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In re H. B.

Court of Appeals of Georgia, Second Division

June 8, 2018

IN THE INTEREST OF H. B. et al., CHILDREN.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          Brown, Judge.

         The parents of minor children Hai. B., L. B., and Han. B. appeal from the juvenile court's order finding the children to be dependent and placing them in the temporary custody of the Paulding County Department of Family and Children Services ("DFCS" or the "Department"). On appeal, the parents challenge the sufficiency of the evidence to establish that the children are dependent and several related juvenile court rulings. For the reasons that follow, we affirm.

         On appeal from an adjudication of dependency, "we review the evidence in the light most favorable to the juvenile court's judgment to determine whether any rational trier of fact could have found by clear and convincing evidence" that the children are dependent. In the Interest of E. G. M., 341 Ga.App. 33, 34 (1) (798 S.E.2d 639) (2017). "[W]e neither weigh the evidence nor judge the credibility of the witnesses, but instead defer to the factual findings made by the juvenile court, bearing in mind that the juvenile court's primary responsibility is to consider and protect the welfare of a child whose well-being is threatened." (Citation and punctuation omitted.) Id.

         So viewed, the record shows that Hai. B. was born in July 2004, L. B. was born in October 2005, and Han. B. was born in April 2013; all are female. On May 9, 2017, DFCS received a report that the father had been taking showers with his two youngest daughters and had been forcing them to perform oral sex on him. At the request of DFCS, the juvenile court issued a Dependency Removal Order on May 12, 2017, and scheduled a preliminary protective hearing for May 15, 2017. On May 22, 2017, DFCS filed a petition seeking to have the children adjudicated dependent based on the above-referenced allegations, as well as additional allegations of past physical and sexual misconduct by the parents. An adjudicatory and dispositional hearing was conducted on May 30 and June 16, 2017. The children remained in DFCS custody during this time.

         On June 23, 2017, the juvenile court entered the Order of Adjudication and Disposition that is primarily at issue in this appeal. In its order, the court identified two grounds for its dependency rulings. First, the court concluded that the children are dependent due to "the issue of sexual touching while the father was taking showers with [L. B. and Han. B.]" and the mother's "fail[ure] to protect the children." Second, the court found the children to be dependent due to the parents' "failure to get treatment for the children" with respect to the parents' "long standing and chronic history of domestic violence, " which, the court found, "has had a negative effect on the children." Consequently, the court ordered the children to remain in DFCS custody and directed DFCS to prepare a case plan to reunify the family. This appeal followed.

         1. The parents contend that the evidence was insufficient to establish their children's present dependency. The State counters that the parents cannot meet their burden of showing error, primarily because they designated the hearing transcript to be excluded from the record on appeal. We agree with the State that, on the current record, the parents have not met their burden of establishing reversible error.

         "Under the most recent version of Georgia's Juvenile Code, the juvenile court may place a minor child in the protective custody of the Department where the State shows, by clear and convincing evidence, that the child is a 'dependent child.'"[1](Citations and footnote omitted.) In the Interest of S. C. S., 336 Ga.App. 236, 244 (784 S.E.2d 83) (2016). The Juvenile Code defines "dependent child, " in relevant part, as a child who "[h]as been abused or neglected and is in need of the protection of the court." OCGA § 15-11-2 (22) (A). "Neglect, " in turn, is defined as "[t]he failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or morals." OCGA § 15-11-2 (48) (A).

         Factors to be considered in determining whether a child is without proper parental care or control include "[e]gregious conduct or evidence of past egregious conduct of a physically, emotionally, or sexually cruel or abusive nature by [a] parent toward his or her child or toward another child of such parent." OCGA § 15-11-311 (a) (4). Consideration of past misconduct is appropriate because "the juvenile court is not required to reunite a child with a parent in order to obtain current evidence of deprivation or neglect." (Citation and punctuation omitted.) In the Interest of E. G. M., 341 Ga.App. at 54 (4). Nevertheless, the record must contain evidence of present dependency, not merely past or potential future dependency. See In the Interest of G. R. B., 330 Ga.App. 693, 700 (769 S.E.2d 119) (2015); In the Interest of T. H., 319 Ga.App. 216, 219 (735 S.E.2d 287) (2012).

