Heath v. McGuire , 167 Ga. App. 489 ( 1983 )

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, the 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 deprivation 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).

In 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. 517 (298 SE2d 33) (1982) does not compel a different result. The father in H. L. T. was guilty of voluntary manslaughter, a crime in which the law recognizes, as a mitigating circumstance surrounding the homicide, the existence of “a sudden, violent, and irresistible passion resulting from serious provocation . . .” OCGA § 16-5-2 (a) (Code Ann. § 26-1102). Appellant, however, is guilty of murdering his wife, who was the mother of the child. The requisite malice necessarily shown by guilt of the murder of one’s spouse is sufficient to imply a moral unfitness to terminate the parental relationship, an unfitness which is likely to continue with resultant harm to the innocent child. The evidence in the instant case was clearly more than sufficient to authorize the termination of appellant’s parental rights.

4. Appellant’s final two enumerations concern the failure of the trial court to grant his motion to proceed in forma pauperis on appeal. Former Code Ann. § 24-3413, which was applicable to this proceeding, provided as follows: “When any party, plaintiff or defendant, in any suit at law or proceedings in the superior courts, probate courts, justices of the peace, notaries public who are ex officio justices of the peace, and such other courts as have been or may have or may be established by law, shall be unable to pay any deposit, fee or other cost which may normally be required in such court, if such party shall subscribe an affidavit to the effect that from poverty he is unable to pay these costs, such party shall be relieved from paying such costs and his rights shall be the same as if he had paid such costs. Any other party at interest, or his agent or attorney, may contest the truth of such pauper’s affidavit by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final. Nothing herein shall apply to the requirement under the present law for advance deposits in divorce cases.” In the instant record, there is no evidence of a traverse, as would be required by former Code Ann. § 24-3413, which challenges the truth of appellant’s affidavit. In the absence of such a traverse, it was error to deny appellant’s motion to proceed in forma pauperis. See Martin v. State, 151 Ga. App. 9, 18 (258 SE2d 711) (1979); Mark Trail Campgrounds v. Field Enterprises, 140 Ga. App. 608 (231 SE2d 468) (1976). We note that OCGA § 9-15-2(b) (Code Ann. § 24-3413) now provides that in the absence of such a traverse affidavit, the court may “inquire into the truth of the affidavit of indigence.” However, this amendment so providing (Ga. Law 1982, p. 933) did not become effective until November 1, 1982, subsequent to the ruling of the juvenile court in the instant case. Therefore, it is ordered that appellant be reimbursed for all such costs actually paid by him pursuant to the requirements of OCGA § 5-6-46 (Code Ann. § 6-1002). However, appellant is not entitled to be reimbursed for attorney’s fees incurred during his appeal.

Decided July 15, 1983. William D. Copland, for appellant. Luis C. Garcia, for appellees.

Judgment affirmed with direction.

Deen, P. J., and Banke, J., concur. Deen, P. J., also concurs specially.