336 S.E.2d 847 (1985). Also, because the time line was not prepared and maintained pursuant to a routine practice, it also failed to meet the requirements for admissibility as a business record. OCGA § 24-3-14(b); Lyerly v. Phillips, 188 Ga.App. 566, 569, 373 S.E.2d 663 (1988).

Nevertheless, we find harmless any error concerning the juvenile court's consideration of the time line as a business record, because the court said that it would not consider the hearsay. "The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff." Rowe v. Rowe, 195 Ga.App. 493, 494(2), 393 S.E.2d 750 (1990). Therefore, we assume that the juvenile court did not consider the inadmissible hearsay in reaching its findings of fact and conclusions. This assumption is reinforced by the failure of both parents to identify any particular finding of fact that was based on the hearsay they complain of in this enumeration of error. "We will not presume the trial court committed error where that fact does not affirmatively appear in the record. [Cit.]" Id. Appellants must show error in the record; arguments in briefs cannot be considered as they add no evidence to the record. In the Interest of C.S., 236 Ga.App. 312, 315(2), 511 S.E.2d 895 (1999).

3. Both parents also contend the evidence is not sufficient to support the juvenile court's decision to terminate their parental rights. The standard of review is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights should have been lost. In the Interest of J.H., 210 Ga.App. 255, 258(1), 435 S.E.2d 753 (1993). On appeal, this court defers to the trial court's factfindings and will affirm unless the appellate standard is not met. In the Interest of R.N., 224 Ga.App.

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Related

In the Interest of J. H.
435 S.E.2d 753 (Court of Appeals of Georgia, 1993)
Rowe v. Rowe
393 S.E.2d 750 (Court of Appeals of Georgia, 1990)
In the Interest of B. P.
427 S.E.2d 593 (Court of Appeals of Georgia, 1993)
In the Interest of A. M. B.
464 S.E.2d 253 (Court of Appeals of Georgia, 1995)
In the Interest of R. N.
480 S.E.2d 243 (Court of Appeals of Georgia, 1997)
Reach Out, Inc. v. Capital Associates, Inc.
336 S.E.2d 847 (Court of Appeals of Georgia, 1985)
In the Interest of J. L. Y.
361 S.E.2d 246 (Court of Appeals of Georgia, 1987)
In the Interest of v. S.
495 S.E.2d 142 (Court of Appeals of Georgia, 1997)
Lyerly v. Phillips
373 S.E.2d 663 (Court of Appeals of Georgia, 1988)
In the Interest of C. S.
511 S.E.2d 895 (Court of Appeals of Georgia, 1999)
In the Interest of C. M.
574 S.E.2d 433 (Court of Appeals of Georgia, 2002)

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574 S.E.2d 433, 258 Ga. App. 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cm-gactapp-2002.