In the INTEREST OF R. D. Et Al., Children.

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 13, 2018
In the Court of Appeals of Georgia
A18A0373. IN THE INTEREST OF R. D. et al., children. DO-013
DOYLE, Presiding Judge.
The mother of minor children R. D. (born March 12, 2015), L. D. (born January
30, 2009), K. D. (born April 10, 2007), and T. D. (born August 2, 2004), appeals from
a juvenile court order finding the children dependent. She contends that the juvenile
court erred (1) because the evidence did not show that any dependency was caused
by the mother, and (2) by allowing the guardian ad litem (“GAL”) to make objections
and participate in cross-examination. Finding no reversible error, we affirm.
The record shows that the mother’s involvement with the Department of Family
and Children Services (“DFCS”)1 began in 2010, to address the mother’s
1
The parents have lived in different counties over the relevant time frame. For
simplicity, we refer to each county’s DFCS and juvenile court without county
designation unless required for clarity.
unreasonable and excessive physical discipline of her three children born at that time.
. In 2012, the three children were temporarily removed from the home due to physical
abuse by the parents, and after the parents completed their case plan, the children
were returned to the home less than a year later.
In 2014, while the parents were the legal guardians of three additional children
(nieces of the mother), DFCS again became involved with the family after two-year-
old niece J. W. received burns when the father placed her on a hot stove after
ingesting Ambien while he was alone with the children. The father was later indicted
for aggravated battery because of the burning and because the child allegedly tested
positive for GHB, a central nervous system depressant also known as a “date rape
drug.”2 J. W. also exhibited bruises on her abdomen, chest, ear, and thigh, as well as
scratches on her back and lacerations on the inside of her lip; she also presented with
high liver enzymes, which was not associated with any toxic substance or virus, but
2
See generally Gantt v. State, 263 Ga. App. 102, 104 n.1 (587 SE2d 255)
(2003) (explaining the drug GHB). When the father was questioned about the events
of this abuse, he asserted his Fifth Amendment right against self-incrimination. In the
present civil proceeding, such assertions can support a negative inference. See In the
Interest of K. N. C., 264 Ga. App. 475, 481 (4) (a) (590 SE2d 792) (2003), citing
Sanders v. State, 259 Ga. App. 422, 425 (2) (577 SE2d 94) (2003) (“[A]lthough a
person does have a right to invoke the privilege in a civil case in order to protect
himself, when he does so, an inference against his interest may be drawn by the
factfinder.”).
2
which can result from physical trauma. The mother stated that the children injured
each other, and the parents were unable to control them. Based on these facts and the
parents’ inability to supervise and care for the other children, the juvenile court
entered a temporary disposition finding that children were dependent and temporarily
placed into foster care.
In February 2015, after a hearing, the juvenile court entered an order nunc pro
tunc November 2014 adjudicating the children dependent. At that time, T. D., then
ten years old, had entered a residential psychiatric treatment facility based on
aggressive behavior and visual and auditory hallucinations, and she had made an
outcry of sexual abuse by the father that coincided with the onset of her
hallucinations. The juvenile court ordered that custody remain with DFCS based on
recommendations by the case manager, the parents’ lack of progress on their
reunification case plan, and incomplete counseling and psychological fitness
evaluation of the parents.
After further proceedings with DFCS, in August 2015, the juvenile court
entered an order nunc pro tunc July 2015 returning K. D., L. D., and R. D., to the
custody of their parents. The order included a protective provision requiring the
parents to participate in therapy with the children as well as individually, allow access
3
to the children in the home, and cooperate with DFCS. Due to continued mental
health concerns, T. D. remained in custody of DFCS residing at the psychiatric
treatment center.
In August 2016, the juvenile court entered a removal order as to all four
children after DFCS received four reports of recent physical abuse. The next month,
DFCS filed dependency petitions as to the children, and in March 2017, the juvenile
court held an evidentiary adjudication hearing with both parents present. Following
the hearing, the juvenile court entered an order finding the children dependent and
requiring a permanency hearing within nine months. The mother filed this appeal.
1. The mother contends that there was insufficient clear and convincing
evidence to support a finding that she caused any dependency. We disagree.
