In the Interest of H. B., Children

SECOND DIVISION
MILLER, P. J.,
ANDREWS and BROWN, JJ.
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 8, 2018
In the Court of Appeals of Georgia
A18A0257. IN THE INTEREST OF H. B. et al., CHILDREN.
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 SE2d
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
2
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
3
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 SE2d 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
1
Before 2014, the Juvenile Code authorized a juvenile court to award DFCS
custody of any minor child shown to be “deprived,” rather than “dependent.” In the
Interest of S. C. S., 336 Ga. App. 236, 244, n. 4 (784 SE2d 83) (2016). “Given the
similarities between the definition of a ‘deprived child’ and that of a ‘dependent
child,’ . . . our previous decisions addressing the deprivation of a child are relevant
to appeals involving the dependency of a child.” Id.; compare OCGA § 15-11-2 (8)
(2013) (defining “deprived child” under the prior Juvenile Code), with OCGA
§ 15-11-2 (22) & (48) (2017) (defining “dependent child” and “neglect” under the
current Juvenile Code).
4
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 SE2d 119) (2015); In the Interest of
T. H., 319 Ga. App. 216, 219 (735 SE2d 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
SE2d 293) (2013); In the Interest of C. D. E., 248 Ga. App. 756, 761 (1) (546 SE2d
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 SE2d 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 SE2d 143) (1992).
5
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 SE2d 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 SE2d 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 SE2d 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
6
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
2
Before the current Evidence Code became effective in 2013, see Ga. L. 2011,
pp. 99, 214, § 101, hearsay had no probative value, even if no contemporaneous
objection was raised to its admission. See In the Interest of A. T., 309 Ga. App. 822,
826 (1) (711 SE2d 382) (2011). Under the current Evidence Code, however, “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.” OCGA § 24-8-802.
7
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
8
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 the father provided only limited documents for him
to review and the court’s finding that “the testing [was] based on [the father’s]
attempt to show that he is not sexually attract[ed] to children.”
The juvenile court also recounted several past sexual misconduct allegations,
apparently to address the parents’ assertions that prior court orders were “res
judicata” as to those allegations. See Division 2, infra. In 2010, allegations were made
that the father was showering with his two now-adult daughters – who were
approximately ages eleven and thirteen at the time – “and that he tried to put his
‘thing’ in their mouths.” Due to these allegations, the two older daughters were
placed in foster care for a period of time. Although one of the older daughters
9
testified at the dependency hearing that these allegations were false, the juvenile court
implicitly discredited this testimony, which the court described as “disturbing” in
light of the father’s claim that he did not have a relationship with his adult daughters.
The court also found that the adult daughter who testified had not been in the parents’
home in over four years, had never met the youngest child, Han. B., and had not
spoken to her father for several years before being asked to testify.
Additional allegations were made in 2012 after the father initiated divorce
proceedings. In her answer and counterclaim to the 2012 divorce petition, the mother
alleged that the father had been showering with his daughters and improperly
touching L. B., who would have been six years old at the time. Approximately six
months later, proceedings involving DFCS in Cherokee County resulted in a court
order directing Hai. B. and L. B. to be placed in shelter care on the ground that L. B.
had alleged sexual abuse by her father. The juvenile court in that case ultimately
found, based on the parents’ stipulation, that the children were deprived3 due to
“inappropriate verbal discipline” and required the family to participate in various
types of counseling. The court also entered a six-month protective order requiring the
3
The 2012 Cherokee County case arose under the old Juvenile Code. See note
1, supra.
10
mother to ensure that there was no unsupervised contact between the children and the
father and prohibiting the mother from allowing the father to stay in the home
overnight absent DFCS permission.
In 2013, allegations were made that the father was rubbing baby oil on L. B.’s
genitals. At the time, L. B. would have been seven years old. In 2014, a referral was
made after one or more persons reported that L. B., who would have been eight or
nine years old at the time, was “habitually touching her genitals in class.” The
juvenile court noted that the parents had provided no documents regarding the
outcome of these allegations, notwithstanding their attorney’s assertion that the issue
had been “resolved by prior court order.” Consequently, the court stated that it was
“unaware of the outcome” of the 2013 and 2014 allegations and that it presumed that
no court order existed determining “whether or not [these instances] of sexual abuse
occurred.”
