Parental right to sue for wrongful death of child may be forfeited

I love it when I see a court use my points to rule my way on an unrelated case.

We have a case in which we represent the estate and siblings of a young man who was killed by a drunk driver.  Their father had more DUI’s than anyone in the history of Georgia on spent most of the deceased son’s life in prison including a conviction for DUI/vehicular homicide. On one of his times out of prison he physically abused the son.  A  juvenile court made a judicial finding of physical abuse and gave custody of the kid to an adult brother.  Of course, when the young man was killed several years later by a drunk driver, the father who was a DUI recidivist promptly filed suit for wrongful death.  Representing the siblings of the decedent — the other adult offspring of the abusive drunk — I filed a petition to determine heirship.  A Superior Court judge agreed with our position that the father forfeited parental rights by cruel treatment when he was adjudicated to be guilty of physical abuse, did not appeal, and did not take advantage of the opportunity for family reunification. We also had arguments about abandonment, but there was some small shred of evidence of de minimis support that made that a jury issue.  Well, we won summary judgment in the Superior Court and the father appealed to the Georgia Court of Appeals.

Now in another case, the Court of Appeals has adopted virtually the same arguments we used in our appellate brief in another case, finding that another deadbeat dad forfeited his parental rights, including the right to recover for wrongful death of the child,  through abandonment. In Baker v. Sweat, A06A0892 (decided October 13, 2006), the administrator and siblings of a deceased adult were ready to settle with the insurance company for the wrongful death with deadbeat dad showed up claiming all the money. Much as in our case, there was a long, sad litany of the sperm donor’s failure to support the child or engage in the child’s life. The Court held:

If it is established that a parent has lost his or her parental power under OCGA § 19-7-1 (b), the parent’s right to share in the proceeds of a claim for the wrongful death of his or her child is also forfeited.

OCGA 19-7-1 (b) provides for loss of parental rights through either abandonment or cruel treatment.  Since anything can go wrong at any time, we are keeping our fingers crossed that we will get the same result in our case.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

  • Sean Dirlam

    In Indiana what can be paid from the proceeds of a wrongful death proceeding? Can a petition to determine heirship? If anyone has anything, please contact me through this blog and/or at sdirlam@ivytech.edu.
    MUCH APPRECIATION!!!