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Lawskills.com Georgia Caselaw
SPENCE v. LEVI.
49824.
Parental rights. Fulton Juvenile Court. Before Judge Dillon.
DEEN, Presiding Judge.
1. In a proceeding in juvenile court by the Department of Family and Children Services seeking termination of parental rights, the evidence was sufficient to support the relief sought.
2. Such an action severs the rights of inheritance of both parent and child from each other.
3. It was not error, appellant's counsel being present, to examine the 14-year-old minor in the absence of his mother whose rights were sought to be terminated.
This case is on appeal from the Juvenile Court of Fulton County which, after hearing, entered an order that appellant Gertrude Spence's rights in her minor child D. C. S. be terminated. The child was born in 1960; appellant, herself from a divided family and raised in institutional surroundings, was convicted of abandonment in 1961, the infant placed in a foster home, and she was ordered to pay $15 per week as child support (the father having vanished from the scene). Between then and 1966 the child spent a total of 14 months with the mother; the home placement failed and he was again placed under foster care. Although they are contradicted by some unsupported testimony on the part of the mother, the records of the petitioner Department of Family and Children Services reveals that no support payments were made, although the amount was reduced to $7.50 per week in 1961 and to $20 per month in 1974; that the child has been in four different foster homes, in the last of these for six years, has a good chance of adoption by his foster parents, and wishes to be adopted. There is expert testimony that his present status has been a source of insecurity and trauma, that he is apprehensive of being returned to his mother, primarily because on prior visits he lacked sufficient food but also because of a promised holiday visit when his mother had failed to come for him, that he has seen her only on short visits and those spaced a year or two apart, and his own testimony as well as that of case workers and the statements of his own guardian ad litem are clear that he does not and probably should not expect any sort of parental relationship with his natural parent if the present situation continues. Appellant shows a record of frequent removals from place to place as well as sporadic infringements of the law, and a complete absence of contact between the time she canceled a visit to the child on May 19, 1972, and her relocation by the agency at the time of filing of the petition for termination. Her testimony at the hearing as to refusal of her tendered support payments by the authorities, and her gifts of money, food and clothing to the child, were denied by all concerned; her financial condition appears to be poor but not destitute, and her main stated reason for opposing the proceedings is that the child has the father's name and she wants to keep it that way.
1. This case represents the second instance of Georgia appellate review of a proceeding for termination of parental rights under Code Ann. 24A-3201 et seq. See In Re Levi, 131 Ga. App. 348 (206 SE2d 82). In that case, at page 352, it was held that the Act "is to be liberally construed toward the protection of the child whose well-being is threatened. Code Ann. 24A-101. Deprivation of love and nurture is equally as serious as mental or physical disability." The record is replete with indications that such is the case here: The initial abandonment proceedings and removal of the child came about as a result of complaints on the part of relatives of misconduct, neglect and abuse, and no period is shown in the record where there was ever a wholehearted attempt on the part of the natural mother to reclaim the child and enter into a secure family relationship. That this has resulted in mental and emotional harm to the child (a ground for termination under Code Ann. 24A-3201 (a2)) is well established by his own testimony as well as that of the expert witnesses. He is now 14 years old, an age where children in divorce custody actions are permitted to choose their home environment. Code Ann. 30-127. The fourth ground for termination, wilful failure to comply with a court order for support for over 12 months, was also proved if the court, as it obviously did, chose to disbelieve the mother's statement that she had been told the order was rescinded. There was no abuse of discretion in entering the termination order complained of.
2. Code 24A-3203 reads: "An order terminating the parental rights of a parent terminates all his rights and obligations with respect to the child and of the child to him arising from the parental relationship, including rights of inheritance." (Emphasis supplied.) This is a clear statement that the right of inheritance in case of intestacy ceases both as to the parent from the child and as to the child from the parent. The Act is unfortunately worded differently from Code Ann. 74-414, construed in Sears v. Minchew, 212 Ga. 417 (93 SE2d 746) to leave the adopted child's right to inherit from its natural parents intact, and the same rationale cannot be used. Admittedly, this presents an inequality when compared with the adoption law, but it is a matter which addresses itself to the legislature and not the courts. It was error to include in the order a finding that the right of inheritance would remain to the child.
3. In custody and like cases involving minors the court has a wide discretion in excluding the parent while an examination of the child's preference in the matter is being pursued. Willingham v. Willingham, 192 Ga. 405 (15 SE2d 514). We find no error in allowing the child to testify in the absence of appellant, her counsel being present and being given the right of cross examination.
Judgment affirmed in part and reversed in part. Stolz and Marshall, JJ., concur.
Lucy S. McGough, Walter M. Henritze, Jr., for appellee.
Rice & Hardy, Max B. Hardy, Jr., for appellant.
ARGUED OCTOBER 1, 1974 -- DECIDED DECEMBER 2, 1974 -- REHEARING DENIED DECEMBER 18, 1974 -- CERT. APPLIED FOR.
Friday May 22 12:29 EDT


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