Absent a transcript, there is no basis in the record to call into question the
juvenile court’s findings that followed from the testimony presented at the
dependency hearing. See Blue, 279 Ga. at 550. The court was entitled to credit the
testimony of K. M. and her mother, the detective, and T. L., and to determine that the
children are dependent due to sexual touching during showers with their father.
11
Adequate evidence also exists to establish that the mother failed to protect her
children from the misconduct. See In the Interest of C. A. J., 331 Ga. App. 788, 791
(1) (771 SE2d 457) (2015) (affirming a deprivation determination on grounds that,
inter alia, the mother knowingly had failed to protect her child from sexual abuse by
her husband); In the Interest of S. B., 312 Ga. App. 180, 183-184 (1) (718 SE2d 49)
(2011) (affirming a deprivation determination as to all four of the parents’ children
on grounds that the father had molested two of them and the mother had done nothing
to stop the abuse despite knowing of it). We therefore affirm the juvenile court’s
ruling that the children currently are dependent.
2. The parents also contend that the juvenile court improperly took judicial
notice of certain filings made in this case and in prior court proceedings. In making
the findings discussed above, the juvenile court explicitly considered allegations
made in filings in a 2010 superior court case, a 2011 juvenile court case, a 2012
divorce case, and a 2012 juvenile court case. The parents’ claim that the court
improperly took judicial notice of these filings is flatly refuted by the dependency
order, in which the court explicitly stated that each of these filings was tendered into
evidence in the current case without objection.
12
To the extent that the parents claim that the juvenile court improperly
considered allegations not included in any of the above filings, absent a transcript, we
presume that the testimony presented at the dependency hearing supported any such
findings. See Blue, 279 Ga. at 550 (1); Maree, 274 Ga. at 370 (2); In the Interest of
M. S. S., 308 Ga. App. at 619 (1) (b). Notwithstanding the parents’ suggestion to the
contrary, the juvenile court did not treat any of the prior allegations as if they had
been proven. Instead, it summarized the extended history of recurring allegations,
which the father confirmed had been made against him. The court then rejected the
parents’ claim that the prior proceedings were “res judicata” based upon its
conclusion that “there has never been a court order that states [that the father] did or
did not shower[] with” or “commit sexual acts with his female children.” (Emphasis
omitted.) A review of the juvenile court’s order as a whole shows that its finding of
dependency rested upon L. B.’s statements at school and “testimony that supported
the likelihood that the events occurred and the eye witness testimony provided” at the
hearing. (Emphasis supplied.) It did not rest upon allegations in documents admitted
without objection to support the parents’ res judicata arguments. We discern no error
in this regard.
13
3. The parents also contend that the juvenile court misrepresented various facts
in its Order of Adjudication and Disposition. We address each alleged discrepancy
in turn.
(a) The parents maintain that the juvenile court misrepresented the number of
prior misconduct allegations. In particular, the parents challenge the court’s statement
that prior sexual abuse allegations had been made against the father “beginning when
his now 19 and 20 year old daughters were younger, and again in 2010, 2012, and
2013 as to the three children that are before this Court.” We agree that, (a) standing
alone, this statement suggests that allegations involving the father’s now-adult
children predated 2010 and that allegations against Hai. B., L. B., and Han. B. were
made in 2010, and (b) both propositions conflict with the court’s specific findings as
to prior allegations. Nevertheless, when viewed in context with the entire dependency
order, it is apparent that, in its analysis of each prior allegation, the juvenile court
properly considered each allegation only once. Consequently, this isolated
discrepancy does not rise to the level of reversible error.4 See In the Interest of C. B.,
308 Ga. App. 158, 159 (2), n. 4 (706 SE2d 752) (2011) (appellant must show harm
4
The parents have identified no record evidence supporting their passing,
conclusory suggestion that the juvenile court “was obviously aware” that two sets of
2012 allegations arose out of the same circumstances.
14
as well as error to prevail on appeal; to be reversible, error must be harmful).
Similarly, the parents’ claim that the juvenile court mischaracterized as “sexual
abuse” a 2014 report that L. B. had been touching herself in class likewise provides
no basis for reversal, as the court did not rely upon this particular evidence to support
its finding of dependency. Its decision rather rested on L. B.’s statements at school
and the hearing testimony “that supported the likelihood that the events occurred.”
