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In re K. D.

Court of Appeals of Georgia, Third Division

February 1, 2018

IN THE INTEREST OF K. D., et al., CHILDREN (FATHER)

          ANDREWS, RICKMAN and BETHEL, JJ.

          Bethel, Judge.

         In this case, the father appeals from the Polk County Juvenile Court's order of final disposition and approval of his case plan with regard to K. D., F. S., R. S., and M. S., his minor children (the "children"), whom the juvenile court found to be dependent. On appeal, the father argues that there was insufficient evidence for the juvenile court to find the children dependent. The father also argues that the juvenile court erred in determining that he must be supervised when he spends time with his children during the pendency of his case. Because there was insufficient evidence in the record supporting the juvenile court's finding of dependency, we reverse.

          On appeal from a lower court's finding of dependency, we review the record in the light most favorable to the lower court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the children were dependent. See In re A.B., 289 Ga.App. 655, 655 (1) (658 S.E.2d 205) (2008). So viewed, the record reflects that the Department of Human Services, acting by and through the Polk County Department of Family and Children Services (collectively, "DFCS") filed a complaint and petition for dependency in the juvenile court alleging, inter alia, that the children had been subject to a history of domestic violence, most recently involving an incident in which the father was arrested for pointing a gun at the children's mother. The complaint and petition also alleged that the family had previously refused services from DFCS, including domestic violence assessments and counseling for the children. The complaint and petition sought the entry of a court order establishing a case plan for the children.[1]

         The children's mother, through her attorney, stipulated to a finding of dependency in her case based on the allegations in the DFCS complaint. Her stipulation provided that

The children have been subjected to multiple incidents of domestic violence as perpetrated by the father against the mother; [t]he health and safety of the children cannot be assured in the home until the parents undergo domestic violence assessments and follow all resulting recommendations; and the oldest child, [K.D.] is in need of an evaluation to address his exposure to domestic violence.

         Based on this stipulation, the juvenile court entered an order as to the mother finding the children dependent in that they had been neglected and abused, as defined in OCGA §§ 15-11-2 (2) and (48), and were in need of the protection of the court.

         A family service plan entered after the issuance of the juvenile court's order in regard to the mother indicated that the children were present in the home during the incident in which the father pointed a gun at the mother. As part of the plan, the mother agreed not to allow the children to be unsupervised or to have any contact with the father until otherwise determined by DFCS or the juvenile court.

         At the December 14, 2016, adjudication hearing in the father's case, DFCS called the mother to testify. The mother admitted contacting the police in response to the June 1 incident, which resulted in the father's arrest for aggravated assault. She stated that he came into their house at 5:00 a.m. and that she contacted the police because she did not feel safe. She stated that he was mad because she had left their dog outside overnight. The children were in bed with the mother when the father came in. After a brief exchange, the father went back outside. She followed him outside, at which point the father pulled a gun on the mother.[2]

         On cross-examination, the mother stated that when the father came into the bedroom that he did not hit or touch her or the children, nor did he curse at them. She also stated that he had never been aggressive or violent toward the children although he had been "aggressive" toward the mother. She stated that she was not afraid of the father. Although she admitted that there had been instances of altercations and domestic abuse by the father in the past, she stated that those incidents took place several years before the June 1 incident. She stated her belief that the father was not a danger to the children.

         DFCS also presented testimony from the police detective who investigated the June 1 incident. The detective testified regarding his interview with the mother following the June 1 incident. He recounted the mother's description of the father's early-morning arrival at their house, including that the father pulled a gun on her and threatened to kill her. The mother told the detective that the children were in bed when this incident occurred and that they had not witnessed any of the incident. The children were not interviewed by the police in regard to the incident.[3]

         Following the adjudication hearing, the juvenile court issued an order of adjudication and temporary disposition as to the father's case. In that order, the juvenile court found that, on June 1, 2016, the father returned home around 5:00 a.m. after having been away from the house for at least 24 hours. He entered the bedroom where the mother was asleep with the children and expressed anger to the mother for leaving the family's dog outside overnight and because he had to "break in" to the house, as all doors were locked. The father went outside, and the mother followed him, after which an altercation ensued in which the father pointed a firearm at the mother and stated that he "ought to kill her." The father was later arrested and charged with aggravated assault. The juvenile court also noted that, as of the date of the order, the father had pending charges for aggravated assault stemming from a separate incident in which he was alleged to have engaged in a shootout on a public street.

         Based on this and other evidence, the juvenile court found that, as to the father, the children were dependent in that they had been abused and neglected and were in need of the protection of the court. The juvenile court also found that, due to its findings regarding the father's history of violence, visitation between the father and the children was to be supervised by DFCS. Following a second hearing, the juvenile court entered a final order of disposition and approval of the father's case plan which mirrored the court's previous finding that the children were dependent and that the father's visits with the children would be supervised by DFCS during the pendency of his case. This appeal followed.

         1. The father first argues that there was insufficient evidence in the record to support the trial court's determination ...


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