[O]n appeal from an order finding a child to be a dependent child,
we review the juvenile court’s finding of dependency 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 child is dependent. In making this determination we 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
4
that “[t]he juvenile court’s primary responsibility is to consider and
protect the welfare of a child whose well-being is threatened.”3
With respect to the dependency findings challenged by the mother, OCGA §
15-11-2 (22) defines a “dependent child” as one who, among other things, “[h]as been
abused or neglected and is in need of the protection of the court.” The Code defines
the term “abuse” as “[a]ny nonaccidental physical injury or physical injury which is
inconsistent with the explanation given for it suffered by a child as the result of the
acts or omissions of a person responsible for the care of a child; [or] . . . [e]motional
abuse. . . .”4
Here, there was evidence that the mother had a demonstrated history of
involvement with DFCS, including prior adjudications of dependency stemming from
her own abusive behavior and lack of supervision of the children. A child who lived
in the household described his childhood atmosphere as one of daily yelling,
threatening, and cursing at the children by the mother, who would routinely discipline
the younger children by striking them with a hand or a belt hard enough to leave
3
(Citation omitted.) In the Interest of S. C. S., 336 Ga. App. 236, 244-245 (784
SE2d 83) (2016), quoting In the Interest of A. B., 289 Ga. App. 655, 656 (1) (658
SE2d 205) (2008).
4
OCGA § 15-11-2 (2) (A), (B).
5
visible marks. The mother also frequently hit the children’s heads and slapped their
lips. As the trial court’s findings conclusively demonstrate, the physical discipline
imposed by the mother on her children was both unreasonable and excessive. The
child described the mother as “doing the most yelling.”
Despite her prior involvement with DFCS, the mother’s physically abusive
conduct persisted. On one occasion in March 2016, after the children had been
returned to the home most recently, the mother unreasonably and excessively
disciplined seven-year-old L. D. by slapping or spanking her bare skin multiple times
and beating her head against the wall.5 On another occasion after the return of the
children, the mother got into a physical fight with one of the children, rolling on the
floor and throwing punches: “[I]t was like an actual fight with . . . [the 11-year-old
child] and a grown woman.” Afterward, the mother “kind of bragg[ed] about it.”
Throughout the children’s time in the house, on regular occasions, the mother
would excessively discipline the children by forcing them to stand against a wall,
facing it, with their arms held out horizontally for long periods of time, at least once
5
Also during that time, L. D. had trouble with bathroom training linked to the
atmosphere in the home.
6
for “hours.” The mother also routinely yelled and cursed at the children if they failed
to daily clean the house to her standards, calling them “MF-er.”
Mental health professionals who interviewed the children reported that the
three older children suffered emotionally from the abusive environment maintained
at the home – the youngest was too young to participate in a mental health evaluation.
A clinical psychologist, Dr. Andy Anderson, who testified as an expert on parental
fitness, diagnosed the mother with a trauma-related personality disorder, and
explained that the mother did not acknowledge any excessive physical discipline or
neglect in the household. The mother lacked insight as to the cause of her chronic
involvement with DFCS. Based on his evaluation of the mother and father, Anderson
stated that he did not expect the mother to change her abusive conduct, despite
repeated involvement with DFCS, including mental health counseling and parenting
classes: “[Y]ou’d expect history to repeat itself to some degree. . . Short of
[acknowledging the problem,] you wouldn’t expect somebody to miraculously begin
their recovery.” He also explained that the instability and multiple placements in
foster care experienced by the children,
is not good for them and contributes to social, emotional, [and]
behavioral dysfunction. The reason for those – the length of time in this
7
case, I still hold the parents accountable for it because . . . on the
surface, at least, the concerns expressed about their parenting are not
that complicated from a social services perspective. It should have been
relatively easy to resolve, at least for [the mother]. . . And so if [the
mother] were making the argument that the reason that [a child’s]
behavior is so disordered is because she’s been in foster care, in and out,
I would say . . . well, the reason that she’s been in [and out of] foster
care . . . is because of your parenting.
This evidence, when viewed in the proper light on appeal,6 authorized the
juvenile court to find by clear and convincing evidence that the children were
deprived based on physical and emotional abuse.7 As noted above, a “dependent
child” is one who “has been abused or neglected and is in need of the protection of
the court.”8 The evidence showed that the children were subjected to physical abuse
as well as emotional abuse that caused the children emotional harm diagnosed by the
6
See In the Interest of S. C. S., 336 Ga. App. at 244-245.
