In the Interest of C. T.

365 S.E.2d 117, 185 Ga. App. 561

• Court: Court of Appeals of Georgia
• Decided: December 1, 1988
• Docket: 75038
• Status: Published

Opinions

Banke, Presiding Judge.

The appellant brings this appeal from an order terminating her parental rights with respect to her three minor children.

When the termination hearing was held, in October of 1986, the children were 9,11 and 15 years of age, respectively. The Department of Family and Children Services (DFCS) first became involved with the children in June of 1984 and in August of 1984 obtained custody of them pursuant to an “Order of Deprivation” issued by the juvenile court. Custody of the children was restored to the appellant from October of 1984 through September of 1985, but she voluntarily returned them to the DFCS at the end of that period, due to the fact that she was about to begin service of a six-week jail sentence for nonpayment of a fine. She has not had custody of the children since. The two younger children are apparently now residing with their father.

After completing her jail sentence, the appellant agreed to meet certain goals as a prerequisite to regaining custody of her children. These included applying for AFDC benefits or food stamps, maintaining a clean home and seeking employment. The evidence showed that the appellant subsequently failed to secure adequate housing for the children or to maintain a clean home, failed to provide adequate food for the children during weekend visits, demonstrated little initiative towards staying employed, and resisted applying for AFDC benefits as a method of providing for the children. However, there was no evidence suggesting that the appellant has ever engaged in any physical or sexual abuse of the children or exposed them to alcohol or drug abuse, nor was it shown that she suffers from any mental deficiency or other condition which might, in and of itself, have an adverse effect on the children.

The juvenile court terminated the appellant’s parental rights pursuant to OCGA § 15-11-81, based on findings that the children were deprived and would continue to be deprived due to the appellant’s demonstrated inability to provide them either with emotional support or with the “basic necessities” of life and that such deprivation was causing and would continue to cause serious physical, mental, emotional, and moral harm to the children. Held:

While the evidence of record certainly would support a determination that the appellant is unfit to care for the children on a day-today basis, there is no evidence which suggests that the children, who are not living in the appellant’s custody, are currently suffering or are in danger of suffering in the future any serious physical, mental, emotional, or moral harm due to mere continuance of their relationship with the appellant on a visitation basis. See generally OCGA § 15-11-81 (b) (4) (A) (iv). Indeed, the trial court’s findings suggest that it is lack of contact rather than contact with the mother which has caused the deprivation on which the termination was based.

Were there at least some suggestion in the record that termination of the appellant’s parental rights would enable the children to achieve a more stable home life through adoption, then perhaps a basis for termination would be evident. See In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). However, the contrary would appear to be the case. The two younger children are living with their father, and the remaining child is now 16 years old.

“Seldom does the state wield so awesome a power as when it permanently cuts the family ties between parent and child.” R. C. N. v. State of Ga., 141 Ga. App. 490, 491 (233 SE2d 866) (1977). See also Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976); Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). In order to warrant a severance of parental rights pursuant to OCGA § 15-11-81 (b) (4) (A) based on parental misconduct or inability, there must be clear and convincing evidence to support findings not only that the child is deprived due to lack of proper parental care and control but also that, in the absence of judicial intervention, such deprivation will continue, likely resulting in “serious physical, mental, emotional, or moral harm” to the child in the future. Surely, there is implied in the language of this statutory provision a requirement that the termination will have some beneficial effect on the situation, i.e., that it can be expected to ameliorate the “serious physical, mental, emotional, or moral harm” which the child would otherwise likely suffer.

Finding no evidence whatever in the present case which would suggest that the mere continued existence of a parental relationship between the appellant and her children would result in any harm to the children or serve in any way as an impediment to their future development, we must conclude that no basis for termination has been established. Accord In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986). We emphasize, however, that we by no means intend to imply by this ruling that the appellant is entitled to regain custody of her children. Indeed, it is the fact that other living arrangements are in place for the children and the nature of those arrangements which leave us at a loss to understand why the appellant and her children should be forced to sever their remaining ties with each other.

Judgment reversed.

Deen, P. J., McMurray, P. J., Sognier, Pope, and Beasley, JJ., concur. Carley, J., dissents. Birdsong, C. J., and Benham, J., dissent in judgment only.