In re R. L. Y.

Deen, Presiding Judge.

This is a direct appeal by the natural father from an order of the juvenile court terminating his parental rights in his three minor children.1 Appellant complains that the trial court erred by not applying the “appropriate standard of clear and convincing evidence” in making the determination to terminate his parental rights.

After extensive hearing on DFCS’ petition based on deprivation under OCGA § 15-11-2 (8) (A),2 at which the natural father was present and represented by counsel and at which the interests of the children were represented by their attorney/guardian ad litem, the court concluded as a matter of law that the three minor children were deprived “in that each is a child without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health or morals — all of which meet the requirements of a ‘deprived child’ as defined in O.C.G.A. Section 15-11-2 (8) (A)”; that “if the children are restored to their father, that each will suffer serious physical, mental or emotional harm”; that the father “is suffering from mental illness . . . and he will not recover and is not treatable”; that the “ ‘welfare of the children’ is best met in terminating the rights of the father, . . .”; and that “the father . . . through unintentional misconduct is an unfit parent that resulted in abuse or neglect to these three children in that he is mentally incapable to care for them. Therefore the test of parental unfitness meets the standard set out in Ray v. Department of Human Resources, 155 Ga. App. 81, and as set out in In The Interest of T. R. G. et al., 162 Ga. App. 177.” The court also recited OCGA § 15-11-5 (a) (2) (C), jurisdiction, and § 15-11-2 (8) (A), definition of “deprived child,” as applicable. The appellant contends that because the court, in its order of termination did not expressly intone the words of the standard or quantum of proof for termination, i.e., compelling circumstances found to exist by “clear and convincing” evidence, the court did not apply the required legal standard. Held:

Where, as here, the evidence may appear to the appellate court as more than ample to almost overwhelming, does the absence in the findings of fact and conclusions of law of the required standard “clear and convincing evidence” of a parent’s unfitness prior to termination of the latter’s rights, demand that we remand this case for further determination? Since 1982 the answer seems to be in the affirmative. The Supreme Court’s language such as “frjequiring that the trial court find . . .” this quantity of evidence and “demanding that this high burden of proof be met furthers the state’s legitimate interest in protecting the child, yet forestalls arbitrary state interference with the integrity of the family unit,” would indicate that we have no choice but to make certain this was done. See Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982) (emphasis supplied); Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982).

It is noted that in Messex v. Lynch, 255 Ga. 208, 210 (336 SE2d 755) (1985), the Supreme Court declared that “[it] is not that the magic words are spoken but what is said and done irrespective of the magic words.” Messex, however, was a civil case relating to required medical standards of an expert witness in a malpractice case. Had the trial judge failed to charge the jury that they must find for one party or the other at least by a preponderance of evidence, then that case would surely have been reversed. While the instant case is also a civil proceeding, it may be equated to or elevated above, in importance, to criminal cases, as individual constitutional rights, both state and federal, of parent and child are involved. “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). The “tearing of the flesh” of one’s offspring is a penalty by the state second in severity, or arguably surpassing in severity, only to depriving a person of his or her liberty. Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976). In any criminal case, if it were not clear that the trial judge charged the proper standard on evidence “beyond a reasonable doubt,” we would not hesitate to remand for a new trial. Where, as here, the trial judge also acts as finder of fact, our duty is no less in making certain the proper standard was utilized by the court. There is no reference in the trial court’s order as to his finding “clear and convincing evidence” of appellant’s unfitness or the children being deprived. The only two cases cited in the trial judge’s order are Ray v. Dept. of Human Resources, 155 Ga. App. 81 (270 SE2d 303) (1980) and In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982). Both of these cases pre-date Blackburn and Santosky, and neither refers to the present required standard of clear and convincing evidence. See OCGA § 15-11-51, as recodified into OCGA § 15-11-80 by Ga. L. 1986, p. 1017 et seq., effective July 1, 1986, which requires that the court find clear and convincing evidence that a child is deprived or that a parent is unfit in proceedings akin to this.

We cannot follow in this case the proposition that even though the trial judge omitted an affirmative finding of the correct standard in his order, we must affirm since “ ‘judges are presumed to know judicially what the law is’ ”3 Winston Corp. v. Park Elec. Co., 130 Ga. App. 508 (203 SE2d 753) (1973),4 citing Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (1) (58 SE2d 559) (1950). Where a trial judge, as here, is also a factfinder, we can generally always presume he separated the wheat from the chaff. However, where the cases and the statute now require and demand use of the proper standard in such an awesome exercise of state power, as in the instant case, the better rule is to tolerate no doubt and make crystal clear that the court observes this mandate of affirmative action of ascertaining and asserting in every parental termination case the clear and convincing5 evidence standard. Accordingly, because the trial court did not make it clear that it applied the required standard in this case, the order of termination must be reversed and the case remanded for further findings by the trial court applying the correct standard.

Judgment reversed.

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

1 Appellant filed an application for discretionary appeal of the termination of his parental rights as well as this direct appeal. The application was initially granted to insure that the natural father’s rights on appeal were not forfeited until a jurisdictional determination was made by this court. Inasmuch as this court determined that “[ajppeals from termination of parental rights do not fall within the purview of OCGA § 5-6-35 (a) (2), which requires discretionary appeal procedures for child custody cases,” the discretionary appeal was dismissed. In the Interest of R. L. Y., M. R. Y. & R. A. Y., 180 Ga. App. 559 (349 SE2d 800) (1986).

2 Effective July 1, 1986, the legislature has comprehensively revised the law governing juvenile court proceedings for the termination of parental rights. OCGA §§ 15-11-1 and 15-11-41 have been amended, OCGA §§ 15-11-51 through 15-11-54 have been repealed, and OCGA §§ 15-11-80 through 15-11-92 have been enacted. This case proceeds under the preexisting law.

3 Then Chief Judge Felton qualified the idea that we can always presume judges know the law by adding that it is a notion theoretically correct.

4 Judge H. Sol Clark adds the admonition that an able appellate advocate at argument was told: “You may presume the court knows the law” and the attorney’s alert answer was,

“Your honor, that was the mistake I made in the trial court.”

5 Speaking for the writer alone as to the content of this footnote, it is sometimes tempting to try to categorize, albeit in an inexact and speculative way, (a) quality of evidence and (b) quantity of evidence. An attempt as to the former was projected in Woods v. Andersen, 145 Ga. App. 492, 496 (243 SE2d 748) (1978), and the latter, though a difficult chore, will be briefly set forth below on a scale of 1 to 10. Accordingly, I would list:

1. No competent evidence.

2-3. Scintilla-to-slight evidence (probation revocation as to latter slight evidence).

4-5. Reasonable evidence (change of custody between parents).

6. Preponderance of evidence (civil cases).

7. Clear and satisfactory evidence (old termination rule). See Brooks v. Boyd, 1 Ga. App. 65, 74 (57 SE 1093) (1907).

8. Clear and convincing evidence (present termination rule); also see Prince v. Black, 256 Ga. 79, 80 (344 SE2d 411) (1986) (legitimation); DeKalb County v. Albritton Properties, 256 Ga. 103, 107 (344 SE2d 653) (1986) (zoning).

9. Beyond a reasonable doubt (criminal cases).

9 ½. Overwhelming evidence (old termination rule). See Taylor v. Jeter, 33 Ga. 195 (hn. 8) (1861).

10. Absolute certainty (generally never required — except where empirical and scientific exactness is an issue in the case or otherwise applicable).

Seemingly the higher up the scale the more important is the case, and likewise the greater the duty imposed on the judge to utilize the correct standard.