7
See In the Interest of K. B., 302 Ga. App. 50, 53 (1) (690 SE2d 627) (2010)
(evidence that child suffered physical abuse while in her mother’s custody supported
juvenile court’s finding that child was deprived). See also In the Interest of S. P., 336
Ga. App. 488, 496 (784 SE2d 846) (2016) (physical precedent only) (“Many of the
principles expressed in decisions under our former Code are helpful in determining
whether dependency has been shown. . . .”).
8
OCGA § 15-11-2 (22).
8
examining psychologist. To the extent that the mother challenges the witness
descriptions of the abuse, particularly of the incident in which she banged L. D.’s
head against the wall, the credibility of the witnesses’ testimony was for the juvenile
court to resolve as the factfinder.9 Although no other child was present in the room,
a child was in the house nearby and testified about hearing the abuse as well as the
later account told to him by L. D.10 The juvenile court was not required to draw an
exculpatory inference from the evidence,11 especially in light of the other evidence
9
See In the Interest of T. B. R., 304 Ga. App. 773, 773 (697 SE2d 878) (2010)
(explaining that appellate courts “do not weigh the evidence or determine the
credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm
unless the appellate standard is not met.”).
10
This evidence was taken in an adjudication hearing. See OCGA § 15-11-181
(d) (With certain exceptions not relevant here, “the adjudication hearing shall be
conducted in accordance with Title 24.”). On appeal, the mother makes no challenge
to this testimony on hearsay grounds, so any hearsay challenge is deemed abandoned.
See Brown v. State, 295 Ga. 804, 814 (6) (764 SE2d 376) (2014); In the Interest of
G. Q., 328 Ga. App. 69, 77 (1) (c) (761 SE2d 490) (2014), citing Court of Appeals
Rule 25 (c) (2). See also Bradshaw v. State, 296 Ga. 650, 653 n.2 (769 SE2d 892)
(2015) (“Under our new Evidence Code, if ‘a party does not properly object to
hearsay, the objection shall be deemed waived, and the hearsay evidence shall be
legal evidence and admissible.’”), citing OCGA § 24-8-802.
11
See, e.g., In the Interest of J. S., 295 Ga. App. 861, 863 (673 SE2d 331)
(2009) (“[T]his Court neither weighs the evidence nor determines the credibility of
witnesses; rather, it defers to the trial court’s factfinding and affirms unless the
appellate standard has not been met.”).
9
of the mother’s abusive parenting in this case. Accordingly, this enumeration is
without merit.
2. The mother also contends that the juvenile court erred by allowing the GAL
to make objections and examine witnesses. “We review this decision de novo as it
involves the interpretation of a statute, which is a question of law.”12 Based on the
statutory and applicable law, this enumeration is without merit.
During the hearing, the children were represented by an attorney, and a GAL
(also an attorney) was also appointed to represent their best interests, due to an
apparent conflict of interest.13 At a certain point in the hearing, the GAL attempted
to make an objection on a hearsay ground. The juvenile court initially stated that the
GAL would not be allowed to assert objections or participate in examination of
witnesses, based on the court’s understanding that the GAL was essentially acting as
a lay resource to the court instead of as the children’s attorney. After a lengthy
colloquy, the juvenile court ultimately ruled that the GAL could make objections and
12
In the Interest of H. E. B., 303 Ga. App. 895, 896 (695 SE2d 332) (2010).
13
See OCGA § 15-11-104 (b) (“An attorney for an alleged dependent child
may serve as such child’s guardian ad litem unless or until there is conflict of interest
between the attorney’s duty to such child as such child’s attorney and the attorney’s
considered opinion of such child’s best interests as guardian ad litem.”).
10
examine witnesses, over the mother’s objection. The mother argues that this is
contrary to the statutory authority of the GAL.
As a general matter, OCGA § 15-11-104 (a) provides that, in dependency
proceedings, the juvenile “court shall appoint a guardian ad litem for an alleged
dependent child,” and OCGA § 15-11-105 (a) requires that “[a] guardian ad litem
shall advocate for a child’s best interests in the proceeding for which the guardian ad
litem has been appointed.”
