In re Interest of R. D.

346 Ga.App. 257

816 S.E.2d 132

IN the INTEREST OF R. D. et al., children.

A18A0373

Court of Appeals of Georgia.

June 13, 2018

Christopher Daniel Piner, for Appellant.

Calandra Almond Harps, Christopher Michael Carr, Shalen S. Nelson, Atlanta, Lee R. Moss, for Appellee.

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 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 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 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 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 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 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 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 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 of the mother's abusive...