The court took great pains throughout its order to note that no court orders had
resolved the prior sexual abuse allegations. See id.(b) The parents assert, without elaboration, that the juvenile court
mischaracterized T. L.’s testimony about the family’s 2009 visit to her home as “an
eye witness account of [the father’s] intent to shower with [L. B.]” Given T. L.’s
testimony, as described above, this was a permissible inference on the part of the
juvenile court.
(c) The parents contend that the juvenile court mischaracterized K. M.’s
testimony as describing L. B.’s “outcry” – which, the parents claim, means a “loud
cry or vehement protest” – because L. B. and Han. B. “denied [K. M.]’s statement in
multiple forensic interviews.” As used in the context of this case, however, the term
“outcry” denotes a report made by a child identifying potential sexual or physical
15
misconduct. See, e.g., In the Interest of C. A. J., 331 Ga. App. at 789-791 (1); In the
Interest of S. B., 312 Ga. App. at 181-182; In the Interest of R. J. M., 295 Ga. App.
886, 887, 890 (1) (673 SE2d 527) (2009). L. B.’s subsequent, contradictory
statements have no bearing on the court’s characterization of her earlier statement as
an outcry. We discern no error in this regard.
(d) The parents maintain that the juvenile court misrepresented the detective’s
testimony that he believed the children had been coached before their forensic
interviews when the court found that, but for the parents’ interference, L. B. and
Han. B. “would have been able to tell the truth about what is actually going on in
[their] home.” In light of the totality of the evidence discussed above, this also was
a permissible inference by the court.
(e) The parents assert that the juvenile court misrepresented the record by
implying that the father previously had been found guilty of assault. In the
dependency order, the court stated, in relevant part, “In 2011, the father was arrested
for making terroristic threats against the mother and that [sic] he assaulted her. (The
father was found not guilty on the terroristic threats case [sic].)” Absent a transcript,
we presume that the evidence supports the court’s findings in this regard. See Blue,
16
279 Ga. at 550 (1); Maree, 274 Ga. at 370 (2); In the Interest of M. S. S., 308 Ga.
App. at 619 (1) (b).
4. The parents further contend that the juvenile court abused its discretion by
admitting T. L.’s “irrelevant” testimony. Given the similarities between T. L.’s
account and the current allegations, however, it was well within the court’s discretion
to admit her testimony. See In the Interest of A. R., 296 Ga. App. 62, 63 (2) (a) (673
SE2d 586) (2009) (we review a trial court’s decision to admit or exclude evidence for
abuse of discretion). Although the parents highlight that T. L. described events that
preceded the current allegations by several years, this challenge implicates the weight
of the evidence, rather than its admissibility. See Jones v. Chatham County Bd. of Tax
Assessors, 270 Ga. App. 483, 486 (3) & n. 8 (606 SE2d 673) (2004); In the Interest
of D. S. R., 246 Ga. App. 426, 427 (2) (541 SE2d 61) (2000). The challenged
testimony is relevant to show that the current allegations are consistent with an
ongoing pattern of circumstances supporting the juvenile court’s ultimate conclusion
that the children’s welfare currently is at risk.
5. The parents contend that their children were denied the right to legal counsel
during the May 15, 2017 preliminary protective hearing and that a conflict of interest
required their children’s appointed attorney to seek to be removed as their guardian
17
ad litem. See OCGA §§ 15-11-103 (a)-(c); 15-11-104 (b), (h). The State responds that
the parents lack standing to raise these claims on behalf of their children.
(a) As to the alleged denial of counsel during the May 15 hearing, we agree
with the State. Pretermitting whether the children’s attorney was acting as such during
the May 15 hearing, we presume that, given her May 15 appointment, she represented
the children during the dependency hearing, and nothing in the record suggests that
she has since been relieved of that representation. See OCGA § 15-11-103 (e) (“An
attorney appointed to represent a child in a dependency proceeding shall continue the
representation in any subsequent appeals unless excused by the court.”). Because the
children remain represented, standing to raise any claims on their behalf rests with the
children, and not with the parents.5 See In the Interest of W. L. H., 292 Ga. 521, 524
(739 SE2d 322) (2013) (“[W]hen 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.”) (citation, punctuation, and emphasis omitted); accord
In the Interest of R. L., 321 Ga. App. 837, 838-839 (1) (743 SE2d 502) (2013); In the
Interest of J. C. W., 318 Ga. App. 772, 779-780 (1) (734 SE2d 781) (2012).