Pertinent to the mother’s challenge, OCGA § 15-11-104 (e) provides that “[a]
lay guardian shall not engage in activities which could reasonably be construed as the
practice of law,” but it says nothing about limiting the role of a non-lay guardian. In
interpreting this statute, we must give effect to the use of the term “lay guardian” and
avoid rendering meaningless the term “lay.”14 Therefore, we conclude that the statute
creates a distinction between lay guardians and non-lay guardians, and it does not on
its face limit the conduct of the latter.15 Likewise, OCGA § 15-11-104 (e) does not
14
See In the Interest of K. S., __ Ga. __ (Case No. S17G1344, decided May 7,
2018), citing Slakman v. Continental Casualty Co., 277 Ga. 189, 190 (587 SE2d 24)
(2003) (explaining that, when interpreting a statute, a court must avoid “a
construction that makes some language mere surplusage”).
15
See Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013)
(“[W]e must afford the statutory text its plain and ordinary meaning, we must view
11
support the proposition that a non-lay GAL is authorized only to act as a lay witness
for purposes of reporting on the best interests of a child.16
This is consistent with the larger statutory context.17 OCGA § 15-11-103 (a)
provides that “[a] child and any other party to a proceeding under this article shall
have the right to an attorney at all stages of the proceedings under this article,” and
OCGA § 15-11-181 (b) (2) provides that a GAL “shall have the right to participate
in the adjudication hearing.” In light of this clear provision for the right to an attorney
and the right of a GAL to participate in dependency proceedings, we conclude that
the juvenile court did not err by allowing the non-lay GAL in this case to examine
witnesses and challenge certain evidence in the service of the children’s best interests.
As the GAL argued to the juvenile court, “If [the mother’s attorney] has the right to
the statutory text in the context in which it appears, . . . and we must read the statutory
text in its most natural and reasonable way, as an ordinary speaker of the English
language would.”) (citations and punctuation omitted).
16
We note that OCGA § 15-11-104 (d) provides that “[a] court shall appoint
a CASA to act as guardian ad litem whenever possible, and a CASA may be
appointed in addition to an attorney who is serving as a guardian ad litem.” (CASA
is an acronym for “court appointed special advocate,” which is defined as “a
community volunteer with certain training and court approval. OCGA § 15-11-2
(16).) Thus, the statutory scheme allows for the appointment of an attorney, a CASA,
and an attorney acting as a GAL, as was done in this case.
17
See Deal, 294 Ga. at 172-173 (1) (a).
12
object to evidence that comes in because it does not serve his client’s wishes, then I
should have the right to object to . . . evidence coming in because it doesn’t serve the
children’s best interests.”18
This outcome is also consistent with existing case law. For example, in In the
Interest of W. L. H.,19 the Supreme Court of Georgia addressed the standing of a
child’s attorney to appeal a finding of deprivation under the former Juvenile Code
against the wishes of the GAL. In finding a lack of standing, the Court explained that
“[t]he protector of a child’s best interests is his guardian ad litem. It has previously
been held that, when a court appoints a guardian ad litem to represent a minor, the
minor is in effect made a party to the action and has standing through the guardian ad
litem to appeal.”20 Thus, the non-lay GAL’s role is more than a mere fact witness, and
18
In at least one other context, a GAL has acted essentially as another party to
the litigation, representing the best interests of the child. In such a case, a GAL, on
its own, made motions in the lower court. See Pate v. Sadlock, __ Ga. App. __ (Case
Nos. A18A0395, A18A0396, A18A0397; decided May 3, 2018) (GAL moved for
modification of a temporary order and for “other clarification and direction regarding
certain matters concerning the children”).
19
292 Ga. 521 (739 SE2d 322) (2013).
20
(Footnote and punctuation omitted.) Id. at 524, quoting In the Interest of J.
F., 310 Ga. App. 807, 808 n.1 (714 SE2d 399) (2011).
13
limiting the non-lay GAL’s participation to that role would undermine the broad duty
undertaken by a GAL in service of a child’s best interests.
Finally, the mother points to no harm that arose from the GAL’s participation
in this case. She has identified no conflict between the GAL’s role reporting her
findings and her role taking part in examination of witnesses or occasional objection
to evidence, nor any improper influence on the process as a conflict attorney
representing the best interests of the children. “[T]he mother is required not only to
show error, but harm as well.”21 Accordingly, based on the record before us, this
enumeration presents no basis for reversal.
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.
21
In the Interest of D. R., 298 Ga. App. 774, 779 (681 SE2d 218) (2009), citing
OCGA § 9-11-61 and overruled on other grounds by In the Interest of A. C., 285 Ga.
829, 833 (1), n. 3 (686 SE2d 635) (2009). See also In the Interest of E. G. M., 341 Ga.
App. 33, 62 (6) (789 SE2d 639) (2017).
14