In the Interest of M. S. , 178 Ga. App. 380 ( 1986 )

Banke, Chief Judge.

This is an appeal from the juvenile court’s order terminating the appellants’ parental rights in regard to their three children (M. S., age 8; S. S., age 7; A. A. S., age 4) pursuant to OCGA § 15-11-51 (a) (2). They enumerate as error the procedure used by the juvenile court in the taking of testimony from the oldest child, M. S., contending that the procedure violated the due-process clause and the Sixth Amendment of the United States Constitution.

The procedure utilized to elicit the testimony of M. S. is as follows: “The interview facilities for the taking of the testimony shall be provided by the Hall County Department of Family and Children Services, which consists of an interview room wired for sound and an observation room. The interview may be seen through a one-way mirror from the observation room. People in the observation room can neither be seen nor heard by the witness who does not know that she is being observed by anyone except the guardian ad litem and the guardian ad litem’s attorney, both of whom shall be the only people present in the interviewing room with the witness. The only people allowed in the observation room shall be the necessary technicians for the running of the audio and video equipment, the judge, the lawyers for the parents and the Department of Family and Children Services, a court reporter and the official juvenile court reporter. The proceedings, that is, all that is said in the interview room and the observation room shall be transcribed. The witness, guardian ad litem, attorney for the guardian ad litem shall be videotaped. Attorney for the guardian ad litem shall first question the witness. Objections to the questions shall be made known to the court and shall be concisely stated softly into the microphone I am holding. This will assure, for the microphone that is in the room, this will assure that it’s being recorded. The court will immediately rule on the objection, also into the microphone. There shall be no further argument after ruling is made. The objection and ruling can be heard by the attorney for the guardian ad litem in the interview room through a small ear-mounted receiver and she shall respond accordingly. Neither the objection nor the ruling can be heard by the guardian ad litem nor the witness in the interview room. After the guardian ad litem has completed questioning the witness, questions from the other attorneys may be propounded through the microphone in the observation room. The questions can be heard by the attorney for the guardian ad litem through the ear-mounted receiver and shall be repeated verbatim to the witness. Objections to questions shall be handled in the same manner as described above.” Appellants complain not only that this procedure was defective, but that the evidence presented does not support the termination of their parental rights. Held:

Our review of the record convinced us that, although the evidence was sufficient to warrant the termination of the appellants’ parental rights, reversal is required because the procedure utilized to question the crucial witnesses was defective.

The United States Supreme Court has held that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment and that state intervention to terminate the relationship between a parent and child must consequently be accompanied by procedures meeting the requisites of the due-process clause. Santosky v. Kramer, 455 U. S. 745, 753 (102 SC 1388, 71 LE2d 599, 606) (1982). See also Lassiter v. Dept. of Social Svcs., 452 U. S. 18 (101 SC 2153, 68 LE2d 640) (1981). “[D]ue process requires that we afford this liberty interest the same protection on appellate review as we afford those constitutionally protected interests in cases where a criminal conviction is had.” Blackburn v. Blackburn, 249 Ga. 689, 693 (292 SE2d 821) (1982). Thus, the argument that termination proceedings are “entirely civil in nature” will not support the conclusion that the appellants in this case had no due process right to confront the witnesses on whose testimony the state’s case was based. See also OCGA § 15-11-31 (a).

While the trial court’s concern for ensuring that the children were able to testify free from possible intimidation by their parents is understandable, there does not appear to have been any reason for excluding the appellants from the observation room, where, though they could not have been seen or heard by the children, they would have been able to assist their counsel in propounding questions to the children. The trial court’s judgment is accordingly reversed, and the case is remanded for a new hearing.

Judgment reversed and case remanded.

Deen, P. J., Birdsong, P. J., Carley, Sognier, and Pope, JJ., concur. Beasley, J., concurs in judgment only. McMurray, P. J., and Benham, J., dissent.