5
The children have not filed any briefs in this appeal.
18
(b) Even if we assume, without deciding, that the parents have standing to
assert a claim that the children’s attorney labored under a conflict of interest, the
absence of a transcript of the dependency hearing precludes us from determining
whether any conflict significantly affected the attorney’s performance. Cf. State v.
Abernathy, 289 Ga. 603, 604-605 (1) (715 SE2d 48) (2011) (defendant asserting
ineffective assistance of counsel must demonstrate that conflict of interest
“significantly affected counsel’s performance”) (citations and punctuation omitted).
The parents’ reliance on a July 2017 guardian ad litem report is misplaced, as that
report post-dated the dependency ruling and thus has no bearing on the ruling at issue
in this appeal.
6. The parents also challenge the juvenile court’s initial Dependency Removal
Order (“DRO”), which was issued on the same day the complaint was presented in
this case. The DRO recounted the current allegations, as well as several of the prior
allegations discussed above, and ordered DFCS to take temporary custody of the
children on the ground that remaining at home would be contrary to their welfare.
According to the parents, the children’s removal was unwarranted at this stage of the
proceedings because the father had moved out of the house by then.
19
The State’s claim that the parents’ failure to designate a hearing transcript for
inclusion in the record on appeal precludes review of this contention is misplaced, as
the record contains no indication that a hearing was held before the DRO’s issuance.
See OCGA § 15-11-132 (a) (“The facts supporting the issuance of an order of
removal may be relayed orally, including telephonically, . . . and the order directing
that a child be taken into custody may be issued orally or electronically.”). As to the
merits of the parents’ claim, however, they have pointed to nothing in the record
indicating that it was brought to the juvenile court’s attention before the DRO’s
issuance that the father had moved out of the house. Consequently, the parents cannot
show error by the court in failing to take that factor into consideration. See In the
Interest of S. M., 333 Ga. App. 326, 329 (1) (775 SE2d 782) (2015) (“The burden is
on him who asserts error to show it affirmatively by the record . . . .”) (punctuation
and footnote omitted); Capital Land USA, Inc. v. Mitsubishi Motors Credit of
America, Inc., 308 Ga. App. 71, 73-74 (3) (706 SE2d 590) (2011) (this Court will not
consider arguments raised for the first time on appeal).
7. Relying upon OCGA § 15-11-134 (c), the parents contend that the DRO is
“void ab initio” because it does not include individualized findings as to each child’s
dependency or as to misconduct by the mother. According to the parents, the absence
20
of such findings deprived the juvenile court of jurisdiction to order the children’s
removal in the DRO. We discern no error.
“As a general rule, a juvenile court is a court of special and limited jurisdiction,
and a juvenile court’s judgment must show on its face such facts as are necessary to
give the court jurisdiction of the person and subject matter. If the order of a juvenile
court fails to recite the jurisdictional facts, the judgment is void.” (Citation and
punctuation omitted.) In the Interest of B. H.-W., 332 Ga. App. 269, 270 (1) (772
SE2d 66) (2015).
Jurisdiction of the subject-matter does not mean simply jurisdiction of
the particular case then occupying the attention of the court, but
jurisdiction of the class of cases to which that particular case belongs.
As applied to the subject-matter of a suit, jurisdiction is always
conferred by law. . . . [I]f the pleadings state a case belonging to a
general class over which the authority of the court extends, then
jurisdiction attaches and the court has power to hear and determine the
issues involved.
(Citation and punctuation omitted; emphasis in original.) Nicholson v. State, 261 Ga.
197, 199 (4) (403 SE2d 42) (1991). A juvenile court thus has the power to hear and
determine the issues involved in a case in which present dependency of a child is
alleged. See Lewis v. Winzenreid, 263 Ga. 459, 460-461 (435 SE2d 602) (1993).