         Moreover, a finding of parental unfitness is essential to support an adjudication of present dependency. See In the Interest of E. N. R., 323 Ga.App. 815, 816 (748 S.E.2d 293) (2013); In the Interest of C. D. E., 248 Ga.App. 756, 761 (1) (546 S.E.2d 837) (2001). "[U]nfitness" in this respect refers to "intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child." (Punctuation and footnote omitted.) In the Interest of G. R. B., 330 Ga.App. at 700-701; accord In the Interest of C. D. E., 248 Ga.App. at 761 (1). Parental unfitness, like dependency, also must be proved by clear and convincing evidence. See In the Interest of S. J., 270 Ga.App. 598, 599 (607 S.E.2d 225) (2004).

         "Appellants have the burden of showing error affirmatively by the record." Famble v. State Farm Ins. Co., 204 Ga.App. 332, 336 (4) (419 S.E.2d 143) (1992). Where the appellants elect not to provide this Court with a transcript of the relevant hearing, and the transcript is necessary to review the claimed error, we will assume that the evidence is sufficient and affirm. Id.; see also Blue v. Blue, 279 Ga. 550, 550 (1) (615 S.E.2d 540) (2005) ("[I]n the absence of a transcript of the evidence, we must presume that the evidence supports the judge's findings."); Maree v. Phillips, 274 Ga. 369, 370 (2) (552 S.E.2d 837) (2001) (absent a transcript, an appellate court will presume that the trial court discharged its duty in compliance with the law); In the Interest of M. S. S., 308 Ga.App. 614, 619 (1) (b) (708 S.E.2d 570) (2011) (in the absence of transcript, we presume juvenile court's order justified).

         Given the absence of a hearing transcript, the following facts are taken primarily from the juvenile court's Order of Adjudication and Disposition. During the dependency hearing, the court heard testimony from K. M. (a 10-year-old classmate of L. B.) and K. M.'s mother. Both witnesses testified that K. M. "told her mother that [L. B.] came to school recently and told that [sic] she showered with her father and that her little sister[, Han. B., ] sucked her father's private parts." The juvenile court explicitly found K. M.'s "testimony credible"; in light of its ultimate ruling, we presume that the court similarly credited K. M.'s mother's testimony. And given the absence of a transcript, we accept the juvenile court's finding that the parents waived any objection to the admissibility of this hearsay testimony.[2] See Maree, 274 Ga. at 370 (2).

         A detective whom the juvenile court qualified as an expert in conducting forensic interviews testified that he had interviewed L. B. and Han. B. several weeks before the hearing. According to the detective, "each child immediately offered up, using adult language, that there has been no sexual abuse and then told him about the shower schedule for each person in the home." The youngest child, Han. B. "also offered up that she could not tell the police man [sic] if something ever happened to her because they will take her sisters away." (Punctuation omitted.) The detective testified that neither child made a disclosure and that it was clear that each had been coached about what to say.

         The juvenile court implicitly credited the detective's testimony, finding that the children had been coached by their parents. The court also explicitly discredited the parents' denials that they had spoken with the children before the interviews and found that the parents' interference had prevented L. B. and Han. B. from corroborating the reports made by K. M. and her mother.

         T. L., the mother's half-sister, testified regarding a family visit to her home in late 2009, when L. B. was four years old. Shortly after the family arrived, T. L. heard the parents "arguing about [the father] wanting to shower with [L. B.]" Later that afternoon, T. L. saw L. B. lying across her father's lap as her father "rubb[ed] her across her buttocks over her panties." At some point during the visit, as the women and girls were about to go out, L. B.'s father indicated that L. B. was going to stay home with him. L. B.'s mother, however, refused to let her stay with her father. T. L. testified that she "shared her concerns about the things that she had heard and saw with the mother, " who denied that "there was anything going on." The juvenile court found T. L.'s testimony credible and noted that, "although it is several years old, it is consistent with the reoccurring allegations that have been made" against the father and "support[s] a finding that the issue of showering with his girls was not a fiction."

         Dr. James E. Stark testified on behalf of the parents as an expert in abuse and neglect, forensic psychology, custody and visitation, allegations of abuse, and anger management. After conducting a psychosexual evaluation of the father based upon the father's "self-referral, " Dr. Stark reported, in relevant part, as follows: (i) the father appeared to be trying to show himself in the best light; (ii) results indicated that he "responded in an overtly defensive manner" while resisting admissions of personal shortcomings, which resulted in a profile of "questionable validity due to his defensiveness"; (iii) although he reported high anxiety, testing revealed only "minimal anxiety symptoms"; and (iv) scores on sexual interest tests showed "no overt signs of deviant or problematic behaviors." Based on Dr. Stark's report and testimony, the juvenile court (i) found that the father "feigns" anxiety, and (ii) implicitly discounted Dr. Stark's finding of a low propensity for child abuse based on his additional observation that ...


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