21
The complaint in this case alleged, in relevant part, that: (i) a report had been
made that the father had been taking showers with his youngest two daughters and
forcing them to perform oral sex on him; (ii) there is a history of sexual assault
allegations having been made against the father; (iii) the family also has a history of
domestic violence; (iv) the parents had demonstrated an inability to provide for the
children in a safe and stable manner; and (v) the children “are without proper parental
care or control as required by law and necessary for their physical, mental[,] and
emotional health.” These allegations were sufficient to identify this case as one in
which the present dependency of the children is at issue. See Lewis, 263 Ga. at 460-
461; see also OCGA §§ 15-11-2 (22) (A), (48) (A); 15-11-311 (a) (4).
The DRO identified each of the children by name and date of birth and recited
the same factual allegations that were included in the complaint, as identified above.
Although it would have been better for the body of the DRO to have explicitly stated
that the children were alleged to be “dependent,” the factual allegations in the DRO
were at least minimally sufficient to show that this case concerns whether the children
presently are “in need of the protection of the court” due to “abuse[] or neglect[].” See
OCGA § 15-11-2 (22) (A). When viewed in conjunction with the caption of the order,
which identifies it as a “Dependency Removal Order,” these factual allegations
22
sufficiently show that this case belongs to a class of cases over which the juvenile
court has subject matter jurisdiction.6 See OCGA § 15-11-10 (1) (C); In the Interest
of B. H.-W., 332 Ga. App. at 270-271 (1) (a juvenile court’s custody order showed on
its face the necessary jurisdictional facts by, in relevant part, identifying the child and
the general subject matter of the proceedings); In the Interest of M. L. C., 249 Ga.
App. 435, 436 (1) (548 SE2d 137) (2001) (the juvenile court’s deprivation order
sufficiently recited the necessary jurisdictional facts by “reflect[ing] on its face that
it was addressing the alleged deprivation of M. L. C.”); compare In re Tidwell, 279
Ga. App. 734, 738-739 (1) (a) (632 SE2d 690) (2006) (a juvenile court order
containing no indication that the deprivation of a child with regard to her custodial
parent had yet been placed in issue was void insofar as it purported to rule on that
issue).
The parents have not cited, and we are not aware of, any authority supporting
their contention that more particularized findings as to each child or parent were
required in the DRO to establish the juvenile court’s jurisdiction over this general
6
To the extent that the parents claim that the DRO failed to establish personal
jurisdiction, “this is an issue that can be waived, and because the [parents have] not
shown that [they] raised the matter below, we deem it waived on appeal.” In the
Interest of M. L. C., 249 Ga. App. 435, 436 (548 SE2d 137) (2001).
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class of case. To the contrary, OCGA § 15-11-134 (c), on which the parents primarily
rely, governs the findings required to justify removal. It imposes no requirements
related to a court’s jurisdiction to address the issue in the first instance. See Lewis,
263 Ga. at 460-461. Consequently, we find no merit in the parents’ claim that the
DRO is void on its face.
8. Finally, the parents contend that the juvenile court erred by failing to
conduct a dispositional hearing. This contention is flatly contradicted several times
in the record.
First, following the preliminary protective hearing, the juvenile court ordered
an “Adjudication and Disposition hearing” to be held two weeks later. In the order,
the court also barred the father from visiting his children “pending the Adjudication
and Disposition hearing.” The hearing notice issued by DFCS and served on the
parents’ counsel similarly designated the hearing as an “Adjudicatory and
Dispositional Hearing.” When the parties failed to complete the hearing in one day,
the court entered an “Order Continuing Adjudication and Disposition Hearing,” in
which it scheduled a “second day of a specially set Adjudication and Disposition
Hearing” two weeks after the first day of the hearing. Finally, in its Order of
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Adjudication and Disposition, the court observed that “[t]he Adjudication and
Dispositional trial” lasted two days.
To the extent that the parents claim that a dispositional hearing separate from
the adjudicatory hearing was required, any such claim is refuted by OCGA § 15-11-
210 (a), which explicitly contemplates a dispositional hearing “held in conjunction
with an adjudication hearing.” Consequently, this enumeration of error is meritless.
9. Given our conclusion that the juvenile court did not err when it found the
children dependent based on issues related to sexual misconduct, we do not address
the parents’ challenge to the additional finding of dependency premised on domestic
violence. See In the Interest of N. H., 297 Ga. App. 344, 345 (1), n. 1 (677 SE2d 399)
(2009). For each of the above reasons, we affirm the judgment of the juvenile court.
Judgment affirmed. Miller, P. J., and Andrews, J., concur.
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